HomeMy WebLinkAbout6202LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter "Lease") is between the City of Bremerton, a
municipal corporation of the State of Washington, with offices located at 345 6th Street, Suite
100, Bremerton, Washington 98337 (hereinafter "City"), and Wilwyn Properties, LLC
(hereinafter "Lessee").
RECITALS
WHEREAS, the City now owns certain land legally described in Exhibit A; and
WHEREAS, it is the parties' desire to enter into a two (2) year lease; and
NOW, THEREFORE, the City and Lessee agree as follows:
AGREEMENT
1. PROPERTY.
1.1 Property Defined. The City leases to Lessee and Lessee leases from the City the
real property described in Exhibit A, attached hereto and incorporated herein by this reference,
together with all the rights of the City, if any, to improvements on and easements benefiting the
property but subject to the exceptions and restrictions set forth in this Lease (collectively the
"Property" or "Leased Property"). The current compensation is based on a plan for four (4)
parking stalls, adjustments to the number of parking stalls shall allow parries mutually to request
with 30 days written notice an adjustment to compensation. The specific location of the parking
spaces shall be mutually agreed between the parties and may be changed as thereafter agreed by
the plan modifications and updated in Exhibit B.
1.2 Survey, Maps, and Plans. Lessee is not relying upon and the City is not making
any representations about any survey, plat, diagram, and/or legal description provided by the
City.
1.3 Inspection. The City makes no representation regarding the condition of the
Property, or the improvements located on the Property.
2. USE.
2.1 Permitted Use. Lessee shall use the Property as outlined in Exhibit A for a
satellite parking facility adjacent to the business located at 1921 Wheaton Way, Bremerton (the
"Permitted Use") and for no other business or purpose, without the prior written consent of the
City. The Property shall not be used for illegal purposes. It is agreed that this Lease shall not be
construed as the City's waiver of land use or building code provisions that would otherwise
apply to any improvements or uses of the site.
2.2 Conformance with Laws. Lessee shall, at all times, keep current and comply with
all conditions and terms of any permits, licenses, certificates, regulations, ordinances, statutes,
and other government rules and regulations regarding its use or occupancy of the Property.
2.3 Liens and Encumbrances. Lessee shall keep the Property free and clear of any
liens and encumbrances arising out of or relating to its use or occupancy of the Property.
Lease Agreement - 1
(Between City of Bremerton and Wilwyn Properties)
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3. TERM.
3.1 Term Defined. The term of this Lease is two (2) years (the "Term"), beginning
on the 1st day of January, 2021 (the "Commencement Date") and ending on the 31 st day of
December, 2022 (the "Termination Date"), unless terminated sooner under the terms of this
Lease
3.2 Right to Terminate Earl.. The City or Lessee may terminate the Lease, without
cost or penalties, at any time during the Term upon giving 90 days prior written notice of
termination.
3.3 End of Term. Upon the expiration or termination of the Lease, as applicable,
Lessee shall surrender the Property to the City in the same or better condition as existed on the
Commencement Date, reasonable wear and tear excepted.
3.4 Hold Over. If Lessee remains in possession of the Property after the Termination
Date, the occupancy shall not constitute an extension or renewal of the Term. The occupancy
shall be a month -to -month tenancy, on terms identical to the terms of this Lease, which may be
terminated by either party on 30 days written notice. The monthly rent during the holdover shall
be the same rent which would be due if the Lease were still in effect and all adjustments in rent
were made in accordance with its terms. If the City provides a notice to vacate the Property in
anticipation of the termination of this Lease or at any time after the Termination Date and Lessee
fails to do so within the time set forth in the notice, then Lessee shall be a trespasser and shall
owe the City all amounts due under applicable law.
4. LEASE PAYMENT.
4.1 Monthly Payment. Lessee shall pay to the City a monthly payment of Two -
hundred dollars ($200.00), plus the leasehold tax of 12.84 percent (12.841/o) as set forth in
Section 4.3 for a total monthly payment of Two -hundred and twenty-five dollars and sixty-eight
cents ($225.68) ("Lease Payment'). The first installment shall be due and payable on or before
the Commencement Date, and subsequent installments shall be due and payable on or before the
same day of each month thereafter.
4.2 Payment Place. Payment is to be made to the City of Bremerton, Attn: Financial
Services, 345 6t' Street, Suite 100, Bremerton, Washington 98337.
