HomeMy WebLinkAbout2783
Vendor
Subject
Department
Status Code
Amount
Begin Date
End Date
Review Date
Insurance
Comments
Contract Number 2783
O'BAY INC
4412 Kitsap Way - Oyster Bay Inn
Engineering
ROW File Class LEG 16-3
$
09/01/1986
12/31/2005
02/15/2007
GL
AL
E&O
$2000000.00
$
$
Insurance Total
Insurance Review Date
$2000000.00
10/01/2005
Vault 01/01/2007
RIGHT-OF-WAY USE PERMIT
THIS AGREEMENT, made and entered into this ~ day of
iF~_~ , 1989, by and between the City of Bremerton, a
municipal corporation, hereinafter referred to as "city," and
O'Bay, Inc., a Washington corporation, hereinafter referred to as
"O'Bay."
WHEREAS, O'Bay desires to continue to use and maintain a
sidewalk, curbs, gutters and a landscaped area erected on City
right-of-way at the real property commonly known as 4412 Kitsap
Way, Bremerton, Kitsap County, Washington; and
WHEREAS, vacation of the portion of Kitsap Way is impractical
and undesirable at this time; and
WHEREAS, O'Bay agrees to pay to the City the sum of $ ~O,°o
per year, payable in January of each year, for the right to
continue using and maintaining the sidewalk, curbs, gutters and
landscaped area and, in addition, the payment of any leasehold
taxes due thereon; and
WHEREAS, O'Bay agrees that at the beginning of each successive
year after ~anuary, 19 ~ , that the monthly rent shall
automatically be adjusted by the change in the "All Items" category
of the Consumer Price Index for All Urban Consumers as published
by the Bureauof Labor Statistics for the U.S. Department of Labor,
U.S. city average for the month of November, 1989 (basic index);
provided, however, that rent shall not, in any case, decrease; it
is now therefore
W I TNES SETH:
1
1. The city hereby grants to O'Bay the use of said street
right-of-way over the following real property:
See Exhibit "A" attached hereto and incorporated herein
by this reference.
Said property shall be used for the sole purpose of continuing to
use and maintain the sidewalk, curbs, gutters, and landscaped area,
and for no other purpose.
2. It is understood and agreed that this use permit is not
assignable and that this Agreement shall continue in effect from
year to year unless terminated by either party.
3. It is understood and agreed that this street right-of-way
use permit may be terminated by. either party, without cause, upon
thirty (30) days' written notice. Termination notice shall be
effective on the date of mailing and served upon the parties as
indicated below:
City Clerk j~~~
239 Fourth Street .~.
Bremerton, WA 98310 - .v
4. Prior to and during the period of this Agreement, O'Bay
shall provide.the Risk Manager for the City evidence that it has
obtained and maintains in full force and effect during the term of
this Agreement, a policy of public liability insurance in an amount
of not less than $500,000.00, to include injury to, or loss of life
of, any individual person; personal injuries suffered in each
occurrence; and property damage suffered in each occurrence, which
may be related to O'Bay's occupancy of the above-described
property. Said insurance shall name the City of Bremerton as an
2
additional insured. O'Bay shall furnish a copy of this policy to
the City for review by the Risk Manager. City's Risk Manager shall
be provided thirty (30) days' written notice of any cancellation
of said public liability insurance.
