HomeMy WebLinkAboutDon Small & Sons - Parking LotCOMMERCIAL LEASE AGREEMENT
THIS AGREEMENT, made and entered into this 1st day of December, 2002, by
and between DON SMALL & SONS DIST.-CO., INC., a Washington corporation,
hereinafter referred to as "Lessor" and THE CITY OF AUBURN, a Washington
municipal corporation, hereinafter referred to as "Lessee", as follows:
WITNESSETH:
1. Description: The Lessor, for and in consideration of the rentals hereinafter
provided and the covenants and agreements hereinafter contained, hereby demises, lets
and leases u. nte ~:he Lessee the premises situated at 220 "A" Street Northwest, Auburn,
Washington, and legally described on Exhibit "A" attached hereto and incorporated
herein by reference.
2. Use of Premises: The Lessee shall use the premises for the purpose of parking
facilities for the employees, agents, representatives and invitees of the City of Auburn,
and shall not use them for any other purpose without the written consent of the Lessor.
Lessee shall not use the premises or permit anything to be done in or about the premises
which will in any way conflict with any law, statute, zoning restriction, ordinance or
governmental rules or regulations or requirements or duly constituted public authorities
now in force or which may hereafter be enacted or promulgated. Lessee agrees to comply
with any recorded covenants, conditions, and restrictions affecting the premises as of the
commencement date of December 1, 2002, or which are recorded during the lease term.
3. Term: This lease shall be for a term of one (1) year commencing on the 1st
day of December, 2002 (the "date of commencement"), and ending on the 30th day of
November, 2003.
4. Rent/Delinquent Payments: Lessee agrees to pay to Lessor at Lessor's
address or such other place as Lessor may designate in writing, rental in the amount of
ONE THOUSAND DOLLARS and 00/100 ($1000.00) per month, payable in advance on
the 1 st day of each and every consecutive calendar month for the term hereof.
Lessee shall make an initial deposit at the commencement of this Lease in the
amount of Two Thousand Dollars and 00/100 ($2,000.00) which shall be allocated
$1,000.00 for the first month's rent, due December 1, 2002, and $1,000.00 for the last
month's rent, due November 1, 2003. Lessor shall not be required to keep any funds
deposited by Lessee separate from the Lessor's general funds and any and all interest
earned on deposits by the Lessee shall be the sole and exclusive property of the Lessor.
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Any monthly installment amount or other sums due herein payable by Lessee
which is not paid when due shall bear interest from the date due until it has been paid at
the rate of 18% per annum. In addition, any monthly installment amount or other sums
due herein payable by Lessee which is not paid when due and which remains unpaid for a
period of five (5) days thereafter, shall be subject to a late payment fee equal to 5% of the
unpaid amount.
5. Utilities: The Lessee shall pay, before delinquent, any and all costs and
charges for lights, heat, water, sewer, garbage, surface water, gas, fire protection charges,
and all other utilities and services to the property and shall hold the Lessor harmless from
any claim and/or lien for payment of same. If Lessee fails to pay any utilities or other
services to the property, Lessor may pay same upon Lessee's behalf and the amount
thereof shall be added to the next monthly rental payment of Lessee; all payments made
by the Lessor for said utilities shall bear interest at the agreed rate of 18% per annum
until date of payment.
6. Taxation:
6.1 Payment of Real Property Taxes: Lessee shall pay all real property taxes
levied against the premises during the term of this Lease, it being understood and agreed
by the parties that at the time of execution of this lease, all real property taxes had been
paid by the Lessor for the year 2002.
6.2 Definition of "Real Property Tax": As used in this Lease, the term "real
property tax" shall include only general ad valorem real property tax (other than
inheritance, estate, net income or franchise taxes), imposed by an authority having the
direct or indirect power to tax, including any city, county, state or Federal government or
any school, agricultural, lighting, drainage or other improvement district thereof.
7. Insurance: Lessee, at its sole cost, shall carry commercial general liability
insurance covering the premises and Lessee's use of the premises with a combined single
limit of not less than $1,000,000.00 for injury or death to any one person, $2,000,000.00
for injury to or death of any number of persons in one occurrence, and $500,000.00 for
damage to property, insuring against any and all liability of Lessor and Lessee including,
without limitation, coverage for contractual liability, broad form property damage, and
non-owned automobile liability, with respect to the premises or arising out the
maintenance, use or occupancy of the premises. Such insurance will contain a provision
that Lessor, although named as an insured, will nevertheless be entitled to recover under
the policy for any loss, injury or damages to Lessor, its agents, and employees, or the
property of such persons. All such insurance shall contain a provision whereby the
carrier agrees not to cancel or modify the insurance without twenty (20) days prior
written notice to Lessor.
