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HomeMy WebLinkAboutFranklin County Softball Ground Lease 1994GROUND LEASE BETWEEN FRANKLIN COUNTY, a Municipal Corporation of the State of Washington 0Ui7 CITY OF PASCO, a Municipal Corporation of the State of Washington Dated as of -M,+v i,+y '�y 1 �- f y Perkins Coie North 221 Wall Street, Suite 600 Spokane, Washington 99201 (509) 624-2212 (17371-0006/KA932980.0281 ARTICLE VI - LANDLORD'S REPRESENTATIVE AND NOTICES.. 16 Section 6.1 Designation of Landlord's Representative ............................ 16 ARTICLE VII - PAYMENT OF TAXES, ASSESSMENTS, ETC.... 17 Section 7.1 Tenant's Obligations............ 17 Section 7.2 Contesting Impositions.......... 18 ARTICLE VIII - SURRENDER ............................ 19 Section 8.1 Surrender of the Premises....... 19 Section 8.2 Removal of Personal Property or Fixtures . ................................ 19 Section 8.3 Rights to Personal Property After Termination or Surrender............ 20 Section 8.4 Survival ........................ 20 [17371-0006/KA932980.0281 TABLE OF CONTENTS ARTICLE I - LEASE AND TERM .......................... 3 Section 1.1 Lease of Premises ............... 3 Section 1.2 Term of Lease ................... 4 Section 1.3 Modification of Premises........ 4 Section 1.4 Termination ..................... 5 Section 1.5 Contingencies ................... 6 ARTICLE II - DEFINITIONS ............................ 6 Section 2.1 Lease Definitions ................. 6 ARTICLE III - RENT ................................ 11 Section 3.1 Rent .............................. 11 ARTICLE IV - IMPROVEMENTS ........................... 11 Section 4.1 Sportsfield ..................... 11 Section 4.2 Utilities ....................... 11 Section 4.3 Ownership of Improvements Upon Premises . ................................ 13 ARTICLE V - PURCHASE OPTIONS ........................ 13 Section 5.1 Right of First Refusal.......... 13 Section 5.2 Option to Purchase .............. 14 ARTICLE VI - LANDLORD'S REPRESENTATIVE AND NOTICES.. 16 Section 6.1 Designation of Landlord's Representative ............................ 16 ARTICLE VII - PAYMENT OF TAXES, ASSESSMENTS, ETC.... 17 Section 7.1 Tenant's Obligations............ 17 Section 7.2 Contesting Impositions.......... 18 ARTICLE VIII - SURRENDER ............................ 19 Section 8.1 Surrender of the Premises....... 19 Section 8.2 Removal of Personal Property or Fixtures . ................................ 19 Section 8.3 Rights to Personal Property After Termination or Surrender............ 20 Section 8.4 Survival ........................ 20 [17371-0006/KA932980.0281 ARTICLE IX - USE OF PREMISES ........................ 21 Section 9.1 Use of the Premises ............. 21 Section 9.2 Hazardous or Dangerous Substances ................................ 22 Section 9.3 Entry on Premises by Landlord... 23 ARTICLE X - OPERATION ............................... 23 Section 10.1 Control of the Premises......... 23 Section 10.2 Non -Interference ................ 23 ARTICLE XI - REPAIRS AND MAINTENANCE OF THE PREMISES 25 Section 11.1 Tenant Repairs and Maintenance.. 25 ARTICLE XII - COMPLIANCE WITH LAWS AND ORDINANCES... 26 Section 12.1 Compliance by Tenant............ 26 Section 12.2 Contest by Tenant ................ 26 ARTICLE XIII - DISCHARGE OF OBLIGATIONS ............. 27 Section 13.1 Tenant's Duty ................... 27 ARTICLE XIV - INSURANCE ............................. 27 Section 14.1 Insurance During Entire Term of Lease. ................................ 27 Section 14.2 Insurance Policies .............. 28 ARTICLE XV - LIABILITY .............................. 30 Section 15.1 Indemnification of Landlord..... 30 Section 15.2 Indemnification of Tenant....... 30 Section 15.3 Workman's Compensation - Contractors ............................... 31 ARTICLE XVI - DAMAGE AND DESTRUCTION ................ 31 Section 16.1 Tenant's Duty to Restore........ 31 Section 16.2 Abatement of Rent ............... 32 ARTICLE XVII - RIGHT TO MORTGAGE, SELL, ASSIGN OR OTHER TRANSFER OF LEASE ........................ 33 Section 17.1 Right to Transfer Leasehold..... 33 ARTICLE XVIII - CONDEMNATION ........................ 33 Section 18.1 Condemnation .................... 33 ARTICLE XIX - DEFAULT ............................... 35 Section 19.1 Event of Default of Tenant...... 35 1173 714006/KA932980.0281 Section 19.2 Failure to Cure Default by Tenant. ................................ 35 Section 19.3 Surrender of Premises........... 37 Section 19.4 Rights of Landlord After 42 Termination ............................... 37 Section 19.5 No Waiver by Landlord........... 37 Section 19.6 Events of Default of Landlord... 38 Section 19.7 Failure to Cure Default by 21.6 Landlord . ................................ 39 Section 19.8 No Waiver by Tenant ............. 40 ARTICLE XX - CERTIFICATES BY LANDLORD AND TENANT.... 40 Section 20.1 Tenant Certificates ............. 40 ARTICLE XXI - CONSTRUCTION OF TERMS AND MISCELLANEOUS ................................ 41 Section 21.1 Captions ......................... 41 Section 21.2 Recording ....................... 42 Section 21.3 Construction .................... 42 Section 21.4 Entire Agreement ................ 42 Section 21.5 Successors and Assigns.......... 43 Section 21.6 Holidays ........................ 43 Section 21.7 Protest Payments ................ 43 Section 21.8 Notices ......................... 44 Section 21.9 Survival of Representations and Warranties................................ 45 Section 21.10 Incorporation by Reference...... 45 Section 21.11 Governing Law ................... 45 Section 21.12 Execution in Counterparts....... 46 Section 21.13 Execution ....................... 46 Section 21.14 Waiver .......................... 46 Section 21.15 Holdover Tenant ................. 46 Section 21.16 Exculpation ..................... 47 Section 21.17 Calendar Days ................... 48 Section 21.18 Attachment of Exhibits.......... 48 Section 21.19 Legal Expenses .................. 48 ARTICLE XXII - REPRESENTATIONS AND WARRANTIES....... 48 Section 22.1 Landlord's Representations...... 48 Section 22.2 Tenant's Representations and Warranties ................................ 49 [ 173 71-0006/KA9329 80.028 GROUND LEASE THIS GROUND LEASE (the "Lease"), dated as of the aC> M day of 1994, made by and between FRANKLIN COUNTY, a Washington municipal corporation (hereinafter "County or Landlord"), and the CITY OF PASCO, a Washington municipal corporation (hereinafter "City or Tenant"), (collectively the "Parties"). RECITALS WHEREAS, the Parties have concurrently with this Lease entered into an Interlocal Agreement for the design, construction, and operation of a trade, recreation, and agricultural center ("TRACI') on a portion of the County's property; WHEREAS, the City seeks to construct and operate Sportsfields for soccer, baseball, and other recreational facilities; WHEREAS, the County is the owner of certain real properties situated in Franklin County, Washington, and more particularly described in Exhibit "A" (the "Property"). The Property was assembled for the development of TRAC; WHEREAS, the County has determined that the immediate needs of the proposed TRAC facilities and other developments it is anticipating will not require immediate use of some of the property; [17371-0006/KA932980.0281 -1- WHEREAS, the City has proposed to construct and operate the Sportsfields on the County's property, and, therefore, the City desires to lease, for valuable consideration, from the County a portion of the Property; WHEREAS, the County believes that the City's Improvement will benefit the residents of the incorporated and unincorporated portions of the County; WHEREAS, the County believes the development of the recreational complex by the City will enhance the public use of the County's property; WHEREAS, the County has identified approximately 31 acres (the "Premises") that it is willing to lease to the City for the City's proposed uses; WHEREAS, the Parties wish to agree on the terms of the Lease and the general location of the property available for the City's use recognizing that design and development of TRAC and other related facilities will have priority in location and use of the County's Property; WHEREAS, the Parties intend by this instrument to set forth their mutual agreement and undertakings for the lease of the premises; and WHEREAS, the Board of County Commissioners hereby finds and determines that it is in the best interests of the County [17371-00WKA932980.0281 -2- and the taxpayers thereof to enter into this Lease upon the terms and conditions specified herein; NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: ARTICLE I - LEASE AND TERM Section 1.1 Lease of Premises. Landlord hereby leases to Tenant the Premises for development of Sportsfields in the southeast quadrant of the Property in the attached illustration: a final legal description will be affixed as Exhibit "B" by the County that will conform to the illustration encompassing 31 acres more or less, and once affixed it shall not be changed without the