4.3 Leasehold Excise Tax. Lessee agrees to pay the leasehold excise tax on the Lease
Payment pursuant to Chapter 82.29A RCW currently in the amount of 12.84 percent (12.84%)
and as may be adjusted pursuant to Ch. 82.29A RCW. In addition, Lessee agrees to pay when
due, the leasehold excise tax, or any additional assessments thereto, with respect to any payment
or obligation hereunder, which is deemed by the State of Washington to be taxable rent under
said chapter and to indemnify and hold the City harmless from the same.
Lessee shall pay the amount of the leasehold tax owing with the Lease Payment to the
City or as otherwise required by the State of Washington. Lessee may prepay these quarterly
payments on a semi-annual or annual basis or as otherwise approved by the City.
4.4 Proof of Pa„ ent. Lessee shall, if required by the City, furnish to the City
receipts or other appropriate evidence establishing the payment of any amounts required to be
paid under the terms of this Lease.
4.5 Late Charge. If any rental payment is not received by the City within ten (10)
days of the date due, Lessee shall pay to the City a late charge equal to four percent (4%) of the
amount of the Lease to defray the overhead expenses of the City incident to the delay.
Lease Agreement - 2
(Between City ofBremerron and i11wyn Properties)
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Properties LLC,
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4.6 No Counterclaim. Setoff, or Abatement of Rent. Except as expressly set forth
elsewhere in this Lease, rent and all other sums payable by Lessee pursuant to this Lease shall be
paid without the requirement that the City provide prior notice or demand, and shall not be
subject to any counterclaim, setoff, deduction, defense or abatement.
4.7 Annual Adjustments. Automatic adjustments to compensation shall be limited to
an annual basis effective on the anniversary of the Commencement Date of the Lease. Payment
shall be adjusted by 100% of the Consumer Price Index for All Urban Consumers: CPI-U
("CPI") Seattle Tacoma Index (1984-87=100) as published by the Bureau of Labor Statistics for
the September for which statistics were posted prior to the annual anniversary of the effective
date of this Lease.
5. IMPROVEMENTS.
5.1 City Authorization and Consent. Prior to commencing any improvements, the
Lessee shall obtain the written consent of the City.
5.2 Construction. Prior to Lessee commencing any construction, alteration,
replacement, removal or major repair of any improvements, including utility connections, Lessee
shall submit to the City plans and specifications which describe the proposed activity.
Construction shall not commence until the City has approved those plans and specifications in
writing and Lessee has obtained a performance and payment bond in an amount equal to 100%
of the estimated cost of construction. The performance and payment bond shall be maintained
until the costs of construction, including all laborers and material persons, have been paid in full.
Upon completion of construction, Lessee shall promptly provide the City with as -built plans and
specifications. The City's consent and approval shall not be required for any routine
maintenance or repair of improvements made by the Lessee pursuant to its obligation to maintain
the Property in good order and repair that does not result in the construction, alteration,
replacement, removal, or major repair of any improvements on the Property. The provisions of
this section do not obviate any permit requirements that may apply to the proposed activity. As-
builts shall be added to this Lease and incorporated as Exhibit B: Site configuration.
5.3 Unauthorized Improvements. Improvements made on the Property without the
City's prior consent pursuant to Subsection 5.2 or which are not in conformance with the plans
submitted to and approved by the City ("Unauthorized Improvements") shall immediately
become the property of the City, unless the City elects otherwise. Regardless of ownership of
Unauthorized Improvements, the City may, at its option, require Lessee to sever, remove, and
dispose of them, charge Lessee rent for the use of them, or both. If Lessee fails to remove an
Unauthorized Improvement upon request, the City may remove it and charge Lessee for the cost
of removal and disposal.
5.4 Removal of Improvements. Lessee at is sole expense shall remove its
improvements and restore the Premises to grade and to its condition prior to this Agreement and
shall perform all obligations under this Agreement, including without limitation the payment of
Rent at the rate in effect upon the expiration or termination of this Agreement. City may allow
Lessee, by written agreement, to abandon its property in place, but the City shall not be obligated
to compensate Lessee for the abandoned property or any value derived therefrom. If City does
not allow abandonment and lessee does not remove its property, Lessee must reimburse City for
its reasonable costs in having the property removed and the Premises restored.
Lease Agreement - 3
(Between City of Bremerton and Wilwyn Properties)
5.5 Utility Connections. Connection to utilities shall require City's consent and shall
be the sole responsibility of the lessee. Connections shall be included in as builts and the final
site configuration.
5.6 Notice required upon private property. Nothing in this Lease shall permit the
Lessee to unlawfully enter or construct improvements upon the property or premises of another.
