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HomeMy WebLinkAbout2806 i � Contract Number: 2806 Vendor: BOATSHED RESTAURANT Subject: Airspace - E End Manette Bridge Department: Engineering File Class: LEG 16-3 Begin Date: 03/O1/1985 End Date: Review Date: 06/15/2010 Vault Date: Comments: Review date for trackinq only Original file not in drawer - Copy created from LaserFiche RIGHT-OF-WAY LEASE Boat Shed'Restaurant THIS LEASE AGREEMENT, made and entere~ into this ~-%-- day of 1994, between the City of Bremerton, a municipal corporation organized and existing under the laws of the State of Washington, (hereinafter referred to as "Lessor"), and Brett Hayfield and Beverly Hayfield, husband and wife, and Paul McCullough and Jean McCullough, husband and wife, (hereinafter collectively referred to as "Lessee"); WHEREAS, the land and premises to be leased are not presently needed exclusively for highway purposes; and WHEREAS, the Lessor and Lessee deem it to be in the best public interest to enter into this lease; NOW, THEREFORE, in consideration of the terms, conditions, covenants and performances contained herein, IT IS MUTUALLY AGREED THAT: 1. Premises. The Lessor does hereby lease to the Lessee the following described premises, situated in the County of Kitsap, State of Washington: The encroachment into the llth Street right-of-way by the Boatshed Restaurant at 101 Shore Dr.; Bremerton, Washington consisting of approximately 21 sq. ft. as fixed by the building perimeter of the proposed remodel depicted in said exhibit. Exhibit "A" attached hereto. 2. Use of Premises. Lessee shall have the use and occupancy of said premises for expansion of its existing building for restaurant purposes only. Signs where permitted are subject to prior review and approval of the Lessor. In using the premises, Lessee shall comply with all policies RIGHT-OF-WAY LEASE -1- and regulations heretofore or hereafter promulgated by the city of Bremerton relative to the location, operation and maintenance of facilities located on the property herein d~scribed. Direct access to ramps or traveled lanes of limited access highways is not permitted. All construction plans and any changes thereof are subject to approval by the Lessor and must comply with applicable State and Local ordinances, regulations and environmental requirements. Lessor shall cooperate with the Lessee in its efforts to obtain such approvals and shall take no action which would adversely affect the current use or proposed use of the Lessee. The Lessee shall perform or cause to be performed at Lessee's expense all maintenance of the premises which will include, but not be limited to, keeping the premises in good condition, both as to safety and appearance to the satisfaction of the Lessor. 3. Term. The term of this lease shall commence on the date of execution by the Lessor and shall thereafter be a year to year tenancy. This lease may be terminated by either the Lessor or the Lessee by giving ninety (90) days written notice of termination to the other party prior to the anniversary date of this lease. In the event that this lease is terminated by the City, the Lessee shall not be entitled to any payment or compensation by reason of such termination. Provided, That the Lessee shall be entitled to a return of rental payment based upon rent paid beyond the effective cancellation date. Furthermore, such leased premises shall not be considered as a part of or as contributing to the use of any adjoining or other properties owned, used or controlled by RIGHT-OF-WAY LEASE -2- BSHED1.LSE - 10 - 1/~4/94 /7 the Lessee in the event such other property or property rights of the Lessee are subject to condemnation subsequent to the execution of this Lease. 4. Rent. Rent for the premises shall be paid to Lessor annually, payable in advance on the anniversary date of this agreement at the rate of Forty-six Dollars ($46.00) per annual period. In addition, Lessee shall pay the applicable Washington State Leasehold Excise Tax on the above rental. Rent shall be paid at the address designated by Lessor. At the beginning of each successive year thereafter, the annual rent shall automatically be adjusted in the "All Items" category of the Consumer Price Index for All Urban consumer Scale (CPI-U) as published by the Bureau of Labor Statistics for the U.S. Department of Labor, U.S. city average, (the "Index"). However, rent shall not, in any case, decrease nor shall rent increase more than five percent (5%) per year. If any time during the term of the lease the practice of computing the Index for the City of Seattle shall be abandoned or altered by the U.S. Department of Labor, and not assumed by some other federal or state governmental agency, then there shall be substituted therefore in Lessor's sole discretion the then most nearly comparable cost of living index. 5. Lessor's Right of Entry and Inspection. The Lessor reserves the right to enter upon the premises at any time without notice to the Lessee for the purpose of inspection, maintenance, construction or reconstruction of the highway facility or any element thereof. Any loss of the use of the leased premises due to RIGHT-OF-WAY LEASE -3- 8$HED1.LSE - 10 - 1/2&/g& /7' Lessor's exercise of such right will be compensated for solely by pro-rata reduction of rent. Lessor shall in no way be responsible for any incidental or consequential damages due to such action. Lessor may, from time to time, go upon the premises for the purpose of inspecting any excavation, construction or maintenance work being done by the Lessee. Entry upon the premises for any other purpose by the Lessor shall be conducted with reasonable notice'to the Lessee and during the hours of 8:00 a.m. to 5:00 p.m. 7. Liability Insurance. Lessee, at its own expense, shall provide and keep in force with companies reasonably acceptable to Lessor public liability insurance for the benefit of Lessor and Lessee jointly against liability for bodily injury and property damage in the amount of not less than One Million Dollars ($1,000,000.00), such limits to be for any greater amounts as may reasonably be indicated by circumstances from time to time existing. Lessee shall furnish Lessor with a certificate of such policy within thirty (30) days of the commencement date of this Lease and thereafter shall satisfy Lessor that such policy is in full force and effect. Such policy shall name Lessor as an additional insured and shall be primary and noncontributing with any insurance carried by Lessor. The policy shall further provide that it shall not be canceled or altered without ten (10) days prior written notice to Lessor. 8. Accidents and Indemnity. Lessee will save and hold Lessor harmless from all loss, damage, liability or expense resulting from any injury to any person of any loss of or damage to any property caused by or resulting from any act or omission of Lessee or any RIGHT-OF-WAY LEASE -4- /? officer, agent, employee, guest, invitee or visitor of Lessee in or about the Premises, but Lessor will save and hold Lessee harmless from any and all loss, damage, liability, or expense resulting from any injury to any persons caused by the negligence of Lessor or any officer, agent, employee, guest, invitee or visitor of Lessor. Lessor shall not be liable for any loss or damage to person or property sustained by Lessee, or other persons, which may be caused by theft or by any act of neglect of any tenant or occupant of the building, or of any other person, or by any other cause, unless caused by the negligence of Lessor or its officers, licensees, agents, employees, guests, invitees or visitors. 9. Liens. Lessee shall not permit any lien to be imposed upon the property of Lessor as a result of work done by or on behalf of Lessee and shall indemnify and hold Lessor harmless against any and all expenses, including reasonable attorney's fees and court costs in connection with any such lien. 10. Prohibition of Assignment. It is agreed that the Lessee will not, in whole or in part, assign this agreement or sublease the premises without prior written consent of the Lessor. Lessee hereby covenants that they are acting as principal for themselves, and not as agents for any undisclosed principal. 11. Default, Termination or Abandonment. (a) Notice of Default. At any time after the occurrence of a default or defaults under this lease and while any such default remains unremedied, Lessor shall have the option to give notice in writing of its intention to terminate this lease by written notice directed to the Lessee. Such notice of intention to terminate RIGHT-OF-WAY LEASE -5- B~HED'~.LSE - 10 - shall specify the default or defaults then outstanding. Termination shall become effective twenty (20) days from notice if substantial cure is not completed within' that time, Waiver or acceptance of any default of the terms of this agreement by Lessor shall not operate to release the Lessee of the responsibility for any prior or subsequent default. (b) Termination and Extension. After the expiration'of thirty (30) days from the giving of such notice in the case of default, if one or more defaults described in such notice then remains unremedied, this lease shall terminate without further notice and all right of the Lessee shall cease. The Lessor may, at its option, extend the above period, if in the judgment of the lessor, an extension is justified. (c) Assiqnment for Benefit of Creditors. Insolvency, or Bankruptcy. Appointment of a receiver to take possession of Lessee's assets, Lessee's general assignment for benefit of creditors, or Lessee's insolvency or taking or suffering action under the Bankruptcy Act is a breach of this lease and this lease shall terminate. (d) Performance bv Lessor. If Lessee defaults in the performance or observation of any covenant or agreement contained in this lease, Lessor, without notice if deemed by Lessor that an emergency exists (endangerment of life or failure of Lessee timely to obtain any insurance or to pay is presumed to be an emergency), may direct the Lessee to stop work and/or may itself perform or cause to be performed such covenant or agreement and may enter upon the premises for such purpose. Lessee shall repay to Lessor upon RIGHT-OF-WAY LEASE -6- demand the entire cost and expense of such performance by Lessor, any act or thing done by Lessor under the provisions of this paragraph shall not be or be construed as a waiver of any agreement or condition herein contained or the performance thereof. (e) Disposition of Improvements. Upon termination of this lease under any provision thereof, the improvements constructed on the leased premises shall become the property of the Lessor or, at the option of the Lessee, may be removed by the Lessee at his expense in a manner prescribed by the Lessor. (f) Abandonment. In the event that it becomes apparent in the Lessor's sole judgment that the premises have ceased to be used or have been abandoned for a continuous period of sixty (60) days, the Lessor at its option, shall have the right to terminate this lease, provided due notice of termination shall be given the Lessee not less than thirty (30) days prior to the proposed termination date. lZ. Notices. Wherever in this lease written notices are to be given or made, they will be sent by certified mail addressed to the parties at the address listed below unless a different address shall be designated in writing and delivered to Lessor by the Lessee. LESSOR: City of Bremerton Office of the City Clerk 239 Fourth Street Bremerton, Washington 98310 LESSEE: ~- · 3. Relationship. In no event shall the Lessor be construed, RIGHT-OF-WAY LEASE -7- BSHE~I.[SE - 10 - 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 th~ Lessee's business or otherwise. This lease does not constitute the Lessee the agent or legal representative of the Lessor for any purpose whatsoever. 14. Nondiscrimination. Lessee shall not discriminate in employment or services to the public on the basis of sex, race, color, creed, national origin, age, marital status, physical, mental or sensory handicap except an employment action based on a bona fide occupational qualification. 15. Amendments. The parties hereto expressly reserve the right to renegotiate the provisions hereof, including the term of this lease, from time to time as may be necessary and to amend this lease accordingly; Provided, however, That no alteration or modification of the terms or conditions hereof shall be valid and binding unless made in writing and signed by the authorized representatives of the parties hereto. 16. Miscellaneous. (a) The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorney's fees and court costs, including appeals, if any. (b) This lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representatives or understandings of any kind not set forth herein. Any amendments to said lease must be in writing and executed by both parties. (c) If either party is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker. Date BRETT/~iELD BEVERLY HA~FI~E D ~ RIGHT-OF-WAY LEASE -8- $SHED1.LSE - 10 - 1/24/9& PAUL McCULLOUGH · '~E~ McCULLOU~ / ( ~ / ClT~ O~ BR~ERTO~ Date L N HORTON, Mayor LESSOR ATTEST: ;~H2;;; Mc~US~NTAL AP~O'VA~erk ~IAN R.~3SIEVERS, City Attorney STATE OF WASHINGTON ) : SS. COUNTY OF KITSAP ) On this day personally appeared before me Brett Hayfield and Beverly Hayfield, husband and wife, to me known to be the individuals described in and who executed the within foregoing instrument, and acknowledged that they signed the same as their free and voluntary act and deed, for the uses and purposes therein mentioned. ~EN under my hand and official seal this day of \./~&~¢~ ~,.~. , 1994 · ~%o .0F~%%, Not~y Publlc' in and f~he Sta~ ~ ,~, · Washington, residing at ~k ~U~IC / ~ My appointment expires: BSH~D1.LSG - 10 - ~/~/~ STATE OF WASHINGTON ) : SS. COUNTY OF KITSAP ) On this day personally appeared before me ~aul McCullough and Jean McCullough, husband and wife, to me known to be the individuals described in and who executed the within foregoing instrument, and acknowledged that they signed the same as their free and voluntary act and deed, for the uses and purposes therein menti~D~d. ~V~tu~d?~r. mY hand a?dl~9f4f~cial seal this /~ day of ~ . ~ :~,~. Washington, residing at ~~ ~ % ~U~[~ , ~ My appointment expires: ~ ~.