FEDRAC PKT 12-11-2000(formerly Administration Conference Room)
AGENDA
1. CALL TO ORDER
2. PUBLIC COMMENT
3. COMMITTEE BUSINESS
A. Approval of November 28, 2000 Meeting Minutes
B. Proposed Right of Way Lease for Enchanted Parks (Sterbank)
AT&T W:.re!ess Lease (Sterbank)
Action
Action
4. COMMITTEE REPORT
5. FUTURE AGENDA ITEMS
Ao
6. NEXT MEETING: January, 2001 - Date to be Motioned
Committee Members:
Mary Gates, Chair
Jeanne Burbidge
Michael Hellickson
Cit~ Staff:
lwen Wang, Management Services Director
Jeri-Lynn Clark, Temporary Assistant
(253) 661-4061
City Co'until
Finance~conomic Development/Regional Affairs Committee
Tuesday, November 28, 2000
2:00 p.m~
City Hall
Mt. Baker Conference Room
MINUTES
Committee Members in Attendance: Chair Mary Gates, Members Jeanne Burbidge and
Michael Hellickson.
City Council Member in Attendance: Deputy Mayor Linda Kochmar.
Staff Members in Attendance: Iwen Wang, Management Services Director; David
Moseley, City Manager; Derek Matheson, Assistant to the City Manager; Bob Sterbank,
City Attorney; Marie Mosley, Deputy Director of Management Services; Cary Roe,
Public Works Director; Ken Miller, Public Works; Jenny Schroder, Parks, Recreation and
Cultural Services Director; Rob VanOrsow, Solid Waste & Recycling Coordinator;
Kathy McClung, Interim Director; Tho Kraus, Financial Management Supervisor, Sandra
Jurich Financial Analyst.
Others in Attendance: Delores Shull, President Federal Way Chamber of Commerce; Ed
Opstad, President of Federal Way Historical Society; Jim Hamilton, Federal Way Fire
Department Administrator; Sean Robinson, The Tacoma News Tribune; Jodi Bourg,
Nextel; Brian Andreise, Nextel.
CALL TO ORDER
Chair Mary Gates called the meeting to order at 2:02 p.m.
2. PUBLIC COMMENT
None.
3. COMMITTEE BUSINESS
a) Approval of October 24, 2000 meeting minutes
MOTION TO APPROVE BY MICHAEL HELLICKSON,
SECONDED BY JEANNE BURBIDGE. MOTION CARRIED.
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b)
Legislative and Regional Affairs Update
Derek Matheson updated the Committee on legislative and regional issues
and activities.
Legislative:
Design Build the committee meet and is looking at making a 6-year
extension and lowering the population threshold, for cities that would not
have to go through a technical review, from 100,000 to 70,000 and
possibly lowering the project size in order to use this procedure down
from $10 million to $3-7 million. The Association of General Contractors
which has been very concerned about this have significantly backed off,
are checking back with their board and are very optimistic about making
this a bill and introducing it to the Legislature.
Urban City Transit Initiative Bellingham, Everett, Seattle, Kent, Renton
and Federal Way are involved in an effort to secure voter-approved local
option funds to supplement transit service beyond that provided by a
county transit agency right now. When staff asked Council if there were
any Objections participating in this, staff received one comment about not
forgetting to focus on the roads, and to keep them in mind as part of the
transit system too.
Initiatives:
Tim Eyman has filled two new Initiatives.
Initiative one focuses on the state and limits total state tax revenue to the
rate of inflation and requires excesses revenue to be refunded back to the
taxpayers in a form of reduced property tax.
Initiative two focuses on only local government. This would require a
vote for a tax increase and defines a tax increase as only a tax rate
increase. This years property tax rate decreases, would not be subject to
voter approval. It also exempts proprietary operations (i.e. Surface Water
Utility and Dumas Bay Center).
Adding a Lobbyist Following Council's decision to include a lobbyist in
the budget for next year, staff has received five proposals for those
services and hopes to have someone on board by mid December to do
some pre-session work.