6. ASSIGNMENT AND SUBLETTING.
6.1 City Consent Required. Lessee shall not sell, convey, mortgage, assign, pledge,
sublet, or otherwise transfer or encumber all or any part of Lessee's interest in this Lease or the
Property without the City's prior written consent. In the event of such consent, each permitted
transferee shall assume all obligations under this Lease, including the payment of rent. No
assignment, sublet, or transfer shall release, discharge, or otherwise affect the liability of Lessee.
6.2 Rent Payments Following Assignment. The acceptance by the City of the
payment of rent following an assignment or other transfer shall not constitute consent to any
assignment or transfer.
7. INDEMNITY.
7.1 The City shall not be liable for any injury to any person or for any loss of or
damage to any property (including property of Lessee) occurring in or about the leased Property
or the buildings thereon and caused by or resulting from any act or omission by Lessee any
officer, agent, employee, guest, invitee, or visitor of Lessee; and, during the full term hereof,
Lessee agrees and covenants to indemnify, defend, and hold harmless the City and those persons
who were, now are, or shall be duly elected or appointed officials or members or employees or
agents thereof, against and from any loss, damage, costs, charge, expense, liability, claim,
demand, or judgments of whatsoever kind or nature whether to persons or property, to the extent
arising on said Property, in or on said building(s), or on any areas adjoining the same, which is
under the control or use of Lessee pursuant to this Lease and arising out of or in connection with
Lessee's use and occupancy of said Property. City agrees and covenants to indemnify, defend,
and hold harmless the Lessee, its officers, employees, and agents thereof, against and from any
loss, damage, costs, charge, expense, liability, claim, demand, or judgment of whatsoever kind or
nature whether to persons or property, arising out of or in connection with the City's negligence
in its performance under this Lease.
7.2 Should a court of competent jurisdiction determine that this Lease is subject to
RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent negligence of Lessee and the
City, its officers, officials, employees, and volunteers, the Lessee's liability hereunder shall be
only to the extent of the Lessee's negligence. IT IS FURTHER SPECIFICALLY AND
EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN
CONSTITUTES THE LESSEE'S WAIVER OF IMMUNITY UNDER INDUSTRIAL
INSURANCE, TITLE 51, RCW_, SOLELY FOR THE PURPOSES OF THIS
INDEMNIFICATION. This waiver has been mutually negotiated by the parties. The provisions
of Section 10 shall survive the expiration or termination of this Lease.
8. INSURANCE.
8.1 General Commercial Liability Insurance. Lessee agrees to procure and maintain
in force during the Term of this Lease and any extension thereof, at its expense, general
Lease Agreement - 4
(Between City of Bremerton and Wilwyn Properties)
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commercial general liability insurance. This insurance shall be adequate to protect against
liability for damage claims through public use of or from accidents or other liability arising out
of Lessee's use or occupancy of the Property and buildings thereon. This insurance shall be in a
minimum amount of $1,000,000 combined single limit per occurrence and $2,000,000 aggregate
for bodily injury, personal injury and property damage which may be covered under a blanket
policy. Lessee agrees that, if such insurance policies are not kept in force during the Term of this
Lease and any extension thereof, the City may procure the necessary insurance, pay the premium
therefor, and that such premium shall be repaid to the City on demand. The City shall be named
as an additional insured as to liability arising out of the Property and buildings thereon and the
insurance of Lessee shall be the primary insurance as to said liability.
8.2 Certificate of Insurance. Lessee shall provide to the City documentary evidence,
certified by the insurer, of all insurance(s) required in this Lease.
8.3 Subro ag tion. The City shall not be liable to Lessee (by way of subrogation or
otherwise) or to any insurance company insuring the other party for any loss or damage to any
building, structure, or other tangible property, or any resulting loss of income, or losses under
worker's compensation laws and benefits, if any such loss or damage is covered by insurance
benefiting the party suffering such loss or damage or was required to be covered by insurance
pursuant to this Lease. Lessee shall, upon obtaining the policies of insurance required give
notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is
contained in this Lease.
9. MAINTENANCE AND REPAIR.
9.1 The City's Repairs. The City shall not be required to make any alterations,
maintenance, replacements, or repairs in, on, or about the Property, or any part thereof, during
the Term.
9.2 Lessee's Repairs, Alteration, Maintenance and Replacement.
(a) Lessee shall, at its sole cost and expense, keep and maintain the Property
and all improvements (regardless of ownership) in good order and repair, in a clean, attractive,
and safe condition.
(b) Lessee shall, at its sole cost and expense, make any and all additions,
repairs, alterations, maintenance, replacements, or changes to the Property or to any
improvements on the Property which may be required by any public authority.
(c) All additions, repairs, alterations, replacements or changes to the Property
and to any improvements on the Property shall be made in accordance with, and ownership shall
be governed by, Section 5, above.