~,~ ;-~ - . CO~TY OF KITSAP ) On this day personally appeared before me Lynn Horton, Bremerton city Mayor, and Kathleen L. McCluskey, Bremerton City Clerk, of the City of Bremerton, the municipal corporation described in and 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 authorized to execute said instrument on behalf of said corporation. GIVEN ~der my~hand and official seal this ~ day of ~~ , 1994. ~:~ NOlgNy'~?~a Notary Public ~n and for the State of ~ . ~%~ Washington, residing at ~~ ~. : ~ · . . . ~. ~.0.,. & ~ My appointment expires. RIGHT-OF-WAY LEASE --10-- BS~ED1.LSE - 10 - 1/2&/94 ~ HAR IS ST. WSDOT PROPERTY-- LEASED TO CITY -- -- -- -- c 11TH S'F. LEASE PARCEL BOATSHED RESTAURANT DATE: 1-H.-94 JOB NO.: RIGHT BOATSHED RESTAURANT SHEI~ DRAWN BY: ROE OF' WAY AND PARKINGL£ASESI CITY OF BREMERTON ENGINEERING DIVISION APPROVED BY: Fa NO. P DV/G. NO,: MTT3 SCALE: 1:100 +/- i AIRSPACE LEASE THIS LF~SE made and entered into this '3~'hday of ~_~..~.~_ ............. , [9_~"between the WASHIN~N RATE DEP~I~F~qT OF TRA~PO~ATION, hereinafter called the "Lessor" and B~ and B~Y ~IE~ , hereinafter called the "Lessee"; ~d PA~ a~ ~~H ~S, the land and premises to be leased are not presently needed exclusively for highway pur~ses: ~E~S the Department of Trans~rtation is granted authority to lease property under R~ 47.12.120: ~ ~E~AS, the Lessor and Lessee deem it to be in the best public interest to enter into this lease; N~ THE~FO~, in consideration of the terms, conditions, covenants and performances contained herein, IT IS M~U~LY AG~ THAT: The Lessor does hereby lease to the Lessee the premises described in Exhibit "A" attached hereto and by this reference incor~rated herein. TE~. The Term of this lease shall be year to year C~NCING ON THE DATE OF EX~ION OF THIS L~SE BY T~ STATE. The Lessor reserves the right to terminate this lease with 90 days written notice to the Lessee should the premises be needed for any future public purposes. In the event that this lease is terminated by the state, the Lessee shall not be entitled to any pay~nt or com~nsation by reason of such termination. P~ovided, that the Lessee shall be entitled to a return of rental payment based u~n rent paid beyond the effective cancellation gate. Furthermore, such leased [~remises shall not be considered as part of or as contributing to the use of any adjoining or other pro~rties owned, used or controlled by the ~ssee in the event such other property or property rights of the Lessee are subject to condemnation subse~ent to the execution of this lease. ~. Rent for the premises shall be paid Lessor annually, in advance on or before the /5'ff day of ~, at the rate of $360.00 for each annual peri~ PLUS WASHINGTON ~ATE EXCISE T~ ~EN APPLIC~LE, during the entire term of this lease payable at the address designated by the Lessor. ~ ~JUST~S. Lessor shall give thirty (30) days written notice to the Lessee that a rent adjust~nt is bein~ ~de. This notice shall include the a~unt of the adjusted rental rate and the date the new rate ts to become effective. Failure or refusal by the ~ssee to pay the adjusted rental rate shall constitute a breach of this agreement and entitle the Lessor to legal recourse. C~GE FOR LATE PAY~. If any pa~ent of rent or if any other sum due Lessor is not received by ~ssor on or ~fore the due date, a late charge of one percent (1%) of the amount due and u~paid shall be added to the amount due and the total sum shall become i~ediately due and payable to Lessor. A $25.00 dollar administration fee must be paid each and every month Lessee is in arrears. Lessor and Lessee agree that such late charges represent a fair and ~easonable estimate of the costs incurred by Lessor by reason of late payment. Acceptance of late payment charges and/or any ~rtion of the overdue payment by Lessor shall in no event constitute a waiver of Lessee's default with res~ct to such overdue payment, nor prevent Lessor from exercising any other rights and remedies granted in this lease. -1- USE OF PREMISES. In using these premises, the Lessee shall comply with all policies and regulations heretofore or hereafter promulgated by the Department of Transportation relative to the location, operation and maintenance of facilities located on the property herein described. Direct access to ramps or traveled lanes of limited access highways is not permitted. Ail construction plans and any changes thereof are subject to approval by the Lessor and must comply with applicable State and Local ordinances, regulations and environmental requirements. The use of said premises shall be such that no hazardous or unreasonably objectionable smoke, fumes, vapor, odors, or discharge of any kind shall be permitted to rise above the grade line of the highway facility. Flammable materials including but not limited to petroleum products, paint and resins may not be stored on the site without the express permission of Lessor. No use other than customer parking of automobiles and landscaping shall be permitted without the prior written approval of the Lessor. Signs are not permitted unless completely detailed in a separate submittal and any such signs require specific prior written approval. Chain link fences in place at the time of execution of this lease or relocated to separate the leased premises from the traveled roadway will be maintained by the state for the duration of the lease. Nothing is to be attached to Lessor's fence without prior written approval. The Lessee shall perform or cause to be performed at his expense all maintenance of the premises which will include, but not be limited to, keeping the premises in good condition, both as to safety and appearance to the satisfaction of the Lessor. ~AXES{ ASSESSMENTS AND UTILITIES. The Lessee agrees to pay all taxes and assessments which are assumed by him, if any, and all taxes and assessments which benefit the leased premises and/or which may hereafter become a lien on the interest of the Lessee in accordance with RCW 79.44.010, and also all taxes which may hereafter be levied or imposed upon the interest of the Lessee or by reason of this agreement. The Lessee is responsible for and agrees to pay for utilities which serve the leased premises. LESSOR'S APPROVAL OF DESIGN AND CONSTRUCTION. The Lessee covenants that any improvements to be constructed on the premises will not at any time during or after construction either damage, threaten to damage or otherwise adversely affect any part or element of the highway facility or the operation thereof. The Lessor shall be furnished with 2 sets of complete plans, details and specifications and revisions thereto for all improvements proposed to be placed on the premises, and no work shall be done without prior written approval of such plans by the Lessor. Ail construction work shall be done in conformity with the plans and specifications as approved. The Lessor may take any action necessary, including directing that work be temporarily stopped or that additional work be done, to insure observation of the plans and specifications, protection of all parts and elements of the highway facility and compliance with Lessor's construction and safety standards. The improvements shall be designed and constructed in a manner which will permit access to the highway facility for the purpose of inspection, maintenance, and construction when necessary. MECHANIC'S LIENS. Nothing in this lease shall be deemed to make the Lessee the agent of the Lessor for purposes of construction, repair, alteration, or installation of structures, improvements, equipment, or facilities on the premises. The Lessee acknowledges that th~ Lessor may not, and shall not, be subject to claims or liens for labor or materials in connection with such activities by the Lessee. The Lessee shall at all times indemnify and save Lessor harmless from all claims for labor or materials in connection with' construction, repair, alteration, or installation of structures, improvements, equipment, or facilities within the demised premises, and from the cost of defending against such claims, including attorney fees. -2- In the event a lien is filed upon the leased premises, Lessee shall either: 1. Record a valid Release of Lien, or 2. Deposit sufficient cash with Lessor to cover the amount of the claim on the lien in question and authorize payment to the extent of said deposit to any subsequent judgment holder that may arise as a matter of public record from litigation with regard to lienholder claim~ or 3. Procure and record a bond which frees the leased premises from the claim of the lien and from any action brought to foreclose the lien. Should Lessee fail to accomplish one of the three optional actions within 15 days after the filing of such a lien, the Lease shall be in default and shall be subject to immediate termination. LESSOR'S RIGHT OF ENTRY AND INSPECTION. The Lessor, for itself and for the Federal Highway Administration, reserves the right to enter upon the premises at any time without notice to the Lessee for the purpose of inspection, maintenance, construction or reconstruction of the highway facility or any element thereof. Any loss of the use of the leased premises due to the Lessor's exercise of such right will be compensated for solely by pro rata reduction of rent. The Lessor shall in no way be responsible for amy incidental or consequential damages due to such action. The Lessor and the Federal Highway Administration may from time to time go upon the premises for the purpose of inspecting any excavation, construction or maintenance work being done by the Lessee. Entry upon the premises for any other purpose by the Lessor and the Federal Highway Administration shall be conducted with reasonable notice to the Lessee a~d during the hours of 8:00 a.m. to 5:00 p.m. INSURANCE. At its expense, the Lessee sh~ll keep the premises and improvements thereon continuously insured throughout the term of th~s lease by an insurer licensed to conduct business in the State of Washington against claims for personal injury or property damage. The insurance shall be in amounts of not less than $100,000.00 to indemnify against the claim of any one person, and in an aggregate amount of not less than $300,000.00 to indemnify against claims of two or more persons resulting from any one incident. Coverage in the minimum amounts set forth herein shall not be construed to relieve the Lessee from liability in excess of such coverage. Lessee shall acquire property damage insurance in an amount of $100,000.00. The insurance policies required by this paragraph shall na~e Lessor as one of the insured thereon, and copies of all such policies shall be provided to Lessor, and such policies shall not be cancellable except on thirty (30) days written notice to Lessor. NON-LIABILITY OF LESSOR. The Lessee shall indemnify and hold the Lessor harmless from any and all claims including attorneys fees, damages, suits, and expenses of whatsoeve~ kind or nature on account of injuries to or death of any person or persons and damage to property arising in whole or in part from the use or occupancy of the leased premises by the Lessee or the activities conducted upon the premises by the Lessee, its contractors, subcontractors, agents, employees, patrons, guests and invitees. · The Lessee further agrees to accept and defend all such claims, damages and suits for injuries to or death of any person or persons or damage to property ar[sing in whole or in part out of the use or occupancy of the leased premises at its own expense in the name of and on behalf of the Lessor. -3- NON-DISCRIMINATION. The Lessee, for itself, its successors, and assigns as a part of the consideration hereof, does hereby covenant and agree, as a covenant ~nn{n.~ with the land, that no person, on the grounds of race, color, creed, ~,~t~nai origin, marital status, age, sex or the presence of any sansory, mental or physical handicap shall be excluded from P,i~ticipat[on in, be denied the benefits of, or be otherwise unlawfully subjecte.] to di~cr ~minat~on in the use of the facility now or hereafter on the premises, that [~% connection with the construction of any improvements on said lands .and ti~e f~r~ishin9 ~f services tT~e~eon, no such discrimination shall be practiced in ~he %~election of e~ployees or contractors, or by contractors in the selec%ion and retention] of their s~bcontractors, that such discrimination shall not be practiced against the public in their access to and use of the facility and services provided for public acco~modation constructed or operated on, over, or under the space of the right of way, and that the Lessee shall use the premises in compliance with all other requirements imposed pursuant to the Revised Code of Washington Chapter 49.60 and Title 49, Code of Federal Regulations, Subtitle A, Office of the Secretary of Transportation, Part 21 (49 C.F.R. Part 21), and as said Regulations may be amended. The breach of any of the above nondiscrimination covenants shall be a material act of default entitling the Lessor to terminate this lease in accordance with the procedures set forth herein. PROHIBITION OF ASSIGNMENT. IT IS AGREED that the Lessee will not, in whole or in part, assign this agreement or sublease the premises without prior written consent of the Lessor and the Federal ~ighway Administration. The Lessee hereby covenants that he is acting as principal for himself, and not as an agent for any undisclosed principal. DEFAULT TERMINATION OR ABANDONMENT. (a) Notice of Default: At any time after the occurrence of a default or defaults under thi~ lease and while any such default remains unremedied, the Lessor shall have the option of giving notice in writing of its intention to terminate this lease by persona] service upon, or by written notice directed to the Lessee. Such notice of intention to terminate shall specify the default or defaults then outstanding. Waiver or acceptance of any default of the terms of this agreement by the Lessor shall not operate to release the Lessee of the responsibility for any prior or subsequent default. (b) Termination and Extension: After the expiration of thirty (30) days from ~he giving of such notice in the case of default, if one or more defaults described £n such ~otice then remains unremedied, this lease shall terminate without fu~ti~er notice and all right of the Lessee shall cease. The Lessor may in writ~n!