HomeMy WebLinkAbout18-235 - Lifestyle Landscape - Settlement Agreement18-235
Council Approval 6/18/18
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
LIFESTYLE LANDSCAPES, INC. ("Lifestyle") and the CITY OF TUKWILA ("City"), a
Washington municipal corporation ("the City"), collectively ("the Parties"), hereby enter into this
Settlement Agreement, which shall become effective upon mutual execution by the Parties.
I. RECITALS
A. On November 6, 2017, the Tukwila City Council adopted Ordinance No. 2554, authorizing the
City to acquire all property rights necessary to complete its Public Safety Plan Projects (the
"Projects") through negotiation and/or the use of eminent domain, if necessary.
B. On December 19, 2017, the City filed a Petition in Eminent Domain ("Petition") to acquire
property located at 11234 Tukwila International Boulevard, Tukwila, Washington, also known as
King County Parcel No. 092304-9411 (the "Property").
C. On May 25, 2018, the King County Superior Court entered Findings of Fact and Conclusions
of Law and Order Adjudicating Public Use and Necessity.
D. Lifestyle is a lessee on the Property and accepted service of the City's Petition on December 19,
2017.
E. The Parties desire to resolve any and all issues related to the City's acquisition of the Property
by entering into this Agreement. The Parties intend that this Agreement will fully resolve these
matters and Lifestyle waives any and all rights to bring litigation related to the City's acquisition
of the Property, the Projects, or relocation expenses.
NOW, THEREFORE, for and in consideration of obligations and exchange of promises set forth
herein, the Parties agree as follows:
II. AGREEMENT
1. City Payment. The City shall pay Lifestyle the sum of Sixty Two Thousand Five
Hundred Dollars and No/100 ($62,500.00), which payment shall be made to Lifestyle as follows:
payment in the amount of $37,500 to be paid within ten (10) days of mutual execution of this
Agreement; and payment of the remaining balance of $25,000 to be paid within ten (10) days after
Lifestyles has vacated the Property in broom -clean condition and such vacation has been verified
by the City, provided that all other settlement conditions have also been met and Lifestyle has
provided a completed W-9 to the City. The second payment shall not be made if Lifestyle has not
vacated the Property by June 30, 2019, as required by Section 2 herein. Nothing in this Agreement
shall prevent Lifestyle from vacating the site prior to June 30, 2019 if doing so is authorized under
its current lease with the owner of the property. Payments will be by check made payable to
Lifestyle Landscapes, Inc., 42022 196th Ave SE, Enumclaw, Washington 98022.
SETTLEMENT AGREEMENT - 1 I.S f 0 c n aA-S
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2. Possession and Rent. Lifestyle must vacate the Property on or before June 30, 2019. If
the City acquires title to the Property prior to June 30, 2019, and Lifestyle is still a tenant on the
Property, the City will allow Lifestyle continued use of the Property through June 30, 2019
pursuant to the terms of the Commercial Lease agreement attached hereto as Exhibit A where in
Lifestyle shall pay City rent in the amount of $4,765 per month, which includes both base rent and
required leasehold tax.. Lifestyle agrees to begin paying City such rent payments within fifteen
(15) days of the date that the City acquires title to the Property. The terms of this rental shall
require Lifestyle to pay all insurance, utilities, and property maintenance expenses. During any
rental period, Lifestyle shall maintain commercial general liability written with limits no less than
$1,000,000 each occurrence, $2,000,000 general aggregate, as well as property insurance covering
the full value of Lifestyle' property and improvements with no coinsurance provisions. During
any rental period, Lifestyle shall provide reasonable access to the Property for the purpose(s) of
permitting the City and its agents to conduct surveys, building assessments, and other related
inspections. Lifestyle may remain on the Property until June 30, 2019, provided the City has
acquired the Property prior to that date. Lifestyle may terminate any rental period upon fifteen
(15) days' written notice to the City. Lifestyle agrees that it will not enter into any subleases
relating to the Property. Until the City has acquired title to the Property, Lifestyle will be
responsible for abiding by the terms of its lease with the current owner of the Property.
Should Lifestyle fail to vacate the Property by June 30, 2019, the second payment to be
made by the City to Lifestyle under Section 1 herein shall not be made, and the City, in its sole
discretion, may seek repayment of the initial payment made to Lifestyles under Section 1 of this
Agreement. The City will consider any personal property left behind on the premises by Lifestyle
to be abandoned property of no value. Lifestyle consents to having any such personal property,
garbage, or waste disposed of by the City.
Lifestyles shall bear sole and exclusive responsibility for all tax liabilities and penalties, if
any, which any taxing authority, federal or state, may ultimately determine to be owed by it for
payments made pursuant to this Agreement. Lifestyles expressly acknowledges that the City has
made no representations concerning the tax liability of the payments paid under this Agreement
and therefore Lifestyles has not relied upon any such representations.
3. Utilities. Lifestyle Landscapes shall be responsible for all utility expenses including
water, electrical, telephone, waste removal, sewer, facility cleaning and internet communications
services.
4. Permit Fee Credit. Should Lifestyle decide to relocate its business operations to another
location within the City of Tukwila, Lifestyle shall be entitled to a permit fee credit of up to $2,500
to be applied to any permit fees required by the City of Tukwila related to tenant improvements
made by Lifestyle at such new location. This credit can be applied to any land use, building permit,
mechanical permit, electrical permit, plumbing permit, sign permit, or public works permit. This
credit is non -transferable, has no cash value, and shall expire on January 1, 2021.