mutual, written agreement of the Parties, except as provided hereinafter for modification of the Premises in whole or in part. The description is subject also to: (1) such state of facts as may appear upon an accurate survey; (2) applicable zoning and building ordinances and regulations; (3) any other recorded or unrecorded restrictions, reservations, or encumbrances; (4) the undivided interest the County shares in the well that is appurtenant to the Premises; and (5) all terms and conditions of this Lease. [17371-0006/KA932980.0281 -3- Section 1.2 Term of Lease. This Lease shall commence as of the date the election is certified ("Commencement Date") and shall continue for twenty (20) years from the date of substantial completion of the Improvements. The Parties may extend the Lease by mutual, written agreement for consecutive renewal periods ("Periods") of five (5) years each, the first Period commencing upon the expiration of the twenty (20) year term and the second Period commencing upon the expiration of the first Period, and so forth. The terms and conditions of the Lease for each renewal Period shall be established pursuant to this Lease. Section 1.3 Modification of Premises. The Tenant's right to occupy the Premises shall be subject to the County's determination that all or a part of the Premises is required to expand and/or support the future development, construction, or operation of the TRAC Facility. The City agrees that it will design its Sportsfields to permit the County to modify the Premises with minimal impact to the City's Improvements. The City agrees that it will obtain the County's written approval of the installation of its Improvements. In the event the County determines all or a portion of the Premises are required for the TRAC Facility, or alternatively for the County, the County agrees to pay if the purpose of the termination is for the County's purpose or it [I 7371-0006/KA932980.0281 -4- agrees to pay for the benefit of the TRAC Facility the undepreciated cost of the Improvements made by the City for any Improvements not removed by the City. The County shall pay the City the remaining undepreciated cost of any Improvement if the Lease is terminated by the County prior to expiration as hereinafter provided. Where a partial termination of the Premises occurs, the County will pay the City (from County funds or TRAC funds, as applicable) for the remaining undepreciated cost of the Improvement on the portion of the Premises that is removed from the Lease, provided termination shall not leave any unusable portion of a Sportsfield. Depreciation of Improvements shall be by straight line method amortized over twenty (20) years. Nothing herein shall limit the mutual agreement of a lesser term for depreciating Improvements made in the future. Any modification to the City's facilities to make the facilities usable by TRAC after modification of the Lease shall be paid by TRAC. The City may terminate the Lease at anytime upon thirty (30) days written notice. Any Improvements left on the Premises ninety (90) days after the City's termination shall be deemed abandoned. Section 1.4 Termination. The County may terminate the Lease anytime within the original term or renewal period upon two-year written notice to the City if the County determines all or any portion of the [17371-0006/KA932980.0281 -5- Premises is required to serve the TRAC Facility or ancillary purposes. In the event the County determines less than the whole Premises is required and the City consents to the continued use of the remainder, the description of the Premises shall be modified. Section 1.5 Contingencies. The Parties agree this Lease may be terminated upon the happening of the following events and Notice of termination by the party designated to exercise the contingency: (a) Defeat of the unlimited tax general obligations bond proposition at the election on February 8, 1994 (the County or City). (b) Failure of Tieg (the property owner of a one- half interest in the irrigation well) to grant the City use of Tieg's interest in the irrigation well (the City only). (c) Failure of the County to approve the Improvements (the City only). ARTICLE II - DEFINITIONS Section 2.1 Lease Definitions. For purposes of this Lease, and any agreements supplemental hereto, the terms defined in this Article, except [17371-0006/KA932990.0281 -6- as herein otherwise expressly provided, shall have the following meanings: (a) Appurtenances - shall mean all right, title, and interest of Landlord in and to strips, easements, rights of way, privileges, appurtenances, and rights to the same belonging to and inuring to the benefit of the Property, including reversionary interests for vacation of rights of way; and all right, title, and interest, if any, of Landlord in and to (i) any land lying in the bed of any street, road, or avenue opened or proposed in front of or adjoining the Property; (ii) any award or payment made, or to be made: (1) for any taking in condemnation, eminent domain, or agreement in lieu thereof of land adjoining all or any part of the Property; (2) for damage to the Property or any part thereof by reason of change of grade or closing of any such street, road, highway, or avenue; and (3) for any taking in condemnation or eminent domain of any part of the Property; and (iii) all licenses, franchises, permits, and contracts. (b) Sportsfields - shall mean the City soccer, baseball, and other appurtenant facilities and concessions to be built on the Premises at the sole cost of the City. (c) Event(s) of Default - shall be as defined in Article XIX herein. (d) Governmental Authorities - shall mean any board, bureau, commission, department, or body of any municipal, [17371-O"IKA932980.0281 -7- county, state, or federal governmental or quasi -governmental unit, or any subdivision thereof, having, asserting, or acquiring jurisdiction over the Property or the management, operation, use, or improvement thereof. (e) Impositions - shall mean all taxes, special assessments, water and sewer rents, rates and charges, and all other charges of any Governmental Authority and assessments levied or assessed with respect to the occupancy of the Premises by the Tenant. (f) Improvements - shall mean the acquisition and construction of Improvements to the Sportsfields, including the extension of utilities from the TRAC Facility to the Sportsfields. Improvements shall not include repair and maintenance. (g) Landlord - shall mean, on the execution date of this Lease, FRANKLIN COUNTY. (h) Law(s) and Ordinance(s) - shall mean all present and future applicable laws, ordinances, rules, regulations, resolutions, permits, authorizations, orders and requirements of all federal, state, county and municipal governments, the departments, bureaus or commissions thereof, authorities, boards or officers, any national or local board of fire underwriters, or any other body or bodies exercising similar functions having or acquiring jurisdiction over all or any part of the Premises. (173 7 1 -O"IKA932980.0281 -8- (i) Lease - shall mean this Lease and all amendments, supplements, or extensions thereof. (j) Rent - shall be as defined in Article III herein. (k) Mortgage - shall mean a mortgage, deed of trust, or other security agreement, such as, without limitation, security deeds and conditional deeds, as well as financing statements, security agreements and all other documentation required pursuant to the Uniform Commercial Code, as adopted by the State of Washington. (1) Mortgagee - shall mean a holder of the indebtedness secured by a mortgage, the beneficiary under a deed of trust, or the secured party under a Uniform Commercial Code security agreement. (m) Notice - shall mean written notice delivered in accordance with Section 21.8. (n) Permit - shall mean any permit to be issued by the appropriate agency or person, including but not limited to, applicable permits for construction, demolition, installation, alteration, or repair of sanitary plumbing, water supply, gas supply, electrical wiring or equipment, skywalk, escalator, elevator or hoist, HVAC, and the like. (o) Premises - shall mean the leasehold interest in real property to be affixed as Exhibit "B" by the County in accordance with Article I. (173714006/KA932980.0281 -9- (p) Property - shall mean the Landlord's fee interest in the real property described in Exhibit "A" attached hereto. (q) Tenant - shall mean, on the execution date of this Lease, the CITY of PASCO, a Washington municipal corporation organized as an optional code city. (r) Term of This Lease - or words of similar import shall mean the term and, when applicable, any renewal period of the term. (s) The TRAC Facility - shall have the meaning set forth in the Interlocal Cooperation Agreement entered into concurrently with this Agreement. (t) Unavoidable Delays - shall mean delays due to strikes by other than employees of Tenant, acts of God, floods, fires, any act, neglect or failure to perform of or by Landlord, or any employee, agent or contractor of Landlord; inability to obtain, in accordance with this