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HomeMy WebLinkAboutContract h l ' CAG-18-252 OCCUPANCY AND HOLD HARMLESS AGREEMENT THIS OCCUPANCY AND HOLD HARIV�LESS AGREEMENT ("Agreement"), dated for reference purposes as ��nnlot:�r 1. , 2018, is made by and between Steve Craig an individual and on behalf of his/he"r marital community ("Occupant"), and City of Renton, a Washington municipal corporation (the "City"). I. RECITALS A. The City owns and operates the Renton Municipal Airport ("Airport"). B. Under two lease agreements with the City, Kaynan, Inc. ("Kaynan") leased premises on the Airport since 1984 (City file no. LAG 003-84) and 1985 (City file no. LAG 011-85) (the two leases are hereinafter the "Leases"). The leased premises were located in the Airport's southeast corner, addressed as 350 Airport Way (the "Premises"). C. The Premises are developed with five buildings and include hangar space. Kaynan subleased a portion of the premises to Occupant. During the terms of the Leases, Occupant was a tenant of Kaynan and was not a tenant of the City. Attached hereto as Exhibit A is a copy of Occupant's lease with Kaynan for a portion of the Premises. D. The Leases had termination dates in 2016, but Kaynan remained on the Premises on a month-to-month term after the termination date while Kaynan and the City negotiated a new lease. In 2018, Kaynan elected to end negotiations for a new lease, and the Leases formally terminated on October 1, 2018. Thus, between the mid-1980s and October 1, 2018, Kaynan controlled the Premises. E. In anticipation of the October 1, 2018, termination date, the City engaged a consultant, Martyn Daniel LLC, to conduct an inspection of the five buildings located on the Premises. F. Martyn Daniel LLC provided a report to the City dated September 12, 2018 that identifies deficiencies found in the five buildings including but not limited to the following: • Mold; • Leaking roofs and walls; • Other structural defects; and • Improvements installed within the Premises that do not comply with applicable codes or otherwise pose risk, including but not limited to tenant-installed electrical work. OR ` �p�qL Renton Municipal Airport—Occupancy and Hold Harmless Agreement Page 1 of 7 � � , � G. The deficiencies identified in the Report arose during the term of the Leases while Kaynan controlled the Premises. H. Occupant expressly acknowledpes receipt of a copy of the Report and asserts that Occupant had sufficient time to review the Report prior to executina this Agreement. I. The Report estimates repair costs to total $1,088,693. Given the Report's high estimated cost to repair the Premises' buildings, the City is not in a position as of the date of this Agreement to repair the buildings. For that reason, the City will not enter into a landlord-tenant relationship with Occupant. Thus, because (1) Occupant was a tenant of Kaynan and not the City, (2) Kaynan's Leases terminated October 1, 2018, and (3) the City will not enter into a landlord- relationship with Occupant, Occupant has no legal right to remain on and use the Premises. J. Notwithstanding the foregoing, the City is sympathetic to Occupant's situation in having Kaynan end its leasing arrangement with the City before Occupant secured space elsewhere. K. For the reason described in the preceding recital, the City is willing to forbear on its rights to seek removal of Occupant from the Premises and is willing to allow Occupant to remain on and use the Premises for a short period of time—and further subject to notice to vacate—provided that Occupant agree to fully hold the City harmless and comply with the City's terms and conditions. Occupant acknowledges that it benefits from remaining on the Premises and from such an arrangement and desires to enter into an agreement allowing such occupancy. Occupant and the City mutually desire to execute this Agreement to set forth the terms and conditions of their agreement. L. Both parties acknowledge sufficient time prior to executing the Agreement to review the Agreement and to retain and review with legal counsel of their choosing, if they so choose. II. AGREEMENT For and in consideration of the mutual benefits to be derived and other valuable consideration the sufficiency of which is hereby acknowledged, the parties hereby agree as follows. 1. INCORPORATION OF RECITALS The recitals above are fully incorporated as if set forth herein. Renton MunicipalAirport—Occupancyand Hold HarmlessAgreement Page 2 of 7 2. OCCUPANCY OF PREMISES Until the termination of this Agreement, Occupant may continue to occupy the same portion of the Premises as authorized under Occupant's lease with Kaynan as indicated in Exhibit A. The occupancy shall be subject to the following: (a) Occupant expressly acknowledges that Occupant has decided to occupy the Premises in Occupant's sole judgment after having read and reviewed the Report and has not based its decision to occupy the Premises on any assurance or representation from the City. (b) Due to the Report's findings regarding the conditions of the buildings on the Premises, Occupant shall not use the Premises for human occupancy. For example, no office use, no repair work within the Premises, etc. (c) Occupant acknowledges and agrees to the following as-is and where-is terms, disclaimers, and waivers, all of which shall survive the termination of this Agreement: 1. Occupant assumes all risk of occupying the Premises. 2. The City makes no warranties whatsoever as to the condition or suitability of the Premises, in light of the Report and/or otherwise. THIS AGREEMENT IS MADE ON AN "AS IS, WHERE IS" BASIS. 