5. Participation in Condemnation Proceedings and Release. In exchange for the payments,
and permit fee credit provided to Lifestyle under this Agreement, Lifestyle knowingly and
voluntarily agrees to release and forever discharge the City (including its past and present officers,
SETTLEMENT AGREEMENT - 2
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officials, directors, shareholders, employees and successors in interest) from all claims, demands,
liabilities, and causes of action of any nature related in any way to the City's acquisition of the
Property, the Project, relocation assistance under chapter 8.26 RCW or federal law, or arising from
Lifestyle' current lease agreement with Kent A. Ramsden Testamentary Trust, whether the bases
of such claims, demands, liabilities, and/or causes of action are currently known or unknown and
whether such claims, demands, liabilities, and/or causes of action have accrued in the past or will
first accrue in the future. Lifestyle agrees not to contest public use and necessity of the Project or
to otherwise interfere, directly or indirectly, with the Project (including but not limited to appeal
of any Project permits). Lifestyle further agrees to execute the Agreed Judgment and Decree of
Appropriation, Order Granting Immediate Possession and Use, and Disbursement Order ("Agreed
Judgment"), attached hereto as Exhibit B, contemporaneously with execution of this Agreement.
This Agreed Judgment shall allow the City reasonable access to the Property for the purposes of
Project planning, studies, environmental assessments, survey work, and the like, until the Property
is conveyed to the City on July 1, 2019.
6. Subleases and Assignment. Lifestyle affirms and acknowledges that it has no subleases
in the tenant space it currently occupies. Lifestyle agrees not to enter into any subleases, and
Lifestyle shall not assign or subcontract any portion of the services contemplated by this
Agreement without the express written consent of the City. Lifestyle will ensure that the Property
is vacant on or before June 30, 2019.
7. No Admissions. This Agreement does not constitute an admission of liability by the
Parties. In the event of future inquiries, the Parties agree not to disparage any other with respect
to the subject matter of this Agreement. This paragraph does not preclude or otherwise impact the
City's obligation to comply with the Public Records Act, nor does it preclude either party from
seeking to enforce the terms of this Agreement. In any dispute resolution proceeding between the
Parties in connection with this Agreement, the prevailing party will be entitled to recover its
reasonable attorneys' fees and costs from the other party.
8. Authority. The signatories to this Agreement represent that they have the full right and
authority to enter into this Agreement on behalf of the Parties and the full right and authority to
fully bind the Parties to the terms and obligations of this Agreement.
9. Counterparts. This Agreement may be executed in duplicate counterparts, in which case
each executed counterpart shall be deemed to be an original and all counterparts together shall
constitute one and the same instrument. Signed versions of this Agreement transmitted by
facsimile copy or electronic mail shall be the equivalent of original signatures on original versions.
10. Entire Agreement; Venue; Attorneys' Fees. This Agreement contains all of the
agreements of the Parties with respect to any matter covered or mentioned in this Agreement. No
provision of this Agreement may be amended or modified except by written agreement signed by
the Parties. This Agreement shall be governed by and construed in accordance with the laws of
the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to
enforce any term of this Agreement, the parties specifically understand and agree that venue shall
be properly laid in King County, Washington. The prevailing party in any such action shall be
entitled to its attorneys' fees and costs of suit.
SETTLEMENT AGREEMENT - 3
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11. Knowing and Voluntary Execution. The Parties hereto enter into this Agreement
knowingly, willingly, voluntarily, freely, and without any coercion. The parties have been advised
to consult with an attorney concerning this Agreement and have had adequate opportunity to
seek the advice of legal counsel in connection with this Agreement.
THE CITY OF TUKWILA
a Washington municipal corporation
By:
Nam'
Title: rn a- o (
Pine
Approved as to form:
LIFESTYLE LANDSCAPES, INC.
°ge r k
President
Rachel B. Turpin
City Attorney
NOTARY ACKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Roger Franklin signed this
instrument and, on oath, stated that he was authorized to execute the instrument and acknowledged
it as President of Lifestyle Landscapes, Inc., to be the free and voluntary act of such party for the
uses and purposes mentioned in the instrument.
DATED this /3 day of PCC.47 vvr b E v' , 2018.
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SETTLEMENT AGREEMENT - 4
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Printed Na
Draft, Exhibit A
NOT FOR EXECUTION
DRAFT
COMMERCIAL LEASE
CITY OF TUKWILA, LANDLORD
LIFESTYLE LANDSCAPES, INC., TENANT
, 2018
Draft, Exhibit A
NOT FOR EXECUTION
COMMERCIAL LEASE
CITY OF TUKWILA TO
TABLE OF CONTENTS
Page
1. GRANT 1
2. PERMITTED USE 1
3. TERM. 1
4. RENT. 1
5. SECURITY DEPOSIT 2
6. ALTERATIONS AND IMPROVEMENTS. 2
7. REPAIRS AND MAINTENANCE. 2
8. OPERATING EXPENSES. 3
9. UTILITIES AND SERVICES 3
10. USE OF PREMISES. 3
11. LEASEHOLD EXCISE TAX; PERSONAL PROPERTY TAXES. 4
12. INDEMNIFICATION/HAZARDOUS MATERIALS 4
13. INSURANCE 5
14. ACCESS. 6
15. WAIVER OF SUBROGATION. 6
16. NONWAIVER OF BREACH 6
17. SUCCESSORS. 6
18. GOVERNMENTAL FEES. 6
19. LIENS. 6
20. ASSIGNMENT, SUBLETTING OR SUBSTITUTION OF LESSEES. 7
21. DAMAGE OR DESTRUCTION OF PREMISES 7
22. DEFAULTS; REMEDIES. 7
23. ESTOPPEL CERTIFICATES 9
24. BROKER. 9
25. SUBORDINATION. 9
26. SURRENDER 10
27. GENERAL PROVISIONS 10
EXHIBIT A LEGAL DESCRIPTION OF PROPERTY 15
COMMERCIAL LEASE
CITY OF TUKWILA TO Lifestyle Landscapes, Inc.