~ at his opt[on, extend the above period, if in the judgment of the Lessor, an extension is justified. (c) ~ssi~nment for Benefit of Creditors{ Insolvency, o~ Bankruptcy: Appointment of a receiver to take possession of the Lessee's assets, the Lessee's general assignment for benefit of creditors, or the Lessee's insolvency or taking or suffering action under the Bankruptcy Act is a breach of this lease and this lease shall terminate. (d) Performance by Lessor: If the Lessee defaults in the performance or observation of any covenant or agreement contained in this lease, the Lessor, without notice if deemed by the Lessor that an emergency exists (endangerment of life or the highway facility or failure of the Lessee timely to obtain any insurance or to pay any taxes due is presumed to be an emergency), may direct the Lessee to stop work and may itself perform or cause to be performed such covenant or agreement and may enter upon the premises for such purpose. The Lessee shall repay to the Lessor upon demand the entire cost and expense of such performance by the Lessor. Any act or thing done by Lessor under the provisions of this Paragraph shall not be or be construed as a waiver of any agreement or condition herein contained or the performance thereof. (e) Disposition of ~mprovements: Upon termination of this lease under any provision thereof, the improvements constructed on the leased premises shall become the property of the Lessor or, at the option of the Lessor, may be removed by the Lessee at his I'~,n,',~n: On [el'mina~[on O£ this lease for any reason, Lessee agrees, if so directed by Lessor to restore grades and on limited access highways also to relocate fences to their configurations prior to Lessee's occupancy. This work is to be done at Lessee's expense to the satisfaction of the Lessor. (g) Vacation of Premises: Upon termination of this lease, the Lessee shall cease his operations on and/or use of the leased premises. In the event the Lessee fails to vacate the premises on the date of termination, he shall be liable for any and all costs to the Lessor arising from such failure, plus liquidated damages in the amount of two months' rent. (h) Abandonment: In the event that it becomes apparent in the Lessor's sole judgment that the premises have ceased to be used or have been abandoned for a continuous period of sixty (60) days, the Lessor at its option, ~hall have the right to terminate this lease, provided due notice of termination ~]hall be given the Lessee not less than thirty (30) days prior to the proposed termination date. NOTICES. Wherever in this lease written notices are to be given or made, they will be sent by certified mail addressed to the parties at the address listed below unless a different address shall be designated in writing and delivered to the other party. LESSOR: Department of Transportation Land Management Section P. O. Box 9327 Olympia, WA 98504 LESSEE: BRETT and BEVERLY HAYFIELD PAUL and JEAN McCULLOUGH 101 Shore Drive Bremerton, ~ Washington 98310 ..- /~ ;~ .(,.~6/~ ~/ Date Le~e .~ WASHINGTON STATE · ~' DEPARTMENT OF TRANSPORTATION , : .. ')' ~ I (/~ ,, ~,.. . .' ~ By: ........................... APPRO~ ~ TO FO~ ,, 1985 By: __ Assistant Attorney General --5-- STA'?E OF WASHINGTON ) County Of ) On this i'. ! day of [~'~ t 1985 before me personally appeared BRETT and BEVERLY HAYFIELD and PAUL a_~d___J_EA~i_M~_q~I~L~IUGH to me known to be the individua~ described in and who executed the foregoing instru~nt, and acknowledged tha~ they signed and sealed the same as ~heir free and voluntary act and deed, for the uses and pur~ses therein mentioned. GI~N under my hand and official seal the.,day and year last above written. ~_~.'~ ~.~..: .......................... ~ok~y Public ~ and go~ kh~ County of KITSAP ) On this day of before me personally app~,ared to me known to be the of the corporation that executed the 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 authorized to execute said instrument and that the seal affixed is the corporate seal of said corporation. GIVEN under my hand and official seal the day and year last above written. Notary Public in and for the State of Washington, Residing at STATE OF WASHINGTON ) County of } On this . day Of before me personally appeared to me known to be the duly appointed ................................ for the Washington State Department of Transportation and that he executed the within and foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said State of Washington, for the uses and purposes therein set forth, and on oath states that he was authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed by official seal the ........ day of ._, 19__. Notary Public in and for the State of Washington, Residing at -6- ADDENDU# TO AIRSPACE LEASE AA-3-07159 THIS LEASE Addendum made and entered into the first day of May, 1986, between the WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, herein called the "Lessor" and CITY OF BREMERTON, herein called the "Lessee". The purpose of this Amendment will be to add the following consideration clause to the lease effective May 1, 1986. CONSIDERATION The Lessee agrees to administer a sublease for 10% of the gross rent receipts and forward 90% to the Lessor %Dept. of Transportation, Transportation Building, Olympia, WA 98504, Attn: Cashier. The Lessee also shall have access to, and use of the site for parking maintenance of landscaping and viewpoint areas within the lease boundaries.  WASHINGTON STATE DEPARTMENT OF Lessee TRANSPORTATION By: ~ly~e L~.- Slemmer Project Development Engineer A~si~'l~a~ Attorney General s Divisio~ STATE OF WASHINGTON ) : County of ) I, the undersigned, a Notary Public in and ~ the' State of Washington, do hereby certify that on this ~-d day of ~,d,~_~, 1986, before me qua fied Mayor City Clerk to me known to be the duly elected and li ano of the City of Bremerton, Washington, that executed the within and foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said City, for the uses and purposes therein mentioned, and each on oath stated that he is authorized to execute said instrument by Resolution of the Mayor and City Commissioners of said City, and the seal affixed is the official seal of said City. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the day and year tten. Notary Public/~n a~d for the Sta~e of Washington~ ~ Page 1 of 2 Pages AIRSPACE SUBLEASE ASSIGNMENT For and inconsideration of the sum of Ten Dollars and other good and valuable consideration, the hereinafter named assignor hereby assigns, sets over and transfers all of his right, title and interest in and to that certain Sublease between the Secretary, Washington State Department of Transportation and the City of Bremerton dated April 30, 1979, a copy of which is attached hereto and incorporated by reference herein unto BRETT HAYFIELD and BEVERLY HAYFIELD, husband and wife, and PAUL McCULLOUGH and JEAN McCULLOUGH, husband and wife, whose address is 101 Shore Drive, Bremerton, Washington, 98310, and said assignees hereby bind and obligate themselves to perform all the conditions and covenants of said Sublease. DATED this fS~ day of April, 1985. BRIAN W. BUSKIRK, Assignor BRETT HAYFIELD, Assignee BEVERLY HAYFIELD; Ass~ee ' ' ~c~CU~.LO~UG~ A s~ig n e e ~EAN McCULLOUGH, STATE OF WASHINGTON ) ) ss. COUNTY OF KITSAP ) On this day personally appeared before me BRIAN W. BUSKIRK, BRETT HAYFIELD and BEVERLY HAYFIELD, husband and wife, and PAUL McCULLOUGH and JEAN McCULLOUGH, husband and wife, to me known to be the individuals described in and who executed the within and foregoing instrument and acknowledged that they signed the same as their free and voluntary act and deed, for the uses and purposes therein mentioned. GIVEN under my hand and official seal this /5 day of ~/~ , 1985. of Washington, residing at Bremerton THIS LEASE, suhj~_'ct to approval by the S~tcretary, {{ashington Ftate Department ef Transperhation, made and entered {nto ~his ~av o~ , 1981, between kh~ C~ .t OF B~,E~ LRPO~ , here:i, na~t~xP [ai!Td the "Lessor" and NitETT hA~]. [,,~b aRcJ BNVERLY IiA!FIELD, his ~, E~LAS, the land and ~l.e_ml..mo %o be leased ar~} not } eot{d e:{clusivelv for highway [:u_p,k{~.~ AND ' ' ~' ~ ~ : ess{.e dee~'.} it 'to be in the b(..3t nubh~c interest to ell{leu ' zn ~c. thJ s NC~W THERi;NORE, in consideration of the h-e._~ms~, conditions, b~-~ ~o~,~nc~.~ contained herein, IT IS HUTLiALLY AGR!NND The Lessor, subject to approval, by the Secreta~.y, WashJ. ngton ~h~ Nremises duscribed, in hxhlbl' ' '~tt "A" attached hereto and by hhi.~ e~}ren(:~ incorporahod hereiu. .........Ti]RM. The terla of this leese shall commence or: the date off ~ c~ ol arid shall thereafter be a yea~ to y(lar ~:ivinq ninety (90} days written notice of termination to Lite otb,._r }fl} h!'. :. ,A the ev(~2[ [ihi{. thls lease is terminated by hhe C~ty i ul kio u;e or con~,enh~ :c:c~, the Lc.s,~"~'~-, shall, not he enkitAed to arty · - i ...... reason of such kcrmir~atior:. Provxded, ~ u~l~ kc) ~h~ use o2 any adjoh~[n,{l or oc:ne2 proper[:le::~ owned, to thtl~ (::et:ut:ion of t:his !ease. ~ ~c.b ~.~24..00) for each st trial ec~od plus 12% NashAngton Sta[:e . ~u~a .... ~ t..~gn~t~:,~ by the I,esser. .., it:h '~ ..... ":--- ' ................. ' ~l.i. pOllCles and reqttlatlof~s heretofore er hereaf:ter prom'.l](iated }.t [-.~v~- to the ~ocation, operation and J'.~l;lte/iallce. of faciiJ, tJe:i located on the property her~in descr:lbed. ._~aV~lt.O lanes of limited access highways is nob p(r~:i/Led. A].I construction plans and any changes thereof ar(il ap~e%,~ by th~ l,essor and must comply with ~:}ta tze and Local ~-'J .... c,~, ' o..d n.~ ..... : re~rutahions and env!ronmenta! re(~uir :rtents 'lbo h. ~.~q:' of said premises' shall' - be such that no hazardous or 1,- ~ {b!v objectionable smoko ~ -~, ise above the grade line of the highwa!, facility~ No other use lhan custom,er parking off automobiles shall be permitted wJthouh ~,h~ [Fior approval as~'o.~' ~c~.-~.~ required ~n this a~reemen~ . Tho L,r!ss(l(l the premises in good confiition, both as ho safe~y an~ appearance tl~e satJsi:achion of the ~ , ~' ave assNmod by him, if any, and all taxes which may hereafter become ~,.~ .~nke~_ou o~ th~ Lessee, and ~lso all ta.,~s which may LESSOR'S APPROVAL OF DESIGN AND CONSTRUCTION. Lessee eov,:Nlants that an~imp.rovemenhs to be constructed on the premises will not at any time during or afte~ construction either damage, threaten to damage or o~her~.l~ ~rsely affech an5 ..... element of kne highwav facility er the operation thereof. I~{ssor and the WASHINGTON STATE DEDARTMENT OF TRANSPORTATION shall be furnished wi. th ~ ' ~Jples of all ~ [ ~ns and specifications and revisions [hereto for ail improvemmts inlludinc~ signs .~}roposed to be placed on tln~ fD~*~.~.mlo~:'~'':'-, ~nd no work {~,.~lle without p}rtor Loss(ir lind WAS}![NGTDN S ~l~ri, ........ D .i,~x ~,l~°~- ~ 01;' ?~NSPORTATION a}p~ovaL. All consir~ck[_on work shall ,~'~,,_ d..nu,o ,, in c~uformitv with the plans and s} ~ ~ po~,,_._~./ ,~[op~__d or that addikional ,;~ork ~l)e done, i~o IllS(lEe Ol ;6'iV,i~iou of khe plalls [ilid sDecificakJens~ protect{on of ali ' ~ ~: '- khc ~.ac.l. 1]k? and comp]~anco with f,essor s { , ~structi,~n and safety ,:~nc.~r~, The .i,,,~o~.m~hto shill be dnsi~;ned c s~} ~{.''uea in a re{inner ,,~14 .... w~]]'~ :',-mi~. access to t:he highway ~}!-~{~i~i!}__!~!~HT OF ENTRY AND INSPNC!'ION. The Les:;ou, for" ,~ Jac~:_ii V or any element the~:eo~. Anv such rJq}~t will bec.,)'- ~,h~'~t.t_d for solely by pro ra a reduchior{' of ~o~ snal! iN no way })c responsible ~ ~- t ,.~...,~.~. 01:' rE~i{ANSPOR'i'A?iON lflay [toNi trine 110 +'J.. ~' ,gO ~lpOh thc ',)I' ~ ~ 'i ; oiiC1OS ~lle~J. }gQ {~t.lxU ..... k.O Lossor. S :ch po~.~Le~ shall not be c~ xx iable except On ti!izt:y (30) days ,~ot-.[~.~'c'~ to Lessor. - ,. ( ..... c shall indemnify a~:d hold th~: !,es~iS~'l~il~FiSi~6-'li~;}~-iO~i~r-Nnd all. clains inc]_uding akeorney's of in'urLes] . to or (Lat~; ~' ' of any pcrsol or persons and day,age to ~a~s. N0 11'1 ~note or park {:rom khe use or occupancy of the leased Nr raises by the Lessee OZ ih ~ activities conducted upon the premises i,v.~ the I,essee, {ts c(n~ t~-',~''LO~.~,'-= subcontractors, agents, emoloyees. . and o.fen(~ all such claims, da ~age to ~:opc.~.tz [tr!sLRq ill whole or In part out of the use of occupancy ~f the leased premises at its ewn o-,-,~_.~,enoe, ~': ..h~ ' the name of arid on behalf of the Lessor. n,~t, )_l {}~qin Rtar±hal status, age, ':: /X or t~i~ pFos62110(~ c)f a}!y sensory ine}ltal or }physic{~i handicap o! services hhereon, no such discri]uinqzioqs.h.lls;~' be oruct~cod thc sd!cction Of e!R}llOyOOS Or C:oIi[ir~(lhors, ou bY coni rachors J.n [the tion shall..not be p~'achiced agains[, the pub]. Jc in th~ ir access ~*-,..} and use of the ff:~nil{t, and ' lc~ed for public constructed or eperated on, over o1: under the space of the rh:tt way, and that the Lessce shall use tho pr(liRiS{~S ii1 compliance with all othor requireluetlhs ililI)osed pursuant to theO" ..... ,-~6 n~nc,~o.,~ ~- of uhe' T]:ansportati. on, Part 21 (49 CFR Part 2i), and as said Regulations may ant{ n{~c.. The breach of any of the above non-discrimination covenant.~ shall be a material act of defaut~ entitlint the Lessor to terminate ~.s lease in aocordnnce with tile procedures .~ _t forth herein. PROHIbiTION OF ASSIGNHENT. IT !S AGREt~D that the I ~s ..~ will Rot, in WhOle or in part, asszgn this ac;Fe(i[loIlh or sublease the w! thot[t prior ~ -' - ~, ~ -' ' .., %,l. ltt~ .... COIISCMi~ Of the Lessor and the Federal Ad:ui ni.s tratior . }cSsde hereby covell~tllLs that he is act::Jnc[ as priric:ipal for: hlnsolf, and not as an ~gent for any undisclosed prJrcipa]. . ,.rd i i, i~.]..~,S b,L [ ~ ('P~ ABANDON['-IEN']'. (a) Not kCe cf D<.ZC~ ] (L'.~Se and while any snch dc, fault ~-e ~= ' khJ t'~', ' ""' dh:d, thi: ' " : ' · ,, ' ' ~:~ ,: th ,u Ih~r iR~r notfi ce and al 1 rJc~ht .hLOVn '2{~r tod; '~: ~i ih{ }:tdgnlo~lt oi~ {lie ~. Sol , an exilensi~on l's ice, se ann tnlls lease shall tc. rminato. (c) if or agjlcement contaif!ed in this l~.~,~:, o -,' ~cnaang~:rm~:nu of life of tho hic~hwav. ~ fac:ilitv~ or f~.