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Regional
The King County Executive is planning to veto Thursday a 2.6 Billion
dollar county budget that was approved by the King County Council. His
main argument is the budget is out of balance and the Council did not
include a 0.2% sales tax transit increase that voters approved a couple of
weeks ago. This action is delaying the adoption of a transit fare increase
and the councils own budget has gone up about 1 million dollars. The
Council's budget included a revival of the third shift bookings of the
Regional Justice Center, which the County Executive does not support.
The County Council has a response that the budget is not out of balance,
that it's all a dispute about the level of property tax; and that the lack of
balance between expenditures and revenues is only temporary and some of
these fares increases and tax related ordinances will be adopted later on.
EMS Sims's plans to veto a revenue ordinance, which he believes collects
$1.1 million less than allowed by a voter approved levy. Sims suggestion
may involve disbanding the current taskforce in which the City is a
member.
c)
Chamber 2000 Tourism Program Update
Presented by Delores Shull
The Chamber of Commerce is looking at how to attract more people to the
Federal Way downtown area. One way they are doing this is with a
downtown Federal Way map. The map will be available January 2001.
The map will be given to the regional and state event planners, hotels, and
regional kiosks along with Chamber of Commerce information guides.
The Chamber of Commerce is redeveloping their website to be the
Intemet portal for anything about Federal Way. They are also working on
setting up an on-line reservation systems, updating the quarterly What's
Happening Events calendar. They are also giving out Celebrate Federal
Way bonus dollars. In addition Federal Way will have a full-page ad in
the Washington Visitor's Guide coming out in 2001.
A new item is the Tourism Enhancement Grant. The grant is designed to
provide start-up funding for new events that will attract visitors (i.e.
sporting events.) The application deadline for the grant was October 31,
currently them has been two grant applications received, one is for a girl's
softball team and one for an adult softball team.
d)
Sign Incentive Program/Reimbursement Extension
Presented by Kathy McClung
The Sign Incentive Program would like to extend a deadline for all of the
applicants who signed up for the sign compliance program through the
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e)
former Economic Development Executive and applied for any required
sign permits before the February 28, 2000 deadline, or received final
inspection approval for any new signs.
Question was raised about the scope of the extension, whether people
would be permitted to apply for the new application or just for those
already applied, but who did not get the reimbursement request in time.
Kathy McClung responded that it is for the people who had signed up for
the sign incentive program and applied for their sign permit before the
deadline date, but for some reason, they did not get their paperwork turned
in or remit by August 31. Many property and business owners have
requested an extension due to extenuating circumstances that prevented
them from submit for reimbursement in time.
MOTION TO APPROVE TO FORWARD TO FULL COUNCIL
FOR APPROVAL MADE BY JEANNE BURBIDGE, SECONDED
BY MICHAEL HELLICKSON. MOTION CARRIED - FORWARD
TO DECEMBER 19TM COUNCIL.
Nextel Lease at BPA Tower
Presented by Bob Sterbank
Nextel would like lease space under and on the BPA tower at the open
space at Madrona Meadows. The lease would permit Nextel to install six
wireless communication panels and a microwave dish on the BPA tower,
and an equipment shed at the base of the tower, standing on an existing
equipment shed installed by another wireless provider.
This lease is different than those Council has reviewed before. Nextel has
already installed the panels and the microwave dish. This occurred
through miscommunication with BPA if a lease was required.
The second challenge is a unique situation where there is already
equipment installed by another wireless provider and this is an open space
parcel where structures are not permitted. Nextel came up with a solution
of stacking one on top of the existing shed. This will be a short two-story
structure, shy of twelve feet high. This will be required to promote Type
III landscaping for screening.
The City is asking that rent be set at $1500/mo. instead of the normal rate
of $975/mo. This is based on our market research which indicates the
rates are running from $1500 to $2000 a month. Nexteljust entered into a
contract in Mercer Island for $1500/mo. After comparing rates charged by
other cities in similar situations, we feel this comparable.