O'Bay agrees to defend, indemnify, and save harmless the City,
its appointed and elected officers and employees, from and against
any and all liability, loss, costs, damage and expense, including
costs and attorney fees in defense thereof because of actions,
claims, or lawsuits for damages resulting from personal or bodily
injury, including death at any time resulting therefrom, sustained
or alleged to have been sustained by any person or persons and on
account of damage to property, .arising or alleged to have arisen
directly or indirectly out of or in consequence of or the
performance of this Agreement, whether such injuries to persons or
damage to property is due to the negligence of O'Bay, its
subcontractors, agents, successors, or assigns. This provision
shall be inapplicable to the extent that the City is judicially
found solely negligent for such damage or injury.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the date and year first above written.
esident
BY:
Secretary
ATTEST: CITY OF BREMERTON
KATH~_~E~ McCLUSKEY, Clerk ~ ~E LOBE, Mayor ·
O FOR~: 3
IAN RT~IEVERS
City Attorney
That portion of government lot 5, section 16, township 24 north,
range 1 east, W.M., in Kitsap County, Washington, described as
follows:
Commencing at a point 371.37 feet north and 884.05 feet east of
the southwest corner of said government lot 5, as shown on survey
recorded under auditor's file No. 8211180088 as filed in volume 18
of Surveys, page 150; thence north l°23' east 41.15 feet; thence
north 9"26' east 67 feet to a point which is north 478.60 feet and
east 896.05 feet from the southwest corner of said government lot 5;
thence north 40°50' east 10.52 feet to the north line of Lower OYster
Bay Drive as described in right-of-way deed recorded under auditor's
file No. 188851; thence south 56° 04'52" east 15.11 feet; thence
south 40°50' west 8.11 feet; thence south 9°26' west 61.82 feet;
thence south 1"23' west 39.75 feet to the true point of beginning;
thence south 88~37' east along the north margin of Kitsap Way,
211.22 feet; thence south l°04'30'' west 20 feet; thence north 88"37'
west parallel with the north line of Kitsap Way, 211.22 feet, more
or less, to a point which is south l°23' west from the true point of
beginning; thence north 1°23' east 20 feet to the true point of
beginning.
AS S I GNME NT
~rIIS ASSI(~ mode by and between City of Bremerton ("Lessor")
and EP }~nterprises ("Lessee"). City, as Lessor, entered into a Lease
Agreement with O'Bay, Inc., a Washington corporation, dated May 7, 1984,
leasing certain right-of-way at the real property c~m,only known as "Raffles
Oyster Bay Inn, 4412 Kitsap Way, Bremerton, Kitsap County, Washington," to
which Lease reference is hereby mode as if the s~ne were herein set forth
at length, which lease is hereinafter referred to as the "Prime Lease."
The parties hereto have agreed that Lessor shall assign that Lease
Agreement to Lessee. The parties agree as follows:
1. Premises: Lessor hereby assigns to Lessee the right-of-way at
the real property c~amonly known as 4412 Kitsap Way, Bremerton, Kitsap
County, Washington, and mere particularly described in Exhibit "A" attached
hereto and mode a part hereof. The term shall be menth-to-menth, c(~rmenc-
lng July 1, 1985.
2. Rent: Lessee shall pay to Lessor rent at the rate of Five Dollars
($5.00) per month, a total of Sixty Dollars ($60.00) per ann~n, to be paid
in full, in advance, on the ~s~- day of ~-~-,~ ,
of each and every year.
3. Use: The premises shall be used for the sole purpose of construct-
ing and mointaining a sidewalk, curbs, gutters and a landscaped area and
for no other purpose.
4. Assignment: Lessee shall not assi~ this lease nor sublet the
premises in whole or in part; and shall not permit Lessee's interest in
this Lease to be vested in any third party by operation of law or otherwise.
5. Prime Lease: This Assi~nent is subject and subordinate to the
Prime Lease. Except as moy be inconsistent with the te~ns hereof, ail the
terms, covenants and conditions in the Prime Lease contained shall be
applicable to this Assip~,~nt with the same force and effect as if Lessor
were the Lessor under the
- i -
Prime Lease and Lessee were the Lessee thereunder; and in case of
any breach hereof by Lessee, Lessor shall have all the rights
against Lessee as would be available to Lessor against the Lessee
under the Prime Lease if such breach were by the Lessee
thereunder.