~h.r_~' ~ ~ of Lesse,:' tJftely to obtain any J!lsltlllallco or tO pay any taxes duo is pr'e:;umed to zD~e an c.i:!elsgerloy} , mav direct the Lessee to stop work alld/or may ~ 1.~_~1 f O,~ ]h,2sscr, ~ll'ty act or cn~ ~g done by I,essor ullder the provisions o~ t:his.r)aragz'aph shall r~ot be or be tenor, ruddy'- e as a waiver of any <u) ~:!q!,.~_!S!~l~}_~.f Improvenlents: Upon t<~rminaticm o[[ dhis lease -3- ~mzses shalz become the prop'eruy o2 the I .... o oz, at the ophion Lessor, ii~a~ '' roR!ovod by th{} ~essee a~ his expense in a manner irescribed bv the Lessor. (f) Abandonmer,.-t: !n ebb event that ;[.t becomes apparent in the I,~.sor's sole ]udgim}nt Lhat the }}i:{.ilsas have ~ixty (60) days~ the Lessor at its option o~ '~ {, L~-~ty (30) QaVS pr }r to the proposed ter- iven or made, Lhey wi!] be senL by certifi, ed mail addressed to ;arti-::s at tlno address ] ii s ted below un". oss e'~1' ~:~:~er{.n +, u,'ts'-e~'~' s~' des2 qnated in wrlqlNc c~No Q(~]~ZVe eot to ~,ossor, by Lhe Lessee. LESSOR: ~,-~,~ n,~ ~r~ m'.~ 2 39 P'~UR.n~ ~P STRI'}ET ~}REHER'i'ON, WA . 83] 0 NEVE~y hA~ I ~I,D ~ .......D this ...... day of ]9 . '~:' TR, N S P O kTA T i O N I NR!AN 8USKIRK, ~-~ ' ' , ,.~ .... by acKn(}',/!{.!dg ! hhah I was the previous Le:;s( c of ~o.~...} ace Suh].ease and >, hereby consent to the Gxectlhio~l of this Alrsnace' ':~,'~ bl ~ ~c., };y t ~. , 1,( ..... l,ti . '.','.,,;h_:tk~Oc, Lossees designated above. ,/:PATE I')i;JPARTNI~[qT '"',,j. ']'T .... i" c ~( h~r"l Am'C")x; t.. ~, bUSI<i RK INDIV! DUAb ACKNO~ 7LtJDGHi,}Nq2 ~ A~E. OF WASHINGTON eu-.ly OF KiTSAP On this day of a-P={~.~.,t: GLENN I<. JARSTRD a~f'i~p~N%-~:6ins ............. bn~ore me personally t~S~_~{ under my hand and official seal the day ant year last A~IIINt{, ON this day of 19 before me peFso~ia]_Iv .......... and that ne ei--c:k, iixt~l~ :v% ,7~,.- s thereln set forth --:;~- · .......... u~ ............ , for .... ~(~ off{el ~ sea] On I' ' ' - ~ - ...... ~.~ee and voluntary ,tot and de8~'2'-78} the puupo~:o~ ~:~ N~,N under my hand and officLa] seal the day an~f year last written. . . ..... ~n~n ~or the State of- WashJ _~]gton residing -5- LESSEE: BRIAN BUSKIKK 1305 CA. BELL WAY BP~TON, WA 98310 GLENN K. JARSTAD~AYOR Attest: KATHLEEN L. ~J~DIO, City Clerk Approved As To Form: ASSISTANT ~TY ATTORNEY ~ BRIAN BUSKIRK, LESSEE WASHINGTON~"I'TE DEPAR~ENT OF ~ APPROVED SECRE~I'ARY WASHINGTON STATE DEPART~NT OF TRJ~SPORTATION -6- INDIVIDUAL ACKNOWLEDGMENT STATE OF WASHINGTON ) COUNTY OF KITSAP ) On this 13th day of March, 1979 before me personally appeared Glenn K. Jarstad and Kathleen L. Mandio to me known to be the individuals described in and who executed the foregoing instrument, and acknowledged that they signed and sealed the same as their free and voluntary act and deed, for the uses and purposes therein mentioned. GIVEN under my hand and official seal the day and year last above written. Not.a'~.y Public iff an~ for the State. of Washxngton, residing at STATE AGENCY ACKNOWLEDC~[ENT STATE OF WASHINGTON ) ss On this ~/~_ day of ~ ~/ , 19~efore me perso~ll~ appesred ~~. ~~ ~o me kno~ %o be %he d~ appoin%ed z and tha% he executed the ~th~n and fore- ~oi~ instr~ent and ac~owle~ed the said instr~ent to be the free and vol~- tary met and deed of sai~ ~~ ~ ~ , for the uses and p~poses therein set forth, and on oath~tates that he was authorized to execute said ~ ns trident. IN WITN~S W}~EOF, I have he~e~to set ~ hand and affixed ~ official seal the /~ day of N6tary Public in and fd-r~a$~' of Washington, residing at INDIVIdUaL ~KNO~LEDGHERT STgTE OF ~ASHtNGTON ) ) SS COUNTY OF K1TS~P ) On this ...... day ct ......... , 1979, before me personally appeared to me known to be the individual des-~r~b~-~ and wl~J~e~u~-gd ~ fore~oi~ instrument, and acknowledged that signed and sealed the same as free and voluntary act and deed, for the purposes therein GIVEN under my hand and official sea] the day and year last above written. NuiARY~U~LIIF'TK'i~d-~B? t~e State ol Washington, residing at Z AA-3-07159 THIS LEASE made and entered into this _____~O day ~RA~%~SPORTATION, hereinafter called the "Lessor" and the City of Bremerton, hereinafter called the "Lessee"; WHEREAS, the land and premises to be leased are not presently needed exclusively for highway purposes: AND WHEREAS the Department of Transportation is granted authority to lease property under RCW ~7.12.120: AND WHEREAS, the Lessor and Lessee deem it to be in the best public interest to enter into this lease; NOW THEREFORE, in consideration of the terms, conditions, covenants and performances contained herein, IT IS MUTUALLY AGREED 'PHAT: The Lessor does hereby lease to the Lessee the premises described iii Exhibit "A" attached hereto and by this reference incorporated herein. TERM. The term of [:his lease shall commence on the date of execution by the Lessor and shall thereafter be a year to year tenancy. This lease may be terminated by either the Lessor or the J Lessee by giving ninety (90) days written notice of termination to []le ether party, in the event that this lease is terminated by the state for public use or convenience, the Lessee shall not be entitled to any payment or compensation by reason of such termination. Furthermore, such leased premises shall not be considered as part of or as contributing to the use of any adjoining or other properties owned, used or controlled by the Lessee in the event such other property or property rights of the L-~ssee are subject to condemnation subsequent to the execution of this lease. The Lessee and the Lessor hereby affirm that upon e×piration or terminati~u o.., this leas6 for any r ~,,~ e~..oen and ~he subsequent use of the premises for h~g ~w~ purposes, such ~se for highway purposes will not be considered the use of any publicly owned land Zrom a public park, recreation area, or wildlife and waterfowl refuge within the meaning of 23 U.S.C. ~38 and g9 U.S.C. ~653(f). Within thirty days of occupancy, Lessee at his expense shall erect and maintain a permanent sign stating as follows "This highway right of way provided for your benefit under an agreement between (Lessee) and the Washington State Department of Transportation. That agreement may be terminated if this property is needed for highway purposes." USE OF PREMISES. In using these premises, the Lessee shall comply with all policies and regulations heretofore or hereafter Lrcmu!gated by the Department of Transportation relative to the location, operation and maintenance of facilities located on the property herein described. Direct access ~o ramps or traveled lanes of limited access highways is not permitted. All construction plans and any changes thereof are subject to approval Ly the Lesser and must comply with applicable S tare and Local ordinances, regulations and environmental requirements. The use of said premises s.hall be such that no hazardous or unreasonably oojectionable smoke, fumes, vapor, odors, or discharge of any kind shall be permitted 'to rise above the ~rad~ line of the highway ~acllLt~. No use other than parking and landscaping shall be permittpd without the prior written approval of the Lessor. Signs where permitted are subject to prior review and approval as e-~wn~re required in this agreement. The Lessee shall perform or cause to be performed at his expense all maintenance of the P~e~zse~ which will include, but net be limited to, keeping the premLses in good condition, beth as to safety and appearance to the satisfaction of the Lessor. T~ES. The Lessee agrees to pay all taxes and assessments which are assumed by him, if any, and all taxes which may hereafter become a lien on the interest of the Lessee, and also all taxes .... o.~e., mpon the lnt~e_.,~ of the Lessee or by reason of this agreenent. LESSOR'S APPROVAL OP DESIGN AND CONSTRUCTION. The Lessee covenants that any improvements to be constructed on the premises will not at any time during or after construction either damege, threaten to damage or otherwise adversely affect any part or element of the highway facility or the operation thereof. The L~}ssor and the Federal Hi%~hway Administration shall be furnished with copies of ail plans and specifications and revisions thereto for all improvements including signs proposed to be placed on the ~}re~ises and no work shall be done without prior written approval b,' the Lessor and the Federal ' ~ ~ . ~gnway Administration. All construction work shall be done in conformity 'with the plans and specifications as approved. The Lessor may take any action ~.~o ~a~l~ necessary, including olrecting that work be temporarily stepped er that additienal work be done, te insuL-e observation of t'~e plaas and specifications, protection ef all parts and el. em~.nt.:~ of ~h,; highway ~aci!itv and compliance with Lesser's construction and safety standards. %'he improvements shall be designed and constructed in a manner which will permit access to the highway facility for ~' - tn~ purpose of ~- -{ -, ln~ect,.~n, mainte~ance, and construction when necessary. LESSOR'S RiGF2 OF ENTRY AND INSPECTION. The Lessor, for ~,s~l~ and for the Federal Highway Administration, reserves the right to enter upon the premises at any time without notice to the ..' ~"=~ ~o. the purpose of inspection, maintenance, construction or reconstruction of the highway facility or any element thereof. Any loss of the use of the leased premises due to the Lessor's exercise oJ such right will be compensated for solely by pro rata reduction of rent. The 'Lessor shall in no way be responsible for any incidental or consequential damages due to such action. The Lessor and the Federal Highway Administration may from time to time upon the premises for the purpose of inspecting any excavation~ construction or maintenance work being done by the Lessee. Entry upon the premises for any other purpose by the Lessor and the ~aeral Highway Administration shall be conducted with reasonable .~ot~ce ~o t'he Less~'e and during the hours of 8:00 a.m. to 5:00 p.m. NON-LIABILiTY OF LESSOR. The Lessee shall indemnify and held the Lessor harmless £rem any and all claims including attorneys fees, damages, suits, and expenses of whatsoever kind or' nature on account of injuries to or death of any person or persons and damage to property arising in whole or in part from the use or occupancy of the leased premises by the Lessee or the activities conducted upon the premises by the Lessee, its contractors, subcontractors, agents, employees and guests and invitees. The Lessee further agrees to accept and defend all s~ach claims, damages and suits for injuries te or death of any person or persons er damage te property arising in wi~ele or in part out ef l~he use or occupancy ef the leased premises at its own expense in the name of and en behalf ef the Lessor. NON-CO}iPLETION OF iMPROVEMENT. Unless the time or times for completion are extended in writing, the Lessor may, at its option, terminate this lease if: a. Construction of the facility is net begun within one year of the date hereof; and b. Construction of the facility is not prosecuted to completion with reasonable observation of a construction schedule which allows not more than one hundred twenty days from the start to tNe finish of construction. Delays prior to and during construction caused by fires, oarthquakes, acts of God, war or civil disturbances, demonstrations, strikes, or other interference with labor on the project by picketing er similar activities, economic controls which !iake labor or material unavailable, injunctions, restraining orders er other delays due to iitigatien challenging the validity of this le~se or related agreements, and similar contingencies shall, for the number of days as the duration ef such delay, postpone the hessor's right to terminate this ].ease. NON-DISCRIMtNATI0~{. The Lessee, for itself, its successors, and assigns as a part ef the cor:sideration hereof, does hereby covenant and agree, as a covenant runniP, g with the land, that no i}erson, on the grounds of race, color, creed, national origin, P. arital status, age, sex or tile presence of any sensory, mental, or physical 'handicap shall be excluded from participation ill, be · den£ed uhe benefit ~ · ~ · - '~, or he otherwise unlawfully subjected to c~iscrimination In t~,e use of the ~-~' ~lllty now or hereafter on the premises, that in connection with the construction of any =,~p..ovem=nhs on said lands and the furnishing of services thereon, no such discrimination ~hali be practiced in the selection of employe~s or contractors, or by contractors in the selection and retention of their subcontractors, that such discrimination shall not be practiced against the public in their access to and use of the facility and services provided for public acco~odat ion constructed or operated on, over, or under the space of the right of way, and that the Lessee shall use the premises in compliance wi_th all other requirements imposed pursuant to the Revised Code of Washington Chapter ~9 60 and Title ~9 ,_~de ef Federal Regulations, Subtitle A, Office ef the Secretary ef Transportation, Part 21 (~9 C.F.R. %~art 21) , and as said Regulations may be ame~%ded. The b~each ' ~: o~ any of the above nondiscrimination Covenants hull be a material act of de~.~.t entitling the Lessor to terminate this lease in accordance with the procedures set forth herein. PROHiBiTiON OF ~e .-~ ~ .,~SIGN~iENP. IT IS AGREED that the Lessee will net, in whole or in ,-,-~ assign this agreement or sublease the ~rout prior written consent of the Lessor arid the ~ ~--,el~l Highway Administration. Any use or sublease of the site in whole or in part for conunercia 1 purposes parking for ~{cal ~ ~ ' ~usznesses shall be based on economic rent payable to the state The Lessor , '~ ~ · .~z== not unreasonably withhold approval of the assignment of the lease for the parking area portion of the F~remises by the ~ ~ Bo~tflo~se restaurant m~Ssee hereby covenants that he is acting as principal for himself, arld net as an agent for ally tmdisclosed principal. PSR. IINAT.~ON OR ABANDONMENT. {a) Notice of Default: At any time after the occurrence efa default or defaults under this lease and while any such default remains unremedied, the ~ la~ have the option of giving notice ~n writing of its -~t-,~t~on ho terminate this lease by personal service upon, er by writt~.