This Lease is made this day of , 2018, by and between the City of
Tukwila, a municipal corporation operating under the laws of the State of Washington as a non -
charter code city ("Landlord"), and Lifestyle Landscapes, Inc. (jointly and severally, "Tenant").
Landlord and Tenant agree as follows:
1. GRANT.
Landlord leases to Tenant and Tenant leases from Landlord that real property located at
11234 Tukwila International Blvd. in Tukwila, Washington, and legally described on Exhibit A
attached hereto (hereafter called the "Premises").
2. PERMITTED USE.
Tenant shall use the Premises only as a construction company yard, office, and storage
facility and for no other use or purpose without the prior written consent of Landlord. Tenant is
already in possession of the Premises, is familiar with the Premises and acknowledges that the
Premises are suitable for Tenant's use. Tenant shall have the right to nonexclusive use of the
mutual use parking area on the premises with other tenants of the Landlord.
3. TERM.
3.01 Term. The term of this Lease ("Lease Term") shall commence on the
Commencement Date, and shall terminate on June 30, 2019, unless terminated sooner pursuant
to this Lease. "Commencement Date" means the later of: (a) the date that this Lease has been
executed, acknowledged and delivered by each of Landlord and Tenant; and (b) the date that
Landlord has acquired title to the Property. Tenant may terminate the lease by providing the
Landlord 15 -days written notice.
4. RENT.
4.01 Payment of Rent. Tenant covenants to pay to Landlord the amount of $4,765.00,
in advance on the first day of each month of the Lease Term. Rent shall be paid to Landlord at
6200 Southcenter Blvd., Attn: Brandon Miles, Tukwila, Washington 98188, or at such other
address as Landlord shall specify from time to time. Rent shall be paid by personal, business or
cashier's check; no cash shall be accepted. Rent shall be prorated for any portion of a month in
the event this Lease shall begin or end on a date other than the first or last day of a month.
4.03 Additional Rent. Tenant shall also pay as additional rent the payments required
of Tenant pursuant to the provisions of this Lease.
Draft, Exhibit A
NOT FOR EXECUTION
4.04 Late Charges. Late payment by Tenant of rent and other sums due will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. The costs include, but are not limited to, processing, accounting
and administrative charges. Accordingly, if any installment of rent or any other sum due from
Tenant is not received by Landlord or its designee within ten (10) days after the amount is due,
Tenant shall pay to Landlord a late charge equal to five percent (5%) of the overdue amount. The
parties agree that this late charge represents a fair and reasonable estimate of the costs Landlord
will incur by reason of the late payment by Tenant. Acceptance of a late charge by Landlord is
not a waiver of Tenant's default, nor a waiver of greater charges which may be incurred by
Landlord.
5. SECURITY DEPOSIT.
Tenant shall deposit with Landlord an amount equal to one month's rent, the sum of and
No/ 100 Dollars ($100.00) to be kept (along with any interest earned thereon) by Landlord as
security for Tenant's performance of all of the terms, covenants and conditions of this Lease that
Tenant is to perform hereunder. In the event of a default by Tenant under this Lease which is not
cured as provided herein, Landlord may use, apply or retain all or such part of this security
deposit as is necessary to cure any such default.
6. ALTERATIONS AND IMPROVEMENTS.
6.01 Remodeling Improvements and Other Alterations. Tenant shall make no
remodeling improvements, alterations, installations, removals, additions or other improvements
in or to the Premises without Landlord's prior written consent. The Landlord's prior consent
shall not be required if the total cost of the remodeling improvement, alteration, installation,
removal, addition or other improvement is less than One Thousand Dollars ($1,000.00). All
costs of such work shall be Tenant's sole responsibility and will not be reimbursed for any
reason. Tenant shall perform all activities referred to in this section in compliance with all
applicable governmental laws, ordinances, codes, and regulations. Upon the termination of this
Lease, fee title to all improvements then located upon the Premises shall pass to and vest in
Landlord.
6.02 Removal of Fixtures/Personal Property. At the termination or expiration of this
Lease, Tenant agrees to remove all personal property and trade fixtures. Any personal property
or fixtures left behind after the termination of this lease will be removed and disposed of by the
Landlord.
7. REPAIRS AND MAINTENANCE.
Tenant leases the Premises in "as -is" and "where is" condition and, at its expense, will
keep all aspects of the Premises in neat, clean, and in a sanitary condition, and will replace any
glass of windows and doors which may become cracked or broken, and, except for acts of God,
reasonable wear and tear and damage by fire, will at all times preserve said Premises in as good
repair as they are now or may hereafter be put. Tenant shall maintain and repair the Premises, and
Tenant agrees to keep the parking lots and areas and sidewalks adjacent to the front and rear of
2
Draft, Exhibit A
NOT FOR EXECUTION
the Premises clean and free of debris and obstructions. Tenant shall pick up any trash or debris
on the Premises, parking lot, or adjacent sidewalks at least once daily. Tenant shall make all
repairs and replacements for the proper maintenance and operation of the Premises. Tenant
acknowledges that Landlord shall have no responsibility to maintain, repair, restore or replace
any portion of the Premises or any buildings or structures located thereon.