Lease, zoning, conditional use permits, variances, site plan approval, building and other permits, certificates of occupancy or other approvals under the Law or Ordinance; governmental restrictions; enemy action; civil commotion; casualty; sabotage; restraint by court or public authority. A delay resulting from such Unavoidable Delays shall extend the time for completion and performance dates hereunder correspondingly and shall have the other consequences described in this Lease. (I 73714MIKA932980.0281 -10- Tenant shall not be liable for loss or damage or deemed to be in default hereof due to any such Unavoidable Delay(s). ARTICLE III - RENT Section 3.1 Rent. Tenant shall pay to Landlord, as annual rent hereunder, beginning on the Commencement Date one dollar and other valuable consideration as set forth in the recitals to this Lease. The County is entitled to any rent payable by the present tenant from and after the Commencement Date. ARTICLE IV - IMPROVEMENTS Section 4.1 SUortsfield. The Sportsfield development shall consist of soccer fields, baseball fields, service buildings, concession facilities, and appurtenances to serve the Improvements constructed at the sole expense of the City. Section 4.2 Utilities. The Premises are being developed contemporaneously with the TRAC Facility. Extension of water, sewer, power, streets, and/or roads are contemplated. The Parties agree that the cost of extending municipal sewer services shall be paid two- thirds by the City and one-third by the TRAC Facility. Water and roads will be paid by the TRAC Facility and the City can make its connections to utilities at the most convenient (17371-0006/KA932980.0281 -11- location on the Property subject to approval of the County, which approval will not be unreasonably withheld. An irrigation well exists on the Premises. The County has an undivided one-half interest in the well and the other one-half interest is owned by a private party ("Tieg"). The County consents to the City's use of the well flow. The City agrees to maintain the well, pump, and other Improvements, as well as to pay operating costs, at its sole expense, and to provide irrigation water to the TRAC Facility. The cost of any Improvements related to the use of the well (except the pump) and/or providing an alternative source of water for the TRAC Facility shall be considered for the purpose of determining the amount to be paid for undepreciated Improvements in the event the County terminates the Premises as provided in Section 1.3. In the event of termination or expiration of the Lease, the County shall have the option of purchasing from the City any pump and related equipment installed at the sole cost of the City based on its undepreciated cost. Notice of its intent to purchase the pump shall be given within ninety (90) days of the termination or expiration of the Lease. Depreciation shall be based on a twenty (20) year straight line basis from date of installation. [17371-0006/KA932980.0281 -12- Section 4.3 Ownership of Improvements Upon Premises. The Parties acknowledge, covenant, and agree that upon termination of the leasehold estate, ownership and title to the Sportsfield shall automatically vest in the Landlord and shall be returned to the Landlord as provided in Article VIII hereof, but subject to Tenant's prior right of removal as therein set forth, subject to the Tenant's prior right to make alterations and modifications thereto. ARTICLE V - PURCHASE OPTIONS Section 5.1 Richt of First Refusal. Upon receipt of a bona fide offer to purchase any interest of the Landlord which the Landlord desires to accept in its sole discretion during the period of this Lease, any renewal Period, or extension thereof, and provided Tenant is not in default of its obligations under this Lease, Tenant shall have the right of first refusal to purchase such interest on terms contained in such bona fide offer. (a) The Landlord shall give written notice of such offer to purchase to Tenant by certified mail return receipt requested or by other personal service. Such notice shall include the offer to purchase. (b) The Tenant shall have sixty (60) days from date of receipt to confirm in writing that the Tenant desires to exercise its right of first refusal and that the Tenant agrees (1737 1-0006/KA932980.0281 -13- to close the purchase without variation from the terms of the bona fide offer. Any condition, contingency or other variation in the exercise of the right of first refusal from the terms of the bona fide offer shall constitute a rejection except for payment of cash or property acceptable in the sole discretion of Landlord when the bona fide offer contains an exchange of property. The Closing being the later of the date specified in the offer being matched or ninety (90) days from the Landlord's receipt of the Tenant's written confirmation to exercise the right of first refusal, provided further that: (1) Tenant will pay closing costs in accordance with the terms of such bona fide offer; (2) Each party will pay its own legal costs unless the bona fide offer provides otherwise; (3) All transactions will be closed by a closing agent selected by Landlord; and (4) Landlord, at its sole discretion, may extend the closing period for a period not to exceed thirty (30) days. Section 5.2 Option to Purchase. Provided Tenant has not declined to exercise its right of first refusal under Section 5.1, and anytime after Landlord elects to sell the Premises and on or before the termination of the Lease, or any renewal Period or extension thereof, and 117371-00061KA932980.028] -14- provided Tenant is not in default of its obligations under this Lease, Tenant shall have the right to purchase the Landlord's fee interest (without reference to Improvements or cost of demolition) in the Property at its then current fair market value for its highest and best use determined by an appraiser acceptable to the Landlord and Tenant or otherwise as provided in Article XXII. The sale shall be closed within ninety days from the date of the appraisal, provided further that: (a) Each party will pay customary closing costs; (b) Each party will pay its own legal costs; (c) All transactions will be closed by a closing agent selected by Landlord; (d) Landlord, at its sole discretion, may extend the closing period for a period not to exceed thirty (30) days; (e) Payment shall be made in cash at closing; and (f) All other terms and conditions shall be mutually agreed upon in writing by the Landlord and Tenant and if agreement cannot be reached then in accordance with the terms of the standard form earnest money receipt and purchase agreement for commercial properties adopted or endorsed by the local Board of Realtors or any successor organization, not in conflict with the foregoing terms. (17371-0006[KA932980.028) -15- ARTICLE VI - LANDLORD'S REPRESENTATIVE AND NOTICES Section 6.1 Designation of Landlord's Representative. Landlord agrees to designate, in writing, a person or persons (an Authorized Representative) who shall have the power, authority and right, on behalf of Landlord, in its capacity as Landlord hereunder to: (a) Review and approve all documents, plans, applica- tions, and requests required or allowed by Tenant to be submitted to Landlord pursuant to the Lease; (b) Consent to all actions, events, and undertakings by Tenant for which consent is required by Landlord in this Lease, provided such consent does not result in an obligation of Landlord exceeding One Thousand Dollars ($1,000.00) or such different sum as the Landlord's Board may from time to time approve; and (c) Make all appointments of persons, appraisers, arbitrators or other individuals or entities required to be appointed or designated by Landlord in this Lease. Landlord may change such Authorized Representative at any time upon written notice to Tenant. [17371-0006/KA932980.0281 -16- ARTICLE VII - PAYMENT OF TARES, ASSESSMENTS ETC. Section 7.1 Tenant's Obligations. Tenant shall pay or cause to be paid all Impositions from and after the Commencement Date and thereafter during the term of this Lease which may become a lien on the Premises, or any part thereof, or any appurtenance thereto (before any fine, penalty, interest or cost may be added thereto), provided, however that: (a) If, by law, any Imposition (for which Tenant is liable hereunder) may, at the option of the Landlord or Tenant be paid in installments (whether or not interest shall accrue on the unpaid balance of such Imposition) the Tenant may exercise the option to pay the same, including any accrued interest on the unpaid balance of such Imposition, in installments and, in such event, shall pay such installments as may become due during the term of this Lease; (and providing further, that those installments which are to become due and payable after the expiration of the term, of this Lease, but relating to a fiscal period included in the term of this Lease, shall be paid in full by Tenant); (b) The Landlord is a political subdivision of the State of Washington. By virtue of such status, it is exempt by law from paying excise taxes, ad