A-4
The third issue is the City's request of written consent prior to assignment
of the lease.
Brian Andreise of Nextel introduces the two issues of the company's
concerns are: 1) the rent at $1500 a month; 2) the requirement of the
City's consent prior to assign the lease interest.
Jodi Bourg will present the reasons with the assignment issues.
Ms. Bourg stated their concern is that, the proposed provision lacks
definition or standards; and that they cannot bind a future successor for
such conditions. Nextel would like to go back to the original language
they first agreed to without the consent provision. Nextel needs the
flexibility in,the event they are acquired or they merge with another
company.
Member Hellickson commented that he is not concemed about of the
future third party's approval of the terms, as they will have a chance to
review/consider lease agreements prior to their decision to acquire the
interest; but he is sympathetic of Nextel's desire to have established
definition and set standards for the consent, so they can have more
certainty of City's decision.
Discussion ensued and Member Hellickson asked the potential down side
of not having the consent request in the agreement.
Bob Sterbank replied that this industry has a lot of changes and mergers,
without consent, the City may not know who is responsible for, or if they
have the finance capability or the technical skills to fix the problem.
Nextel then raised a concern with the 45 day City response period for the
consent. Nextel believes this is too long, and that the 45 days does not
start until the City has received all the information requested.
Chair Gates stated that our main concern is for the life safety of our
citizens and we have to know who is the liable party if for some reason the
tower fall down due to weather or earthquake. With all of the mergers,
takeovers that occur with wireless companies we need to make sure we
have a contract with whomever occupies the City property.
Brian Andreise commented on the rent price and why Nextel would like to
propose a different rate. Nextel has been paying $350-750 a month for
similar sites in Federal Way, and that this lease is for air space (since no
additional foot print is involved for the use of the shed) not land, which
presumably has less or no value. Nextel would like to propose $975 a
month as theyare paying at Sacajawea.
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Nextel feels it is pre-mature for full Council to consider this agreement as
Nextel may not agree to this agreement, and there are one to two more
issues they have not raised yet.
Chair Gates summarized the committee's direction, that the staff should
review and incorporate language to: 1) Define standards and process the
City will consider, such as health and safety, financial stability when
issues/withheld consent; 2) When the 45-day period will start when the
agreement is considered by Council on December 19.
MOTION TO CARRY LEASE TO FULL COUNCIL WITH STAFF
CHANGE BY MICHAEL HELLICKSON AND SECONDED BY
JEANNE BURBIDGE. MOTION CARRIED.
2001 Solid Waste & Recycling Services Option & Procurement
Presented by Rob Van Orsow
The current Solid Waste Franchise/Service Contract expires at the end of
2001. Staff is seeking directions/comments from Council of the following
proposed process in selecting a new service contract. The proposed
process will start with the developing and reviewing operating cost models
that will determine current and future operating cost and the different
ways of servicing our different kind of customers in Federal Way. With
this information, we will be able to design a rate model which can be used
to evaluate bids/proposals. The Council would then be able to select a
compensation and rate adjustment methodology either tying the increases
to the contractor's profit margin or indices like CPl.
The second decision component Council will be considering is the service
provider procurement process. This would entail reviewing service
options, sample contracts and methods We would use to go out to procure
a vendor.
The final step would be in approving the actual successful proposal.
Staff would like to come back to FEDRAC at the January 2001 meeting,
with the development and review of operating cost models and
compensation methodology.
Chair Gates requested staff to collect compensation methodology and rate
adjustment process used by other cities and present the information at the
January 2001 FEDRAC meeting as well.
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g)
h)
MOTION TO MOVE STAFF RECOMMENDATION CHANGING
THE DATE TO THE CITY COUNCIL IN JANUARY 2001 BY
JEANNE BURBIDGE AND SECONDED BY MICHAEL
HELLICKSON. MOTION CARRIED. IT WAS CLARIFIED THAT
THIS STAFF REPORT CAN BE FORWARDED TO FULL
COUNCIL IN DECEMBER 2000.
