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