3. The City shall have no obligation or liability to Occupant, whether arising in contract (including warranty), tort (including active, passive or imputed negligence), or otherwise, for loss of use, revenue or profit or for any other incidental or consequential damages. 4. Occupant hereby releases the City from, and waives, Occupant's entire claim of recovery for loss of or damage to property or for bodily injury or death arising from or occurring during occupancy of the Premises, including but not limited to loss, damage, injury, or death arising from or related to any deficiency identified in the Report. (d) Occupant shall be responsible for any damage arising to the Airport from the activity of Occupant on the Premises. Renton Municipal Airport—Occupancy and Hold Harmless Agreement Page 3 of 7 . � (e) Occupant shall not make any improvements or alterations to the Premises. (f) In its occupancy of the Premises, the Occupant shall not violate any applicable law, ordinance, deed, restriction or regulation affecting the Premises or any part thereof. 3. TERM This Agreement shall commence and take effect on the last date signed below (the "Effective Date") and shall continue (unless earlier terminated) for the ensuing ninety (90) days. Except in the event of an emergency, either party may terminate this Agreement early by giving no less than 14 calendar days' notice of such termination to the other party. In the event of an emergency, this Agreement may be immediately terminated. 4. FEE Occupant shall pay a monthly fee of three hundred dollars ($300.00) to the City as an offset against the City's costs incurred in administering this Agreement. The first payment shall be prorated and due to the City within fourteen (14) days of the Effective Date, and subsequent payments shall be payable promptly in advance on the first day of each and every month during the term of this Agreement. All payments shall be made to the City of Renton, Administrative Services Department - Fiscal Services Division, 1055 South Grady Way, Renton, Washington 98057. 5. HOLD HARMLESS As a supplement to any other related provision in this Agreement and not as a limitation in any way, Occupant will indemnify, defend, release and hold harmless, the City and its officials, employees, and other agents (hereinafter "Indemnitees") from and against all actions, causes of action, liabilities, claims, suits, penalties, fines,judgments, liens, awards, damages, or losses (including but not limited to loss of grant funds, obligations to repay grant funds, or loss of other revenues) of any kind whatsoever (hereinafter "Claims"), for injury to or death of any person (including without limitation claims brought by invitees of Occupant) or damage to or loss of any property or cleanup of any discharge or release by Occupant or violation or alleged violation of any law or regulation, and expenses, costs of litigation, and reasonable attorneys' fees related thereto, or incident to establishing the right to indemnification, to the extent such Claims arise out of or are in any way related to this Agreement or the presence on the Premises by Occupant or invitees. Occupant expressly waives any immunity under industrial insurance whether arising from Title 51 of the Revised Code of Washington or any other statute or source, to the extent of the indemnity set forth in this paragraph. In the event that Occupant is successful in proving that the foregoing indemnity is Renton Municipal Airport—Occupancy and Hold Harmless Agreement Page 4 of 7 i limited by RCW 4.24.115, Occupant shall defend, indemnify and hold harmless the Indemnitees to the full extent allowed by RCW 4.24.115. In no event shall Occupant's obligations hereunder be limited to the extent of any insurance available to or provided by Occupant. Nothing in this section is intended to require Occupant to indemnify, defend, or hold harmless from any Claims to the extent they arise out of the sole negligence or willful misconduct of any of the Indemnitees. This section shall survive the termination of this Agreement. 6. REMEDIES OF THE CITY Upon termination of this Agreement,the City may enter the Premises, and by any lawful manner, remove Occupant. Each right and remedy provided for in this Agreement shall be cumulative and shall be in addition to every other right or remedy provided for in this Agreement or now or hereafter existing at law or in equity, and the exercise or beginning of the exercise of any one or more of the rights or remedies provided for in this Agreement or now or hereafter existing at law or in equity shall not preclude the simultaneous or later exercise of any or all other rights or remedies provided for in this Agreement or now or hereafter existing at law or in equity. This section shall survive the termination of this Agreement. 7. NO WAIVER No failure by either party to insist upon the strict performance of any agreement, term, covenant or condition hereof or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or of such agreement, term, covenant, or condition. No agreement, term, covenant, or condition hereof to be performed or complied with by either party, and no breach thereof, shall be waived, altered or modified except by a written instrument executed by the parties. No waiver of any breach shall affect or alter this Agreement, but each and every agreement, term, covenant and condition hereof shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. 