Historical Society - Proposed Use of the $5000 Lodging Tax
Presented by Ed Opstad
The Historical Society proposes to use the $5000 Lodging Tax funds to
erect four historical markers at the following locations: The previous
Federal Shopping Way Mall (current Pavilion Center), Federal Way High
School, Evergreen Landing Strip, John Conna Homestead near the
Aquatic Center.
Member Hellickson questioned if, and the percentage of the cost will be
privately funded.
Ed Opstad replied that will depend on the total cost of the project, which is
currently estimated at somewhere between $6,000 to $7,000. They are not
sure of where the funding will come from; it may be from a private source
or maybe from King County.
Member Hellickson inquired if this has been through the Lodging Tax
Committee?
Iwen Wang replied that the initial funding proposal went through the
Lodging Tax Committee and full Council in 1999. This is the detail
portion of what the money is going to be used for.
MOTION TO MOVE THE PROPOSED USE FROM THE
HISTORICAL SOCIETY BE MOVED TO FULL COUNCIL ON
DECEMBER 19, BY JEANNE BURBIDGE AND SECONDED BY
MICHAEL HELLICKSON. MOTION CARRIED.
Acceptance of Facility & Tourism Study and the 2001-2004 Tourism Plan
Presented by Iwen Wang
Iwen stated the final Facility Report is consistent with the previous drafts,
which had gone through a number of committee reviews. She then
presented the accompanying 2001-2004 Tourism Action Plan for
committee review/comment.
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Question was raised if the Lodging Tax Advisory Committee will be
overseeing the implantation and the staff assignment for the various action
items.
Iwen responded that the details of the implantation plan are still to be
developed, including staffing assignment. As to monitoring of the
progresses, the ultimate oversight responsibility rest with the City Council.
However, the Lodging Tax Advisory Committee is very interested in the
plan and wants to continue to be involved in the implantation process.
Chair Gates suggested that when appropriate Lodging Tax Advisory
Committee be invited to FEDRAC for joint meetings, so we can have their
involvement and input while minimizing meeting and associated staff
time.
MOTION TO MOVE FINAL REPORT AND TOURISM ACTION
PLAN TO FULL COUNCIL FOR APPROVAL BY MICHAEL
HELLICKSON AND SECONDED BY JEANNE BURBIDGE.
MOTION CARRIED.
2000 Year End Budget Adjustment
Presented by Iwen Wang
The year-end budget adjustment is $11,407,515. The General & Street
Fund Operations expenditure adjustment total is $593,324, all are reviews
supported activities. Capital project adjustments total is $10,705,319
primarily to recognize grants and impact fee revenues received.
Proprietary Funds adjustment total $167,821. It was highlighted that Mail
& Duplication Services requires an adjustment of $18,000 due to staff
underestimated Muni-Court's needs in this area. This adjustment does not
change the overall existing Mm-Court general fund budget.
MOTION TO MOVE TO FULL COUNCIL ORDINANCE ON
DECEMBER 5TM BY JEANNE BURBIDGE AND SECONDED BY
MICHAEL HELLICKSON. MOTIONED CARRIED.
Vouchers
Presented by Marie Mosley
Marie presented the vouchers for approval. Chair Gates questioned page
19 of the vouchers - Golf Lessons offered to general public. Made replied
it was the Parks programs.
MOTION TO MOVE TO FULL COUNCIL FOR APPROVAL
BY MICHAEL HELLICKSON, SECONDED BY JEANNE
BURBIDGE.' MOTION CARRIED.
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k)
Monthly Financial Report
Presented by Marie Mosley
Marie reviewed the Monthly Financial Report with the Committee. She
highlighted on the sales, utility, and gambling taxes. Also reviewed the
attached Summary of Sources and Uses of Operating Funds.
MOTION TO MOVE TO FULL COUNCIL ON DECEMBER 5TM
BY JEANNE BURBIDGE AND SECONDED BY MICHAEL
HELLICKSON. MOTION CARRIED.