8. Maintenance and Repairs; Alterations and Additions:
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8.1 Maintenance and Repairs: The Lessee shall be solely responsible for the
maintaining of the premises in good repair. This obligation further provides for Lessee,
at its sole expense, to maintain the premises in good condition, returning same to Lessor
at the end of this lease in at least as good condition as presently exists.
8.2 Alterations and Additions: No alterations or additions to the premises shall
be permitted by Lessee without the express written approval of Lessor. Unless Lessor
requires their removal, all alterations, additions, improvements, and utility installations
(whether or not such utility installation constitutes trade fixtures of Lessee), which may
be made on the premises, shall at the expiration or earlier termination of the Lease
become the property of Lessor and remain upon and be surrendered with the premises.
Notwithstanding the provisions of this paragraph, personal property, machinery and
equipment, other than that which is affixed to the premises so that it cannot be removed
without material damage to the premises, shall remain the property of Lessee and may be
removed by Lessee at any time during the term hereof. * See Appendix "A".
9. Entry by Lessor: Lessor shall have the right at reasonable times, and with
reasonable notice to Lessee in non-emergency situations, to enter the premises to inspect
the same or to show the premises to prospective buyers, tenants or lenders.
10. Liens: Lessee shall keep the premise free from any liens arising out of work
performed, materials furnished or obligations incurred by Lessee and shall indemnify,
hold harmless and defend Lessor from any liens and encumbrances arising out of any
work performed or materials furnished by or at the direction of Lessee.
11. Condemnation: If any part of the premises are taken under the power of
Eminent Domain, or sold under the threat of the exercise of said power, this Lease shall
terminate as of the date the condemning authority takes title or possession, whichever
occurs first. In this event, all rights, interest and claims that the Lessee may have under
this Lease are terminated and/or waived.
All damages awarded for the taking or damaging of all or any part of the premises
shall belong to and be the property of Lessor and Lessee hereby assigns to Lessor any and
all claims to such award.
12. Assignment of Subletting: The Lessee shall not sublet or assign this Lease,
title or any part thereof, without the prior written consent of the Lessor. This Lease shall
not be assignable by operation of law. If consent is once given by the Lessor to the
assignment of this Lease or any interest therein, the Lessor shall not be barred from
afterward refusing to consent to any further assignment of said premises.
13. Default and Re-Entry: If the Lessee shall fail to keep and perform any of
the covenants and agreements herein contained, then the said Lessor may cancel this
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Lease upon giving the notice required by law, and reenter said premises, but
notwithstanding such reentry by Lessor, the liability of the Lessee for the rent provided
for herein shall not be extinguished for the balance of the term of this Lease and the
Lessee covenants and agrees to make good to the Lessor any deficiency arising from a
reentry and reletting of the premises at a lesser rental than herein agreed.
14. Miscellaneous:
14.1 Entire Agreement: This instrument along with any exhibits and attachments
hereto constitutes the entire agreement of the parties relative to the premises and this
Agreement and the exhibits and attachments may be altered, amended, or revoked only
by an instrument in writing signed by both Lessor and Lessee. Lessor and Lessee agree
hereby that all prior or contemporaneous oral agreement relative to the leasing of the
premises are merged in or revoked by this Agreement.
14.2 Severability: If any term or provision of this Lease shall, to any extent, be
determined by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Lease shall not be affected thereby, and each term and provision of this
Lease shall be valid and be enforceable to the fullest extent permitted by law.
14.3 Waiver: No covenant, term or condition or the breach thereof shall be
deemed waived, except by written consent of the party against whom the waiver is
claimed, and any waiver or the breach of any covenant, term or condition shall not be
deemed to be a waiver of any preceding or succeeding breach of the same or any other
covenant, term or condition. Acceptance by Lessor of any performance by Lessee after
the time the same shall have become due shall not constitute a waiver by Lessor of the
breach or default of any covenant, term or condition unless otherwise expressly agreed to
by Lessor in writing.
14.4 Surrender of Premises: The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not work a merger and shall, at the option
of the Lessor, terminate all or any existing subleases or subtenancies, or may, at the
option of Lessor, operate as an assignment to it of any or all such subleases or
subtenancies.
14.5 Holding Over: If Lessee remains in possession of all or any part of the
premises after the expiration of the term hereof, with or without the express or implied
consent of Lessor, such tenancy shall be from month to month only, and not a renewal
hereof or an extension for any further term, and in such case, rent and other monetary
sums due hereunder shall be payable in the amount escalated to 150% of the rent payable
under the terms and conditions of this Lease and such month to month tenancy shall be
subject to every other term, covenant and agreement contained herein.
