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RESOLUTION NO. 3 8 6 3
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE A
CONTRACT WITH KENNETH G. HARPER FOR
REMAINDER OF LEASE FOR RAIL TAVERN AND
SETTLEMENT OF PENDING LEGAL ACTION
WHEREAS, the City of Auburn owns the premises upon which The Rail
Tavern business is located, and for which Kenneth G. Harper has a leasehold
interest; and
WHEREAS, the City is interested in acquiring in the remaining leasehold
interest and settling a pending lawsuit between the City and The Rail Tavern, and
Kenneth G. Harper is likewise interested in selling to the City his remaining
interest in the lease and settling the pending lawsuit as well; and
WHEREAS, in order to provide for such a sale and settlement, the City
and Kenneth G. Harper have negotiated the terms of such which are acceptable
to both parties.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. That the Mayor and the City Clerk are authorized to execute
an agreement in substantial conformity with the Agreement attached hereto,
marked as Attachment "A" and incorporated herein by this reference.
Section 2. That the Mayor is authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation.
Resolution 3863
June 6,2005
Page 1
Section 3. That this Resolution shall take effect and be in full force
upon passage and signatures hereon.
l~ CbJ
Dated and Signed this .,. day of J
':;>, \?
PETER B. LEWIS
MAYOR
ATTEST:
".o~!:lj~,^,--
Darilelle E. Daskam,
City Clerk
Resolution 3863
June 6, 2005
Page 2
,2005.
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Return Address:
Auburn City Clerk
City of Auburn
25 West Main St.
Auburn, WA 98001
11111111'111111111
20050617000103
PACIFIC NW TIT AG 32.00
PAGE001 OF 014
06/17/2005 09:26
KING COUNTY, WA
RECORDER'S COVER SHEET
Document Title(s) (or transactions contained therein):
1'1 't: I ~}t tJ L( (7 (' b)
Agreement for Purchase and Sale of Business Lease
W'<
(--,,1
Reference Number(s) of Documents assigned or released:
DAdditional reference #'s on page of document P~..)t'ijf - vJ \~~ - \ a.
Grantor(s)/Borrower(s) (Last name first, then first name and initials)
Harper, Kenneth G.
Grantee/Assignee/Beneficiary: (Last name first)
1. Auburn, City of
Legal Description (abbreviated: i.e. lot, block, plat or section, township, range)
19 East Main Street, Auburn, WA
o Additional legal is on page of document.
Assessor's Property Tax Parcel/Account Number
781620-0020-01
o Assessor Tax # not yet assigned
Said document{s) were filed for
record by Pacific Northwest Title as
accommodation only. It has not been
examined as to proper execution or
as to its affect upon title.
I
AFTER RECORDING RETURN TO:
CITY OF AUBURN
25 WEST MAIN ST.
AUBURN, WA 98001
CITY OF AUBURN AGREEMENT FOR PURCHASE
AND SALE OF "RAIL TAVERN" BUSINESS LEASE
THIS AGREEMENT is made and entered into by and between the CITY OF
AUBURN, (the "City") and KENNETH G. HARPER (the "Seller").
WIT N E SSE T H:
WHEREAS, the City and the Seller are desirous of entering into an agreement
whereby the City will buyout the remaining term of the lease for the Rail Tavern, a
business located on property owned by the City, the lease of which in held by the Seller,
and whereby the City will purchase all rights of the Seller to the name "the Rail"; and,
WHEREAS, the City and the Seller are also desirous of entering into an
agreement whereby the lawsuit presently pending by the Seller against the city is
dismissed.
NOW, THEREFORE, in consideration of the following terms, conditions and
covenants and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, IT IS AGREED by the parties as follows:
1. BUY-OUT OF LEASE TERM. The Seller hereby relinquishes and
transfers to the City, any and all interest, presently held or future rights it may have to
the lease for the business known as "The Rail Tavern" located at 19 East Main Street,
Auburn, Washington, 98001, and as reflected in the commercial lease executed in
September, 1996, a copy of which is attached hereto, marked as Exhibit "A" and
incorporated herein by this reference. The rights relinquished and transferred included
any lease extension or options, in addition to the current term of the lease.