4. COMMITTEE REPORT
None.
o
NEXT SCHEDULED MEETING
December 11, 2000 at 2:00 p.m. in the Mt. Baker Conference Room.
ADJOURN
Chair Mary Gates adjourned the meeting at 3:55 p,m.
Recorded by Jeri-Lynn Clark
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CITY OF FEDERAL WAY
MEMORANDUM
Date:
To:
From:
Via:
Subject:
December 6, 2000
Finance, Economic Development and Regional Affairs Committee
Bob C. Sterbar~,-~lty Attorney
David Moseley, City Manager
Proposed Lease for Enchanted Parks Parking Lot and Landscaping-Milton Road
South
Baci~round:
Enchanted Parks has requested a lease of a certain portion of the Milton Road South fight-of-way
owned by the City of Federal Way. A portion of Enchanted Parks' existing parking lot, and
landscaping improvements, are located within the City's fight-of-way. Enchanted Parks
previously leased this property from King County, and the City acquired the Milton Road fight-
of-way in 1998 when it annexed the Enchanted Parks property. The majority of the Enchanted
Parks improvements are located outside of the area that the City would need to construct
sidewalks and other improvements to meet the street section requirements set out in the
Comprehensive Plan for Milton Road South.
Enchanted Parks desires to execute a lease with the City, similar to its previous lease with King
County. The basic terms of the proposed franchise are as follows:
1. Use.
The lease would Enchanted Parks to use the property only for perimeter landscaping, its
existing signs, and its existing parking facility. Any other use would require prior written
consent from the City.
2. Consideration
Enchanted Parks will .pay the City rent, in art annual lump sum based on $.00647 per
square foot per month. This is based on a year 2000 CPI adjustment of the rent that Enchanted
Parks paid King County prior to annexation. In addition to the rent, Enchanted Parks will pay
back rent in the amount of $11,883.82, dating approximately from the date of annexation (March
3, 1998) until the proposed lease date (Janum3r 1, 2001).
3. Insurance
Enchanted Parks will maintain insurance of $2 Million combined single limit, $5 Million
in the aggregate, for both commercial general liability and automobile insurance.
4. Term
The term of the lease will be three years, with annual renewal terms at the discretion of
the City.
5. TerminatiOn
The proposed lease permits the City to terminate the lease on 30 days notice if all or any
portion of the leased premises are needed for or to facilitate right-of-way improvements. The
lease will also be terminated as to any portions of the right-of-way vacated by the City under the
street vacation provisions of the City code. The lease calls for Enchanted Parks to submit a
petition for vacation of the portion outside the area needed for future right-of-way improvements,
within six (6) months of the date of the lease.
Committee Recommendation:
Staff requests that the committee forward the proposed lease to the full City Council, with
a "do pass" recommendation.
:APPROVAL .BY COMMITTEE:
'.' C.ommitt~e Chair
Co m mittee ,Mem ber~: ..
Committee Member
K:\telecom\fedracenchpks 1123.doc
LEASE AGREEMENT
1. PARTIES.
THIS LEASE dated the 1st day of January, 2001, is between the CITY OF
FEDERAL WAY, a non-charter optional municipal code city organized and existing
under the laws of the State of Washington, Lessor C'City"), and ENCHANTED PARKS,
INC., a Washington corporation ("Lessee").
2. PREMISES.
The City hereby leases to Lessee, upon the following terms and conditions, the
premises ("Premises") locat&d in the City of Federal Way, King County, Washington.
The Premises are comprised of approximately 83,489 square feet, and are legally
described as follows:
(See EXHIBIT A attached.)
The parties acknowledge that the Premises are a portion of the Milton Road South
owned by the City and over which the City exercises governmental authority
pursuant to, inter alia, RCW 35A.47 and RCW 47.24, and Federal Way City
Code ("FWCC") Chapter 13.
3. TERM.
This Lease term shall be for three (3) years unless terminated sooner pursuant to
Paragraph 10, or other provisions, of this Agreement. Upon the mutual written
agreement of the parties, this Lease may be renewed for one (1) year renewal terms.
