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HomeMy WebLinkAboutDowntown Pasco Development Authority (DPDA) Lease Agreement 05.17.21LEASE AGREEMENT THIS LEASE AGREEMENT is made and entered into this 171h day of May, 2021, by and between the City of Pasco, Washington, a Municipal Corporation, hereinafter referred to as City", and the Downtown Pasco Development Authority, a non-profit Washington Corporation, hereinafter referred to as "DPDA." IN CONSIDERATION of the mutual covenants contained herein and other valuable consideration, it is agreed as follows: 1. Premises. 1. City does hereby lease to DPDA, upon the following terms and conditions, the downtown area known as "Peanuts Park", a public plaza on the south side of Lewis Street (a diagram of said plaza being attached hereto and marked Exhibit "A" and made a part hereof) for a Pasco Farmers Market. 2. City does hereby lease to DPDA, upon the following terms and conditions, the building located at 110 South Fourth Avenue for a downtown commercial kitchen business incubator. The properties described above in 1 and are hereinafter referred to as the "Premises." 3. Term. The term of this Lease shall begin on the date of execution and end on the 31 st day of December, 2022. The Parties may agree to extend the lease term for a maximum period of five (5) years by executing a written amendment hereto, and upon negotiation of a reasonable rent for the extended term. 4. Leasehold Excise Tax. DPDA shall pay any leasehold excise tax due pursuant to RCW 84.29A to the City on or before the first day of January during each year of this Agreement. If the State of Washington changes the leasehold excise tax or an additional tax is imposed on such leasehold, the tax payable by the DPDA shall be correspondingly changed. 5. Use. DDPA shall use the premises for the following purposes and no others without the prior written consent of the City: Business Office; Farmers Market and a Commercial incubator kitchen. No other uses, activities, or operations shall be conducted by the DPDA from the leased Premises without first obtaining the prior written consent of the City. DPDA shall maintain the Premises in clean and sanitary conditions, free of fire or other casualty hazards and in good working order. The DPDA shall be solely responsible for the security, maintenance, and protection of its property stored at the Premises. DPDA is authorized to use the old restroom facility for storage of Farmers Market materials, and for no other purpose, without City's written permission. 6. Farmers Market DPDA Lease Agreement - 1 a. Vendor's Indemnity 1. DPDA will require each and every vendor at the Pasco Farmers Market to sign a Contract of Indemnity on the form set forth as Exhibit `B" hereto. Each vendor shall be required to sign a new agreement annually and the DPDA shall hold and maintain the agreement for a period of at least three (3) years from the date of signing. DPDA shall also determine the type and amounts of insurance carried by each vendor. b. Market Policies and Procedures 1. DPDA shall maintain and enforce policies and procedures appropriate to the activities conducted at the Farmers Market and Peanuts Park c. Peanuts Park 1. The Peanuts Park area shall be made available for food concessions, artworks and crafts, and entertainment during the same days that the Farmers Market is in operation, or pursuant to special permit issued by the City. d. Days of Operation 1. Specific days of operation must be approved in advance by the City Manager or his designee and such approval shall not be unreasonably withheld. e. Fees 1. The vendor fees for the Market shall be set yearly by the DPDA and shall be uniformly applied for each vendor class. f. Use of Fees Proceeds 1. The use of all such fees collected shall be limited to payment of expenditures for advertising, promotion, management, and other costs attributable to the operation of the. Market. After the payment of expenditures, any excess funds shall go to the DPDA for use on various projects to benefit the Pasco Farmers Market or operation of DPDA. g. Cleaning 1. The DPDA shall maintain the cleanliness of the Market area and Peanuts Park restroom facilities. Additionally, for each day that Farmers Market is conducted, DPDA shall be responsible to clean the parking lot and park of litter. DPDA shall place all trash, litter and debris in an appropriate container following each day of operation. h. DPDA Maintenance/Storage 1. The DPDA shall be responsible, from May through October at its own cost and expense, for the routine maintenance and upkeep of the market area and Peanuts Park (See attached map Exhibit A) and for providing adequate, portable restroom (ADA Accessible) facilities, including supplies as required for operating the premises. Routine maintenance shall be defined as litter control, cleaning hard surface areas, monitor area for potential hazards. i. City Maintenance 1. City shall, at its own cost and expense, maintain and repair all structural portions of the premises, including electrical and plumbing repairs that DPDA