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HomeMy WebLinkAbout2022 Airport Building Lease - Kittitas County Airport Management LEASE AGREEMENT EBDA Business Park Building at Bowers Field, Ellensburg THIS LEASE is made at Ellensburg, Washington, this ____ day of June, 2022, by and between the Ellensburg Business Development Authority (dba CenterFuse), a public development authority and hereinafter referred to as Landlord, and the Kittitas County Regional Airport- Bowers Field, hereinafter referred to as Tenant. WITNESSES THAT: In consideration of the mutual promises, covenants, conditions, and terms to be kept and performed, it is agreed between the parties hereto as follows: 1. SUMMARY. a. Leased Premises. Landlord leases to Tenant and Tenant leases from Landlord certain commercial real estate consisting of approximately one thousand eight hundred twenty-seven (1,827) square feet located at 3110 N. Airport, Ellensburg WA, Unit #2 (the “Premises”). The Premises do not include, and Landlord reserves, the exterior walls, the roof, or the pipes and ducts, conduits, wires, fixtures and equipment above the suspended ceiling or the land beneath or the structural elements of the building in which the Premises are located (the “Building”). The Building, the land upon which is it situated, all other improvements located on such land and all common areas appurtenant to the Building are referred to herein as the “Property.” b. Initial Term. The lease shall commence on July 1, 2022 (“Commencement Date”), or on such date as may be specified by written notice given by Landlord to Tenant advising Tenant that the Premises are ready for possession and specifying the Commencement Date. The term of this lease is not to exceed ten (10) months. c. Extension of Term. Not applicable. d. Base Rent. Tenant shall pay to Landlord as Rent due on the first day of each month the monthly sum according to the following: Start July 1, 2022 Start January 1, 2023 End December 31, 2022 End April 30, 2023 1,827 sf x $0.65/SF = $1,187.55 $$/SF 1,827 sf x $0.70/SF = $1,278.90 e. Due Date and Late Charge. Rent is due and payable on the first day of each month beginning on the Commencement Date and continuing through the lease term or any renewal or extension thereof. In the event Tenant fails to pay any installment of Rent or any other sum due on or before the tenth (10th) day of the month for which it is due, Tenant shall pay to Landlord a penalty of ten percent (10%) of the amount due per month. f. Prepaid Rent. There is no prepaid rent for this lease. g. Security Deposit. The Landlord holds a security deposit from Tenant due on or before Commencement Date in the amount of $1,187.55. If Tenant breaches any covenant or condition of this Lease, including but not limited to the payment of Rent, Landlord may apply all or any part of the security deposit specified above to the payment of any sum in default and any damage suffered by Landlord as a result of Tenant’s breach. In such event, Tenant shall, within five (5) days after written demand by Landlord, deposit with Landlord the amount so applied. Any payment to Landlord from the security deposit shall not be construed as a payment of liquidated damages for any default and in no way limits Landlord’s remedies or rights to recovery. Landlord may apply all or any part of the security deposit to repair or replace any missing or damaged fixture or to perform any unfulfilled obligation of Tenant under the lease. h. Leasehold Tax Assessments Not Applicable i. Acceptance. Landlord’s acceptance of less than the full amount of any payment due from Tenant shall not be deemed an accord and satisfaction or compromise of such payment unless Landlord specifically consents to such in writing. 2. USE OF PREMISES. a. Represented Use. In entering into this lease, Landlord is relying upon Tenant’s substantial compliance with the business activities and management as represented to Landlord by Tenant. b. Tenant Acceptance. Tenant agrees that by taking possession of the Premises, Tenant has determined to its satisfaction that the Premises can be used for the purpose(s) set forth above. Tenant waives any right to terminate this Lease if the Premises cannot be used for that purpose. The Premises may not be used for any other purpose without Landlord’s prior written consent. c. Restrictions on Use. Tenant may not use or occupy the Premises or Property in violation of any law, ordinance, regulation or the certificate of occupancy issued for the Property, and may not bring or keep anything in or about the Premises that will cause an increased premium for or the cancellation of any insurance covering the Property without express written permission of Landlord. If the Tenant does cause any such increase in the insurance premiums, Tenant shall pay or reimburse Landlord for the entire amount thereof, without regard to whether Landlord elects to terminate this Lease as a result of Tenant’s unauthorized use of the Premises. Tenant may not use the Premises in any manner