In the alternative, Tenant may choose to terminate the lease upon 15 -days' written notice
instead of making any such repairs except when such repairs are necessary to be made within
fifteen days to protect the life and safety of the occupants and the public, in which case the
Tenant may choose to terminate the lease immediately.
8. OPERATING EXPENSES.
In addition to Base Rent, Tenant will pay directly, or to Landlord as additional rent at
Landlord's option, all operating, repair and maintenance costs and expenses (the "Operating
Expenses") of the Premises. Operating Expenses are all costs paid or incurred by Landlord in
connection with the operation and maintenance of the Premises, determined by standard
accounting and property management practices, including without limitation: water and sewer
repair charges; interior painting, repair and maintenance of buildings and improvements; HVAC
maintenance and repair; all insurance premiums; all utilities charges and taxes; window cleaning;
snow, trash, or debris removal; gardening and landscape maintenance; supplies, materials,
equipment, and tools, and maintenance costs and upkeep of all parking and common areas.
For Operating Expenses paid to or incurred by the Landlord and except when such repairs
are necessary to protect the life, safety and welfare of the occupants and the public, Landlord
shall provide Tenant with seven (7) days written notice prior to expending any funds for repair
and maintenance costs and expenses. Notice shall include a description of the necessary repair
and maintenance activity and the estimated cost. In response to the notice, Tenant may either (1)
remit payment to the Landlord for such costs or (2) choose to terminate the lease by providing
15 -days' written notice in which case the lease shall terminate and Tenant shall not be obligated
to pay for identified expense. When such repairs are necessary to protect the life and safety of the
occupants and the public, the provision in the last paragraph of preceding section shall apply.
9. UTILITIES AND SERVICES.
Tenant agrees to pay for, when due, all water, storm, sewer, heat, gas, electricity, garbage
collection and all other utility services consumed or used at the Premises during the Lease Term.
Tenant shall be responsible for contracting directly for all utilities, and for the collection of its
garbage from the Premises. Tenant agrees to pay, when due, all interest, penalties, late -payment,
cancellation or other changes arising out of or relating to Tenant's use of, and termination of, all
such services.
10. USE OF PREMISES.
The Premises shall at all times be kept and used in accordance with the laws of the State
of Washington and the rules, regulations, orders, and directive of the State of Washington, King
3
Draft, Exhibit A
NOT FOR EXECUTION
County, and the City of Tukwila having jurisdiction over said Premises and in accordance with
all directives, rules and regulations of the health officer, fire marshal, building inspector or other
proper official of the State of Washington, King County, and the City of Tukwila, at the expense
of Tenant. Tenant will permit no waste, damage, or injury to the Premises.
11. LEASEHOLD EXCISE TAX; PERSONAL PROPERTY TAXES.
11.01 Leasehold Excise Tax. Leasehold tax is included in the total rent.
11.02 Personal Property Taxes. All taxes levied or assessed directly against Tenant or
its business or property, including income, business and occupation taxes, and use taxes on
Tenant's personal property, shall be paid by Tenant.
12. INDEMNIFICATION/HAZARDOUS MATERIALS.
12.01 Indemnification. Neither Landlord nor any agent or employee of Landlord shall
be liable for damage to property or injury to persons sustained by Tenant or others resulting from
any act or omission other than the gross negligence or willful misconduct of Landlord or its
agents or employees.
During the Lease Term, Tenant agrees to indemnify and hold harmless Landlord from all
claims, actions, causes of action, judgments, liabilities, expenses, costs and reasonable attorneys'
fees and from all limitations, restraints, penalties or obligations pertaining to Landlord arising out
of any act, omission, or neglect in connection with Tenant's (including Tenant's employees,
agents, officers, licensees, invitees or other occupants of the Premises) (1) use or occupancy of
the Premises, (2) conduct of its business, or (3) default under or breach of this Lease, except
where such is a result of the gross negligence or willful misconduct of Landlord, or its agents or
employees. This indemnity shall survive the termination of this Lease as to any act alleged to
have occurred during the Lease Term, and shall survive until the expiration of the applicable
statute of limitations.
12.02 Hazardous Materials. Tenant shall not dispose of or otherwise allow the release
of any hazardous waste or materials in, on or under the Premises, or any adjacent property, or in
any improvements placed on the Premises. Tenant represents and warrants to Landlord that
Tenant's use of the Premises does not involve the use, production, disposal or bringing on to the
Premises of any hazardous waste or materials. As used herein, the term "hazardous waste or
materials" includes any substance, waste or material defined or designated as hazardous, toxic or
dangerous (or any similar term) by any federal, state or local statute, regulation, rule or ordinance
now or hereafter in effect, and shall include all forms of waste/debris generated by Tenant's use
of the Premises. Tenant shall comply at all times with all statutes, regulations and ordinances,
and with all orders, decrees or judgments of governmental authorities or courts having
jurisdiction, relating to the use, collection, treatment, disposal, storage, control, removal or
cleanup of hazardous waste or materials in, on or under the Premises or any adjacent property, or
incorporation in any improvements, at Tenant's sole expense.