~n notice directed to the Less, ea. Such notice of intention to tesminate shall specifF the default or defaults then outstanding. h;ai~'e~' or ~cceptance of any default of the terms of this agreement b}~ the Lessor si:all net operate to release the Lessee of the z ~s~o~s lb- ±lt~ for any prior or subsequent default. {b) Termination and Plxtension: After the expi. ration of Thirty (30) days fr6m the giving of such notice i~l the case of default, if eno e~; more defaults ees~rLoed in such notice then remains unremedied, t~lis lease shall terminate without further notice and all right of ~he Lessee shall cease. The Lessor may in writing, an his option, ext,~,nd the above period, if in the judgment of the Lessor, extension is justified. {c) Assignment for Benefit of Creditors, i~solvency, or B~_nkrui!tcy: Appointment ef a receiver to take possession of the Lessee's assets, the Lessee's general assignment for benefit ef creditors, or the Lessee's insolvency er taking or ~ufferi[h9 action under ti:e Bankruptcy Act is a breach of this lease ~nd this lease shall ~erminate. (d) ~erformance ~ l~essor: If the Lessee defaults in the perfo~.~mance or observation of any covena~it or agreement '~- ' ' ' this _ con=alneo ill ~ ~'~ "~ the Lessor, without :iD{ice !r ¢:eemeo i}v the Lessor that ail emergency exists {endangermenE ef life ,or tile higNway facility or failure of the ....... e= timely to obtain any insurance or to pay any taxes due ms ~resumed te be a~l emergency), may di. rect the Lessee to stop work and may itself perform or cause to be performed such covenant or agreement and may ~o en~,=r upon the premises for such puroose. The Lessee shall, repay ho the Lesser upon demand the entire cost and ~,xpense of such performance by tile Lesser. Any act or thing done hy Lessor under the previsions of this Paragraph shall net be er be construed as a waiver of any agreement or condition herein contained or the performance thereof. (e) D__i s_~o__s it ion of ~mpr__ovements: Upon termination of this lease under any provision thereof, the improvements constructed on the leased premises shall become ~he property of the Lessor or, at the option of the Lessor, !lay be removed by the I~essee at his expense in a manner prescribed by th~i~ Lessor. {t) Abandollment: in tile event that it becomes ~p~a~.ent mn the Lesser's se±e judgment ~hat the premises have ce~.&sed to be used or have been abandoned for a continuous per{od of .~i:~ty {{50) days, the ]Lessor at its option, shall have the right to termmnate this lease, provided du~. notice of termination shall be giver,, the Lessee net less than * ' --w Lhzzt~ (30) days prior to the proposed ~- ,' - ~ ,- ~ermlnat~on oate. NOTICES. Wherever in this lease written netices are to be given or made, they will be sent by certified mail addressed to the parties at the address listed below unless a different address shall be designated in writing and delivered to the other party. LESSOR: DEPT. OF T~NSPORTATION LAND ~LANAGEMENT SECTION P.O. Box 327 Olympia, WA 9850~ LESSEE: City of Bremerton Office of the Mayor City Hall - 239 ~th Street Bremerton, WA 98310 J'O' ~' (~ ,' ,' / Date , LeSSee : -(' ' ~f~} ' ------ WASHINGTON STATE, DEPARTMENT OF TFOINSPORTATION ~- ~. Bv:_ : - S~ate ~ ~ginee~ -- APiROVED AS TO ~' Asszptant Atao~ney GeneraP-Z CITY ACKN~WLEDGHENT CONMISSIONERS OR COUNCIL STATE OP WASHINGTON ) ss COUNTY OF ~{ Ii},~]V ) On this ~,? ~F day of ~)}~}~. /~} ~ / before me personally appealed d~ ~ ~'~_ ,..'t} ~'/~1 a,,?, ~}~q'~z.c hA' ,-. ~'~ to me known to be khe duly elected and qualified Hayor and City Clerk of the City of Bremerton, Washington, that executed the within and foregoing instrument and acknowledged said instrument to be the free and voluntary act and deed of said City, for the uses and purposes therein mentioned, and each on oath stated that he was authorized to execute said instrument by resolution of the Mayor and City Clerk of said City, and that the seal affixed is the official seal of said City. GIVEN under my hand and official seal the day and year last above written. ~otary Public zn and for the State of Washington, residi~_g at ~ ; ~ L ~ ~ ,. On this _2~(P day {if }~~e~nown to ' 1~__~ before me personally appeared A. D. Anireas te ~e the duly appointed State Design Engineer for the Washington State Department of Transportation and that he executed the within and foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said State of Washington, for the uses and ~ urposes therein set forth, and on oath states that he was authorized to execune said instrument. iN WITNESS WHEREOF, I have hereto set~y hand and affixed my offL~:iai seal the ~ day of .... , ~97~ NoCary PubiSc in aha for-~at~f Was in~ton, residing at I.C. ~3-I-02400 AA-3-07159 AIRSPACE SUBLEASE THIS LEASE, subject to approval by the Secretary, Washington State Depart- ment of Transportation, made and entered into this~o day of ~[M~(~ , 19-~, between the CITY OF BR~RTON, hereinafter called the "Lessor" and BRIAN BUSKIRK, hereinafter called the "Lessee"; WBEREAS, the land and premises to be leased are not presently needed ex- clusively for highway purposes AND WHEREAS, the Lessor and Lessee deem it to be in the best public interest to enter into thise lease; Nt~. THEREFORE, in consideration of the terms, conditions, covenants and perfor~mces contained herein, IT IS MUTUALLY AGREED TtIAT: The Lessor, subject to approval by the Secretary, Washington State Depart- ment of Transportation, does hereby lease to the Lessee the premises described in Exhibit "A" attached hereto and by this reference incorporated herein. TERM. The term of this lease shall commence on the date of execution by the Lessor and shall thereafter be a year to year tenancy. This lease may be terminated by either the Lessor or the Lessee by giving ninety (90) days written notice of termination to the other party. In the event that this lease is ter- minated by the City for public use or convenieince, the Lessee shall not be entitiled to any payment or compensation by reason of such termination. Pro- vided, that the Lessee shall be entitled to a return of rental payment based upon rent paid beyond the effective cancellation date. Furthermore, such leased premises shall not be considered as part of or as contributing to the use of any adjoining or other properties owned, used or controlled by the Lessee in the event such other property or property rights of the Lessee are subject to condem~mtion subsequent to the execution of this lease. RENT. R~nt for the premises shall be paid Lessor annually, on the first day of ~ at the rate of two hundred forty dollars ($240.00) for each annual period plus 12% Washington State Leasehold Excise Tax when applicable, during the entire term of this lease payable at the address desig- nated by the Lessor. USE OF PRAISES. In using these premises, Lessee shall con,ply with all policies and regulations heretofore or hereafter promulgated by the CITY OF BR~ERTON relative to the location, operation andmaintenance of facilities located on the property herein described. Direct access to ramps or traveled lanes of limited access highways is not permitted. All construction plans and any chan~es thereof are subject to approval by the Lessor and must comply with applicable State and Local ordinances~ regulations and environmental requirements. The use of said premises shall be such that no hazardous or tun- reasonably objectionable smoke, fumes, vapor, odors, or discharge of any kind rise above the grade line of the highway facility. No other use than customer parking of automobiles shall be permitted without the prior approval of the Lessor. Signs where permitted are subject to prior review and approval as elsewhere required in this agreement. The Lessee shall perform or cause to be performed at his expense all maintenance of the premises which will include, but not be limited to, keeping the premises in good condition, both as to safety and appearance to the satisfaction of the Lessor. TAXES. The Lessee agrees to pay all taxes and assessments which are ~ assumed by him, if any, and all taxes which may hereafter become a lien on the interest of the Lessee, and also all taxes which may hereafter be levied or imposed upon the interest of the Lessee or by reason of this agreement. LESSOR'S APPROVAL OF DESIGN AND CONSTRUCTION. Lessee covenants that any improvements to be constructed on the premises will not at any time during or after construction either damage, threaten to damage or otherwise adversely affect any part or element of the highway facility or the operation thereof. Lessor and the WASHINGTON STATE DEPARTMENT OF TRANSPORTATION shall be furnished with copies of all plans and specifications and revisions thereto for all improvements including signs proposed to be placed on the premises, and no work shall be done without prior Lessor and WASHINGTON STATE DEPARTMENT OF TRANSPORTATION approval. All construction work shall be done in 6onformity with the plans and specifications as approved. Lessor may take any action reason- ably necessary, including directing that work be temporarily stepped or that additional work be done, to insure observation of the plans and specifications, protection of all parts and elements of the highway facility and compliance with Lessor's construction and safety standards. The improvements shall be de- signed and constructed in a manner which will permit access to the highway facility for the purpose of inspection, maintenance, and construction when necessary. -2- LESSOR'S RIGHT OF ENTRY AND INSPECTION. The Lessor, for itself and for the WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, reserves the right to enter upon the premises at any time without notice to the Lessee for the purpose of inspection, maintenance, construction or reconstruction of the highway facility or any element thereof. Any loss of the use of the leased premises due to Lessor's exercise of such right will be compensated for solely by pro rata reduction of rent. Lessor shall in no way be responsible for any incidental or consequential damages due to such action. Lessor and the WASHINGTON STATE DEPARTM£ENT OF TRANSPORTATION may from time to time go upon the premises for the purp~be of inspecting any excavation, construction or maintenance work being done by the Lessee. Entry upon the premises for any other purpose by the Lessor and the WASHINGTON STATE DEPARTMENT OF TRANSPORTATION shall be conducted with reasonable notice to the Lessee and during the hours of 8:00 a.m. to 5:00 p.m. INSURANCE. At his sole cost and expense, the Lessee shall keep the premises and the improvements thereon continuously insured throughout the term of this lease against claims for personal injury or property damage under a policy or policies of general public liability insurance with limits of at least $100,000 for bodily injury to one or more persons and $50,000 for property damage. Lessor, may, not more frequently than at three year intervals, require that the above coverage be increased in such reasonable amounts as may be specified by Lessor. The insurance policies called for by this paragraph shall name Lessor as one of the insured thereon, and copies of all such policies shall be delivered to Lessor. Such policies shall not be cancelable except on thirty (30) days notice to Lessor. NON-LIABILITY OF LESSOR. The lessee shall indemnify and hold the lessor harmless from any and all claims including attorney's fees, damages, suits, and expenses of whatsoever kind of nature on account of injuries to or death of any person or persons and dmage to property arising in whole or in part from the use or occupancy of the leased premises by the lessee or the activities conducted upon the premises by the lessee, its contractors, subcontractors, agents, employees and guests and invitees. Lessee further agrees to accept and defend all such claims, damages and suits for injuries to or death of any person or persons or damage to property arising in whole or in part out of the use or occupancy of the leased premises at its own expense in the name of and on behalf of the lessor. -3-- NON-DISCRI~INATION. Lessee, for itself, its successors and assigns as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land, that no person, on the Erounds of race, color, creed, national origin, m~=ital status, aEe, sex or the presence of any sensory, men- tal or physical handicap shall be excluded from participation in, be denied the benefits of, or be othe~,ise unlawfully subjected to discrimination and the use of the facility now or hereafter on the premises, that in connection with the construction of any improvements on said lands and the furnishin~ of serices thereon, no such discrimination shall be practiced in the selection of employees or contractors, or by contractors in the selection and retention of their sub- contractors, that such discrimination shall not be practiced against the public in their access to and use of the facility and services provided for public accommodation constructed or operated on, over, or under the space of the right of way, and that the Lessee shall use the premises in compliance with all other requirements imposed pursuant to the Ordinances of the CITY OF BRENERTON, Revised Code of Washing~n Chapter 49.60 and Title 49, Code of Federal Regulations, Subtitle A~ Office of the Secretary of Transportation, Part 21 (49 CFR Part 21), and as said Regulations may be amended. The breach of any of the above non- discrimination covenants shall be a material act of default entitling the Lessor to terminate this lease in accordance with the procedures set forth herein. PROHIBITION OF ASSIG~NT. IT IS AGREED that the Lessee will not, in whole or in part, assign this agreement or sublease the premises without prior written consent ofthe Lessor and the Federal Highway Administration. Lessee hereby covenants that he is acting as principal for himself, and not as an agent for any ~mdisclosed principal. DEFAULT, T~INATION OR ABAND0~ENT. (a) Notice of Default: At any time after the occurence of a defa~lt or defaults under this lease and while any such default remains unremedied, Lessor shall have the option to give notice in writing of its intention to terminate this lease by personal service upon, or by written notice directed to the Lessee. Such notice of intention to