that will constitute waste, nuisance, or unreasonable annoyance to other tenants in the Property, normal wear and tear excepted, nor may Tenant cause damage to the Property. Tenant may not permit floor loading in excess of the pounds per square foot limitation, which Landlord notifies Tenants is the maximum permissible for the Premises. d. Compliance with Laws. Tenant shall not cause or permit the Premises to be used in violation of any law, ordinance or governmental regulation or order. Landlord represents to Tenant, to the best of Landlord’s knowledge, that with the exception of any leasehold improvements, as of the Commencement Date, the Premises shall be in compliance with all applicable laws, rules, regulations or orders, including, without limitation, the Americans with Disabilities Act, if applicable, and Landlord shall be responsible to promptly cure any noncompliance, which existed on the Commencement Date. Tenant also shall be responsible for complying with all laws applicable to the Premises as a result of Tenant’s represented use. If the enactment or enforcement of any law, ordinance or regulation or code during the Lease Term requires any change to the Premises during the Lease Term, the Tenant shall perform all such changes at its expense if the changes are required due to the nature of Tenant’s activities on the Premises, or to alterations that Tenant seeks to make to the Premises; otherwise Landlord shall perform all such changes at its expense. 3. MAINTENANCE OF PREMISES a. Tenant’s Obligations. i. By taking possession of the Premises, Tenant accepts the Premises as being in good and sanitary order, condition and repair. Tenant agrees, at its expense, during the term of this lease to keep the floor of the Premises and all appurtenances, including carpet, wall-coverings, signs, windows, doors, skylights, plumbing and other fixtures, equipment and improvements in a clean and sanitary condition, to use all necessary safeguards against fire risk, to maintain drip pans under its machinery for the purpose of preventing oil, grease, ink or other wet materials from sinking in to the floor of the premises leased. Tenant shall not cause any holes to be made in said floor or walls for the purpose of anchoring machinery, shelving, office partitions or for any other reason whatsoever, without written authorization from Landlord. ii. Tenant shall pay the cost of electricity, natural gas, water, sewer, and waste disposal consumed or generated by Tenant. All utilities are metered separately. Upon occupancy, Tenant will transfer utilities to its name and shall begin responsibility. Waste disposal is Tenant’s responsibility. Tenant shall be entitled to signage as agreed by Tenant and Landlord and in compliance with city design standards and codes. iii. Tenant further agrees that it will not encumber or obstruct the sidewalk in front of or adjacent to said Building and that no goods, material or machinery or other articles shall be stored on said sidewalk of the Building, or left there for a longer period than shall be absolutely necessary to transport them to or from the Premises of Tenant. Tenant is responsible for exterior maintenance and outside lighting of Premises including keeping sidewalks free of snow and ice and otherwise maintained in a safe condition for pedestrian and vehicular traffic. b. Landlord’s Obligations. Landlord shall perform (or have performed) at its expense all necessary repairs not arising from Tenant's, agents, employees, or invitees negligence; replacements; and required maintenance with respect to all structural facilities of the Building to include roof, supporting structural members, and heating with the exception of leasehold improvements of the Tenant at or serving the Premises. Landlord shall have no obligation to repair or maintain any leasehold improvements installed by Tenant in the Building or Premises. 4. IMPROVEMENTS AND ALTERATIONS BY TENANT. Tenant shall not make any improvements or alterations to the Premises without the prior written consent of Landlord. After obtaining Landlord’s consent, Tenant shall be entitled to make such leasehold improvements as it may require, at its own expense, provided that such leasehold improvements comply with all applicable laws, rules, and regulations, that they do not breach the structural integrity of the Building walls, and do not significantly penetrate the floor, such that they could endanger imbedded plumbing, wiring, and conduit under the floor. Tenant may, after such initial leasehold improvements, make additional alterations to the Premises at its own expense, provided such alterations do not impair the structure in which the Premises are situated. Tenant shall reimburse Landlord for any cost incurred by Landlord in the event Landlord is required to assist in obtaining any approvals. If requested by Landlord, Tenant shall post a bond or other security reasonably satisfactory to Landlord to protect Landlord against liens arising from work performed by or for Tenant. All work