6. Limitation: Notwithstanding anything herein contained,
the only services or rights to which Lessee is entitled hereunder
are those to which Lessor is entitled under the Prime Lease and
that for all such services and rights Lessee will look to the
Lessor under the Prime Lease.
7. Indemnity: Lessee shall neither do nor permit anything
to be done which would cause the Prime Lease to be terminated or
forfeited by reason of any right of termination or forfeiture
reserved or vested in the Lessor under the Prime Lease, and
Lessee shall indemnify and hold Lessor harmless from and against
all claims of any kind whatsoever by reason of any breach or
default on the part of Lessee by reason of which the Prime Lease
may be terminated or forfeited.
8. Representation: Lessee represents that it has read and
is familiar with the terms of the Prime Lease.
9. Entire Agreement: All prior understandings and
agreements between the parties are merged within this Assignment,
which alone fully and completely sets forth the understanding of
the parties; and this Assignment may not be changed or terminated
orally or in any manner other than by an agreement in writing and
signed by the party against whom enforcement of the charge or
termination is sought.
10. Notices: Any notice or demand which either party may or
must give to the other hereunder shall be in writing and
delivered personally or sent by registered mail addressed as
follows:
Lessor: Lessee:
City of Bremerton EP Enterprises
City Clerk 6~o ~ ~oo~-,
239 4th Street ~_k~c~.~_~ ~->~-~J~-~ ~O
Bremerton, WA 98310
Either party may, by notice in writing, direct that future
notices or demands be sent to a different address.
2
11. Successors and Assigns: The covenants and agreements
herein contained shall bind and inure to the benefit of Lessor,
the Lessee, and their respective executors, administrators,
successors and assigns.
DATED this ~ day of ~--~ --
, 1986.
LESSOR:
~LOBE, Mayor
ATTEST:
KA~HLEEN L. McCLUSKEY, Clerk
LESSEE
BY:
STATE OF WASHINGTON )
ss
COUNTY OF KITSAP )
On this day personally appeared before me GENE LOBE and
KATHLEEN L. McCLUSKEY, to me personally known to be the Mayor and
City Clerk, respectively, of the City of Bremreton, a municipal
corporation, that executed the foregoing instrument and
acknowledged to me that they signed and sealed the same as the
free and voluntary act and deed of said municipal corporation and
on oath stated that they were authorized to execute said
instrument and that the seal affixed is the seal of the said
municipal corporation.
~h,a~
~~TAR¥ PUB~I~ in and for the
STATE OF WASHINGTON
COUNTY OF )
On this day personally appeared before me
and . , to me personally known to b~-the
/~fC~ and respectively, of EP
~.nterprises, that executed the foregoing instrument and
acknowledged to me that they signed and sealed the same as the
free and voluntary act and deed of said EP Enterprises and on
oath stated that they were authorized to execute said instrument
and that the seal affixed is the seal of the said EP Enterprises.
-7~ WITNESS my hand and official seal this //z~L day of
~, 1986..
NOT/%R~-P~LIC~n ~fld for the
State of Washington, residing at
Commission expires:
3
That portion of government lot 5, section 16, township 24 north,
range 1 east, W.M., in Kitsap County, Washington, described as
follows:
Commencing at a point 371.37 feet north and 884.05 feet east of
the southwest corner of said government lot 5, as shown on survey
recorded under auditor's file No. 8211180088 as filed in volume 18
of Surveys, page 150; thence north 1"23' east 41.15 feet; thence
north 9°26' east 67 feet to a point which is north 478.60 feet and
east 896.05 feet from the southwest corner of said government lot 5;
thence north 40°50' east 10.52 feet to the north line of Lower OYster
Bay Drive as described in right-of-way deed recorded under auditor's
file No. 188851; thence south 56° 04'52" east 15.11 feet; thence
south 40°50' west 8.11 feet; thence south 9o26' west 61.82 feet;
thence south l°23' west 39.75 feet to the true point of beginning;
thence south 88~37' east along the north margin of Kitsap Way,
211.22 feet; thence south l°04'30" west 20 feet; thence north 88°37'
west parallel with the north line of Kitsap Way, 211.22 feet, more
or less, to a point which is south l°23' west from the true point of
beginning; thence north l°23' east 20 feet to the true point of
beginning.