2. INTERESTS IN NAME "THE RAIL." The Seller hereby sells and
conveys to the City any and all interests or rights it may have to the name "The Rail,"
and any rights to use said name hereafter.
3. SETTLEMENT OF LAWSUIT. The Seller hereby consents to entry of
an order dismissing his lawsuit against the City of Auburn in the action entitled Kenneth
G. Harper, Plaintiff, versus City of Auburn, Defendant, King County Superior Court
Cause Number 04-2-36077-3KNT. The Seller, further, agrees to cooperate with the
City in execution of any documents necessary to effect the dismissal of said action. As
a part of the settlement of the lawsuit, the parties agree that the dispute about the
amount of leasehold excise taxes is resolved, that as of the closing date hereof, no
leasehold excise taxes are due, and that that the City will not attempt to collect any
additional leasehold excise taxes for the leased premised for the business "The Rail,"
and that any claims the City may have made for leasehold excise taxes are forever and
permanently waived.
4. COMPENSATION. The compensation and consideration to be paid to the
Seller by the City in connection herewith shall be the amount of $100,000.00, which
shall be paid on the date of closing.
5. REPRESENTATIONS OF SELLER. The Seller hereby represents to the
City the following:
(A) To the best of the Seller's knowledge there are no pending special
assessments or condemnation actions with respect to the business "The Rail," its lease
or business name, collectively referred to as the "Property" or any part thereof, and the
Seller has no knowledge of any special assessment or condemnation actions being
contemplated, and;
(B) There is no pending litigation or suit threatened or asserted which could result
in a lis pendens being lawfully filed against the Property, and;
(C) The Seller has good and marketable title and interest to the Property, which
is not subject to any liens, encumbrances, restrictions, or easements of any kind.
(0) Releases assessment from agent or affiliates.
6. CLOSING. The closing date shall be June 21, 2005, unless the Parties
agree to another time. The place of closing shall be at 25 W Main Street Auburn, WA
98001. The Seller shall be responsible and entitled to have all closing documents
reviewed by its own counselor agent prior to closing. The risk of loss to the
improvements, if any, on the Property prior to closing shall be Seller's and in the event
of damage or destruction, the City shall be entitled to terminate this agreement. The
City may postpone closing or terminate this agreement if it reasonably appears to the
City that the Seller has misrepresented the condition of title, marketability of the
Property or any other matter contained in Paragraph 4, above.
7. POSSESSION. The Seller shall deliver possession of the Property to the
City within 45 days on the date of closing.
8. TIME. Time is of the essence of this Agreement.
9. NOTICES. Any notices required or permitted to be given shall be in writing
and delivered either in person or by certified mail, return receipt requested, postage pre-
paid, addressed as follows or such other address as may be designated by either party:
AGREEMENT FOR PURCHASE AND SALE
OF "RAIL TAVERN" BUSINESS LEASE
Page 2
City:
Seller:
City of Auburn Finance Department
25 W. Main St.
Auburn WA 98001
Copy to: Office of the City Clerk
25 W. Main St. Auburn WA 98001
Ken Harper
4109 Lakeridge Drive
Sumner, W A 98390
Any notice given pursuant to this Agreement shall be deemed effective the day it
is personally delivered or three (3) business days after the date it is deposited in the
United States mails.
10. ENTIRE AGREEMENT/MODIFICATION. This written Agreement
constitutes the entire and complete Agreement between the Parties hereto and
supersedes any prior oral or written agreements between the Parties with respect to the
Property. It is expressly agreed that there are no verbal understandings or agreements,
which in any way change the terms, covenants, and conditions herein set forth. No
modifications of this Agreement and waiver of any of its terms and conditions shall be
effective unless in writing and duly executed by the Parties hereto.
11. BINDING EFFECT. All covenants, agreements, warranties and provisions
of this Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective heirs, executors, administrators, personal representatives,
successors and assigns.