performed must be done in a workmanlike manner and with material (when not specifically described in the specifications approved by Landlord) of the quality and appearance customary in the trade for first-class construction of the type of building in which the Premises are located. At the termination of this lease, and with prior written consent of Landlord, Tenant may remove any alterations which it has made pursuant to this Section 4, provided such removal can be and is done without damaging the Premises or the structure in which it is situated (i.e. Building) and the Premises are left in, or brought back to, its previous condition. Any alterations left after termination of the tenancy shall become the property of Landlord. Landlord will not charge Tenant for any improvements made by Landlord prior to the Commencement Date of this lease or improvements made by Landlord after the Commencement Date this lease agreement unless agreed to by both parties in writing. 5. LIENS. Tenant shall keep the Premises and the real property upon which the Premises are situated free from any liens arising out of any work performed, materials furnished or other obligations incurred by Tenant. Landlord has the right at all reasonable times to post any notices on the Premises which it deems necessary for Landlord’s protection from such liens. If any such liens are filed, Landlord may, without waiving its rights and remedies for breach and without releasing Tenant from its obligations, require Tenant to post security in form and amount satisfactory to Landlord or cause such liens to be released by any means Landlord deems proper, including payment in satisfaction of the claim giving rise to the lien. Tenant shall pay to Landlord upon demand any sum paid by Landlord to remove the liens, together with interest from the date of payment by Landlord, at the lesser of 1-1/2% per month or the maximum rate permissible by law. 6. INSURANCE. a. Tenant’s Obligations. i. Tenant, an agency of the State of Washington, warrants that it is self-insured against liability claims in accordance with the risk management and tort claims statutes, including chapter 4.92 RCW and RCW 43.19.760 et seq. The tort claims procedure, RCW 4.92.100 et seq., provides the fundamental remedy for all tort liability claims against the Tenant and its officers, employees, and agents acting as such, and all such claims must be filed and processed as provided therein. b. Landlord’s Obligations. i. During the Term, Landlord shall maintain all-risk property insurance on the Building against "special form perils” (to the extent such coverage is available) with responsible insurers, insuring the Building in an amount equal to at least eighty percent (80%) of the replacement cost thereof, excluding land, foundations, footings and underground installations. ii. Landlord shall also obtain and keep in force during the Term a policy or policies in the name of Landlord, with loss payable to Landlord and any Lender(s), insuring the loss of the full rental and other charges payable by all tenants of the Building to Landlord for one year (including all Real Property Taxes, insurance costs, all Common Area Operating Expenses and any scheduled rental increases). 7. INDEMNIFICATION. Each party to this Agreement will be responsible for the acts or omissions of its own employees, volunteers, officers, or agents in the performance of this lease agreement. Neither party will be considered the agent of the other nor does either party assume any responsibility to the other party for the consequences of any act or omission of any person or entity not a party to this lease agreement. 8. DAMAGE/DESTRUCTION OF PREMISES. In case of fire, earthquake or other casualty, Tenant shall immediately notify Landlord, who shall cause the damages to that portion of the Building hereby leased to be repaired, but if the Premises are so damaged that Landlord shall decide not to rebuild, the term shall cease and the accrued rent shall be paid up to the time of said casualty. In the event the Premises are destroyed or injured by fire or earthquake or other casualty, to the extent that they are un-tenantable in whole or in part, then Landlord may, at Landlord’s option, proceed with reasonable diligence to restore the Premises or such part thereof, provided that within 60 days after such destruction or injury Landlord shall notify Tenant in writing of Landlord’s intention to do so. During the period from destruction or damage to restoration, Rent will be abated in the same ration as that portion of the Premises which Landlord determines is unfit for occupancy bears to the whole Premises. 