10. DAMAGE OR DESTRUCTION.
10.1 In the event of any damage to or destruction of the Property or any improvements,
Lessee shall promptly give written notice to the City.
10.2 Unless this Lease is terminated, there shall be no abatement or reduction in rent
due to any damage or destruction of the Property.
11. DEFAULT AND REMEDIES.
11.1 Acts Constituting Default_. Lessee shall be in default of this Lease on the
occurrence of any of the following:
(a) Failure to pay Rent or other expenses when due;
Lease Agreement - 5
(Between City of Bremerton and Wilwyn Properties)
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(b) Failure to comply with any law, regulation, policy, or order of any lawful
governmental authority;
(c) Failure to comply with any other provision of this Lease;
(d) Failure to cure a default pursuant to Section 11.2 below; or
(e) Proceedings are commenced by or against Lessee under any bankruptcy
act or for the appointment of a trustee or receiver of Lessees' property.
11.2 Failure to Cure. A default shall become an event of default ("Event of Default")
if Lessee fails to cure the default within thirty (30) days after the City provides Lessee with
written notice of default, which specifies the nature of the default
11.3 City's Remedies Upon Default. Upon an Event of Default, the City may
terminate this Lease and remove Lessee by summary proceedings or otherwise. The City shall
not be construed to have elected to terminate this Lease or cause a forfeiture of rents or other
charges to be paid during the balance of the Term, unless the City gives a written notice of
termination to Lessee or termination is decreed by legal proceedings.
12. ACCESS. The City shall have the right to enter the Property at any reasonable hour to
inspect for compliance with the terms of this Lease upon 24 hours notice.
12.1 Emergency Removal or Relocation of Facilities. The City retains the right and
privilege to remove any facilities located within the public ways of the City and upon City
property, as the City may determine to be necessary, appropriate, or useful in response to any
public health need or safety emergency. The City shall not liable to the Lessee or any other party
for any direct, indirect or any other such damages suffered by any person or entity of any type as
a direct or indirect result of the City's actions under this section.
13. NOTICE. Any notices required or permitted under this Lease may be personally
delivered, delivered by facsimile machine, or mailed by certified mail, return receipt requested,
to the following addresses or to such other places as the parties may direct in writing from time
to time:
The City: City of Bremerton
Attn: Melinda Monroe, Contracts Administrator
345 6'b Street, Suite 100
Bremerton, Washington 98337
Lessee: Wilwyn Properties LLC
11505 Burnham Dr NW #201
Gig Harbor, WA 98332
A notice shall be deemed given and delivered upon personal delivery, upon receipt of a
confirmation report if delivered by facsimile machine, or three (3) days after being mailed as set
forth above, whichever is applicable.
14. MISCELLANEOUS.
14.1 Authority. Lessee and the person or persons executing this Lease on behalf of
Lessee represent that Lessee is qualified to do business in the State of Washington, that Lessee
Lease Agreement - 6
(Between City of Bremerton and Wilwyn Properties)
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has full right and authority to enter into this Lease, and that each and every person signing on
behalf of Lessee is authorized to do so.
14.2 Successors and Assigns. This Lease shall be binding upon and inure to the
benefit of the parties, their successors and assigns.
14.3 Entire Agreement. This Lease, including the exhibits and addenda, if any,
contains the entire agreement of the parties. All prior and contemporaneous agreements,
promises, representations, and statements relating to this transaction or to the Property, if any,
are merged into this Lease.
14.4 Waiver. The waiver by the City of any breach or default of any term, covenant,
or condition of this Lease shall not be deemed to be a waiver of such term, covenant, or
condition; of any subsequent breach or default of the same; or of any other term, covenant, or
condition of this Lease. The City's acceptance of a rental payment shall not be construed to be a
waiver of any preceding or existing breach other than the failure to pay the particular rental
payment that was accepted.
14.5 Cumulative Remedies. The rights and remedies of the City under this Lease are
cumulative and in addition to all other rights and remedies afforded to the City by law or equity
or otherwise.
14.6 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every
provision of this Lease.
14.7 Invalidi . If any provision of this Lease shall prove to be invalid, void, or illegal,
it shall in no way affect, impair, or invalidate any other provision of this Lease.
14.8 Applicable Law and Venue. This Lease shall be interpreted and construed in
accordance with the laws of the State of Washington. Any reference to a statute shall mean that
statute as presently enacted or hereafter amended or superseded. Venue for any action arising
out of or in connection with this Lease shall be in the Superior Court for Kitsap County,
Washington.