12. CITY COUNCIL APPROVAL. The Seller acknowledges that this
Agreement does not bind the City of Auburn until the City Council approves the
Agreement and the Mayor executes the Agreement.
13. DEFAULT. In the event that either party fails, without legal excuse, to
perform any obligation under this Agreement, then the other party may, at its option,
bring suit against the party failing to perform for the other party's actual damages, or
pursue any other rights or remedies available at law or in equity.
14. A TTORNEY'S FEES. If either party institutes suit concerning this
Agreement, the prevailing party is entitled to its court costs and reasonable attorney's
fees. In the event of trial, the court shall fix the amount of the attorney's fees. Venue of
any suit shall be in the county in which the property is located, and this Agreement is to
be governed by the laws of the state where the property is located.
IN WITNESS WHERE;OF, the p
foregoing agreement on this C" /0 day of
ies signed and executed the above and
,2005.
AGREEMENT FOR PURCHASE AND SALE
OF "RAIL TAVERN" BUSINESS LEASE
Page 3
ATTEST:
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PETER B. LEWIS, Mayor
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Danielle Daskam, City Clerk
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STATE OF WASHINGTON )
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COUNTY OF KING )
On this i1C day of. , 2006', before m~ tre undersigned, a Notary
public in and for the State of ashington, personally appeared r(~i c't f) ~ i' .) and
_ /)1./ Nrcilr bc; \ /1;","'-., to me nown to be the individual described in and who executed the within
instrument and acknowledged that he signed the same as his free and voluntary act and deed for the
uses and purposes therein mentioned, and on oath stated that they were authorized to execute the same
on behalf of the entity on whose behalf they executed the same.
GIVEN UNDER my hand and official seal the date herein above set forth.
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NOTARY PUBLIC in and for the State of
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MY COMMISSION expire tf3.. ~.q. .) ~'.~ r
SELLER
APPROVED AS TO FORM:
Adam Birnbaum, Attorney for Seller
AGREEMENT FOR PURCHASE AND SALE
OF "RAIL TAVERN" BUSINESS LEASE
Page 4
STATE OF WASHINGTON
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COUNTY OF KING
On this ~ t;2.
Public in and for the
day of , 200::;-, before m , the un ersi ned, a Notary
State of ashington, personally appeared t' /, .:. Ci C"r 8Rfr
, to me nown to be the individual described in and who executed the within
instrument and acknowledged that he signed the same as his free and voluntary act and deed for the
uses and purposes therein mentioned, and on oath stated that they were authorized to execute the same
on behalf of the entity on whose behalf they executed the same.
GIVEN UNDER my hand and official seal the date herein above set forth.
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AGREEMENT FOR PURCHASE AND SALE
OF "RAIL TAVERN" BUSINESS LEASE
Page 5
O~/~6/01 Tlill 14:59 FAX 253 852 2030
Curran Mendoza
14I 003
','
EXHIBIT A
COMMERCIAL LEASE
THIS LEASE made and entered into on November_________, 1996 by
and between ALBERT B. MORRISON and 3ANE M. MORRISON, husband and
wife, hereinafterreferrl!!d to as "Lessor" and Carousel Pubs,
IhC., doing business as The Rail, hereinafter referred to as
"Lessee".
WITNESSETH:
WHEREAS, the lessor is the OWner of ~ertaln property and premis.$
situated at 19 E~st Main St, King County, Washington~ 98002
described as;
The east half of Lot 3, Block 0, First Addition to
the Town of Slaughter, a~~ording to plat recorded in
in Volume E of plats, page 84, in King County, Washington.
WHEREAS, the lessee is presently engaged in the retail Class "H~~~.
:..or.
Restaurant, Lounge ~ Garnblirig business, known as The Rail, and '~I
desires to ~ontinue to occupy the above des~ribed premises as and
for the operation of such business, and in ~cnsideration of these
pr...nts and the mutual benefits to be derived her.f~om the
parties hereby agree that=
1. LEASE; The lessor does hereby lease to the leS5ee and
the lessee dOes hl!!reby lease from the
le990r thoge <::~
(lcS(vtrt.~-tJ Ot-\.
operation of e .'u,
f
premises above dS5cribed for the purpose of
therein.