4
Draft, Exhibit A
NOT FOR EXECUTION
After notice to Tenant and a reasonable opportunity for Tenant to effect such compliance,
Landlord may, but is not obligated to, enter upon the Premises and take such actions and incur
such costs and expenses to effect such compliance as it deems advisable to protect its interest in
the Premises, provided, however, that Landlord shall not be obligated to give Tenant notice and
an opportunity to effect such compliance if (1) such delay might result in material adverse harm
to Landlord or the Premises, (2) Tenant has already had actual knowledge of the situation and a
reasonable opportunity to effect such compliance, or (3) an emergency exists. Whether or not
Tenant has actual knowledge of the release of hazardous waste or materials on the Premises or
any adjacent property as the result of Tenant's use of the Premises, Tenant shall reimburse
Landlord for the full amount of all costs and expenses incurred by Landlord in connection with
such compliance activities, and such obligation shall continue even after the termination of this
Lease. Tenant shall notify Landlord immediately of any release of any hazardous waste or
materials on the Premises.
Tenant shall indemnify and hold Landlord harmless against any and all losses, liabilities,
suits, obligations, fines, damages, judgments, penalties, claims, charges, cleanup costs, remedial
actions, costs and expenses (including, without limitation, attorneys' fees and disbursements)
which may be imposed on, incurred or paid by, or asserted against Landlord or the Premises by
reason of, or in connection with (1) any misrepresentation, breach of warranty or other default by
Tenant under this paragraph, or (2) the acts or omissions of Tenant, or any subtenant or other
person for whom Tenant would otherwise be liable, resulting in the release of any hazardous
waste or materials or the violation of any law, rule, regulation or order pertaining to hazardous
waste or materials.
Landlord shall indemnify and hold Tenant harmless against any and all losses, liabilities,
suits, obligations, fines, damages, judgments, penalties, claims, charges, cleanup costs, remedial
actions, costs and expenses (including, without limitation, attorneys' fees and disbursements)
which may be imposed on, incurred or paid by, or asserted against Tenant in connection with the
release of any hazardous waste or materials or the violation of any law, rule, regulation or order
pertaining to hazardous waste or materials related to actions outside of Tenant's control.
13. INSURANCE.
During the Lease Term, Tenant shall keep in full force and effect, at its sole cost and
expense, a policy or policies of liability insurance for property damage and bodily injury, with
minimum coverage amounts of $1,000,000 per occurrence within or about the Premises. Each
such policy shall: (a) name Landlord as an additional insured; (b) be written as primary policies
not contributing with and not in excess of coverage that Landlord may carry; (c) contain an
endorsement providing that such insurance may not be cancelled with respect to Landlord except
after 30 days' prior written notice from insurance company to Landlord (10 days for nonpayment
of premium); and (d) be written by insurance companies having a A.M. Best's rating of "A- VII"
or better.
5
Draft, Exhibit A
NOT FOR EXECUTION
14. ACCESS.
Upon reasonable advance notice, Landlord and its agents have the right to enter the
Premises at reasonable times for the purpose of inspecting them, showing them to prospective
purchasers, lenders, or lessees, and making necessary or desirable alterations, repairs,
improvements or additions to the Premises, provided that Landlord shall use reasonable efforts to
minimize interference with Tenant's use and enjoyment of the Premises.
15. WAIVER OF SUBROGATION.
Landlord and Tenant hereby release each other from any and all liability or responsibility
(to the other or anyone claiming through or under the other by way of subrogation or otherwise)
for any loss or damage to real or personal property on the Premises caused by fire or any other
insured peril, even if such fire or other casualty shall have been caused by the fault or negligence
of the other party or anyone for whom such party may be responsible. All insurance policies
procured by Landlord or Tenant that relate to the Premises shall include a waiver of subrogation
and a clause or endorsement to the effect that the foregoing release shall not adversely affect or
impair such policies or prejudice the right of the releaser to recover thereunder.
16. NONWAIVER OF BREACH.
Neither the acceptance of rent nor any other act or omission of Landlord at any time or
times after the happening of any event authorizing cancellation or forfeiture of this Lease shall
operate as a waiver of any past or future violation, breach, or failure to keep or perform any
covenant, agreement, term or condition hereof, or to deprive Landlord of its right to cancel or
forfeit this Lease, upon the notice required by law, at any time that cause for cancellation or
forfeiture may exist, or be construed so as to at any future time estop Landlord from promptly
exercising any other option, right, or remedy that it may have under any term or provision of this
Lease.
17. SUCCESSORS.
Subject to the provisions of this Lease restricting assignment or subletting, all covenants,
agreements, terms and conditions contained in this Lease shall apply to and be binding upon
Landlord and Tenant and their respective successors and/or assigns.
18. GOVERNMENTAL FEES.
All fees due the city, county or state on account of any inspection made on said Premises
by any officer thereof shall be paid by Tenant. Any fee due any governmental entity arising out
of or as a result of Tenant's business conducted on the Premises shall be paid by Tenant.
19. LIENS.
Tenant shall not permit any liens to be filed against the Premises for work done, materials
furnished or obligations incurred by or on behalf of Tenant. Tenant covenants and agrees that
any liens filed against the Premises for work claimed to have been done for or materials claimed
6
Draft, Exhibit A
NOT FOR EXECUTION
to have been furnished to, or obligations incurred by, Tenant, shall be discharged by Tenant, by
bond or otherwise, within thirty (30) days after the filing of such lien, at the sole cost and
expense of Tenant. Should Tenant fail to timely discharge any such lien, such failure shall
constitute a default herein. Landlord may, at Landlord's election, pay such claim or post a bond
or otherwise provide security to eliminate the lien as a claim against title and the cost thereof
shall be immediately due from Tenant.