valorem taxes and taxes levied by other political subdivisions unless expressly provided by law. This Article is intended to insulate the [ 17371-0006/KA932980.0281 -17- Landlord from assuming or otherwise being obligated to pay taxes imposed by virtue of Tenant's occupancy or Landlord's ownership of the premises regardless of the taxing entity which seeks such Imposition, unless expressly provided by law. Section 7.2 Contesting Impositions. (a) Tenant shall have the right to contest the amount or validity, in whole or in part, of any Imposition, for which Tenant is or is claimed to be liable, by appropriate proceed- ings diligently conducted in good faith but only after payment of such Imposition, unless such payment or payment thereof under protest would: (i) operate as a bar to such contest; (ii) interfere materially with the prosecution thereof: Upon the termination of any such proceedings, Tenant shall pay the amount of such Imposition or part thereof, if any, as finally determined in such proceedings, together with any costs, fees, including counsel fees, interest penalties and any other liability in connection therewith. (b) Landlord shall not be required to join in any proceedings referred to in this Article unless: (i) the provisions of any law, rule or regulation at the time in effect shall require that such proceedings be brought by or in the name of Landlord, or (ii) the proceeding involves the assessment or attempted assessment of a real estate or ad valorem tax, in which event Landlord shall join in such proceedings or permit the same to be brought in Landlord's [17371-0006lKA932980.G281 -18- name. Landlord shall not be subjected to any liability for the payment of any fees, including counsel fees, costs and expenses in connection with such proceedings and Tenant agrees to pay such fees, including reasonable counsel fees, costs and expenses or, on demand to make reimbursement to Landlord for such payment. ARTICLE VIII - SURRENDER Section 8.1 Surrender of the Premises. Tenant, on the last day of the term hereof including any renewal Period so exercised or during any extension hereof, unless the Tenant exercises the option to purchase contained in Article V, or upon any earlier termination of this Lease which is not being contested, in good faith, by Tenant, will surrender and deliver up the Premises into the possession and use of Landlord without delay and, subject to the provisions of Article XVI herein, in reasonable condition and repair, reasonable wear and tear, fire or other casualty, and acts of God excepted or may demolish and remove the Improvements at its sole cost and expense. Section 8.2 Removal of Personal Property or Fixtures. Where furnished by or at the expense of Tenant, or secured by a lien held by either the owner or a lender financing same, signs, furniture, furnishings movable trade fixtures, and business equipment alterations and/or other similar items may be removed by Tenant at or prior to the 117371-0006lKA932980.0281 -19- termination or expiration of this Lease; provided, however, that if the removal thereof will damage the Premises or necessitate changes in or repairs to the Premises, Tenant shall repair or restore (or cause to be restored) the Premises to its condition immediately preceding the removal, or pay or cause to be paid to Landlord the cost of repairing any change arising from such removal unless demolished in accordance with Section 8.1. Section 8.3 Rights to Personal Property After Termination or Surrender. Any personal property of Tenant that shall remain on the Premises after the termination or expiration of this Lease, including a reasonable period of time to remove and the removal of Tenant, as the case may be, from the Premises, may, at the option of Landlord, be deemed to have been abandoned by Tenant, and, unless an interest therein is claimed by a Mortgagee or other lienholder, said personal property may be retained by Landlord as its property or be disposed of, without accountability, in such manner as Landlord may see fit. Section 8.4 Survival. The provisions of this Article shall survive any termination or expiration of this Lease. (17371-0006/KA932980.028] -20- ARTICLE I% - USE OF PREMISES Section 9.1 Use of the Premises. Tenant may only use the Premises for City owned and operated Sportsfields and related and appurtenant concessions. The Premises shall not be used for professional or semi- professional sports activities without the prior written consent of the County. As consideration for such consent, the County may require a revised or modified rent. Tenant shall not use or knowingly allow the Premises or any part thereof to be used or occupied for any unlawful purpose and shall not knowingly suffer any act to be done or any condition to exist in or on the Premises or a part thereof or any article to be brought thereon, which may be dangerous, unless safeguarded as required by law, or which may make void or voidable any insurance then in force with respect thereto. This restriction on City use shall not prevent the City from entering into agreements, granting permits or licenses to non-profit organizations, sponsoring or supervising sports play, or providing maintenance to the Premises, provided any assignee, permittee, or licensee shall be subject to the same restrictions, obligations, and covenants contained in this Lease restricting use of the Premises for profit. In the event the City receives any monetary consideration, the City agrees to devote such consideration to the maintenance and operation of the Premises. [17371-0006/KA932980.0281 -21- Section 9.2 Hazardous or Dangerous Substances. Except as is customary for normal repairs and maintenance, Tenant agrees that it will not knowingly permit the use or storage of any flammable liquid or dangerous or explosive materials or hazardous substances in or on the Premises. This restriction shall not apply to prevent the entry and parking of motor vehicles carrying flammable liquids solely for the purpose of their own propulsion or the construction or erection of structures for the lawful storage of maintenance -related vehicles, machinery, equipment, tools, fuel, and supplies for use on the Premises. Tenant also agrees that it will not knowingly allow the manufacture of any such flammable liquids or hazardous or dangerous materials in or on the Premises. In the event of any spill or contamination occurring after the commencement of this Lease, the City agrees to comply with all applicable laws, rules, regulations, and orders of any Governmental Authority for the storage, transportation, disposal, and use of any flammable liquid . or dangerous explosive materials or hazardous substances. Tenant agrees to report, remediate, and clean up any spill or contamination and indemnify and hold harmless the County from any liability arising out of its possession and use of the Premises, including without limitation, fines, fees, charges, penalties, or any other cost or expense incurred or imposed on the County (as well as attorneys' fees). The County will similarly indemnify and hold harmless (17371-00061KA932980.0281 -22- the City and clean up any spill or contamination having occurred prior to the commencement of this Lease of which it has knowledge. Section 9.3 Entry on Premises by Landlord. Landlord and its Authorized Representatives shall have the right to go on the Premises for the purpose of inspecting the same to insure itself of compliance with the provisions in this Lease. ARTICLE % - OPERATION Section 10.1 Control of the Premises. Landlord hereby agrees that, subject to any limitations imposed by the terms of this Lease, Tenant shall be free to perform and exercise its rights under this Lease and shall have control (except as provided in Section 10.2) and authority to direct, operate, lease, and manage the Premises. Section 10.2 Non -Interference. Landlord and Tenant hereby mutually agree not to interfere with the free flow of pedestrian or vehicular traffic to and from the Premises and to and from the TRAC Facility. Should it become necessary to interrupt such free flow of pedestrian and vehicular traffic, Landlord and Tenant agree not to unreasonably withhold approvals of such interruption. Landlord and Tenant further agree that, except [17371-0006/KA932980.0281 -23- for those structures reasonably necessary for security and safety purposes, no fence, or any other structure of any kind (except as may be specifically permitted or maintained under the provisions of this Lease, indicated on approved Construction Plans or otherwise mutually agreed upon in writing) shall be placed, kept, permitted or maintained in such a fashion as to materially or adversely interfere with pedestrian or vehicular traffic to and from the TRAC Facility. The foregoing shall not prohibit Tenant from closing the Premises and denying access to the public at such times and in such manner as deemed necessary by Tenant during the development or construction of any portion of the Premises, the repair and maintenance of the Premises or in the operation of the Premises, provided