LEASE AGREEMENT
PART A -- SIGNATURE FORM
PARTIES
THIS LEASE AGREEMENT entered into by and between
the City of Bremerton, a municipal corporation duly organized and
existing under the laws of the State of Washington, as Lessor
(hereinafter referred to as "City), and O-BAY, INC., a Washington
corporation (hereinafter referred to as "Lessee");
W I TN ES S E TH;
1. Premises. The City is the legal owner of the
following described real property:
See attached Exhibit "A"
The City hereby leases to the Lessee, and the Lessee hereby
leases from the City the above-described real property, together
with all the rights, privileges, easements and appurtenances
thereon (hereinafter referred to as the "Premises"), for the uses
and purposes described hereinbelow.
2. Uses and Purposes. Lessee shall have the use
and occupancy of the Premises for the sole purpose of
constructing and maintaining a sidewalk, curbs, gutters and a
landscaped area and for no other purpose.
Lessee shall submit all proposed plans for work to be
performed on this real property to the City Engineer for the City
Engineer's approval. Lessee shall also be allowed to construct a
driveway on a portion of the above-described real property, which
driveway shall conform to specifications as established by the
City Engineer.
3. Term. The term of this lease, and any
extensions, shall be as follows: Month-to-month basis beginning
the first (1) day of April, 1984, and shall be from ~
momnth-to-month thereafter. Either party to this lease may
terminate this lease by provided twenty (20) days written notice
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to the other party at the addresses set forth below. Lessee
shall abide by all of the terms and conditions of this lease and
shall pay rent to the City as hereinafter set forth.
4. Rent. Lessee and Lessor agree rent for the
premises shall be paid Lessor monthly on the first day of each
month beginning April 1, 1984, at the rate of Five Dollars
($5.00) per month. It is agreed that the Lessee shall pay the
total annual fee of Sixty Dollars ($60.00) upon the execution of
this lease. In the event that this lease shall be terminated
prior to a full year period, any balance due and owing Lessee
shall be remitted for months during which this lease is not in
force and effect.
5. Insurance. During the term of this lease, the
Lessee shall obtain and maintain a policy of public liability
insurance in an amount of not less than Five Hundred Thousand
Dollars ($500,000.00), to include injury to, or loss of life of,
any individual person; personal injuries suffered in each
occurrence; and property damage suffered in each occurrence,
which may be related to Lessee's occupancy of the above-described
property. Said insurance shall also name the City of Bremerton
as an additional insured. The City Engineer may require that
such insurance be provided prior to the issuance of a permit for
the commencement of work.
6. Agreement Contents. This lease consists of
this Part A -- Signature Form, plus Part B -- General Terms and
Conditions, which, by this reference, are incorporated herein,
and embody the entire agreement of the parties hereto. There are
no other understandings or agreements, written or oral, between
the parties relating to the subject matter hereof.
7. Effectuation of Agreement. In order to be ef-
fective, this lease must be (1) signed by an authorized represen-
tative of the Lessee and returned to the City at the address set
forth below, on or before , accompanied by any
required policy of insurance, and (2) signed by the Mayor of th~
-2-
City of Bremerton, and the City Clerk pursuant to ordinance
authority.
IN WITNESS WHEREOF, the parties hereto have affixed
their signatures below:
THE CITY OF BREMERTON O-BAY, INC.
Lessor Lessee
By: , ' c ~O~- I~.
' MORRI~ DAWKIN~ *
Mayor
KATHLEEN L.' McCLU~KEY~ City Clerk
City's Address for Ail Lessee's Address for Ail
Communications: Communications:
Mayor, City of Bremerton Elwood H. Larsen, Pres.