8. MISCELLANEOUS A. No Assi�nment. Occupant shall not assign this Agreement in whole or in part. Renton Municipal Airport—Occupancy and Hold Harmless Agreement Page 5 of 7 B. Notices. Where notice is required or otherwise given under this Agreement, it shall be deemed sufficient, if such notice is addressed as shown below: The City: Airport Manager Renton Municipal Airport 616 West Perimeter Road, Unit A Renton, Washington 98057 Occupant: Steve Craig 13009 158th Ave SE Renton, WA 98059-8540 If no contact information is listed for Occupant, above, the City may use any reasonable means to locate and notify Occupant. All notices shall be given either by hand or by deposit into the United States mail postage prepaid. Notices shall be deemed given when delivered if given by hand, or 72 hours after deposit into the United States mail. Formal notice may be accompanied by a courtesy notice delivered via telephone call and/or electronic mail. - C. Captions. The marginal headings or titles to the sections of this Agreement are not a part of the Agreement but are inserted only for convenience. They shall have no effect on the construction or interpretation of any part of this Agreement. D. Time is of the Essence. Time is of the essence in the performance of all covenants and conditions of this Agreement in which time is a factor. E. Choice of Law. This Agreement shall be governed by the Laws of the State of Washington, without reference to its choice of law rules. F. Complete A�reement. This Agreement contains the entire and complete agreement between the parties hereto, with all previous negotiations, warranties, covenants, conditions Renton Municipal Airport—Occupancy and Hold Harmless Agreement Page 6 of 7 and promises being merged herein. The City and Occupant further agree that no alteration, amendment or modification to this Agreement shall be binding upon the City or Occupant unless same is first reduced to writing and signed by both the City and Occupant. G. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original Agreement, but all of which together shall constitute one and the same Agreement. Executed by the parties: OCCUPANT THE CITY OF RENTON By: � � o By: � Print name: 1�-C f G � Denis Law, Mayor Company (if applicable): Title (if applicable): Date signed: �� 3� � Date signed: �� Attested to By: , �� � � ason Se , City C rk Approved as to Form By: .������ � Shane Moloney, City Attorney `������Nu��liiiri�, .`�,`, �� ��'/'/'�,�I� . ,[ `� \�\`\\\`NN�nuupi��i,�Q�'��i � � i � '���� i : * : �EAL _ * = � ��, �Ir � = = �, -, = �, - , ''/��i O�ip/''�����iii�nN����```` ��0�� s���i����RATED SEP�6�`��` Renton Municipal Airport—Occupancy and Hold Harmless Agreement Page 7 of 7 EXHIBITA HANGAR LEASE AGREEMENT THI HANGAR LEASE AGREEMENT made and entered into this�day of h� i� , 2��i by an d between K A Y N A N, I N C., hereina fter ca f le d Lessor, and -� �! , hereinafter cailed �essee: WITNESSE7H: WHEREAS, KAYNAN, iNC,, is the owner of airplane hangar#�., located at 350 Airport Way, Renton, Washington 98057, and WHEREAS, Lessor is desirous of leasing certain space in their hangar to Lessee for purpose of storing Lessee's airplane, and WHEREAS, Lessee is desirous of leasing certain space in Lessor's hangar for purpose of storing Lessee's airp(ane; N�W, THEREFORE, in consideration of the mutuai cavenan#s and promises expressed herein, the parties agree as follows: 1. Lessor shail lease to l.essee cerkain space in the above described airplane hangar for the purpose of storing the Lessee's C'es5na� /.�S � �35� rv� (descriptian and registration number) 2. For renta( of the above-mentioned space,the Lessee shal! pay to the Lessor a cleaning deposit of$100, refundabie upon request if the hangar is left clean and swept out upon vacating, and the sum of$ `�pS °°'per month due, in advance, an the first day of each and every month, 3. This Lease Agreernent shall be on a "month-to-month" basis with each party being entitled ta terminate this L.ease Agreement pursuant to the Landlord- Tenant Laws of the State of Washington. 4. Lessee shall use the leased premises solely for the storage af his airplane. 5. The Lessee shail not have the right to assign this �ease Agreement nor to sublet his s#orage space without the prior written consent of the Lessor. 6. The Lessee agrees that he wi(1 defend and indemnify the Lessar on any and ail claims, lawsuits ar other praceedings arising in connection with the Lessee's use and occupancy of the airplane hangar. This includes, but is not limited#o, a situation where the Lessee causes damage to an aircraft belonging to another tenant and that tenant commences legal proceedings against the landlord and/ar the Lessee herein. 7. (n the event the Lessee shall fail to keep and perform any of the covenants and agreements herein contained, including the payment of rent, the Lessor may terminate this �ease Agreement and may avail himself of all rights se# forth in the State Landlord-Tenant Act. This would include the righfi to require that the Lessee remove his aircraft from the premises and includes the further right to seek damages for all unpaid rents. 8. If, by reason af any default or breach on the part of either party in the performance of any of the provisions af this Lease, a legal actian is instituted, the losing party agrees to pay all reasonab(e cQsts and attorney's fees in � connection therewith. It is agreed ihat the event of any legal action brought under the terms of this Lease sha{I be in King County, Washington. 9. The covenants and agreements of this Lease shall be binding upan the parties, their heirs, executor, administrators, successors and assigns. 1.Q. Any notice required to be given by either party to the other shall be deposited in the United States mail, postage prepaid, and addressed as follows: LESSOR: KAYNAN, INC. 35Q AIRPORT WAY . RENTON, WA 98Q57 LESSEE: �-�'G�l�. G'Af S ���� s���t 5� �'-�.—�s� IN WITNESS WHEREOF, the parties hereto have set their hands this day of , LESSOR: KAYNAN, INC. LESSEE: (C:DQC.FORMS.HAN6AR LEASEAGREEMENT)(8/99)