20. ASSIGNMENT, SUBLETTING OR SUBSTITUTION OF LESSEES.
20.01 Landlord's Consent Required. Tenant shall not voluntarily or by operation of
law assign, mortgage, sublet, or otherwise transfer or encumber this Lease or the Premises or all
or any part of Tenant's interest in this Lease or in the Premises, without Landlord's prior written
consent, which consent may be granted or withheld in Landlord's sole discretion.
20.02 No Release of Tenant. Regardless of Landlord's consent, no subletting or
assignment releases Tenant of its obligations or alters the primary liability of Tenant to pay the
rent and to perform all Tenant's other obligations under this Lease, except as specifically
provided herein. Acceptance of rent by Landlord from any other person is not a waiver of any
Lease provision. If any subtenant of Tenant defaults, Landlord may proceed directly against
Tenant without exhausting its remedies against the subtenant.
20.03 Landlord's Interest. Landlord may assign, encumber or dispose of all or any
part of its interest in the Premises or this Lease without affecting this Lease or Tenant's
obligations. Tenant agrees to accept and attorn to such transferee, provided that such transferee
has accepted, by written agreement, all of Landlord's responsibilities and obligations under this
Lease.
21. DAMAGE OR DESTRUCTION OF PREMISES.
If the Premises are damaged or destroyed in an amount exceeding twenty-five percent
(25%) of full replacement cost, by fire or any other cause, then at the option of either Landlord or
Tenant, which shall be exercised by notice in writing given to the other within thirty (30) days
after the occurrence of such damage or destruction, this Lease shall terminate as of the date of
such damage or destruction. If neither Landlord nor Tenant exercises the option to terminate the
Lease as provided herein, then Tenant shall promptly rebuild and restore the Premises to its pre-
existing condition unless it is mutually agreed in writing between Landlord and Tenant that the
Premises will not be rebuilt. Tenant acknowledges that Landlord has no responsibility to rebuild
or restore any damage or destruction of the Premises.
22. DEFAULTS; REMEDIES.
Tenant:
22.01 Defaults. Each of the following is a material default and breach of this Lease by
(a) Abandoning the Premises;
7
Draft, Exhibit A
NOT FOR EXECUTION
its completion. In the event of default by Landlord, Tenant may pursue all remedies available to
it at law or in equity.
22.04 Payment of Rent. Notwithstanding anything to the contrary herein, Tenant shall
not withhold the payment of rent for any purpose, including without limitation, for any claimed
offset or due to any dispute hereunder.
23. ESTOPPEL CERTIFICATES.
Tenant shall at any time upon ten (10) business days prior written notice from Landlord
execute, acknowledge and deliver to Landlord a statement in writing (i) stating the
commencement date and certifying that this Lease is unmodified and in full force (or, stating the
nature of any modification and certifying that this Lease, as modified, is in full force) and stating
the date to which the rent and other charges are paid in advance, if any, and (ii) acknowledging
that there are not, to Tenant's knowledge, any uncured defaults on the part of Landlord (or
specifying any defaults claimed). This statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Premises. Tenant's failure to deliver this
statement within ten (10) business days may be considered by Landlord as a material default by
Tenant under this Lease.
24. BROKER.
Tenant represents and warrants to Landlord that Tenant has had no dealings with any real
estate broker or agents in connection with the negotiation of this Lease and it knows of no real
estate broker or agent entitled to a commission in connection with this Lease. Tenant agrees to
indemnify and hold harmless Landlord for any payment, loss or liability resulting from Tenant's
breach of the foregoing representation and warranty.
25. SUBORDINATION.
This Lease, at Landlord's option, shall be subordinate to any ground lease, mortgage,
deed of trust, any other hypothecation for security or encumbrance upon the real property of
which the Premises are a part and to any and all advances made on that security and to all
renewals, modifications, consolidations, replacements and extensions thereof, provided,
however, that the holder of any such security shall agree to recognize the Lease in the event of
foreclosure so long as Tenant is not in default. If any mortgagee, trustee, or ground lessor prefers
to have this Lease prior to the lien of its mortgage, deed of trust or ground lease, and gives
written notice to Tenant, this Lease shall be prior to that mortgage, deed of trust, or ground lease,
whether this Lease is dated prior or subsequent to the date of the mortgage, deed of trust or
ground lease or its recording date. Tenant will execute any documents required to effectuate
subordination or to make this Lease prior to any mortgage, deed of trust or ground lease, as
provided in the preceding paragraph, within ten (10) business days after Landlord's written
request.
9
Draft, Exhibit A
NOT FOR EXECUTION
(b) If Tenant fails to surrender the Premises upon the termination of this
Lease, Tenant shall indemnify and hold harmless Landlord from loss or liability resulting from
such failure including, without limiting the generality of the foregoing, any claims made by any
succeeding tenant arising out of such failure and any fees and costs incurred by Landlord
(including attorneys' fees and costs).
27.06 Covenants and Conditions. Each provision of this Lease which is performable
by Landlord or Tenant is both a covenant and a condition.
27.07 Authority. If Tenant is a corporation, limited liability company, or other business
entity, Tenant represents and warrants to Landlord as follows: (a) Tenant is duly organized and
validly existing under the laws of the State of Washington, and is duly authorized to conduct its
business in the state of Washington; (b) no consent or approval of any other person is necessary
for the effectiveness of Tenant's obligations under this Lease, and (c) Tenant has all the requisite
right, power, and authority to enter into this Lease and to perform all of its obligations hereunder.
27.08 Attorneys Fees. If legal action is necessary to enforce or interpret this Lease, the
prevailing party in such litigation shall be entitled to be reimbursed by the other party for
reasonable attorney fees, litigation expenses, and statutory costs as awarded by the court. Such
fees, costs and expenses shall include those incurred in the enforcement and collection of any
judgment, the litigation of any right under bankruptcy law, and any appeal from any proceeding.