Consent to renewal shall be at the sole discretion of the City.
4. RENT.
A. Rental Rate.
Lessee shall pay the City an annual rent of .00647 Dollars ($ .00647) per square
foot per month per year, for a total of Six thousand, four hundred eighty-two and eight
one-hundredths Dollars ($ 6,482.08), payable in advance on or before the first (lst) d~ay
of each year of the Lease term. All rents shall be made payable to City of Federal Way
and are to be received at the following address:
Director of Management Services
City of Federal Way
P.O. Box 9718
Federal Way, WA 98063-9718
Lease Agreement
#128551 15361-4 2r6v01!.doc 12/6/00
Page I
Said rental is exclusive of any sale, franchise, business or occupation,, leasehold, or other
tax based on rents. Should any such taxes apply during the life of this Lease, the rent
shall be increased by such amount.
B. Back Rent.
On or before the date of this Lease, Lessee shall pay to the City back rent in the
amount of .00647 Dollars ($ .00647) per square foot per month, pro rated from March 1,
1998 to January 1, 2001, for a total of $11,883.82.
C. Annual Rent Increase.
The rent shall be increased each year throughout the term of this Lease, and
renewal terms (if any), by the amount of inflation as determined by the Consumer Price
Index - Washington. Rent iricreases pursu~.t to this paragraph shall commence on the
first year following the beginning of the term of this Lease.
4. SECURITY AND DAMAGE DEPOSITS.
At the time of the signing of this Lease, the Lessee shall pay the first year's rent.
In addition, the Lessee shall deposit with the City the sum of six (6) months' rent as a
security deposit for the payment of rent.
5. USE.
Lessee shall use said premises for the following purposes and no other without
prior written consent of the City:
Perimeter landscaping, existing signs, and existing parking facility.
6. GENERAL TERMS AND CONDITIONS.
Attached hereto as EXHIBIT B and incorporated herein by reference are "Federal
Way General Terms and Conditions," which shall govern the obligations and
performance of the parties under this Lease.
7. ENTIRE AGREEMENT - AMENDMENTS.
This printed Lease together with the "Terms and Conditions" attached as Exhibit
B, and any and all Exhibits expressly incorporated herein by reference and attached
hereto shall constitute the whole agreement between the parties. There are no terms,
obligations, covenants or conditions other than those contained herein. No modification
or amendment of this Lease shall be valid or effective unless evidenced by an agreement
in writing signed by both parties.
8. NOTICES.
Required notices, except legal notices, shall be given in writing to the following
Lease ,4greement
#128551 15361.4 2r6vOl!.doc 12/6/00
Page 2
respective address:
To The City:
City Manager
City of Federal Way
33530 First Way South
Federal Way, WA 98003-6210
With a copy to:
City Attorney
City of Federal Way
33530 First Way South
Federal Way, WA 98003-6210
To Lessee:
Enchanted Parks, Inc.
36201 Enchanted Parkway South
Federal Way, WA 98003
With a copy to:
Jerome L. Hillis
Hillis Clark Martin & Peterson, P.S.
500 Galland Building
1221 Second Avenue
Seattle, WA 98101-2925
Or to such other respective address as either party hereto may hereafter, from time to
time, designate in writing. Notices sent by mail shall be deemed to have been given
when properly mailed.
10. TERMINATION
A. Maintenance or Modification of City Right-of-Way Improvements.
In the event the City desires to undertake any work, including necessary
maintenance, modification, or expansion of improvements located or to be located within
the Milton Road right-of-way (including but not limited to that portion of the right-of-
way constituting the Premises) (''City Work"), and such City Work necessitates City use
of all or any portion of the Premises, the City may terminate this Lease as to the portion
of the Premises necessitated for the City Work. The City shall provide written notice of
the termination to Lessee thirty (30) days prior to the termination date, and shall provide
Lessee with copies of pertinent portions of the City's plans and/or specifications, if
available, so that Lessee may relocate any existing improvements installed by Lessee, if
permitted by the City under Paragraph 3.B of the General Terms and Conditions attached
as Exhibit B hereto. Any such relocation permitted by the City shall be at Lessee's sole
cost and expense. No later than the date identified in the City's written notice of
termination, '~he Lessee shall surrender the Premises, or portion thereof necessitated for
the City Work, as provided in Paragraph 10 of the General Terms and Conditions
attached as Exhibit B hereto.