such closing does not prevent Land- lord from operating the TRAC Facility. The City agrees that a portion of the Premises, as illustrated on the Master Plan for the Property, may be used to accommodate overflow parking for the TRAC Facility. The City agrees to take this into consideration in the development of its facilities. The City consents to the use of a portion of the Premises for ovel� %flow parking for the TRAC Facility. The County agrees to endeavor to give notice to the City at least seven (7) calendar days before such use and to cooperate with the City on coordination of parking use. The City will cooperate with the County to coordinate parking if shorter notice is given. The County and City agree that any damage caused by parking shall be an expense of the TRAC [17371-0006/KA932980.0281 -24- Facility. The County may charge for parking on the Premises and all revenues derived from the use of the Premises for parking shall belong to the TRAC Facility. The City and County further agree that parking for patrons of the Premises may overflow into the parking for the TRAC Facility, subject to such restrictions and changes the County establishes on behalf of the TRAC Facility. The County agrees to not unreasonably withhold permission to use the TRAC facility parking. The City agrees to endeavor to give notice to the County at least seven (7) calendar days before such use and to cooperate with the County on coordination of parking use. ARTICLE %I - REPAIRS AND MAINTENANCE OF THE PREMISES Section 11.1 Tenant Repairs and Maintenance. Throughout the term of this Lease, Tenant, at its sole cost and expense, shall keep the Premises in good order and condition, and make all necessary repairs thereto. The term "repairs" shall include all replacements, renewals, alterations, additions and betterments deemed necessary by Tenant. All repairs made by Tenant shall be at least similar or equal in quality and class to the original work. Tenant shall keep and maintain all portions of the Premises, in a clean and orderly condition, free of dirt, rubbish, and unlawful obstructions. Landlord, at its option, and after thirty (30) days written notice to Tenant may perform any (17371-0006/KA932980.0281 -25- maintenance or repairs required of Tenant hereunder which have not been performed by Tenant following such notice and the cost and expenses for such maintenance or repairs (including reasonable overhead) shall be deemed to be rent due from Tenant hereunder and shall be immediately due and payable upon demand. Until paid such amount shall constitute a lien against the Premises. ARTICLE %II - COMPLIANCE WITH LAWS AND ORDINANCES Section 12.1 Compliance by Tenant. Throughout the term of this Lease, Tenant, at Tenant's sole cost and expense, shall promptly comply with all applicable Laws and Ordinances. To the extent that Tenant's compliance shall require the cooperation and participation of Landlord, Landlord agrees to use its best efforts to cooperate and participate. Section 12.2 Contest by Tenant. Tenant shall have the right to contest the validity or application of any Law or Ordinance by appropriate legal proceedings diligently conducted in good faith, in the name of Tenant without cost or expense to Landlord. Tenant agrees to give Landlord written notice of any such contest. If counsel is required, the same shall be selected and paid by Tenant. All Improvements to be constructed by the Tenant shall comply with the Laws and Ordinances, as defined in Section [17371-0006/KA932980.0291 -26- 2.1. In the event of any conflict between the terms and provisions of this Lease and applicable Laws and Ordinances, the Laws and Ordinances shall prevail. ARTICLE %III - DISCHARGE OF OBLIGATIONS Section 13.1 Tenant's Duty. During the term of this Lease, the Tenant may not permit any obligations or encumbrances incurred by Tenant to become liens against the Premises. If, however, any obligations arise, Tenant will discharge such obligations, within one hundred eighty (180) days, it being understood and agreed that Tenant shall have the right to withhold any payment (except for payments of Rent to Landlord) so long as it is in good faith disputing liability therefor or the amount thereof, provided such contest or liability or amount operates as a stay of all sale, entry, foreclosure, or other collection pro- ceedings in regard to such obligations. The term "obligations" includes, but is not limited to, mechanic's liens, attachment liens, judgment liens, execution liens, or tax liens. ARTICLE XIV - INSURANCE Section 14.1 Insurance During Entire Term of Lease. The Tenant shall maintain a general liability insurance policy against claims for bodily injury, death or property damage, on or about the Premises with broad form liability and property damage endorsement, naming Landlord and Tenant as the [17371-0006/KA932980.Mi -27- insured, such insurance to afford minimum protection, during the term of this Lease, and written for combined single limits of liability of one million dollars ($1,000,000), per occurrence, said amount to be adjusted from time to time with coverage deemed customary under like conditions. If the Tenant self -insures its liability, the insurance coverage shall not be required. Section 14.2 Insurance Policies. The insurance policy: (a) Shall be issued by companies authorized to do business under the laws of any state with the following qualifications: (1) The company must be rated no less than "A", as to general policy holders rating and no less than "X" as to financial category in accordance with the latest edition of Best's Key Rating Guide, published by A.M. Best Company, Incorporated. (2) Shall name Landlord as an additional insured, Mortgagee as an additional insured, and Tenant as the named insured. (b) Each policy or certificate of insurance mentioned and required in this Article shall have attached thereto (i) an endorsement that such policy shall not be canceled or materially changed without at least thirty (30) days prior 11737 1-0006nuv329WO281 -28- written notice to Landlord; (ii) an endorsement to the effect that the insurance as to any one insured shall not be invalidated by any act or neglect of any other insured; (iii) an endorsement pursuant to which the insurance carrier waives all rights of subrogation; and (iv) an endorsement pursuant to which this insurance is primary and non- contributory. (c) Nothing in this Article shall prevent Tenant from taking out insurance of the kind and in the amount provided for herein under a blanket insurance policy or policies which may cover other properties owned or operated by Tenant. (d) The Tenant shall furnish certificates of insurance and insurance policies to Landlord prior to commencing any operations under this contract. These certificates shall clearly indicate that the Tenant has obtained insurance, in the type, amount and classification, as required for strict compliance with this Section. (e) Cancellation of any insurance or non-payment by the Tenant of any premium for any insurance policies required by this Lease shall constitute an Event of Default of this Lease. In addition to any other legal remedies, Landlord at its sole option after written notice and opportunity to cure as required for an Event of Default may terminate this Lease or pay such premiums for which, together with costs and attorneys' fees, Tenant shall be liable to Landlord. [17371-0006/KA932980.0281 -29- ARTICLE SV - LIABILITY Section 15.1 Indemnification of Landlord. During the term of this Lease, to the maximum extent permitted by law, Tenant agrees to and shall indemnify and hold the Landlord harmless from and against all liability, loss, damage, cost, or expenses (including reasonable attorneys' fees and court costs, amounts paid in settlements and judgment) arising from or as a result of the death of any person or of any accident, injury, loss or damage whatsoever caused to any person or to the property of any person which shall occur on or adjacent to the Premises and which shall be directly or indirectly caused by the sole acts, errors, or omissions of the Tenant or its agents, servants, employees or contractors. The Tenant shall not be responsible for (and such indemnity shall not apply to) any acts, errors or omissions of the Landlord, or its respective agents, servants, employees or contractors. Section 15.2 ' Indemnification of Tenant. During the term of this Lease, to the maximum extent permitted by law, the County, for and on behalf of the TRAC Facility, agrees to and shall indemnify and hold the Tenant harmless from and against all liability, loss, damage, cost, or expenses (including reasonable attorneys' fees and court costs, amounts paid in settlements and judgment) arising from or as a result of the death of any person or of any accident, [17371-0006/KA932980 OOT -30- injury, loss or damage whatsoever caused to any person or to the property of any person which shall occur on or adjacent to the Premises and which shall be directly or indirectly caused by the sole acts, errors, or omissions of the TRAC Facility or its