27.09 Signs. Tenant may not place any new signs upon the Premises without Landlord's
prior written consent, which may be granted or withheld in Landlord's sole discretion. Landlord
shall not object to existing signs.
27.10 Quiet Possession. Upon paying the rent and observing and performing all of its
covenants and conditions, Tenant shall have quiet possession of the Premises for the entire Lease
Term subject to all of the provisions of this Lease.
27.11 Rules and Regulations. Upon receipt of a copy of the same, Tenant will abide by
all reasonable rules and regulations which Landlord may make from time to time for the
management, safety, care, and cleanliness of the Premises and grounds, the parking of vehicles
and the preservation of good order.
27.12 Relationship of Parties/Liability. For the purposes of this Lease, the
relationship of the parties hereto is strictly that of landlord and tenant. Nothing herein shall be
construed so as to create a partnership, joint venture, or agency. Neither party hereto shall be
liable for the debts and obligations of the other.
27.13 Personal Property. Except as set forth in this Lease, Landlord has no interest in
any personal property, equipment, furniture, or fixtures installed by Tenant upon the Premises.
Landlord will furnish Tenant, upon request, any landlord's waiver or similar document
reasonably required by an institutional lender or equipment lessor in connection with Tenant's
acquisition or financing of its personal property.
11
Draft, Exhibit A
NOT FOR EXECUTION
"Landlord"
CITY OF TUKWILA, a municipal corporation Notice Address:
City of Tukwila
By: Attn: City Clerk
Name: Allan Ekberg 6200 Southcenter Blvd.
Title: Mayor Tukwila, WA 98188
Attest:
By:
, City Clerk
Approved as to form:
By:
City Attorney
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I HEREBY CERTIFY that on this day of , 2018, before me, the
undersigned, a notary public in and for the State of Washington, duly commissioned and sworn,
personally appeared Allan Ekberg, to me known to be the Mayor of the CITY OF TUKWILA, a
Washington non -charter optional municipal code city, the municipal code city that executed the
within and foregoing instrument, and acknowledged the said instrument to be the free and
voluntary act and deed of said municipal code city for the uses and purposes therein mentioned,
and on oath stated that he or she was authorized to execute said instrument on behalf of said
municipal code city.
WITNESS my hand and official seal the day and year certificate first above written.
(Print Name)
Residing at
My appointment expires
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City of Tukwila
$865,000.00
Jill E. Bliss
Rachel B. Turpin
Kenyon Disend, PLLC
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
1 I Front Street South
Issaquah,WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
II. AGREED JUDGMENT AND DECREE OF APPROPRIATION,
ORDER GRANTING IMMEDIATE POSSESSION AND USE,
AND DISBURSEMENT ORDER
The Court, having reviewed the records, files, and pleadings herein, it is now,
therefore;
ORDERED, ADJUDGED AND DECREED that:
1. On November 6, 2017, the Tukwila City Council adopted Ordinance No. 2554,
exercising its power of eminent domain for the purpose of constructing a combined Public
Works Shops facility building ("Public Works Shops"), to be located at 11210 and 11234
Tukwila International Boulevard, Tukwila, Washington. The Public Works Shops
represent one component of the Public Safety Plan Project ("Project"), which also includes
a Justice Center to house the City's Municipal Court, Emergency Operations Center and
Police Department, and three fire stations.
2. Through adoption of Ordinance No. 2554, the Tukwila City Council established
that the acquisition of the real property and other property rights of Respondent fee simple
owner Kent A. Ramsden Testamentary Trust Under Will Dated November 23, 1999
("Ramsden Trust") whose property is known as King County Parcel No. 092304-9411, is
necessary for a public purpose.
3. On May 25, 2018, the Court entered an Order Adjudicating Public Use and
Necessity for the Project.
4. The Take Property is legally described in Exhibit A and depicted in Exhibit B,
attached hereto.
5. The City of Tukwila ("City") is acquiring the Take Property for the public use
of constructing the Public Works Shops component of the Project. The Take Property is
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 2
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
11 Front Street South
Issaquah,WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
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necessary for construction of the Public Works Shops component of the Project. The City
shall pay a total of Eight Hundred Sixty -Five Thousand and No/100 Dollars ($865,000.00)
as full and final Just Compensation for the appropriation of the Take Property by eminent
domain.
6. Melissa Wells, dba Jet Fuel Espresso; Sarah Hernandez, dba Jet Fuel Espresso;
and Laborworks, Inc., dba Laborworks Industrial Staffing Specialists, Inc., were defaulted
on February 5, 2018. Lifestyle Landscapes, Inc., leases a portion of the Take Property.
King County holds an interest in general and special taxes and charges on the Take
Property, which interest is addressed in Paragraph 11 herein. Respondent Ramsden Trust
is entitled to the entire award of Just Compensation.
7. This Agreed Judgment and Decree of Appropriation, Order Granting Immediate
Possession and Use, and Disbursement Order ("Agreed Judgment"), shall become
effective on the date that the City deposits the Just Compensation sum of $865,000.00
(USD), plus the Clerk's ten -dollar ($10.00) handling fee, into the registry of the Court and
this Agreed Judgment is filed for entry with the Court ("Effective Date"), which shall be
done contemporaneously, or promptly after the date on which this Agreed Judgment is
filed for entry with the Court.