9. CONDEMNATION. If all or part of the Premises are taken under power of eminent domain, or sold to a condemning authority in lieu thereof, this Lease will terminate as to the part so taken as of the date the condemning authority takes possession. Any award for the taking of all or part of the Premises under the power of eminent domain, including payments received for a sale to the condemning authority in lieu thereof, will be the property of Landlord, whether made as compensation for diminution in value of the leasehold, for the taking of the fee, or for severance damages. Tenant may make a separate claim for loss of or damage to Tenant’s trade fixtures and removable personal property and Tenant’s moving expenses, so long as Tenant’s claim does not result in any reduction to the amount of the award otherwise payable to Landlord. 10. ASSIGNMENT OR SUBLEASE. The Tenant shall not assign this Lease or sublease the Premises or any part thereof without prior written consent of Landlord. This Lease is not assignable by operation of law. If Tenant is a corporation, any transfer of this Lease by merger, consolidation or liquidation, or any change in ownership, or power to vote the majority of the outstanding vote stock of Tenant, constitutes an assignment for purposes of this section. If Tenant is a partnership or proprietorship, a transfer or controlling interest in such partnership or proprietorship constitutes an assignment for purposes of this section. If Tenant at any time desires to assign this Lease or to sublet the Premises, it must first notify the Landlord in writing and offer Landlord the right to recapture all or any part of the Premises which tenant desires to sublet or assign. Landlord has the option, which may be exercised within sixty (60) days from the date of receipt of notice, to require Tenant to execute an assignment to Landlord of this Lease or a sublease to the Landlord of the Premises (or such portion of either as Tenant desires to sublet or assign, as the case may be) with the right of Landlord to assign or sublet to anyone. If Landlord exercises this option and such assignment or sublease is at or above the rental rate specified in this Lease, then Tenant will be released from all further liability after the effective date of the assignment or sublease, with respect to the portion of the Premises subject thereto. If Landlord does not exercise its option to recapture within 60 days from the date of receipt of notice, then Tenant may thereafter assign this Lease or sublet the Premises as proposed, provided Landlord has consented in writing thereto. No inaction by Landlord in connection with its rights under this Section will constitute an approval of a proposed assignment or sublease. Whether Landlord shall grant consent to an assignment or subletting, Tenant shall pay Landlord the reasonable legal fees Landlord incurs to review the proposal. 11. DEFAULT - REMEDIES. a. Default by Tenant. The occurrence of any one or more of the following events constitutes a default under this Lease by Tenant: i. Vacation or abandonment of Premises; ii. Failure by Tenant to make any payment of Rent when due, or failure to make any other payment required hereunder when due when that failure continues for a period of five (5) days after written notice from Landlord; iii. Failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease, other than making of any payment, where that failure continues for a period of thirty (30) days after written notice from Landlord; provided, that if the nature of Tenant’s obligation is such that more than thirty (30) days are reasonably required for cure, Tenant will not be in default if Tenant commences to cure within thirty (30) days of Landlord’s notice and thereafter diligently pursues completion and completes performance within a reasonable time; iv. Either (i) the making by Tenant of any general assignment or general arrangement for the benefit of creditors; (ii) the filing by or against Tenant of a petition in bankruptcy, including reorganization or arrangement, except in the case of a petition filed against Tenant when the same is dismissed within thirty (30) days after filing; or (iii) the appointment of a trustee or receiver to take possession of substantially all of Tenant’s assets located at the Premises or of Tenant’s interest in this Lease; v. Cancellation of a guaranty of Tenant’s obligations by a guarantor; vi. Tenant’s failure to comply with the same Lease term or covenant on three occasions during the Term, even if such breach is cured within the applicable cure period; or vii. Tenant’s failure to comply with the Lease Conditions, unless such failure is cured within five (5) days after notice. b. Remedies for Default by Tenant. In the event of any default, Landlord may, at any time, without waiving or limiting any other right or remedy, re-enter and take possession of the Premises, terminate this Lease, accelerate all Rent payments due hereunder which payment will then become immediately due and payable, or pursue any other remedy allowed by law. Tenant shall pay Landlord the costs of recovering possession of the Premises, the expenses of re-letting, and any other costs or damages arising out of Tenant’s default. Notwithstanding any re-entry or termination, Tenant will remain liable for all sums Tenant is obligated to pay hereunder for the balance of the Term, and Tenant shall compensate