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14.6 Recording: Lessee shall not record this Lease without the Lessor's prior
written consent, and such recordation shall, at the option of Lessor, constitute a non-
curable default of Lessee hereunder. Either party shall, upon request of the other,
execute, acknowledge and deliver to the other, a "short form" memorandum of this Lease
for recording purposes.
14.7 Notices: All notices or demands of any kind required or desired to be given
by Lessor or Lessee hereunder shall be in writing and shall be deemed delivered forty
eight (48) hours after depositing the notice or demand in the United States Mail, certified
or registered, postage, prepaid, addressed to the Lessor or Lessee respectively at the
addresses set forth after their signatures at the end of this Lease.
14.8 Hazardous Materials: Lessee shall not cause or permit any hazardous
substances, as defined below, to be brought upon, kept or used in or about the premises
by Lessee, their agents, employees, contractors, or invitees. Lessee shall comply with all
federal, state and local laws, ordinances, codes, regulations, orders and decrees, as they
now exist or are hereafter amended, including all policies, interpretations, guidelines,
directions or recommendations relating to industrial hygiene, environmental protection or
the use, analysis, generation, manufacture, storage, presence, release, disposal or
transportation of any petroleum products, flammable explosives, asbestos, urea
formaldehyde, polychlorinated biphenyls, radioactive materials or waste, or other
hazardous, toxic, contaminating, or polluting materials, substances or wastes, including
any materials defined as "hazardous substances" "hazardous wastes", "hazardous
materials", or "toxic substances" (collectively, "Hazardous Materials") under any such
Hazardous Materials Laws and amendments thereto.
Tenant shall defend (with counsel reasonably acceptable to Lessor) and indemnify
Lessor and Lessor's officers, directors, partners, managers, members, employees, agents,
successors, and assigns against any and all claims, liabilities, damages, costs, penalties,
forfeitures, losses, obligations, investigation costs, remediation and removal costs, natural
resource damages and expenses, including attorneys' fees, arising in whole or in part,
directly or indirectly, from (a) the presence or release of Hazardous materials in, on,
under, upon or from the premises as a result of acts or omissions of Lessee or their
employees, agents, or invitees; (b) the transportation or disposal of Hazardous Materials
to or from the premises by, at the request of, or in with the permission of Lessee, their
employees, agents, or invitees; (c) the violation of any Hazardous Materials Laws by
Lessee, their employees or agents; (d) the failure of Lessee, their employees or agents to
comply with the terms of this Section 14.8 or (e) the use, storage, generation or disposal
of Hazardous Materials in, on or about the premises. The respective rights and
obligations of Lessor and Lessee under this Section 14.8 shall survive the expiration of
earlier termination of this Lease.
14.8 Lessee's Indemnification: Lessee shall defend (using legal counsel
reasonably acceptable to Lessor) and indemnify Lessor, their agents, mortgagees and
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employees from any claims, expenses, including attorneys fees or damages of any kind
arising in connection with the occupancy or use of the premises by Lessee, their agents,
customers, employees, contractors, subtenants or assignees; the Lessee's breach of their
obligations under this Lease; or any negligent or wrongful act or omission of Lessee,
their agents, customers, employees, contractors, subtenants or assigns. The provisions of
this Section 14.8 shall survive expiration or termination of this Lease and shall include
all claims against Lessor by any employee or former employee of Lessee. Lessor and
Lessee have specifically negotiated and Lessee specifically waives any provisions of any
industrial insurance act, including Title 51 of the Revised Code of Washington, or any
other employee benefit act which might otherwise operate to release or immunize Lessee
from their obligations under this Section 14.8.
14.9 Lessor's Indemnification: Lessor shall defend (using legal counsel
reasonably acceptable to Lessee, and indemnify Lessee, their agents and employees, from
any claims, expenses, including attorneys fees, or damages of any kind arising in
connection with any breach by Lessor of their obligations under this Lease and any
grossly negligent or wrongful act or omission of Lessor, their agents, customers,
employees or contractors. The provisions of this Section 14.9 shall survive expiration or
termination of this Lease and shall include, but not be limited to, all claims against Lessee
by any employee or former employee of Lessor. Lessor and Lessee have specifically
negotiated and Lessor specifically waives any provisions of any industrial insurance act,
including Title 51 of the Revised Code of Washington, or any other employee benefit act
which might otherwise operate to release or immunize Lessor from their obligations
under this Section 14.9.