Lease Agreement - 2 require alteration of structural portions of the premises, in a good and safe condition. Structural portions of the premises shall include without limitation, roof, exterior walls, structural members, and floors. City shall determine if portable restroom facilities are required for the months of November through April and shall provide such, if required. j. Utilities 1. DPDA shall pay for the electrical charges billed with meter #32286 located on the building at the east end of the parking lot) as well as for charges billed on the temporary service meter #27572, for its special events. City shall pay for all other electric meter charges. k. Records 1. The DPDA shall maintain adequate financial records and submit a written report to the City Manager at the conclusion of each Market season. The records shall include the Market's income, expenditures, vendors, and other market activities. Such records shall be kept for at least a period of six (6) years or longer at the direction of the City Manager. 7. CommercialIiitchen a. Use Restrictions 1. The DPDA shall have the right to rent the facility, establish rental rates, purchase equipment, hire/dismiss staff and other actions necessary to operate the commercial kitchen business incubator in accordance with the purposes established by the Economic Development Administration, the North American Development Bank and Community Development Block Grant Program. b. Vendor contract of Indemnity 1. DPDA will require each and every user at the commercial kitchen business incubator to sign a Contract of Indemnity on the form set forth as Exhibit '`C" hereto. Each user of the facility shall be required to sign a new agreement annually and the DPDA shall hold and maintain the agreement for a period of at least three (3) years from the date of signing. c. Fees 1. The DPDA shall establish appropriate fees and charges for the use of the commercial kitchen business incubator. The use of such funds collected shall be limited to payment of expenditures for staff salaries, advertising, promotion, insurance, utilities, maintenance, management, and other costs directly attributable to the operation of the Incubator. After the payment of expenditures, any excess funds shall be used for operating the DPDA. d. Cleaning/Maintenance 1. The DPDA shall be responsible, at its own cost and expense, for the routine cleaning, maintenance and upkeep of the commercial business incubator building, including supplies as required to operate the premises and minor, nonstructural, repairs, including plumbing (i.e., DPDA Lease Agreement - 3 faucets, fixtures and exposed pipes and electrical (i.e., switches, outlets, fixtures, etc) all in accordance with customary standards for similar facilities and prudent maintenance practices. 2. In the event that the costs of maintenance or repairs exceed the revenues derived from the operation of the commercial kitchen the DPDA should seek alternative funds. If none are available the DPDA shall provide City with documentation of need and revenue shortage. e. Funds 1. On an annual basis, the DPDA shall apply for an allocation of CDBG funds in accordance with the established schedule and procedures. Any funds awarded shall be disbursed in accordance with the provisions of the CDBG Subrecipient Grant Agreement. f. Rules/Guidelines 1. The DPDA shall administer the commercial kitchen business incubator in accordance with the provisions of the grant agreements with the U.S. Economic Development Administration, North American Development Bank, and US Department of Housing & Urban Development. The DPDA shall file required job creation and other progress reports in a timely manner. 2. The DPDA shall maintain written rules and guidelines for the commercial kitchen business incubator operation. 3. The DPDA shall maintain adequate financial records and submit a written report to the City Manager by February 15th of each year. The records shall include the incubator's income, expenditures, users, and other market activities. Such records shall be kept for at least a period of three (3) years or longer at the direction of the City Manager. 4. The DPDA shall comply with applicable federal, state, and local laws and regulations. g. Anti —Discrimination 1. No person shall, on the grounds of race, color, sex, religion or national origin, be excluded from participation in the commercial kitchen business incubator activities or be subject to discrimination 8. Insurance. DPDA shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the DPDA's operation and use of the Business Office, Farmers Market and Commercial Kitchen. Insurance shall conform to the following: A. Minimum Scope of Insurance DPDA shall obtain insurance of the types described below: 1. Commercial General Liability insurance shall be written on Insurance Services Office (ISO) occurrence form CG 00 01 and shall cover premises and contractual liability. The City shall be named as an insured on Lessee's Commercial General Liability insurance policy using ISO Additional Insured - Managers or Lessors of Premises Form CG 20 11 or a substitute endorsement providing equivalent coverage. 