terminate shall specify the default or defaults then outstanding. Waiver or acceptance of any default of the terms of this aEreement by Lessor shall not operate to release the Lessee of the responsibility for any prior or subsequent default. (b) Termination and Extension: After the expiration of thirty (30) days from -4- the giving of such notice in the case of default, if one or more defaults de- scribed in such notice then remains unremedied, this lease shall terminate without further notice and all right of the Lessee shall cease. The Lessor may, at his option, extend the above period, if in the judgement of the Lessor, an extention is Justified. (c) Assignment for Benefit of Creditors, Insolvency, or Bankruptcy: Appointment of a receiver to take possession of Lessee's assets, Lessee's general assignment for benefit of creditors, or Lessee's insolvency or taking or suffering action under the Bankrupt~-y Act is a breach of this lease and this lease shall terminate. (c) Performance by Lessor: If Lessee defaults in the performance or observation of any covanant or agreement contained in this lease, Lessor, without notice if deemed by Lessor that an emergency exists (endangerment of life or the highway facility or failure of Lessee timely to obtain any insurance or to pay any taxes due is presumed to be an emergency), may direct the Lessee to stop work and/or may itself perform or cause to be per- formed such covenant or agreement and may enter upon the premises for such pur- pose. Lessee shall repay to Lessor upon demand the entrie cost and expense of such performance by Lessor, any act or thing done by Lessor under the provisions of this Paragraph shall not be or be construed as a waiver of any agreement or condition herein contained or the performance thereof. (e) Disposition of Improvements: Upon termination of this lease under any provision thereof, the irmprewements constructed on the leased premises shall become the property of the Lessor or, at the option of the Lessor, may be removed by the Lessee at his expense in a manner prescribed by the Lessor. (f) Abandonment: In the event that it becomes apparent Sn the Lessor's sole judgment that the premises have ceased to be used or have been abandoned for a continuous period of sixty (60) days, the Lessor at its option, shall have the right to terminate this lease, provided due notice of termination shall be given the Lessee not less than thirty (30) days prior to the proposed termination date. NOTICES. V~nerever in this lease written notices are to be given or made, they will be sent by certified mail addressed to the parties at the address listed below unless a different address shall be designated in writing and delivered to Lessor, by the Lessee. LESSOR: CITY OF BRE~TON CITY CLERK'S OFFICE 239 4TH ST. BREMERTON, WA 98310 LESSEE: BRIAN BUSKIRK 1305 CAMPBELL WAY BR~TON, WA 98310 Attest: KATHLEEN L. NANDIO, City Clerk Approved As To Form: ASSISTANT ~TY ATTORNEY WASHINGTON STATE DEPARTIIENT OF TRANSPORTATION APPROVED SECRETARY WASHINGTON STATE DEPAR~N~ENT OF TRANSPORTATION Date -6- INDIVIDUAL ACKNOWLEDGN[ENT STATE OF WASHINGTON ) SS COUNTY OF KITSAP ) On this 13th day of March, 1979 before me personally appeared Glenu K. Jarstad and Kathleen L. Mandio tO me known to be the individual described in and who executed t~foregoing instrument, and acknowledged that they signed and sealed the same as their free and voluntary act and deed, for the uses and purposes therein mentioned. GIVEN under my hand and official seal the day and year last above written. Notary Public iK and for the St~t~-~ Washington, residing at ~ STATE AGENCY ACKNOWLEDGMENT STATE OF WASHINGTON ) SS COUNTY OF ) On this day of , 19 before me personally appeared to me known to--~e the duly appointed for the and that he executed the within and fore- goin~ instrument and acknowledged the said instrument to be the free and volun- tary act and deed of said , for the uses and purposes therein set forth, and on oath states that he was authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day of , 19 Notary Public in and for the State of Washington, residing at INDIVIDUAL ACKNOWLEDGMENT STATE OF WASHINCTON ) ) SS COUNTY OF KITSAP ) On this __ day of , 1979, before me personally appeared to me known to be the individual described in and who executed the foregoing instrument, and acknowledged that signed and sealed the same as free and voluntary act and deed, for the purposes therein mentioned. GIVEN under my hand and official seal the day and year last above written. NOTARY FUDLIU in and tor the 5rate ot Washington~ residing at LFJ~S ~ AGR~EME~? THIS LEASE, ~de and enterea into thi~ f~ day of 1979, ~etween BRI~ W. BUSKIRK, herelnaftez called the ~s~or, and BRETT ~YFIEL~. hereinafter called the ~ssee: 1. PRAISES: Th~ ~ssor d~s hereby lease to the ~ssee, and ~ssee does hereDy lease ~rom Lessor, those cer~n pre~ses kno~, as the BR~ER~K B~T S~VXCE, ~1 S~re ~ive, Br~erton, Kitsa~ Co~ty, Washlngton, and the ~ ~STA~T, ~1 Shore Drive, Sremerton, Kitsap ~y, ~mshi~gton, end ~re ~rticularly descried as follows: Parcel (A) ir. vOl~e 1 of plata. ~ge 67, i~ Kitsap ~ty. WashlNt~: ~E~ WITH second class tidela~s ~djoiuin~ lyin~ the ~dar)' lines ther~f extented: ~C~ the portion t~reof. B~inning et a ~int of 56 feet west of t~ northwest ~r~ of lot 1. said block 9. on the south li~ al ~legraph Av~u~ (no.' East Eleventh Street) protuc~: the~ vest slow' salt produced south mar~in 79 f~t: t~n~ south~sterl)- toll~in~ the li.e of Iow tiie to an in~rs~io~ with t~ s~t~ li~ of the dock approach as It txis~ l~St '1~. 1920; along said l~ne of the dxk approach in t northeasterly dzrection to the ~i~t of ~innino. ~arcel ?~['~ ~ITH second class tidela.is 6escri~ a~ foll~s: ~innin~ at the ~orthwest ~rner of lot 1, said block 9: thence followin9 the south line of ~legraph Avenue {now East Eleventh Street) produced west. 56 feet: thence north.- easterly 44 feet to an intersection with the ~ander line: thence southeasterly along said meander l~ne to the of begl nnl~q. Parcel (C) Lots ; an~ 3, block 9, To~ of Decatur, ~c~riing to plat recorded :r, vo]=~.e 1 of Platf, page 67. in iitsip ~;ashington: ~GETHEE W/TH tidelands of the second class adjoinin~ to the li~e of mean lo~' tide. ~'ar cel (D} A, i. an~ C which at%ached my operat=on of law, (Bremerton C1%y resolution ~1710]. purpose of conductmn~ tberexn a restauran%, storage, gas amd EXHIBIT "A" ....... .= Er,: o:h-~.- reiare6 act~vit~e.- an6 fo: nc other Duslness o: pu~p:s~, w:~o~t th! prior wrltte~ consent o! ~sso:. ;es~e~ !h~ except whet. prevented O)- practical xm~ssibil~t)', Oeeoratxn~. kee! the pr~ses o~r. for business d~ing ~11 an6 hours for suck bus~nes~ as are usual zE the v~cxnity. ~sse~ snal! maanta~r, adequate personnel for the efficient servxce of xt~ customera. ~ssee shall employ lt~ ~st jua~nt a~O efforts =c opereu~ ar. a manner ~alculate~ to ~uce the ~xim~ obtain- able vd~ume of gros~ 3. TE~ Of LEASE: ~e initial ~e~ of thxs lease shall ~ for a five year peri~ an6 It s~ll c~n~ on t~ 1st ~ay of ~rch, 1979, and end on the 1st aay of ~rch, 1984, Xnclusive. The Lessee shall have the right ~ exten~ this ~ease for a period of ten years ~yond the initial ~ 4. OPTION ~ PURC~E: S~ul~ the ~ssor ~es~ ~ ~ell the property whlch is the subject of th~s 'lease, ~s ~ia~ (~1) '"' s~ll have the ~irst option to p~e~se ~ld ~rmsesJ ~-'~ssor'.g- ' · ~iate ~amil), ts define~ as his s~use, rather, brot~rs ~ their chilOren an~ spouses. A~ an aO~itJonal te~ o( this l~se a~reement, ~n~itioneO upon the Lessee not ~in~ in Oefmult hereunder, t~ ~ssee shall ~ve the seconO optlon to purchase t~ pr~lse~ s~ld the ~ssor Oes~re to sell saiO pro~rty. ~c~l~ly, If t~ ~s~r desires effect u~n the ~ssee s~ating t~ p~C~se price a~ the te~ of sal~. The Lessee shall have the se~ right to p~chase pro~rty. Xn accordan~ with the te~.a~ co~itlO~l~ta~ in th~ offer, by_acknowledging its accep - t n t t ay ' fter :-:-..? .<-':: receipt o~ the offer to sell. In ~e~ t~'~'~ S~'ll' fail or refuse to purchase t~ premises, -the'~ssor shall ~ free to sell Lhe propert~ to anyone, provid~ t~ '~ssee Shall ~ave the r~ght ~o purchase said premises at the p~i~ an6 on.he same term and conditions tha~ ~ny other person is ~illing to mke. ~he Lessee ~ay exercise his option to purchase said premises on the a~e ~e~ ~n~ conditions ~s offered by anyone else, ~ ~ivin~ ~ritten notice tc the ~ssvr a~ any ti~ within thi~y ~yi ~fter receipt of the purchase price ~nd te~s of the sale to ~y other ~rson. ~ere- after, the Lessor ~nd ~ssee shall en~r into t contrao~ of sale and title will close ~ithin a reasonable ti~e. 5. RENZ: Lessee covenants and agrees to pay ~sor a~ rental the amount of S2,000.0C on or before March 1, ~9~9. Thereafter, on April 1, 1979, and ~ay 1, 1979, the ~ssee ~venants and agrees to bay Lessor as rental for sai~ premises a ~nthly rental of $2,000.00 per month. The Lessee shall have ~ grace ~ri~ of ten days in whict. ~o effect payment. Thereafter, the rental pa}w~ent is subject to the provi~ions of ~aragrapf: 2~ of this lease. 6. ~AREHOUSL: The leased premlse~ cor~ta~r, a warehouse whicL ~s currer,~iy used as boa: storage. It is understoo~ and aGree~ that upor. three months wr~tter, notice, the Lessor shall have the ta utl212~ t~e ~'arehouse ir. any manner he 6eem~ suitabl{, so lon-c warehouse ~he Lessee'~ tens shall ~e reduced by the percentage ~ ~o~ reven~ [ro~ the warehouse ~ears c~ the gross revenue 9e~eyated ~' other bue~ness conducted by the ~essee on the premises. Lessee agrees not tc. comp~ts, e~ther zndlvldually, in partner- sh~ o~ 2~ a stockholder of a corporatxor,, as a restau~&nteur ~n the aforement:oned warehouse duran~ the ter~: of this lease or any / extensions hereof. .. UTILITIES, TAXE~, FEES AND~R~$~MENTf: Lessee hereby covenants and agrees to pay all charges against the leased premises durin~ full term of this lease for public utilities, ~ncludin~ but not limited to, electricity, fuel, gas en~ water used in the oper- ation of the premises covered by the lease. All fees due the city, county, or state on account of any :nspectlon made on said leased premises b~ any officer thereof, shall be paid by Lessee. ~n the event t~at, during the term, of this lease, any state or municipal authority should impose any excise, license, business, income, sales or other tax not in effect at the date this lease is si~ned (or increase the rate of any such tax then in effect), whereby-t~e rentals 4~e here~er ~ ~- able or become the measure of the tax, in w~ole or in part. t~en Lessor at his option may require Lessee to pay the amount ~f such tax (or increased tax) resulting fro~ lease rentals here~er-~d the same shall be payable as additional rental, quarterly or annually as Lessor may elect. During the term of this lease. %he Lessor shall beresponsible for all real property taxes in effect as Of l~arch 1. 1979. Any Increase in real property taxes shall he horns by the Lessee. $. CARE OF TM£ PREMISES: ~essor ~hall not be called upon %c make any improvement or :repa~=_~f any ki~ ~pen said premises and said premises .shall at &]~ %~s ~e kept &~ used in accordance with %he laws of the State of ~ashi~gton &~ ordinances of the City of Bremerton, and in accordance w/th all'41rections, rules and regu- lations of the Health Officer. Fi~e Marshal. Building Inspector, or other proper officer of the CitF in whl¢~ tbs premises are located, at the so]e cost and expense of said Lessee; and Lessee shall per- n,it no waste, damage or in~ttry to the pr*miees, and at Lessee's o~ cost and expense will keep all ~rainape ~ipes free and open and will ~,rotect water, heatinc and other pipes so that they will not freeze or become clogged, an~ will repair all ~eaks, and will al~o repair all damages caused by leaks or by reason of Lessee's failure to protect and keep free any of the pipes and plumbin~ on said premises. A~ the ~erminat~on of this lease the leased premises shal~ be deli¥- {red to Lessor broom clean. Lessee shall not b e responsible for remedying any violation of the laws of th6 State of Washincton, ordinances of the City of 5remer~on or any rules and reguiations of the Health Officer. Fire ~;arsha!, Building Inspector or other proper officer of the City of B~eme~ton in existence at the time Lessee assumes possession of %ne leased premises. If Lessee is called upon to remedy any such violations, tb~ Lessee shall be entitled to deduct the cost of suck tamed=al action from his monthly rental payment up9n proper proof of payment. 9. ACCIDENT£ - LIABILITY: Lessee agrees to inde~if¥ and hold Lessor harmless from any liability or expense including co~t of defense anf attorney's fees from all demands, claims, causes of action or jud97nents, and all reasonable expenses incurred in inves- tigating or res=sting the same, for injury to person, loss of life, co~ton areas of%h~ building an6 either arising out of Lessee's use and occupancy, or 0ua to the neglect of Lessee, it~' officers, agenLs or employees. Lessor shall not b~ liable to the Lessee, its empioyeea, a~eDus representatives or customers for damages arising ou= of or ~ an~' we~- connec=ed with the bursting, leakage or obs~uc- ~o~ o~ ~a~e: ~a~ or stea~, pipes or plumbing, ~ncluain~ gas, s=ea~ a~a e~e~=r~= ~es, coils and wires o~ the premises ~e~, or other parts 0£ tam build~n~ an6 approaches, under the control of the Lessor o: zn tbs water, ga~ or steam pipes, electric equipment, appliances of the build~n~s~ stairways and railings used b). the L~$see a~ound or about said building, unless the Lessor )ms actua~ knowiedge of the de~ect &nd has bed a reasonable o~portunity to correct tbs ~£. ~PAIRS: ~xcept for the pre-exiatin~ violations noted i__p~_~rap~. ~. above ~he pr~ses are &~cepted by ~ess~e ~n their .~=n~.conolt~on, and Lessee will at ell times keep the prem/ses ~-~, c=ean anc in a Sanitary condition. Sub3ect tO ~ar&graph~9, the ~essor shall maintain outside wal~s, roof m~d fo~n~ation end - ~ssee snell at az1 tlMs keep tb glass of all ~nd~s and d~'-7 AeC or oroAen eric MAe ot~r re~rs ~ rain.in t~ premises in as g~d e re, ir as t~y ~ ~e or my ~r~f~r ~ put to: ~ ~ssee,s~ll fail to keep an~ ~rese~e t~ praises ~n said condition aha state of re~ir t~ ~smor MY fit ~is Option p~t or cause the s~e to ~ put into the ~ndttion a~ s~te of re~lr agreed u~n, and in such case t~ ~ssee;' on ~eM~, shall ~y the ~sts thereof. ~ssee agrees t~t at t~ e~iration of this lease to quit and surrender t~ said praises wit~t ~tJ~. 