agents, servants, employees or contractors. The TRAC Facility shall not be responsible for (and such indemnity shall not apply to) any acts, errors or omissions of the Landlord, or its respective agents, servants, employees or contractors. Section 15.3 Workman's Compensation - Contractors. Tenant agrees to include in each contract for construction of Improvements or operations that where there is liability for damage or injury during the construction of the Premises, or any time thereafter for the term of the Lease, any renewal Period or extension thereof, each contractor or subcontractor waives immunity under the Workman's Compensation Laws of the State of Washington for claims brought by its employees against the Landlord. Further, each contractor or subcontractor agrees to indemnify and hold the Landlord harmless for damages attributable to the contractor's or subcontractor's individual negligence. ARTICLE XVI - DAMAGE AND DESTRUCTION Section 16.1 Tenant's Duty to Restore. If, at any time during the term of this Lease, the Premises or any part thereof shall be damaged or destroyed by [17371-0006/KA932980.0281 -31- fire or other casualty, the Tenant, at its sole cost and expense, shall either replace or restore damage or destroyed Premises to repair as nearly as reasonably possible to its value, condition, and character which existed immediately prior to such damage or destruction, subject to such changes or alterations as Tenant may elect to make in conformity with the provisions of this Lease and modern construction techniques and methods; or elect not to rebuild and terminate the Lease, provided Tenant shall restore the Premises to the condition that existed prior to the Lease. Tenant agrees that it will not allow the Premises or any part thereof to remain damaged such that it materially interferes with the operation of the TRAC. Section 16.2 Abatement of Rent. Tenant shall not be entitled to abatement, allowance, reduction, or suspension of Rent when part of or all of the Premises shall be uninhabitable owing to the partial or total destruction thereof and shall continue at the rate provided in this Agreement unabated. Except as otherwise provided in the Lease, no such damage or destruction shall release Tenant of or from any other obligation imposed on Tenant under this Lease. (I 7371-0006/KA932980.0281 -32- ARTICLE XVII - RIGHT TO MORTGAGE, SELL, ASSIGN OR OTHER TRANSFER OF LEASE Section 17.1 Right to Transfer Leasehold. During the term of this Lease, Tenant shall not have the right and privilege to sell, assign, or otherwise transfer this Lease to such other persons, firms, corporations, partnerships, joint ventures, and federal, state, or municipal government or agency thereof, without the prior written consent of Landlord of the proposed transferee and consideration paid to the Landlord for the fair market value of the Premises, except as provided in Section 9.1. The City acknowledges that the rent negotiated with the County recognizes the mutual public interest the Parties have in providing public recreational facilities. Use of the Premises for commercial use (excluding appurtenant concessions serving the public use), including professional or semi-professional sports, is not contemplated by the Parties. ARTICLE XVIII - CONDEMNATION Section 18.1 Condemnation. In the event all or part of the Premises is taken or acquired for public use by condemnation or threat thereof by the State or political subdivision whose priority for public use is greater than the Landlord or Tenant, the following shall govern the division of proceeds: (I 73714W6(KA932980.0281 -33- (a) Allocation of Award. In the event of a taking of the entire Premises and the Improvements, any settlement, as a result of such condemnation or award, shall be treated as a sale and Landlord shall be entitled to its share of the Premises without Improvements, as well as the present value of any remaining leasehold interest. In the event the condemnation is not of the entire Premises and Tenant does not elect to terminate this Lease, then, prior to division of the award, the cost of rendering the remaining portion of the Premises, and Improvements usable shall first be deducted from the award and used for such purpose, and the remainder shall be divided as above, provided the cost of such Improvements does not exceed the value of the Tenant's Improvements in which case the value of the Improvements shall be deducted and paid to the City to make the remaining portion usable and the County shall be paid the remainder. (b) Right to Terminate Lease; Portion of Rent. In the event of a taking of the entire Premises and Improvements thereon, this Lease shall terminate as of the date of such taking. In the event of a taking of a portion of the Premises and/or Improvements thereon rendering the remainder unusable for leasehold purposes, Tenant may elect to terminate this Lease upon notice thereof. Such election shall constitute a waiver of the Tenant's option to purchase. [17371-0006/KA932980.MSI -34- ARTICLE %I% - DEFAULT Section 19.1 Event of Default of Tenant. The following provisions shall apply if any one or more of the following events "Event(s) of Default" shall occur: (a) If default shall be made by Tenant in keeping, observing or performing any of the terms contained in this Lease excepting the obligation to pay Rent, and such default shall continue for a period of sixty (60) days after written notice thereof from Landlord to Tenant, or in the case of such default or a contingency which cannot with due diligence and in good faith be cured within sixty (60) days, Tenant fails to proceed promptly and with due diligence and in good faith, to begin to cure said default. (b) The use of the Premises for any purposes other than as herein permitted for a period of thirty (30) days after notice by the Landlord specifying the respect in which any given use is unauthorized. (c) The abandonment by the Tenant of the Premises during the term of this Lease. Section 19.2 Failure to Cure Default by Tenant. (a) If an Event of Default on the part of Tenant shall occur, Landlord, at any time after the periods set forth in Section 19.1, shall give written notice to Tenant, specifying such Event of Default or Events of Default and stating that [17371-0"/KA932980.0281 -35- this Lease and the term hereby demised shall expire and terminate on the date specified in such notice. (b) If an Event of Default on the part of Tenant shall occur, then Landlord at any time after periods for exercise of rights as set forth under Sections 19.1 and 19.4 herein shall have the following rights and remedies which are cumulative: (1) Subject to the limitations of this Lease, Landlord, in addition to any and all other remedies, in law or in equity, that Landlord may have against Tenant, shall be entitled to sue Tenant for all damages, costs and expenses arising from or which are a proximate cause of Tenant's committing an Event of Default hereunder and to recover all such damages, costs, and expenses, including reasonable attorneys' fees at both trial and appellate levels. (2) To restrain, by injunction, the commission of or attempt or threatened commission of an Event of Default and to obtain a decree specifically compelling performance of any such term or provision of the Lease without, in either case, being required to prove or establish that Landlord does not have an adequate remedy at law. Tenant hereby waives the requirement of any such proof and acknowledges that Landlord would not have an adequate remedy at law for Tenant's commission of an Event of Default hereunder if such Event of Default was (17371-0006/KA932980.0281 -36- voluntary on the part of Tenant and could be prevented or remedied by injunctive relief or specific performance. (3) To terminate any and all obligations that Landlord may have under this Lease, in which event Landlord shall be released and relieved from any and all liability under this Lease. Section 19.3 Surrender of Premises. Upon any expiration or termination in accordance with the terms and conditions of this Lease, Tenant shall quit and peacefully surrender the Premises to Landlord. Section 19.4 Rights of Landlord After Termination. At any time or from time to time after any such expiration or termination, Landlord may relet the Premises or any part thereof, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions (which may include concessions or free rent) as Landlord, in its sole discretion, may determine and may collect and receive the rents therefor. Section 19.5 No Waiver by Landlord. No failure by Landlord to insist upon the direct performance of any of the terms of this Lease or to exercise any right or remedy consequent upon a breach thereof, and no acceptance by Landlord of full or partial rent during the 117371-0005nu932980.Ml -37- continuance of any such breach, shall constitute a waiver of any such breach or of any of the terms of this Lease. None of the terms of this Lease to be kept, observed or performed by Tenant, and no breach thereof, shall be waived, altered or modified except by a written instrument