239 Fourth Street 6002 SE Evergreen Blvd.
Bremerton, WA 98310 Vancouver, WA 98661
-3-
Tel: (206) 694-5880
STATE OF WASHINGTON)
: SS.
COUNTY OF KITSAP )
On this day personally appeared before me Morrie
Dawkins and Kathleen L. McCluskey, to me personally known to be
the Mayor and the City Clerk, respectively, of the City of
Bremerton, a municipal corporation, that executed the foregoing
instrument and acknowledged to me that they signed and sealed the
same as the free and voluntary act and deed of said municipal
corporation and on oath stated that they were authorized to
execute said instrument and that the seal affixed is the seal of
said municipal corporation.
WITNESS my hand and official seal this ~ day of
~7/~/ , 1984.
NOTARY PUBLIC in and for thc
State~gf WashSngton residing
at _/~ ~-~/ ,.
STATE OF WASHINGTON)
: SS.
COUNTY OF KITSAP )
On this day personally appeared before me ~,~F.;
President/Secretary of O-Bay, Inc., a Washington corporation, to
me known to be the individual described in and who executed the
foregoing Agreement of Lease, and he acknowledged that he is duly
authoried to sign and seal the same for the uses and purposes
therein mentioned.
WITNESS my hand and official sea~l_~his ~ day of
NOTARY PUBLIC in an~ for the
State of Washington residing
at ~9~D~ ~';~ ~.~
-4-
LEASE AGREEMENT
PART B -- GENERAL TE~S AND CONDITIONS
1. LIMITATION ON USE/PURPOSE. Notwithstanding any
other provisions herein, the Lessee shall not enter into any
sublease of the premises or any portion thereof or any assignment
of any interest in this.agreement, whether long or short term in
nature, or engage in any activity with respect to or on the
premises other than the express use(s) and purpose(s) stipulated
herein, without obtaining the prior explicity written
authorization therefor from the City.
2. POSSESSION. In the event of the inability of
the City to deliver possession of the premises, or any portion
thereof, at the time of the commencement of the term of this
lease, neither the City nor any of the City's officers,
employees, or agents shall be liable for any damage caused
thereby, nor shall this lease thereby become void or voidable,
nor shall the term herein specified be in any way extended, but
in such event, the Lessee shall not be liable for any rent until
such time as the City can deliver possession. If the Lessee
shall take possession of the premises prior to the commencement
date of this lease, the Lessee and the City agree to be bound by
all of the provisions and obligations hereunder during such prior
period.
3. LICENSE AND TAXES. The Lessee shall pay
unemployment insurance, social security and workmen's
compensation applicable, and shall also fulfill all fiscal
obligations imposed by law or contract. Lessee shall also
procure, at Lessee's sole expense, all approvals and permits in'-
-5-
compliance with all regulations, statutory and otherwise, of any
governmental body.
4. LIABILITY.
a. Indemnification: The Lessee shall indemni-
fy and hold the City harmless from any and all claims whatsoever
arising out of the use and occupation of said premises including
claims arising by reason of accident, injury or death caused to
persons or property of any kind occurring by the fault or neglect
of the Lessee, its officers, employees, agents, licensees, or
invitees, or occurring without the fault of neglect of the City.
b. Assumption of Risk: The placement and stor-
age of personal property on said premises shall be the responsi-
bility, and at the sole risk, of the Lessee.
c. Insurance: During the term of this lease
and any extension thereof, the Lessee shall secure and maintain a
policy of standard form comprehensive general liability insuranc~
with an insurance company licensed to do business in the State of
Washington, providing protection and indemnification against any
and all claims for injury to person or property or for loss of
life, including the liability of the City for such to the Lessee
and any of the Lessee's officers, employees and agents, and any
liability of the Lessee as such to the City, its officers, employ-
ees and agents, arising out of or in connection with the occupan-
cy and use of the Premises as well as any and all claims and
risks in connection with any acts or omissions performed by
Lessee by virtue of the rights granted pursuant to this lease.