14.10 Attorney's Fees and Costs: Upon any litigation or other proceeding
between the parties hereto, declaratory or otherwise, arising out of this Lease, the
prevailing party shall recover, from the nonprevailing party all costs, damages and
expenses, including reasonable attorneys, paralegals, clerical and consultants' fees and
charges actually expended or incurred in connection therewith, including, for appeals or
any bankruptcy proceeding (collectively "Attorneys' Fees'). In addition, if Lessor
engages counsel to enforce the terms of this Lease, including for the purpose of preparing
a delinquency notice, Lessee shall be required to reimburse Lessor for all reasonable
attorneys' fees incurred before the subject default is considered cured.
14.11 Binding Effect: The covenants and agreements of this Lease and/or any
extension thereof, shall be binding upon the heirs, executors, administrators, successors
and assigns of all parties herein, except as hereinabove provided.
14.12 Time: Time is of the essence of this Lease.
14.13 Signs~ Lessee may, at its sole cost, erect signs upon the premises, provided
that such sign or signs (a) do not cause any structural or other damage to the building;
(b) do not violate applicable governmental laws, ordinances, rules or regulations; (c) do
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not violate any existing restrictions affecting the premises; and (e) are approved in
advance by Lessor.
14.14 Governing Law: This Lease shall be governed by and its terms and
conditions construed in accordance with the laws of the State of Washington.
EXECUTED by the parties on the date and year first above written.
LESSOR:
DON SMALL & SONS OIL DIST. CO.
INC.
By:
Title--""
Address: P.O. Box 626
Auburn WA 98071
LESSEE:
By:
STATE OF WASHINGTON)
)SS.
COUNTY OF KING )
Tit~ ~
Address: 25 West Main Street
Auburn WA 98002
On this day personally appeared before me, a Notary Public in and for the State of
Washington, Stephen J. Small, to me known to be the President of Don Small & Sons Oil
Dist. Co., Inc., a Washington corporation, who acknowledged to me that he is authorized
to execute the within and foregoing instrument on behalf of the corporation, and
acknowledged the instrument to be the free and voluntary act and deed of the corporation,
for the uses and p..u_.q~.~:'~,'e~' ~ mentioned. ,~ ( ~-
GIVEN..~a~ _~.r.~fi~,,.~...i~O official seal this. ~ day2of~02.
I i a% r ~o~ Z ~ / ~IST~R57 151~BLIC in and for th~-State
t~ ttA~: .q~tJO ...' $ ~6/ofWashington, residing
h.'~2'-.~¢'05...').,¢ $ My Commission Expires:
~ t../.,~,._'***,° ....,~,./ ~ .' .
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STATE OF WASHINGTON)
)SS.
COUNTY OF KING )
On this day, perso~nally appeared .befor,e me, a Notary Public in and for the State
of Washington, _~~ ~, ~ , to me known to be the
~ of the City of Auburn, a Washington municipal corporation, who
acknowledged to me that he is authorized to execute the within and foregoing instrument
on behalf of the corporation, and acknowledged the instrument to be the free and
voluntary act and deed of the corporation for the uses and p~/~oses there!n~mentione, d.
GIVEN under my hand and official seal this ~ day of
2002.
NOTARY PUBLIC in and for the State
of Washington, residing at
My Commission Expires:
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EXHIBIT "A"
LEGAL DESCRIPTION
THE NORTH ~ OF LOT 18 AND ALL OF LOTS 19 THROUGH 22,
BLOCK 2, BALLARDS LW PARK TO SLAUGHTER.
KING COUNTY PARCEL NO. 049200-0115-07
8.2 Alteration and Additions: No alterations or additions to the premises shall be
permitted by Lessee without the express written approval of Lessor. Unless Lessor requires their
removal, all alterations, additions, improvements, and utility installations (whether or not such
utility installations constitute trade fixtures of Lessee), which may be made on the premises, shall
at the expiration or earlier termination of the Lease become the property of Lessor and remain
upon and be surrendered with the premises. It is provided, however, that Lessee does have the
express written approval to install a chain link fence around the perimeter of the premises of the
lease. Notwithstanding the provisions of this paragraph, personal property, machinery and
equipment, other than that which is fixed to the premises so that it cannot be removed without
material damage to the premise shall remain the property of the Lessee and may be removed by
Lessee at any time during the term hereof.
DON SMALL & SONS OIL DIST. CO INC
Address: PO BOX 626
Auburn ~ 98071
Title
Address: 25 W Ma~ n
Auburn ~ 98002