Landlord for any deficiency arising from re-letting the Premises, provided, however, that Landlord shall use reasonable efforts to mitigate its damages. Unless the Landlord elects to accelerate the Rent owed hereunder, Tenant shall pay such deficiency each month as the amount thereof is ascertained by Landlord. c. Default by Landlord. Landlord will not be in default unless Landlord fails to perform or cause to be performed an obligation within 30 days after notice by Tenant, which notice must specify the alleged breach; provided, that if the nature of Landlord’s obligation is such that more than 30 days are reasonably required for cure, Landlord will not be in default if Landlord commences to cure within 30 days of Tenant’s notice and thereafter diligently pursues completion and completes performance within a reasonable time. 12. WAIVER. Failure of Landlord to promptly enforce its rights hereunder will not waive such rights. Landlord’s acceptance of Rents subsequent to a Tenant breach will not waive such breach. 13. ACCESS. Landlord, its employees or agents, shall have the right to emergency access to the Premises in the event of fire or similar casualty, or in the event that there is an immediate threat to the safety of persons or the Building the Premises are in, or to the adjacent spaces. Otherwise, upon not less than twenty-four (24) hours prior notice, and during normal business hours unless otherwise arranged, Landlord and Landlord’s agents and representatives shall have the right to enter and inspect any part of the aforesaid premises for the purpose of examining same or making any necessary repairs or changes in plumbing, electric wiring, or pipes, gas pipes, heating or other alterations and repairs in any part of the Premises hereby leased. Landlord may also enter the Premises, with proper notice given to Tenant, to show the Premises to prospective purchasers or tenants. Landlord shall have the right to erect on the Premises a suitable sign indicating the Premises are available. Tenant shall ensure that Landlord at all times has a key with which to unlock all doors and gates in the Premises, excluding Tenant’s vaults and safes. No re-keying of the doors or gates may be done without Landlord’s prior written approval. 14. HAZARDOUS MATERIALS. Tenant shall not cause or permit any Hazardous Material (as defined below) to be brought upon, kept or used in or about, or disposed of on the Premises by Tenants, its agents, employees, contractors or invitees, except in strict compliance with all applicable federal, state, and local laws, regulations, codes and ordinances. If Tenant breaches the obligations stated in the preceding sentence, then Tenant shall hold harmless, protect, indemnify, and defend Landlord from and against any damage, loss, claim or liability resulting from any damages or injury caused as a result of such materials on the Premises, including attorneys’ fees and costs incurred. This indemnity will survive the termination of this Lease, whether by expiration of the Term or otherwise. As used herein, the term “Hazardous Material” means any hazardous, dangerous, toxic, or harmful substance, material or waste which is or becomes regulated by any local governmental authority, the State of Washington or the United States Government, due to its potential harm to the health, safety or welfare of humans or the environment. 15. NOTICES. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, to the following addresses: If to TENANT, to: If to LANDLORD, to: Ken Grannan Margaret Reich Kittitas County Airport Management EBDA dba CenterFuse 205 W 5th Avenue 110 W. 6th Avenue, #238 Ellensburg, WA 98926 Ellensburg, WA 98926 Email: Ken.grannan@co.kittitas.wa.us Email: director@ellensburgcenterfuse.com Phones: Cell 509-607-6134 Office: 509-933-8221 Phones: Office (509)-955-3880 Cell (509) 306-0578 16. ENTIRE AGREEMENT. This Lease constitutes all of the agreements of the parties with respect to any matter covered or mentioned in the Lease and with no prior agreement, letter of intent or understanding pertaining to any such matter will be effective for any purpose. There are no representations or understandings of any kind not set forth herein. No provisions of this Lease may be amended or added to, except by an agreement in writing, signed by the parties or their respective successors in interest. 