Curran Mendoza
141004
02106/01' Tt~ 15:00 FAX 253 852 2030
;
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2. TERM: The term of this lea~e shall be far 120 months
commencing upon issuance of Class "H" License and Gambling
License.
3. RENTAL: The agreed base rental for said premises shall
be $102fOOO.00 which shall be paid as follows. The sum of
$850.00 per month to be paid on the 1st day of each month
comm@ncing through the last payment to become due. The lessor is
to receive ~o percentage rent on gambling.
4. MAINTENANCE OF PREMISES: The lessee agrees to conform
to all City, County and State regulations concerning the
operation of such business maintained thereon; to maintain the
premises in a neat and presentable fashion, not to ~ommit or
permit waste upon the premises and to return the premises to the
lessor at the termination of this Lease Agreement in as good
condition as they now are, ordinary wear and tear and/or damage
by elements excepted.
5. PREMISES ACCEPTED: Lessee accepts the premises in its
present state and condition without warranty as to the
suitability or fitness for any purpose, includinq signs, Qr othe~
improvements thereon.
6. LIABILITY PROTECTION: The lessor' shall not be liable
in damages for any injury cau$ed to any pe~sDn o~ property or by
reason of any defect in the buildings and improvements pre$~ntly
02106/01' TIlE 15: 00 FAX 253 852 2030
Curran Mendoza
141 005
02/06/01' TUE 15:00 FAX 253 852 2030
Curran Mendoza
141 006
option to renew or extend this Lease for a further term of Sixty
(60) months commencing at the expiration of the original One
Hundred Twenty (120) month term to commence. upon receiving class
"H" Lit::emse &. Gambling License upon the $ame terms and conditions
as provid~d for h&rein except that the amount of rental to be
paid during any such extended o~ renewed term shall be
renegotiated by the parties or, if they cannot agree, then the,
rental to be paid in the event of exerci$e of the option shall be
that monthly SUm established by three appraisers, one to be
cho$en by each of the parties and the third to be chosen by the
first two appraisers. The rental sum shall be that sum agreed
upon by a majority of two or more Qf the appraisers so chosen;
and the costs of the appraisal shall be shared by the parties
equally.
Notice of the exercise of such option shall be given by lessee
unto lessor at least six (6) months prior to the expiration of
the original term of this Lease, which notice must be in writing.
It is expressly agreed by and between the parties he~eto that'
time is of the essence in the giving of notice. If the rental
$um for the extended term i~ not fi~ed by agreement within 5i~ty
(60) days after the notice date, then either party may call for
the appointment of appraisers and their e.tablishment of rent in
the manner 5pec~fied above.
11. EMINENT DOMAIN: In the event that the whole or ~ny
,.
02/06/01 Tlffi 15:01 FAX 253 852 2030
I4l 008
Curran Mendoza
. .
In the event of the taking or ccndemnation as defined above
lessee shall be entitled to receive as his sole right any award
far fixtures or tenant improvements installed by him during the
term of this lease.
In addition, lessee shall further be entitled to receive from any
said award the economic advantage of his lease which shall be
reached by determining the difference between his contract rental
hereunder and the economic rent for the premises at the time of
said award which difference shall be e~tended over the term of
this lease and discounted to present worth.
12~ ASSIGNMENT: The lessee shall not assign or underlet
said premises Or any part thereof without the Cbnsent of the
lessor in writing, which Shall not be unreasonable withheld.
13. DEFAULTS: If said monthly payments herein agreed to be
paid, whether the same be demanded or not, iire net paid by the
tenth ( 10th) day of the month when due, then lessee shall pay a
$50.00 penalty for said month. If default be made in any of the
terms or conditione herein to be kept shall remain in default
~!