executed by Landlord. No waiver of any breach shall affect or alter this Lease, but each of the terms of this Lease shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. No waiver of any default of Tenant hereunder shall be implied from any omission by Landlord to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the express waiver and then only for the time and to the extent therein stated. One or more waivers by Landlord shall not be construed as a waiver of a subsequent breach of the same covenant, term or conditions. Section 19.6 Events of Default of Landlord. The following provisions shall apply if any one or more of the following events "Event(s) of Default" shall happen: (a) If default shall be made by Landlord in keeping, observing or performing any of the duties, obligations and undertakings imposed upon and assumed by Landlord pursuant to the terms of this Lease and such default shall continue for a period of sixty (60) days after written notice thereof from Tenant to Landlord or, in the case of any such Event of [I 7371-0006/KA932980.0281 -38- Default or contingency which cannot, with due diligence and in good faith, be cured within sixty (60) days, Landlord fails to proceed promptly after such notice and with due diligence and in good faith to begin to cure said Event of Default. Section 19.7 Failure to Cure Default by Landlord. If an Event of Default on the part of Landlord shall occur, Tenant at any time after the periods set forth in Section 19.7 shall have the following rights and remedies which are cumulative: (a) In addition to any and all other remedies, in law or in equity, that Tenant may have against Landlord, Tenant shall be entitled to sue Landlord for all damages, costs and expenses arising from or which are a proximate cause of Landlord's committing an Event of Default hereunder and to recover all such direct damages, costs and expenses, including reasonable attorneys' fees at both trial and appellate levels. (b) To restrain, by injunction, the commission of or attempt or threatened commission of .an Event of Default and to obtain a decree specifically compelling performance of any such term or provision of the Lease without, in either case, being required to prove or establish that Tenant does not have an adequate remedy at law. Landlord hereby waives the requirement of any such proof and acknowledges that Tenant would not have an adequate remedy at law for Landlord's commission of an Event of Default hereunder if such Event of [ 17371-00"IKA932980.0281 -39- Default was voluntary on the part of Landlord and could be prevented or remedied by injunctive relief or specific perfor- mance. Section 19.8 No Waiver by Tenant. No failure by Tenant to insist upon the direct performance of any of the terms of this Lease or to exercise any right or remedy upon a breach thereof, shall constitute a waiver of any such breach or of any of the terms of this Lease. None of the terms of this Lease to be kept, observed or performed by Landlord, and no breach thereof, shall be waived, altered or modified except by written instrument executed by Tenant. No waiver of any default of Landlord hereunder shall be implied from any omission by Tenant to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the express waiver and then only for the time and to the extent therein stated. One or more waivers by Tenant shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. ARTICLE %% - CERTIFICATES BY LANDLORD AND TENANT Section 20.1 Tenant Certificates. Tenant agrees at any time and from time to time upon not less than twenty (20) days prior written notice by Landlord to execute, acknowledge and deliver to Landlord a statement in [17371-0006/KA932980.0281 -40- writing setting forth the Rent then payable under the Lease and during any renewal Period thereof, if then known; certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the Lease is in full force and effect as modified and stating the modifica- tions), and the dates to which the Rent has been paid, and stating (to the best of Tenant's knowledge) whether or not Tenant either is in default in keeping, observing or performing any of the terms of this Lease; and, if in default, specifying each such default (limited to those defaults to which Tenant has knowledge). It is intended that any such statement delivered pursuant to this section may be relied upon by Landlord or any prospective purchaser of the fee, but reliance on such certificate may not extend to any default of Tenant as to which Tenant shall have no actual knowledge. ARTICLE %%I - CONSTRUCTION OF TERMS AND MISCELLANEOUS Section 21.1 Captions. The headings and captions of this Lease and the Table of Contents preceding this Lease are for convenience and reference only and in no way define, limit or describe the scope or intent of this Lease nor in any way affect this Lease. (17371-0006/KA932980.0281 -41- Section 21.2 Recordinv. A notice of this Lease may be recorded in full in the Public Records of Franklin County, Washington, at the sole cost and expense of the party seeking recording. Section 21.3 Construction. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the party or parties may require. The Parties hereby acknowledge and agree that each was properly represented by counsel and this Lease was negotiated and drafted at arms' length so that the judicial rule of construction to the effect that a legal document shall be construed against the draftsman shall be inapplicable to this Lease which has been drafted by counsel for both Landlord and Tenant. Section 21.4 Entire Agreement. This Lease contains the entire agreement between the Parties hereto and shall not be modified or amended in any manner except by an instrument in writing executed by the Parties hereto. Previous drafts of the Agreements or any portions thereof and any oral negotiations shall not be utilized in any manner by either party should any dispute arise as to the intent of the Agreements. [17371-0006/KA932980.0281 -42- Section 21.5 Successors and Assions. The terms herein contained shall bind and inure to the benefit of Landlord, its successors and assigns, and Tenant its successors and assigns, except as may be otherwise provided herein. Section 21.6 Holidays. It is hereby agreed and declared that whenever a payment due under the terms of this Lease is to be made on a legal holiday, in Franklin County, Washington, or on a Saturday or Sunday, it shall be postponed to the next following business day. Any mention in this Lease of a period of days for performance shall mean calendar days. Section 21.7 Protest Payments. If at any time a dispute shall arise as to any amount or sum of money to be paid by Tenant to Landlord under the provisions of this Lease, Tenant shall have the right to make payment "under protest" and such payment shall not be regarded as a voluntary payment, and there shall survive the right on the part of Tenant to institute an action to seek the recovery of such sum and if it should be adjudged that there was no legal obligation on Tenant to pay such sum or any part thereof, Tenant shall be entitled to recover such sum or so much thereof as it was not legally required to pay under the provisions of this Lease; and if at any time a dispute shall arise between the Parties hereto as to any work to be [17371-0006/KA932980.0281 -43- performed by either of them under the provisions of this Lease, Tenant or Landlord against whom the obligation to perform the work is asserted may perform such work and pay the cost thereof "under protest" and the performance of such work shall in no event be regarded as a voluntary performance and there shall survive the right upon the part of said Tenant and/or Landlord to institute arbitration to seek the recovery of the cost of such work, and if it shall be adjudged that there was not legal obligation on the part of said Tenant and/or Landlord to perform the same or any part thereof, said Tenant and/or Landlord shall be entitled to recover the cost of such work or the cost of so much thereof as Tenant or Landlord was not legally required to perform under the provisions of this Lease. Section 21.8 Notices. All notices which may be or are requested to be given pursuant to this Agreement shall be deemed given when deposited in the United States Mail, postage prepaid, and marked registered or certified mail, return receipt requested, and addressed to the Parties at the following addresses unless otherwise provided for herein: To Landlord: Clerk of the Board of County Commissioners Franklin County 1016 North 4th Avenue Pasco, Washington 99301 [17371-0006RCA932980.028I -44- To Tenant: City Manager City of Pasco 412 W. Clark P.O. Box 293 Pasco, Washington 99301 All of the representations and warranties, if any, made by Landlord and Tenant in this Lease shall survive the closing hereunder and shall not be merged therein. Notwithstanding anything to the contrary, the Parties hereby acknowledges and agrees that each has made no representation or warranty to the other with respect to any transaction contemplated hereby except as specifically and