8. After such deposit by the City into the Court Registry, this matter may be
removed from the Court's trial calendar. Entry of this Agreed Judgment fully resolves all
claims in this matter with respect to the Take Property. The City is not required to appear
at any subsequent trial to apportion the Just Compensation between Respondent Ramsden
Trust and its tenants described in Paragraph 6 or otherwise. The City disclaims any
remaining interest in the Just Compensation following entry of this Judgment and Decree
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 3
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
II Front Street South
Issaquah,WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
9. Upon the Effective Date, the City shall have immediately acquired possession
and use of all rights held by Respondents in the Take Property, pursuant to RCW 8.04.090.
The City's possession and use of the Take Property will be for the limited purpose of
accessing the Take Property for Project planning purposes. The City shall notify
Respondents prior to any accessing the Take Property and such access will not
unreasonably interfere with Respondents' use of the Take Property, which shall be
allowed to continue through June 30, 2019. Respondents shall keep the Take Property
free and clear of all liens or other 3rd party encumbrances and shall be responsible for
payment of all utilities (including, but not limited to, water, sewer, garbage, surface, and
stormwater fees) through June 30, 2019.
10. On July 1, 2019, all of the right, title and interest of Respondent in and to the
Take Property are conveyed to and vested in the City of Tukwila. All Respondents shall
vacate the Take Property prior to July 1, 2019. The City shall take title to and be vested
in fee simple absolute to the Take Property as legally described and depicted in Exhibits
A and B, respectively, hereto.
11. The King County Superior Court Clerk shall disburse the Just Compensation
amount of Eight Hundred and Sixty -Five Thousand Dollars ($865,000.00) as follows:
a. The sum of $4,883.43 to the King County Treasury for payment of the second
half 2018 real property taxes on the parcel that has been appropriated (Tax Parcel 092304-
9411). This payment shall satisfy King County's interest in unpaid taxes owing on the
Take Property. t Respondent Ramsden Trust shall have the right to seek and obtain
Respondent King County has indicated that it will not be participating in this case. The County's interest
is the collection of taxes and fees, which is accommodated herein.
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 4
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
11 Front Street South
Issaquah, WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
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reimbursement from the King County Treasurer for all 2nd half taxes which are paid and
apportioned to the period after entry of this Agreed Judgment. Should it be determined by
a court of competent jurisdiction or the Washington State Auditor's Office or the King
County Assessor's Office that RCW 84.60.050 does not apply, any additional property tax
or leasehold excise tax determined to be owing through June 30, 2019, shall be paid by
Ramsden within thirty (30) days of the Court, City, King County, or State of Washington's
written demand or order for such; and
b. The balance, less the clerk's handling fee, to respondent Ramsden Trust,
which amount shall be delivered in a check payable to "Hart Schooner Bliss, PS IOLTA
Trust Account" and mailed to the following address: Hart Schoener Bliss, PS, 12535 15th
Avenue Northeast, Suite 100, Seattle, Washington 98125.
12. The City shall record a certified copy of this Agreed Judgment and Decree of
Appropriation in the Office of the King County Recorder.
DATED this day of October 2018.
JUDGE/COURT COMMISSIONER
Presented by:
KENYON DISEND, PLLC
By:
Rachel B. Turpin
WSBA No. 40007
Attorneys for Tukwila
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 5
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
11 Front Street South
Issaquah,WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
Copy Received; Approved for Entry;
And Notice of Presentation Waived:
HART SCHOENER BLISS, P.S.
By
ill E. Bliss
WSBA No. 17981
Attorneys for Marie C. Ramsden,
Trustee, Ramsden Testamentary Trust
LIFESTYLE LANDSCAPES, INC.
By
Roger Franklin
President
DANIEL T. SATTERBERG
King County Prosecuting Attorney
By
Jenifer C. Merkel2
WSBA No. 34472
Senior Deputy Prosecuting Attorney
2 Respondent King County has indicated that it will not be pauticipating in this case. The County's interest
is in the collection of taxes and fees, which will be accommodated within the final judgment and decree.
Kenyon Disend, PLLC
The Municipal Law Firm
KENYON 11 Front Street South
AGREED JUDGMENT AND DECREE OF DISEND Issaquah,WA 98027-3820
APPROPRIATION - 6 Tel: (425) 392-7090
Fax: (425) 392-7071
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EXHIBIT A
LEGAL DESCRIPTION:
THAT PORTION OF GOVERNMENT LOT 2 IN
SECTION 9, TOWNSHIP 23 NORTH, RANGE 4 EAST,
W.M., IN KING COUNTY, WASHINGTON,
DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE
SOUTH LINE OF THE NORTH 435 FEET OF SAID
GOVERNMENT LOT WITH THE EASTERLY LINE OF
PRIMARY STATE HIGHWAY NO. 1 AS CONVEYED
TO THE STATE OF WASHINGTON BY DEED
RECORDED UNDER RECORDING NO, 3909048;
THENCE NORTHERLY ALONG SAID EASTERLY
LINE 230 FEET;
THENCE EAST PARALLEL WITH THE NORTH LINE
OF SAID LOT 2, 110 FEET;
THENCE SOUTHERLY PARALLEL WITH SAID
HIGHWAY LINE 230 FEET TO THE SOUTH LINE OF
SAID NORTH 435 FEET;
THENCE WEST ALONG SAID SOUTH LINE 110 FEET
TO THE POINT OF BEGINNING.
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 7
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
I I Front Street South
Issaquah,WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
EXHIBIT B
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 8
KENYON
DISEND
Kenyon Disend,PLLC
The Municipal Law Firm
I I Front Street South
Issaquah,WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071