1.J; ,
twenty (EO) day. after receipt by le~see of Notice to cure such
default, then the lessor, or their agents may cancel this lease
at once ~nd re-enter the premises and take posses5ion therof
immediately without further notice to the lessee, and remove all
persons and their property therefrom, and use such assistance in
effecting and perfecting such removal as said leSSor may deem
02106/01' 11m 15:00 FAX 253 852 2030
141 007
Curran Mendoza
.' .
portion of the leased premises shall be taken or condemned by any
public authority for any public us~ or purpose during the term of
this lesse, that event shall not in itself terminate this lea~e
agreement. Les~ee shall have the ri~ht to terminate 5sid lease
in the event that lessee, in his sole judgement, shall determine
that the premises remaining are unsuitable for his continued use
or occupancy.
Lessee as a condition Os such termination shall deliver to lessor
a written notice of his electicn to terminate not later that 120
days from and a~ter the date of receipt of written offer from the
condemning authority. In the event that Lessee shall fail to
exercise his right to so terminate this lease within the time
limited above, then this lease shall continue and remain in
effect with respect to the portion of the leased premises not 50
taken or condemned except that the monthly rental payable
hereunder shall be reduced by a fraction, the numerator of which
Shall be the number of square feet taken or condemned and the
denominator of whi~h shall be the squar9 fe~t of the leased
premis~$ at the time of the execution of thl~ l~ase.
Any rental reduction shall take effect On the first of the month
ne~t following payment of award by way of immediate poss9ssion or
judgm~nt Or by way of voluntary transfer to th9 cbndemning
authorityp
"Ot/06/01' TUE 15: 01 FAX 253 852 2030
141 009
Curran Mendoza
....
advi~abl~ to racover at one. full and e~clusive pos5ession of the
demi~ed premises, whether in possession of lessee or third
persons and all rent theretofore p~id shall be forfeited.
14.
LEGAL FEES:
In the event that either party shall
institute legal pro~eeding5 to enforce any rights under this
Lease Agreement, the prevailing party in ~u~h action shall be
entitled to a reasonabl~ ~um as attorneys fees in addition to any
recoverable ~oSt5 of su~h action.
15.
MUTUAL WAIVERS OF SUBROGATION RIGHTS:
The parties
hereto each hereby release and relieve the other of them from any
and all liability for damage to the prope~ty of eithe~ of th~m
which is or might be in~ident to or ~h~ result of fire or any
other ca~ualty against which either party i~ insured, and do
hereby waive any and all right of recovery. therefore other than
for such losses that may be oc~asiohed by either party's willful,
wanton or premeditated conduct.
IN WITNESS WHEREOF, the partie5 hava hereunto set their hands to
this Agreement in duplicate this day_______~___of September,
1996.
LESSOR
.~(,jJ,-.{$ ~~
Albert B. Morrison
Jane M. Morrison
Page 7
'02/06/01 TUE 15: 01 FAX 253 852 2030
Curran Mendoza
141 010
"(" .<(
STATE OF WASHINGTON )
)
COUNTY OF KING )
On this ______l_~_____ day o~ Saptember, 199b, before me, the
undersigned Notary Public in and for the Stat~ of W~shington,
KEN HARPER, to me know to be the individual named in and who
executed the within and foregoing Lease Agreement s the "Lessee"
and who acknowledged to me that he signed the same as her free
and voluntary act and deed for the useS and purposes therein
mlentioned.
my hand and official seal this _J~1e__ day of
0-~-~------
Notary Publi~ in and for the state
of Washington, residing at
_~~~~~_ _____ . My commission
expires __~_JL=J_~:~________
STATE OF WASHINGTON
COUNT V OF KING
On this day personally appeared before me, the undersigned Notary
Public in and for the State of Washington, ALBERT B. MORRISON and
3ANE M. MORRISON, to me know to be the individuals named in and
who executed the within and foregoing Lease Agreement as the
"Lessor" and who acknowledged to me that they signed the nAme ~5
their free and voluntary act and deed for the USS5 and purposes
therein mentioned.
GIVEN under my hand and official seal this _~__________ day of
September, 1996.
Notary Public in and for the State of
Washington, residing at
_____~_______ My commission expires