11. ~TE~TIONS: ~ssee S~ll not ~ke an~'~ration, of ~ssor in writing, eno all alterationS, aiditl~'a~ i~row- ments which shall be ~de, shall ~ at the ~o19 ~ ~n~ e~ense of ~s&ee, an~ shall ~come the pro~rty of the ~S~or, mud re~in ir. and be surrendere~ with the pr~ses es a ~rt ther~f at the %erm~nation of this lease without distur~nce, molestation or i~3ury. All keys to property of ~ssor sha~l l~kew~se ~ s~-' ~'. rendered to Lessor b)' Lessee. '~ 5pon termination of this lease ~ssee shall have the ~igh~-tO ~ace~ there~ bF Lessee which =a~ be re~ve~ without m~terial ~n~urF of sa~ ~roper~ or i~ems at the torminat~o~ of tenancy ~h~11 ~ re~re~ by L~ssee to the ~ati~fac~ion of ~ssor, an~ if not make ~uck re~air~ as are ~eces~ary an~ cause~ by ~a~ zemo~al. lessee ~hal~ be liable ~o Lessor for the cost~ of sai~ ~ses the k. uslness for which said premises ar~ leased, and shall not use the premises for illegal purposes. 13. L~ENS: Lessee shall keep the leased ~rem~ses and the property ~r. which %he leased premises are situated free fr~, any x:ens ar:s~ng out of any work performed, m~%er:a]~ furnlshed or !4. ~ANKRUPTCY AN[ INSOLVENCY: In the even% the Lessee ccme~ :nsc. lven%, or the sub3ec% of any petitlon, e~ther voluD%arF or · nvolunuary, fhie~ under any provisions of'the ~nkru~tcy Act, or if - 4 - a rece:ver, assignee, or other ligu~datln~ officer ~E appolnted for the business of tee Lessee, then, Lessor, at h~s option, may na%s th:s lease without notzce and may take absolute possessxon of the pram:sss, ~ogether with an}' improvemants and fixtures there~n, and may do se without having waived any right to the rental provided for herein. .-. ASSIGNMENT: This lease shall not be ass=gnable in whole or in part nor shall the whole or ~rt thereof be sublet without tee written consent of the basset first obtained and in any event ween dSne with written consent no such assignment or subletting shall relieve the Lessee fro~ the continuing obligation to ~erforn. all cf the terms, covenants &n~ ~ondttions thereof. This lease shall not be assignable by s~eration of law. ~f consent is once given by the Lessor to the leasing, subleasinG or assignment of thls lease or any interest therein, the Lessor shall not be barred from afterwards refusing to consent to further letting, subletting or assignment. Lessor shall not withold consent unreasonablF. 16. INSURANCE: Subject to the prov/s~$n$ of ~aragreph 28, Lessor. at his sole expense, shall maintain..~uri~g the first three months of this Lease. Insurance coverage'~or the ~ul! inst~r~le value of the property with proceeds ~ayable to tbs ~essor. again subject to the provisions of paragraph 2~.-the Lessor insure and be responsible for insurance on ,1~ personal maintained on the premises during the fight ~ee ~onths of t~is lease. Further, and again subject to the ~rovistons of par&graph 28. the Lessor. at his sole expense, shallduring the first three months of this lease, maintain ~ublic liability insurance ~or the business operation with limits of sot less than $100,000.O0 eot death and injury to one person end $~00.O00.00 ~or deaths or inJu- r:es of more than one perso~ and $25,000.00 for damage to property of others. 17. INSURANCE RATES: 'I{ ~he rates Of insurance chargeable to Lessor become subject to increase through any act of Lessee, its servants or employees, on der2nd by L~ssor, payment shall be ~de by Lessee to Lessor of the amount of such liability for increase in the insurance rate based on the insurable value of the buildin~ and co,tents. 1E. ACCESS: Lessee ~ill allow the Lessor, or a~ents of Lessor, free access at all reasonable times to said premises for the purpose of inspection or of making repairs, additions or alterations to the ~,ren. ises or any property owne~ by or under the control of Lessor, but thil right shall not be construed ~s an agreement on the part of Lessor to make any repairs. 19. ~IR5 AN~ CASUALTY: In the event the premises are destroye~ by fire, earthquake, or other casualtt to such an extent as to render ti, e same untenantable in whole or in a substantial part thereof, it s?,~]i be optional with Lessor to rebuild or repair the same: anti after the happen~nq of any such contingency, the Lessee shall give the Lessor i~aediate notice thereof. The Lessor shall have sixty.. (60) days after date of such notification, tc notify the Lessee in writing of Lessor's intentions to rebuild or repair said premises, or the part so ~amaged as aforesaid, and if Lessor elects to re- build or repair said premises, the Lessor shall prosecute the work ~f such rebuildin~ or repairing without unnecessary de]ay, an6 dur- ~n~ suc?. perio~ the rent of said premises shall be abated in the ~a~.e ratio that that portion of the premises rendered for the time ~e:n~ unfit for occupancy shall bear to the whole of the leased .~.-em:se.:. Zf t:~e Lessor sh;i*, f~X'.; 'co give the notice Lessee s.%~:* r, av-- th.~ ripht to, declare ~h;,s lease terminated by wr::ter no: c-, sarved upon the esso.-, unless essor notifies Les.cee w:thzr thr:ty (3el days after recezv~n9 such not/ce that Lesser will procee~ %o repazr or rebuild. Ir. the even% ~he Du~ldlng ~n which the Dr~ses hereby l~sed are ~oca~ed shall me destroyed or ~ge6 by fire, eart~uake other casualty (even %houoh ~he ~remises here~ leased m~ll not De damaged thereby) served or. Lesse~ ~*ithin sixty (60) days after ~uch detention or danmges. 2[ . EMINEN~ D~IN: . . A. ~otal Cond~at~. If all of t~ l~s~ ~o~rty snal~ ~. ~uired or cond~d ~ ~nent d~ln for any ~uh~ qu~s~-pu~lc use or p~se then t~ te~ of th~s B. Part/al Con~-mPattOn. If any ~rt of t~ ]~s~ · property shall be a~uireo or conde~ ~ ~lnent d~n ~or an _=~ ~no~z cease a~.temi~ate as Of t~ date title Or · fore~entioned occ~rence, the ~ssee ~s the extensiv~ enough to ~enOer the 1~ ~rty unsuitable tor t~ business of ~ssee, the ~ssor s~ll'~tly res~ ~ leased property to a condition com~rable ~ its ~nditi~ at the ti~ of such conde~.ation, tes~ the ~rtio~ loat in taking, and thi~ lease shall continue i~ force and effect. ~t, ~ci~ on the 6~%e on ~hich the ~ssee is deprive~ ~f .the d~ise pr~se or a~ portion of the leaa~ propert~ rent s~ll ~ pro~rliO~atell reduced to the extent ~see is deprived of such use and damage thereby. As with total coDdem~,ation, all conde~ation awards ir. a partial condenunation shall ~ t~ property of the ~ssor. Nc, th~nq ~n this paragraph shall ~ construed to deny to the iassee the right to pursue the condemnor for damages, for loss of Dusinesf. inZerruption of Lessee's business and for moving e~enses.. 21. TITLE: Lessor warrants that i% ~s good sufficient title ~c the pren,lses and all of the real pro~rty r~ferred ~o herein ~,ake and enter into this lease and ~arrants that Lessee ~urino the ~er~ of this lease shall have the full and quiet enjo~ent of'the leased premises except for removal due to ~,inent d~main proceedings. 22. NOTICES: ~y not~c~ required or pe~,itted by any clause of this lease shall ~ deemed Given if reduce~ tc writinG and deposited ir. the United States mails, postage prepaid, by either r~lstered or certified mail: and if ~o be git'eh Lessor, may ~ aoare~sed %c ~ssor at 1305, C~p~ll ~ay, Bremerton, Washington 9E3]{. or if to be c;ven Lessee, may be addressed to Lessee at the 2tcse~ pre~,~ses whether or not Lessee has departed from, a~ndoned or %'acs%ed the leased pres:sas or at any address provided to Lessor D}* Lessee an writing upon departure. - 6 - ':. ~KFX~:C k~: ~E-~NT~Y:*..: an~'. o~ the rent~ above reserved. ~: ~':' ~ar~ tr, ere¢.f, or other same owznG, shall be and Fe~in unpaid wr, e: :n~ sa~.,{ are due. or ~f Lessee sAall violate or default in any ~:f ~n~ cove~a~=~ and agreements here~n contained, then L~ssor ma}' -~ ~ om:~or, and w:thou; prejudice to any other rights or remedies Less~: m~y ~ave under law, cance~ this lease by Gi¥in~ Lessee notice ~r. wr~n¢. Upor. g~v~no such notice Lessor shall have the right ~,ed~ate~v tc re-enter said premises in accordance with the law, ~r. uslnc, suck force ,=-. is necessary to evict ~essee or Lessee's ~roper;}- {wlthou: llability of any kind for so ~oing); and notwith- s~andlf~ suck re-entry by ~essor, the liability of the Lessee for :ns ren~ proYaded for herein shall not be extinguished; and Lessee covenants and agrees to pay ~esaor an~ deficiency arising from a re-entry and reletting of the premises at · lesser rental than hereln agreed ~o. Lessee consents to such reletting and agrees to pa}' such def~clency each month as the ~aount thereof is ascertained Dy the Lessor, ir. the event the premises ~eased hereby are used for an}- illegal activity or conduct which ts violative of any ordinance or rule of any public authority, ~eaaee agrees t'hat ;~essor ma}' ~r~,edlately cancel this lease, re-en~eN ~he premises, a-~ take possession of same without waiver of any rents owing hereunder. The above paragraph is subject ~o the con4ition that %he Lessee shall have sixty (60) days to cure all defaults except for aelinquent rental payments. 24. COSTS AND ATTORNEYS FE~g: If b~ reason of any d~fault on the part of Lessee, in the ~rformance of any of the provisions of it,s lease, ~t becomes necessar~ for Lessor to employ an attorney, then Lessee aqrees to pay all costs, expenses, and attorney's fees expensed or incurred by Lessor in connection therewith. 'Jr. WAIVER: No delay or omission ~)~ either ~arty hereto %o exerc:se any r~Ght or ~ower accruing u~on an~ non-compliance or defau]~ by the other part~ w~th respect ~o an~ of the terms hereof shall impair any such right or power or ~e'construed to be ~iver thereof. Subject to the provisions of ~his ~aragraph, e~erF such r~G~% and power may be exercised at an~ time during %he continuance of. suck default. It is furhter aGree~ that a waiver by either of the parties hereto of any other covenants and agreements hereof t~ be performed by the other shall not he construed %o be a w~iver cf. an~' succeed~n~ breach thereof or of any covenants or agreements ~,ere~r contained. 2'£. HOLDOVERS: Any holding over after the expiration of said ~erm, wit~ the consen~ of the Lessor, shall be for an indefinite per~od of time on a month to ~,onth basi~, which tenancy may be ~_r~ .... c_e~ ~s pro%'~ded by %he laws of the State of Washington and durlnq sucf~ tenancy the Lessee agrees to pay to %he Lessor the 3. ame rate of rental c~-. set forth here~n and agrees ~o be boun~ by ail of the terms, covenants and conditions as herein specified, ~. HIiRS ANY. ASSIGNS: This lease supersedes and cancels all ?r:Or_ cr&l or ~ri%ten agreements, co~enants or conditions. Subject %¢ t~,~.','-¢v-~ons' ~ ·. ' 'ne,~o.-- ~ pertainin~ tc assignment and subletting, ~f,f c3',ensn~ an5 agreed, ants of th:s ]ease shall be. binding upon %he ~(zrs, legal representatives, successors and permitted assigns cf an}~ and ali of the part,es heretc. 25. AL?'£F.E[ TERF~S: The terms of this lease wftk regard tc rental payments, %axe~ and insurance shall be altered on June i, - 7 - cf each calendar month cf the rema~nzn~ lease ter~ as rental for s~d prem=ses monthly rental of $i.500.0~ per month, or seven percent (7~) of the gross sales or income per Month, whichever is T[,e tern. ~ross sales as used herein shall include the sale price of all merchandise sold ar~ s--~ received for services ~er- iormed from, in or about the leased premises by Lessee, another or others, whether for cash or credit; also the total receipts from ali other business conducted fro~, in or about the leased ~remises, provided, however, any sales tax which is required by law to be added to the retail sale price an~ collected by Lessee from customers for the benefit of the Stmte, Federal or M~nici~al Government shall be excluded. Lessee agrees to ~eliver to Lessor o~ or before the f~rst day of each calendar Month, at the ~le~e ~xed for ~a~ment of rental, a report showing the¢otal a~t of gross sales or ~ncome 2n the precedln? calendar month. Lessee elsa agrees to an accountzng system wherein api)e~rcle~r, complete a~d 6etailed records of all business done fram i~, or about the leased premises, whether by tenants or another or others; and Lessee agrees to afford the Lessor and his agents, at reasonable int~rvals at any and all tlmes during the usual busiaess ho~Lrs, ins~ction of all beaks, records and accounts of Lessee showing gross sales from all business conducted, from, in or about the ~remises and the ~rivileges of taking a copy of any thereof. On June 1, 1979, the Lessee shall assume responsibility for i~surance on all personal ~roperty maintained on the ~remises and ~]I public ]~ab~lity insurance as required by paragraph 16 of this 2~. BUSINESS SALE: On June l, 1979, the Lessor and Lessee shall enter a contract ~or the sale of the Boatshed Restaurant ~uslness, includlng the bal~ and ga~ business, on the following Total purchase price of $75,~0.~0, including the equipment %~d ~nven%ory. Ne real property is ~nclu~ed in the purchase price. Use %axe~ or, %he transferred equipment shall be pa~d by the Lessee. ~c down ;ayme~%. Balance tc bear ~n%e~est of the rate of '<~nthly payment on or before %he first of each month of $500.00. 7otal balance ~o be paid ~n full oK or before June 1, 1984. Lessee ~hall have a ten day grace period on the monthly payments. IN WITNESS ~i~REOF, the part~es have duly executed this Agrea- ~.ent as of %ha date first written above. L~SSOR: BRIAK W. BUSt:IR}: LEASE[: BRETT HAYFI ELb Or. th:.