Said policy limits shall be in the amount of at least One Hundred
Thousand Dollars ($100,000,00). Said policy must specifically
name the City of Bremerton as an additional insured party
thereunder and must stipulate that the coverages provided by said
policy shall not be terminated, reduced or otherwise changed in
any respect without providing at least thirty (30) days' prior
written notice to the City. Notwithstanding any provisions
herein to the contrary, the failure of the Lessee to comply with
-6-
the provisions of this section shall subject this lease to
immediate termination.
d. Waiver of Subrogation: The City and the
Lessee hereby grant to each other on behalf of themselves and any
or all insurers providing insurance to either of them covering
the premises or any portion thereof, a waiver of any right of
subrogation any such insurer of one party may acquire against the
other by virtue of payment of any loss under such insurance.
e. Adjustments of Claims: The Lessee shall
provide for the prompt and efficient handling of all claims for
bodily injury, property damage or theft arising out of the activi-
ties of the Lessee under this lease. The Lessee agrees that all
such claims, whether processed by the Lessee or Lessee's insurer,
either directly or by means of an agent, will be handled by a
person with a permanent office in the Puget Sound area.
5. USE AND CARE OF PREMISES.
a. Landscape Maintenance Requirements: Lessee
shall not plant any maple, Lombardy poplar, cottonwood or gum, or
any other tree which breeds disease dangerous to other trees or
to the public health. Lessee shall not be allowed to remain in
the property being leased under this Agreement any tree trunk,
limb, branch, fruit or foilage which is in such condition as to
be hazardous to the public, and any such trees now existing in
the subject area of this Lease may be removed in the manner
provided by the City Engineer.
No flowers, shrubs or trees shall be allowed to
overhang or prevent the free use of the sidewalk or roadway or
street maintenance activities, except that trees may extend over
the sidewalk when kept trimmed to a height of eight feet (8')
above the same and fourteen feet (14') above a roadway.
No trees shall be allowed to come in contact with
telephone, telegraph, electric or power wires of public service
companies of the City of Bremerton; provided, however, that such
wires are twenty-five feet (25') above the level of the public '
-7-
place over which they pass. When the City Engineer shall find
that trees are coming in contact with the wires of public service
companies or of the City of Bremerton, he may order the trees
trimmed and if not trimmed within ten (10) days after service of/~
written notice upon the Lessee, the City Engineer may issue a//
permit to the owners of the wires authorized them to trim such
trees at their own expense. If the work be done by the owners of
the wires, the City Engineer may accompany them and have charge
o~ the work and the cost of supervision shall be borne by the
owners of the wires.
If any trees or shrubs planted on the subject property
of this Lease are, or become, a hazard, the City Engineer may
order the same removed and the Lessee shall pay the cost thereof.
In the event that any tree planted by the Lessee causes
injury to the public sewers, sidewalks or pavement, the Lessee
shall be liable for the damage done to the public sewers,
sidewalks or pavement by said trees. No tree shall be planted
within one foot (1') of any City sidewalk or pavement, except by
special permit.
b. General Condition: The premises used
exclusively by Lessee, shall at all times be kept in a neat,
clean, safe and sanitary condition, and kept and used in
accordance with the laws of the State of Washington and Charter
and ordinances of the City. The Lessee shall not permit any
waste, damage, or injury to the premises.
c. Maintenance - Repairs: The premises have
been inspected by both parties and are accepted by Lessee in
their existing condition as of the commencement date of this
lease, without reservation except for latent defects or faulty
construction of the premises not discoverable bY inspection at
the time of taking possession. The City shall not be called upon
to make any improvement or repair of any kind upon said premises.