expressly set forth in this Lease and each has no obligation to the other to perform any covenant or obligation or to comply with any condition in connection with this Lease, except as specifically and expressly set forth in this Lease. Section 21.10 Incorporation by Reference. All exhibits and schedules annexed hereto are hereby incorporated by reference herein. Section 21.11 Governing Law. This Lease and the rights and obligations of the Parties shall be governed by, and construed and interpreted in accordance with, the laws of the State of Washington. p7371-00061KA932980.o281 —45- Section 21.12 Execution in Counterparts. This Lease may be executed in any number of counterparts and by different Parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Section 21.13 Execution. This Lease becomes effective when it has been executed by the representatives of the Parties. Section 21.14 Waiver. The waiver by one party of the performance of any covenant, condition, or promise shall not invalidate this Lease nor shall it be considered a waiver by such party of any other covenant, condition, or promise hereunder. The waiver by either or both Parties of the time for performing any act shall not constitute as waiver of the time for performing any other act or an identical act required to be performed at a later time. The exercise of any remedy provided by law or the provisions of this Lease shall not exclude other consistent remedies unless they are expressly excluded. Section 21.15 Holdover Tenant. If the Tenant holds over or remains in possession or occupancy of the Premises after the expiration of the term or after any earlier termination of the Lease, without any [17371-0006/KA932980.028) -46- written lease of the Premises being actually made and entered into by the Landlord and the Tenant, such holding over or continued possession or occupancy, if rent is paid by the Tenant and accepted by the Landlord for or during any period of time it so holds over or remains in possession or occupancy, shall create only a tenancy from month to month at the last monthly rental and upon the terms (other than length of term) herein specified, which may at any time be terminated by either the Tenant or the Landlord giving to the other thirty (30) days prior written notice of its intention to terminate the same. Section 21.16 Exculpation. Notwithstanding anything contained to the contrary in any provision of this Lease, it is specifically agreed and understood that there shall be absolutely no personal liability on the part of any individual officers or directors of the Landlord or Tenant with respect to any of the obligations, terms, covenants, and conditions of this Lease, and each party shall look solely to the other party or any such assignee or successor -in -interest for the satisfaction of each and every remedy available to a party in the event of any breach by the other party or by any such assignee or successor -in -interest of any of the obligations, terms, covenants, and conditions of this Lease to be performed by a party, such exculpation of personal liability to be absolute and without any exception whatsoever. [17371-0006RCA932980.0281 -47- Section 21.17 Calendar DaVs. Reference made in this agreement to calendar days shall mean a period of time expressed in days unless otherwise stated. Section 21.18 Attachment of Exhibits. Exhibit "B" shall be attached after execution of the Lease and shall be prepared by the Landlord. Section 21.19 Legal Expenses. If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the losing party reasonable attorneys' fees and costs of suit (including legal expenses related to the enforcement of the Lease provisions in a bankruptcy proceeding). ARTICLE %%II - REPRESENTATIONS AND WARRANTIES Section 22.1 Landlord's Representations. Landlord hereby represents and warrants to Tenant that the officials signing this Lease on behalf of Landlord have the authority to bind Landlord and to enter into this transaction and Landlord has taken all requisite action and steps to legally authorize the execution, delivery, and performance of this Lease. (17371-0006/KA932980.028] -48- section 22.2 Tenant's Representations and Warranties. Tenant hereby represents and warrants to Landlord that it has full power and authority to enter into this Lease and perform in accordance with its terms and provisions; that the Parties signing this Lease on behalf of Tenant have the authority to bind Tenant and to enter into this transaction and Tenant has taken all requisite action and steps to legally authorize the execution, delivery, and performance of this Lease. IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed by its duly authorized representatives all on the day and year first hereinabove written. LANDLORD: TENANT: FRANKLIN COUNTY CITY OF PASCO �-7 n Sue iller, Chal,person Joyde DeFelice, Mayor ATTEST: i /. Mary � d%ers Clerk r [I 7371-0006/KA932990.0291 -49- STATE OF WASHINGTON ) ) ss. County of Franklin ) On this.S day of 199; before me the undersigned, a Notary >aub.lic in and for the State of Washington, duly commissioned and/ sworn, personally appeared SUE MILLER, NEVA J. CORKRUM, FRANK BROCK, and MARY WITHERS I I to me known to be the persons who signed as Chairman, Member, Member, and Clerk of the Board of County Commissioners, respectively, of FRANKLIN COUNTY, WASHINGTON, the corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they were duly elected, qualified, and acting as said officers of the corporation, that they were authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first above written. i). (Signature/or Notary) l (Printed Name of Notary) NOTARY PUBLIC in and for the State of Washington, residing at Pasco. ; My Commission Expires: G J�2t , /%�! 117371-0006fK,932980.0291 -50- State of Washington) ):ss County of Franklin ) On this ,2Atk day of May, 1994, before me personally appeared Joyce DeFelice, to me known to be the Mayor of the City of Pasco, Washington that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that she was authorized to execute the said instrument on behalf of the corporation Given under my hand and official seal, the day and year in this certificate first above written. F (Si nature of otary) dd I C tT (� KESS �2 (Print Name of 1 otary) Notary Public in and for the State of Washington residing at Pasco My Commission expires: 9/16/95 12/07/99 TUE 11-50 FAX 509 545 3573 F.C. COMUSSIONERS EXHIBIT A LOT 2) To" 9 NORTH, RANGEM2295ITUATO IN EASTo W. -M., t�RAN"m COUMtY,N QUARTER T0N. DESCRIBED SHtA 0 AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID NORTHWEST OUARTM THENCE &W21134" E. ALONG THE NORTH UNE OF SAID •NOi1?HWEP QUAIRTSR. too -Of FEET; THENCE S.ot'27'09`W.0 00.00 FEET TO THE SOUTHERLY RIGHT OF WAY MARGIN OF BURDEN R=,- THENCE N"21•340'*. ALONG 34iD SO ERL.Y RIGHT OF WAY MARTIN A DISTANCE OF 80.00 FEET TO THE TRUE FLINT OF BE -011H NO; THENCE 501.27'09'*. A DISTANCE OF 820.84 FEET TO A POINT of CURVE; THEN ALONG A CURVE TO THE . RIGHT HAVING A CENTRAL ANGLE OF 00"11'17', A RADIU� OF 00.00 FEET AND AN: ARC DISTANCE OF 78.70 FEET TOA POINT OF 'TANGENT; THENCE. N.W21'34"W. A DISTANCE OF 339;ot -FEET; THENCE N.01 "38'25"E. A DISTANCE OF' 23>i 73: FEET;, THENCE RAW23'00'W; A DISTANCE OF 545.45 FLAT; THENCE S.01.3W28"W- A DISTANCE OF 239.W FEET; THENCE N.W1110W. A DISTANCE OF 508.35 FEET TO THE COiRlMY RIGHT OF. WAX lr MIN OF CONVENTION PLACE ROAD (COUNTHENCE ti.o1'38'250L. ALONG SMO 90tERL.Y RIGHT OF WAY MARGIN, 851,00 FEEr TO A POINT OF CUING THENCE .ALONG A CURVE' TO THE RIGHT HAYING A CENTRAL ANGLE OF 00'00'007, A RADIUS OF 20.40. FEES'' -AND -AN ARC DISTANCE OF 31.42 FEET TO A POIW OF TANGENT AND 7FJNG ON SMD SOUTHERLY , MARGIN: THENCE S. MI'SCE. ALONG SAID SOUTHEI-Y IN A DISTANCE OF 1510.20 FLET TO THEME POINT. OF BEGINNING.. SUBJECT TO EASEMENTS. RE WAXIONS AND RES CONTAINING 27.81 ACRES OR 1.202.734 'SQUARE OF RECORD. Exhibit A to Ground Lease between Franklin County and City of Pasco dated May 24, 1994. 2006 12/07/99 TUE 11:51 FU 509 545 3573 F.C. COMMISSIONERS EXHIBIT B RL'com LEGAL DE'S`C",,�1. jyoN (LOT 7) . A PARCEL OF LAND SITUATED IN THE EAST HALF SECTION 18. TOWNSHIP 2 NORTH. RANGE 29 EAST, W.Y.. FRANKLIN COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS; BEGINNING AT INC NORTHWEST CORNER OF SAID EAST HALF; THENCE S.88'21'30L ALONG THE NORTH LINE OF SAID EAST HALF A DIStANCE OF 1930.41 FEET; THENCE S.01'27'09V. A DISTANCE OF 990.Ot SET TO THE TRUE POINT OF BEGINNING: THENCE CON71NUING 5.01'27'09'W. A DISTANCE OF 1857.25 FEET TO A POINT ON THE NORTHEASTERLY 14OW OF WAY MARGIN OF STATE HIGHWAY (SR 182); THENCE N.GW56'33"W. ALONG SAID NORTHEASTERLY RIGHT OF WAY MARGIN A DISTANCE OF 988.87 FEET. THENCE-NZY32'31"W. A DISTANCE Of 32.11 FEET; THENCE LEAVING SAID RIGHT OF WAY MARGIN N.01'27'09'vL A DISTANCE OF 1269.88 FEET: THENCE S W21'34"E. A DISTANCE OF 920.47 FEET TO THE TRUE POINT` OF BEGINNING. k SUBJECT of EA'SEIIENTS, RESERVATIONS AND RESTRICTIONS OF RECORD. CONTAINING 31.00 ACRES OR 1,330.391 SQUARE FEET. Exhibit 6 to Ground Lease between Franklin County and City of Pasco dated May 24, 1994. Q 007