~ ,~ day off _~~, 1979, before me personally appeared BRIAN I,;. BUSKIRK, Lessor, an~ BRETT ~YFIE~, ~ssee, sealer.the same ii their own free an~ volunta~ act anti deed, for tf~e us~ an6 purpase~ therein ~ntioned. GIVEN U~ER NY ~ ~D OFFICI~ S~ the day and year i~ this t ~ .c _ AA-3-07159 AIRSPACE LEASE THIS LEASE made and entered into this SO day of ~, 19~between the WASHINGTON STATE DEPARTMENT OF TRA~%~SPORTATION, hereinafter called the "Lessor" and the City of Bremerton, hereinafter called the "Lessee"; WHEREAS, the land and premises to be leased are not presently needed exclusively for highway purposes: AND WHEREAS the Department of Transportation is granted authority to lease property under RCW 47.12.120: AND WHEREAS, the Lessor and Lessee deem it to be in the best public interest to enter into this lease; NOW THEREFORE, in consideration of the terms, conditions, covenants and performances contained herein, IT IS MUTUALLY AGREED THAT: The Lessor does hereby lease to the Lessee the premises described in Exhibit "A" attached hereto and by this reference incorporated herein. TERM. The term of this lease shall commence on the date of execution by the Lessor and shall thereafter be a year to year tenancy. This lease may be terminated by either the Lessor or the Lessee by giving ninety (90) days written notice of termination to the other party. In the event that this lease is terminated by the state for public use or convenience, the Lessee shall not be entitled to any payment or compensation by reason of such termination. Furthermore, such leased premises shall not be considered as part of or as contributing to the use of any adjoining or other properties owned, used or controlled by the Lessee in the event such other property or property rights of the Lessee are subject to condemnation subsequent to the execution of this lease. The Lessee and the Lessor hereby affirm that upon expiration of, or termination of, this lease for any reason and the subsequent use of the premises for highway purposes, such use for highway purposes will not be considered the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge within ~he meaning of 23 U.S.C. 138 and 49 U.S.C. 1653(f). Within thirty days of occupancy, Lessee at his expense shall erect and maintain a permanent sign stating as follows: "This highway right of way provided for your benefit under an agreement between (Lessee) and the Washington State Department of Transportation. That agreement may be terminated if this property is needed for highway purposes." USE OF PREMISES. In using these premises, the Lessee shall comply with all policies and regulations' heretofore or hereafter promulgated by the Department of Transportation relative to the location, operation and maintenance of facilities located on the property herein described. Direct access to ramps or traveled lanes of limited access highways is not permitted. All construction plans and any changes thereof are subject to approval by the Lessor and must comply with applicable State and Local ordinances, regulations and environmental requirements. The use of said premises shall be such that no hazardous or unreasonably objectionable smoke, fumes, vapor, odors, or discharge of any kind shall be permitted to rise above the grade line of the highway facility. No use other than parking and landscaping shall be permitted without the prior written approval of the Lessor. Signs where permitted are subject to prior review and approval as elsewhere required in this agreement. The Lessee shall perform or cause to be performed at his expense all maintenance of the premises which will include, but not be limited to, keeping the premises in good condition, both as to safety and appearance to the satisfaction of the Lessor. TAXES. The Lessee agrees to pay all taxes and assessments which are assumed by him, if any, and all taxes which may hereafter become a lien on the interest of the Lessee, and also all taxes which may hereafter be levied or ~mposed upon the interest of the Lessee or by reason of this agreement. LESSOR'S APPROVAL OF DESIGN AND CONSTRUCTION. The Lessee covenants that any improvements to be constructed on the premises will not at any time during or after construction either damage, threaten to damage or otherwise adversely affect any part or element of the highway facility or the operation thereof. The Lessor and the Federal Highway Administration shall be furnished with copies of all plans and specifications and revisions thereto for all improvements including signs proposed to be placed on the premises, and no work shall be done without prior written approval by the Lessor and the Federal Highway Administration. All construction work shall be done in conformity'with the plans and specifications as approved. The Lessor may take any action reasonably necessary, including directing that work be temporarily stopped or that additional work be done, to insure observation of the plans and specifications, protection of all'parts and elements of the highway facility and compliance with Lessor's construction and safety standards. The improvements shall be designed and constructed in a manner which will permit access to the highway facility for the purpose of inspection, maintenance, and construction when necessary. LESSOR'S RIGHT OF ENTRY AND INSPECTION. The Lessor, for itself and for the Federal Highway Administration, reserves the right to enter upon the premises at any time without notice to the Lessee for the purpose of inspection, maintenance, construction or reconstruction of the highway facility or any element thereof. Any loss of the use of the leased premises due to the L~ssor's exercise of such right will be compensated for solely by pro rata reduction of rent. The ~essor shall in no way be responsible for any incidental or consequential damages due to such action. The Lessor and the Federal Highway Administration may from time to time go upon the premises for the purpose of inspecting any excavation, construction or maintenance work being done by the Lessee. Entry upon the premises for any other purpose by the Lessor and the Federal Highway Administration shall be conducted with reasonable notice to the Lessee and during tl~e hours of 8:00 a.m. to 5:00 p.m. NON-LIABILITY OF LESSOR. The Lessee shall indemnify and hold the Lessor harmless from any and all claims including attorneys fees, damages, suits, and expenses of whatsoever kind or nature on account of injuries to or death of any person or persons and damage to property arising in whole or in part from the use or occupancy of the leased premises by the Lessee or the activities conducted upon the premises by the Lessee, its contractors, subcontractors, agents, employees and guests and invitees. The Lessee further agrees to accept and defend all such claims, damages and suits for injuries to or death of any person or persons or damage to property arising in whole or in part out of the use or occupancy of the leased premises at i{s own expense in the name of and on behalf of the Lessor. NON-COMPLETION OF IMPROVEMENT. Unless the time or times for completion are extended in writing, the Lessor may, at its option, terminate this lease if: a. Construction of the facility is not begun within one year of the date hereof; and b. Construction of the facility is not prosecuted to completion with reasonable observation-~ a construction schedule which allows not more than one hundred twenty days from the start to the finish of construction. Delays prior to and during construction caused by fires, earthquakes, acts of God, war or civil disturbances, demonstrations, strikes, or other interference with labor on the project by picketing or similar activities, economic controls which make labor or material unavailable, injunctions, restraining orders or other delays due to litigation challenging the validity of this lease or related agreements, and similar contingencies shall, for the number of days as the duration of such delay, postpone the Lessor's right to terminate this lease. NON-DISCRIMINATION. The Lessee, for itself, its successors, and assigns as a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land, that no person, on the grounds of race, color, creed, national origin, marital status, age, sex or the presence of any sensory, mental or physical handicap shall be excluded from participation in, be denied the benefits of, or be otherwise unlawfully subjected to discrimination in the use of the facility now or hereafter on the premises, that in connection with the construction of any improvements on said lands and the furnishing of services thereon, no such discrimination shall be practiced in the selection of employees or contractors, or by contractors in the selection and retention of their subcontractors, that such discrimination shall not be practiced against the public in their access to and use of the facility and services provided for public accommodation constructed or operated on, over, or under the space of the right of way, and that the Lessee shall use the premises in compliance with all other requirements imposed pursuant to the Revised Code of Washington Chapter 49.60 and Title 49, Code of Federal Regulations, Subtitle A, Office of the Secretary of Transportation, Part 21 (49 C.F.R. Part 21), and as said Regulations may be amended. The breach of any of the above nondiscrimination covenants shall be a material act of default entitling the Lessor to terminate this lease in accordance with the procedures set forth herein. PROHIBITION OF ASSIGNMENT. IT IS AGREED that the Lessee will not, in whole or in part, assign this agreement or sublease the premises without prior written consent of the Lessor and the Federal Highway Administration. Any use or sublease of the site in whole or in part for commercial purposes such as for customer parking for local businesses shall be based on economic rent payable to the state. The Lessor will not unreasonably withhold approval of the assignment of the lease for the parking area portion of the premises by the Boathouse restaurant. The Lessee hereby covenants that he is acting as principal for himself, and not as an agent for any undisclosed principal. DEFAULT, TERMINATION OR ABANDONMENT. (a) Notice of Default: At any time after the occurrence of a default or defaults under this lease and while any such default remains unremedied, the Lessor shall have the option of giving notice in writing of its intention to terminate this lease by personal service upon, or by written notice directed to the Lessee. .Such notice of intention to terminate shall specify the default or defaults then outstanding. Waiver or acceptance of any default of the terms of this agreement by the Lessor shall not operate to release the Lessee of the responsibility for any prior or subsequent default. (b) Termination and Extension: After the expiration of Thirty (30) days from the giving of such notice in the case of default, if one or more defaults described in such notice then remains unremedied, this lease shall terminate without further notice and all right of the Lessee shall cease. The Lessor may in writing, at his option, extend the above period, if in the judgment of the Lessor, an extension is justified. (c) Assignment for Benefit of Creditors, Insolvency, or Bankruptcy: Appointment of a receiver to take possession of the Lessee's assets, the Lessee's general assignment for benefit of creditors, or the Lessee's insolvency or taking or suffering action under the Bankruptcy Act is a breach of this lease and this lease shall terminate. (d) Performance b~ Lessor: If the Lessee defaults in the performance or observation of any covenant or agreement contained in this lease, the Lessor, without notice if deemed by the Lessor that an emergency exists (endangerment of life or the highway facility or failure of the Lessee timely to obtain any insurance or to pay any taxes due is presumed to be an emergency), may direct the Lessee to stop work and may itself perform or cause to be performed such covenant or agreement and may enter upon the premises for such purpose. The Lessee shall repay to the Lessor upon demand the entire cost and expense of such performance by the Lessor. Any act or thing done by Lessor under the provisions of this Paragraph shall not be or be construed as a waiver of any agreement or condition herein contained or the performance thereof. (e) Disposition of Improvements: Upon termination of this lease under. any provision thereof, the improvements constructed on the leased premises shall become the property of the Lessor or, at the option of the Lessor, may be removed by the Lessee at his expense in a manner prescribed by the Lessor. (f) Abandonment: In the event that it becomes apparent in the Lessor's sole judgment that the premises have ceased to be used or have been abandoned for a continuous period of sixty (60) days, the Lessor at its option, shall have the right to terminate this lease, provided duu notice of termination shall be given the Lessee not less than thirty (30) days prior to the proposed termination date. NOTICES. Wherever in this lease written notices are to be given or made, they will be sent by certified mail addressed to the parties at the address listed below unless a different address shall be designated in writing and delivered to the other party. LESSOR: DEPT. OF TRANSPORTATION LAND MANAGEMENT SECTION P.O. Box 327 Olympia, WA 98504 LESSEE:City of Bremerton Office of the Mayor City Hall - 239 4th Street Bremerton, WA 98310 ~ ~~ / Date /~C-/~-~._ Jr. WASHINGTON STATE, Lessee~J DEPARTMENT OF TRANSPORTATION C~-~k c~XC~ - State Design Engineer APPROVED AS TO FORM ant A~torney General~. CITY ACKNuWLEDGMENT COMMISSIONERS OR COUNCIL STATE OF WASHINGTON ) ss COUNTY OF ~ ~T~'F ) On this 137~-~ day of ~ /~ ~ before me personally appeared to me known to be the duly elected and qualified Mayor and City Clerk of the City of Bremerton, Washington, that executed the within and foregoing instrument and acknowledged said instrument to be the free and voluntary act and deed of said City, for the uses and purposes therein mentioned, and each on oath stated that he was authorized to execute said instrument by resolution of the Mayor and City Clerk of said City, and that the seal affixed is the official seal of said City. GIVEN under my hand and official seal the day and year last above written. Notary Public ' and for ~.e S~te of Washington, residing at STATE AGENCY ACKNOWLEDGMENT STATE OF WASHINGTON ) COUNTY OF~-~~.c~ ss ) On this ~ day of ~ , 19'/_~ before me personally appeared A. D. Andreas to me/Known to ~e the duly appointed State Design Engineer for the Washington State Department of Transportation and that he executed the within and foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said State of Washington, for the uses and purposes therein set forth, and on oath states that he was authorized to execute said instrument. IN WITNESS WHEREOF, I have he~y hand and affixed my official seal the ~(~ day of , 19~ tary Public in and Washington, residing Washington. at I.C. #3'I-02G00 AA-3-07159