All maintenance and repairs to Lessee's equipment and to the
-8-
premises shall be the responsibility and at the sole expense of
the Lessee
d. Alterations: The Lessee shall not make, or
cause to be made, any alteration, addition or improvement in said
premises, other than that specified in Part A of this Agreement
without the written consent of the City to such work. Lessor
agrees to grant or deny such consent within ten (10) working days
of Lessee's request. Non-structural improvements may be made at
Lessee's discretion. All alterations, additions and improvements
which shall be made, shall be at the sole cost and expense of
Lessee, and shall become the property of the City, and shall
remain in and be surrendered with the premises as a part thereof
at the termination of this lease. The City reserves an
unqualified right to make alterations to the premises or to the
building in which the premises are situationed (1) where
conditions exist which are deemed by the legislative authority t6
constitute an emergency, or (2) in order to correct code
deficiencies.
e. Access: The City reserves for itself, its
officers, employees, agents and contractors, free access to said
premises at all reasonable times for the purposes of inspecting,
cleaning or making repairs, additions or alterations to the
premises or any other proeprty owned by or under the control of
the City, but this right shall not e construed as an agreement on
the part of the City to make said inspections, clean or make
repairs, additions or alterations. The Lessee shall have
reasonable access to other property of the City where necessary
to provide utility services to the premises; all of the Lessee's
work on such other City property shall be at the Lessee's sole
expense.
6. RESTORATION OF LEASE PREMISES. Lessee covenants
to Lessor that in the event that this Lease is terminated and no
right-of-way permit is issued subsequent to termination of said
Lease, that Lessee will return said property to the City of
-9-
Bremerton and shall remove any improvements made on the
right-of-way pursuant to the direction of the City Engineer.
Lessee also agrees that appropriate set-back and parking
requirements will be observed subsequent to termination of this
Lease and the property will be restored to its original site plan
on file in the Planning Department. Lessee shall pay all costs
of removal of items directed to be removed by the City Engineer
and shall pay all costs of restoring his parking lot to the
cosditions specified in the original site plan.
7. DAMAGE TO UTILITIES. Lessee shall be
responsible for locating all existing utilities and shall not
damage said utilities in the performance of its work. In the
event that utilities are damaged, Lessee shall paY the cost of
restoring those utilities to the condition in which they were
before being damaged by Lessee.
7. NON-DISCRIMINATION. The Lessee shall comply
with all federal, state and local laws and ordinances prohibiting
discrimination in employment with regard to age, sex, race,
color, creed, national origin or physical or mental handicap,
unless based upon a bona fide occupational qualification.
8. DAMAGE OR DESTRUCTION: In the event the
premises are damaged by fire, earthquake, act of war, or other
extraordinary casualty to such an extent as to render the same
untenantable in whole or in substantial part thereof, or are
destroyed, it shall be optional with the City to repair or
rebuild the same; and within forty-eight (48) hours after the
happening of any such event, the Lessee shall give the City or
City's agent notice thereof. The City shall have not more than
sixty (60) days after the date of such notification to notify the
Lessee in writing of the City's intentions to repair or rebuild
said premises, or any part so damaged. If the City elects to
repair or rebuild said premises, the City shall prosecute the
work of such repairing or rebuilding without unreasonable delay,
in accordance with the then existing City procedures. In the
-10-
event the building in which the leased premises are located shall
be substantially destroyed or damaged even though the leased
premises shall not be damaged thereby, if in the opinion of the
City it shall not be practical to repair or rebuild, then it
shall be optional with the City to terminate this lease by
providing written notice to the Lessee within sixty (60) days
after such damage or destruction has been determined to be
irreparable. If the City shall fail to give the notice
aforesaid, the Lessee shall have the right to declare this lease
terminated by written notice provided to the City.
Notwithstanding any other provision herein, no party to this
lease shall be liable in damages to any other party for
termination of this lease because of the damage or destruction of
the premises or the building in which the premises form a part,
as described in this section.