2. Property insurance shall be written on all risk basis. DPDA Lease Agreement - 4 B. Minimum Amounts of Insurance DPDA shall maintain the following insurance limits: 1. Commercial General Liability insurance shall be written with limits no less than 1,000,000 each occurrence, $2,000,000 general aggregate. 2. Property insurance shall be written covering the full value of DPDA's property and improvements with no coinsurance provisions. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Commercial General Liability insurance: 1. DPDA's insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the DPDA's insurance and shall not contribute with it. 2. DPDA's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. D. Verification of Coverage DPDA shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement. E. Waiver of Subrogation DPDA and City hereby release and discharge each other from all claims, losses and liabilities arising from or caused by any hazard covered by property insurance on or in connection with the premises or said building. This release shall apply only to the extent that such claim, loss or liability is covered by insurance. DPDA shall be solely responsible for the loss, damage, or casualty to its personal property located at the Premises, regardless of cause. DPDA is encouraged to secure "content's coverage" insurance for DPDA personal property. 9. IndemW:L and Hold Harmless. DPDA agrees to indemnify and hold the City harmless as provided herein to the maximum extent possible under the law. Accordingly, the DPDA agrees for itself, successors and assigns, to defend, indemnify and hold harmless the City, its appointed and elected officials, and employees from and against liability for all claims, damages, suits, and judgments including the cost of defense thereof, for injury to person, death, or property damage which is caused by, arises out of, or is incident to the DPDA's exercise of its rights and privileges as granted by this Agreement, except to the extent of the City's sole negligence. 10. Assignment or Sublet. DPDA shall not assign or transfer this Agreement or any interest therein, nor sublet the whole or any part of the Premises, not grant an option for assignment, transfer or sublease for the whole or any part of the Premises, nor shall this Agreement or any interest therein be assignable or transferable by operation of law, or by any process or proceeding of any Court or otherwise without the prior written consent of the City. 11. General Provisions. For the purpose of this Agreement, time is of the essence. In the event of a dispute regarding the enforcement, breach, default or interpretation of this Agreement, the parties shall first meet in a good faith effort to resolve such dispute. In the event DPDA Lease Agreement - 5 the dispute cannot be resolved by agreement of the parties, said dispute shall be resolved by arbitration pursuant to RCW 7.04A, as amended, and the Mandatory Arbitration Rules (MAR); venue shall be placed in Franklin County, Washington, the laws of the State of Washington shall apply; and the prevailing party shall be entitled to its reasonable attorney fees and costs. 12. Entire Agrgement. This Agreement contains the entire agreement between the parties, and no modification of this Agreement shall be binding upon the parties unless evidenced by an agreement in writing signed by the City and the DPDA after the date hereof. IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and year first written above. CITY OF PASCO Dave Zab anager DOWNTOWN P_ CO DEVELOPMENT AUTHORITY 7 w ikz;s Gabriel Portugal, Boar resident CONTRACT OF INDEMNITY FOR COMMERCIAL KITCHEN EXHIBIT "C" AGREEMENT made this ____ day of ________ , 20_, between ____________ _, herein called 'INDEMNITOR", and the Downtown Pasco Development Authority, a nonprofit Washington corporation, herein called 'INDEMNITEE", witnesseth: Whereas, the INDEMNITOR desires to lease kitchen space in accordance with the permitted uses of the Downtown Commercial Kitchen in the City of Pasco, Washington; and Whereas, the INDEMNITEE desires to encourage Commercial Kitchen activity and has an agreement with the City of Pasco to provide a Commercial Kitchen at 110 S. Fourth Ave. NOW, THEREFORE, in consideration of the above-stated premises, INDEMNITORagrees that it will indemnify INDEMNITEE and the City of Pasco against, and save INDEMNITEE and the City of Pasco harmless from and against all claims, suits, damages, costs, losses and expenses in any manner, including but not limited to attorney's fees resulting from, arising out of, or connected with the INDEMNITOR'S use of kitchen space in accordance with those permitted uses of the Downtown Commercial Kitchen. THIS AGREEMENT shall be binding on and inure to the benefit of the heirs, executors, administrators, successors and assigns of the respective parties hereto. DATED this first date written above. INDEMNITOR: By ________________ _ DOWNTOWN PASCO DEVELOPMENT AUTHORITY, INDEMNITEE: By: ________________ _