17. ATTORNEY’S FEES AND COSTS. In the event either party requires the services of an attorney in connection with enforcing the terms of this Lease, or in the event suit is brought for the recovery of any sums due under this Lease or for the breach of any covenant or condition of this Lease, or for the restitution of the Premises to Landlord or eviction of Tenant during the Term or after the expiration thereof, the substantially prevailing party is entitled to reasonable attorney fees and all costs incurred in connection therewith, including, without limitation, the fees of accountants, appraisers and other professionals, whether at trial, on appeal or without resort to suit. 18. VACATION OF PREMISES – HOLDING OVER. Upon 90-days’ written notice from Landlord given at any time prior to the expiration of the Term, Tenant shall promptly vacate the Premises on or before the last day of the Term, leaving the Premises in the condition described in section (4). If Tenant holds over after the expiration or earlier termination of the Term without the express written consent of Landlord, Tenant will be a Tenant at sufferance only and otherwise subject to the terms, covenants and conditions herein specified, insofar as applicable. During such tenancy, Tenant agrees to pay Landlord One Hundred Fifty percent (150%) of the Base Monthly Rent in effect upon the date of such expiration or termination, unless a different rate is agreed upon by Landlord. 19. SURRENDER OF PREMISES. The voluntary or other surrender of this Lease by Tenant, or by mutual cancellation thereof, will not work a merger and will, at the option of Landlord, operate as an assignment to it of all subleases or sub tenancies. Upon the expiration or earlier termination of this Lease, Tenant shall peaceably surrender the Premises and all of the alterations and additions thereto, leave the Premises broom clean, in as good order, repair and condition as was provided to Tenant on the Commencement Date, reasonable wear and tear excepted, and Tenant shall comply with the provision of Section (4). The delivery of keys to any employee of Landlord or to Landlord’s agent or any employee thereof shall not be sufficient to constitute a termination of this Lease or surrender of the Premises. 20. PERFORMANCE BY TENANT. Except as otherwise expressly provided hereunder, all covenants and agreements to be performed by Tenant under this Lease will be performed by Tenant at Tenant’s sole cost and expense and without any abatement of Rent. If Tenant fails to pay any sum of money owed to any party other than Landlord for which Tenant is liable hereunder, or if Tenant fails to perform any other act on its part to be performed hereunder, and such failure continues for 10 days after notice thereof by Landlord, Landlord may, without waiving or releasing Tenant from its obligations, make any such payment or perform any such other act to be made or performed by Tenant. Tenant shall pay Landlord, on demand, all sums so paid by Landlord and all necessary incidental costs, together with interest thereon at the lesser of 1-1/2% per month or the maximum rate permissible by law, from the date of such payment by Landlord. 21. NONDISCRIMINATION. Tenant agrees not to discriminate against any client, employee or applicant for employment or for services because of race, color, religion, sex, marital status, disability, national origin or age, with regard to, but not limited to, employment; employment upgrading; demotion or transfer; recruitment or recruitment advertising; layoffs or termination; rates of pay or other forms of compensation; selection for training; rendition of services. Tenant must also comply with any applicable Affirmative Action Programs. 22. IDENTIFICATION OF TENANT. If more than one person executes this Lease as Tenant: (i) Each of them is jointly and severally liable for performing all of the terms of this Lease to be performed by Tenant, and (ii) the term “Tenant” as used in this Lease means and includes each of them jointly and severally. The act of or notice from, or notice or refund to, or the signature of any one or more of them, with respect to the tenancy of this Lease, including, but not limited to, any renewal, extension, expiration, termination or modification of this Lease, is binding upon each and all of the persons executing this lease as Tenant with the same force and effect as if each and all of them had so acted or so given or received such notice or refund or so signed. 23. SEVERABILITY. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. 24. GOVERNING LAW; VENUE. This lease shall be governed by and construed in accordance with the laws of the State of Washington and venue of any action brought to enforce or interpret any term of this Lease shall be in Kittitas County, State of Washington. 25. EFFECTIVE DATE: The Effective Date of this Lease shall be the date the Lease is approved by the Landlord which shall follow or be the same date as the Lease is approved by the Tenant. 26. RIGHT OF FIRST REFUSAL. In the event that Landlord decides to sell the premises, tenant shall have a right of first refusal to purchase. Tenant shall have 90 days to exercise that right by providing notice of such exercise and an offer to purchase. Should such notice and offer not be given, of should Tenant affirmatively indicate its intent not to exercise such right, Landlord is free to sell the premises to another purchaser. IN WITNESS WHEREOF, the parties hereto execute this lease as of the date first above. Signed and Acknowledged: Ellensburg Business Development Authority, dba CenterFuse Kittitas County Airport Management Margaret Reich, Executive Director Date Ken Grannon, Airport Manager Date