9. NOTICES. All notices to be given by either of
the parties hereto to the other party shall be in writing and may
either be delivered personally or may be deposited in the United
States Mail, postage prepaid, as either certified or regular
mail, addressed as specified in Part A hereof, or to such other
respective addresses as either party may from time to time
designate in writing. Notices sent by mail shall be deemed to
have been given when properly mailed; the postmark affixed by the
United States Post Office shall be conclusive evidence of the
date of mailing.
10. RELATIONSHIP. In no event shall the City be
construed, or held to have become in any way or for any purpose a
partner, associate, or joint venturer of the Lessee or any party
associated with the Lessee in the conduct of the Lessee's busi-
ness or otherwise. This lease does not constitute the Lessee the
agent or legal representative of the City for any purpose whatso-
ever.
11. AMENDMENTS. The parties hereto expressly re-
serve the right to renegotiate the provisions hereof, including'
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the term of this lease, from time to time as may be necessary and
to amend this lease accordingly; Provided, however, that no alter-
ation or modification of the terms or conditions hereof shall be
valid and binding unless made in writing and signed by the author-
ized representatives of the parties hereto.
12. WAIVER OF DEFAULT. NO waiver of default by
either party of any of the terms, covenants and conditions hereof
to be performed, kept and observed by the other party shall be
construed as, or operate as, a waiver of any subsequent default
of any of the terms, covenants and conditions herein contained,
to be performed, kept and observed by the other party.
13. TERMINATION. In the event that the Lessee de-
faults in the performance of any terms, provisions, covenants and
agreements on the Lessee's part to be kept, observed and per-
formed, and such default is not corrected within thirty (30) days
after the receipt of notice thereof from the City, or such
shorter period as may be reasonable under the circumstances; or
if the Lessee shall abandon, desert, vacate or remove from the
premises; or if the Lessee shall file a petition in bankruptcy;
or if the Lessee shall be adjudicated a bankrupt after the filing
of an involuntary petition in bankruptcy; or if the Lessee shall
take or receive the advantage or benefit of any insolvency; or if
the Lessee shall enter into an agreement of composition with the
Lessee's creditors; then, in such event, the City, at its option
at any time thereafter, may terminate this lease together with
all of the estate, right, and title thereby granted to or vested
in the Lessee, by giving twenty (20) days' notice in writing of
such election, by certified mail addressed to the Lessee at the
address specified in Part A hereof, and at the expiration of such
twenty (20) day period, the lease and all of the estate, right,
title and interest thereby granted to or vested in the Lessee
shall then cease and terminate, and the City may re-enter said
premises using such force as may be required. The legislative
authority shall have the right to determine on the City's behal~
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the existence of any default in performance or other breach or
violation of the terms and conditions hereof on the part of the
Lessee.
14. SURRENDER OF PREMISES. At the expiration or
termination of this lease, including any extensions thereof, the
Lessee shall quit and surrender said premises and shall deliver
them to the City of Bremerton in a manner satisfactory to the
City Engineer, with all improvements having been removed as
directed by the City Engineer.
15. ADJUDICATION. This lease shall be construed
under all of the applicable laws, statutes, ordinances, rules and
regulations of the United States, the State of Washington, County
of Kitsap, and the City of Bremerton. In the case of a dispute
between the parties, venue over such dispute shall be with the
Superior Court of Kitsap County, Washington.
16. BINDING EFFECT. This lease shall be binding
upon the heirs, successors, assigns and all other parties legally
empowered with signatory rights of any or all of the parties here-
to.
17. INVALIDITY OF PROVISIONS. Should any term,
provision, condition or other portion of this lease be held to be
inoperative, invalid or void, the same shall not affect any other
term, provision, condition or other portion of this lease; and
the remainder of this lease shall be effective as if such term,'
provision, condition or portion had not been contained herein.
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