14.9 Modification. Any modification of this Lease must be in writing and signed by
the parties. The City shall not be bound by any oral representations or statements.
14.10 Survival of Covenants. The covenants contained herein survive the termination or
expiration of the Lease for the applicable statute of limitation periods.
14.11 Quiet Enjoyment. The City covenants and agrees that Lessee, upon performing
the terms and conditions of the Lease, may peacefully hold and enjoy the Property during said
term without any interruption by the City, its successors or assigns. City will use its best efforts
not to interfere with Lessee's business or right of access to and from the Property during the
Term of this Lease.
14.12 First Right of Refusal. Lessee shall have the option to purchase the Property if it
becomes available for purchase and a decision made by Lessee within 30 days of notice given.
14.13 Recording of Short Form Lease. Neither the City nor Lessee may record this
Lease without the other's prior approval, but the parties will at any time at the request of either
party promptly execute duplicate originals of an instrument, in recordable form, which will
constitute a short form of this lease, setting forth a description of the Property, the terms of this
lease and other provisions hereof, except the rental and other provisions as either party may
request, which may be recorded.
14.14 Duplicate Originals. This Lease may be executed in duplicate originals.
14.15 Standards of Revocation or Lesser Sanctions. If the City Council determines that
a Lessee willfully violated or failed to comply with any of the provisions of this Lease after
Lease Agreement - 7
(Between City of Bremerton and Widwyn Properties)
notice is given to the Lessee by the City under the provisions of this Lease, then the Lessee shall
forfeit all rights conferred hereunder and the Lease may by revoked or annulled by the City. The
City may elect, in lieu of the above and without any prejudice to any of its legal rights and
remedies, to pursue other remedies and to recover damages and costs incurred by the City by
reason of Lessee's failure to comply.
14.16 Safety Requirements. The Lessee, in accordance with applicable federal, state,
and local safety requirements shall, at all times, employ ordinary care and shall install and
maintain and use commonly accepted methods and devices for preventing failures and accidents
which are likely to cause damage, injury or nuisance to the public and/or workers. All structures
and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys,
and public ways or places of a Lease area wherever situated or located, shall at all times be kept
and maintained in a safe, suitable condition, and in good order and repair. The City reserves the
general right to see that the facilities of the Lessee is constructed and maintained in a safe
condition.
THIS LEASE requires the signature of all parties and is executed as of the date of the
last signature below.
CITY OF BREMERTON
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By: Wheeler
Its: Mayor
Date: 2 `2 l -.L %
APPROVED AS TO FORM:
Roger . Lubovi , City Attorney
Lease Agreement - 8
(Between City of Bremerton and Wilwyn Properties)
WILWYN PROPERTIES,LLC
By:
Its:
Date: J t
ATTEST:
,fir
Angela Hoover, City Clerk
Notaries on Next Page
STATE OF WASHINGTON )
COUNTY OF KITSAP )
I certify that I know or have satisfactory evidence that Greg Wheeler is the person who
appeared before me, and acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument, and acknowledged it as Mayor of the City of Bremerton to
be the free and voluntary act of such City for the uses and purposes mentioned in the instrument.
W`l,� O+IiJ,p�jy hand and seal this ?AJ` day of ItjZA LL A
��'�� � .••• EXP. 0g 2 �4�
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inkg iC O NO A PUBLIC in and for the State of
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Washington, residing at IG �SGr,p�',bu n
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STATE OF WASHINGTON )
COUNTY OF KITSAP )
I certify that I know or have satisfactory evidence that K.6g lly- G il';&A is the
person who appeared before me, and acknowledged that (s)he signed t1iis instrument, on oath
stated that (s)he was authorized to execute the instrument, and acknowledged it to be the free and
voluntary act for the uses and purposes mentioned in the instrument.
WITNESSETH my hand and seal this ' day of l cxJrlxtr , 20 2 0
CHRISTOPHER MILES ANDERSON -
Notary Public
State of Washington NOTARY PUBLIC in and for the State of
Commission # 147941
,Washington, residin at
My Comm. Expires Augug92022 �...
My commission expires Vf--7
Lease Agreement - 9
(Between City of Bremerton and Wilwyn Properties)
EXHIBIT A: Premise
Legal description: 1931 Wheaton Way parcel number: 3976-030-005-0006
LOTS 5 & 6 BLK 30 ALSO LOTS 67 & 68 BLK 30
Lease Agreement - 10
(Between City of Bremerton and Wilwyn Properties)
Exhibit B: Site Configuration
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Lease Agreement - 11
(Between City of Bremerton and Wilwyn Properties)
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