B. Vacation of Right.of-Way.
Lease Agreement
#128551 15361-4 2r6v011.doc 12/6/00
Page 3
In the event the City vacates all or a portion of the Premises pursuant to the
FWCC, this Lease shall be terminated for that portion of the premises vacated.
Termination shall be effective upon the effective date of the vacation ordinance adopted
under FWCC Section 13-103, as existing or as hereafter amended.
C. Default.
The City may terminate this Lease in the event of default of Lessee of any of the
covenants or agreements contained herein, or contained in the General Terms and
Conditions attached hereto as Exhibit B. Termination for default shall be as provided in
Paragraph 11 of Exhibit B.
11. VACATION OF RIGHT-OF-WAY.
On or before six (6) months from the date of this Lease, Lessee agrees to file with
the City a petition for vacation of that portion of the Premises located eastward of the
easternmost boundary of improvements proposed for Milton Road South, as contained in
the City of Federal Way Comprehensive Plan, Chapter , page __ Lessee also agrees
to diligently pursue vacation of said portion of the Premises by promptly taking all
actions necessary therefore, including but not limited to payment of the compensation
determined by the City under Section 13-103(5) of the FWCC to be owed for the m-be-
vacated portion of the Premises. Lessee shall make such payment within sixty (60) days
of the City's determination (under Section 13-102 of the FWCC) to grant the petition for
vacation as to that portion of the Premises located.
IN WITNESS WHEREOF, the parties hereto have subscribed their names as of the
day of ,2000.
LESSEE:
ENCHANTED PARKS, INC.,
a Washington corporation
By
Jeffrey Stock
Its President
LESSOR:
CITY OF FEDERAL WAY,
a Washington municipal corporation
By
Name
Title
Lease Agreement
#128551 15361-4 2r6v01!.doc 12/6/00
Page 4
APPROVED AS TO FORM:
By
Title
Lease Agreement
#128551 153614 2r6v01!.doc 12/6100
Page 5
EXHIBIT A
LEGAL DESCRIPTION
[To be prepared by ESM.]
Lease Agreement- Legal Description
/1128551 15361-4 2r6vOl!.doc 12/6/00
Exhibit A
EXHIBIT
A PORTION OF THE SW 1/4 OF SECTION 28.
TWP. 21~ N., RGE. 4 r., W.M.,
KING COUNTY, WASHINGTON
11
SCALE: 1 "--100'
lIGHT-OF-WAY
ROADWAY
BE: GN[N
R.O.W.
TO BC VACATED
S.F+ )
LEASE AREA
s,r. ~)
IN£
NOT£:
THIS EXHIBIT IS ~A~r0 ON (STABLISH[0 80UNDARY
UNE INFORMATION FOR ENCHANT[0 PN~KS, CONTROCLEO
LOW-L~L A[R~. TOPOGR, APHC SUR~;Y ~FORUAT~.
ANO FUTURIr ROADWAY IMPROV[M~'NTS AS O[TrRMIN[0 BY
KeN M#.L[R AT THr CI~Y Of' fEDeRAl. WAY. AD0fTION~
IN~ORMATIG~4 IS N[£~O TO ~CURAT[LY SHOW fUTURE:
I~AY IMPrOVeMENTS SO4./TH O~' TH[ UMITS SHOWN
TH( ~flSJOf: HATCH[O ,Kqc'K Or' TI~ rUTUR[ ~UPRI~V~Ud[m*S
R[PR[S[NTS FUTUI~ PAV~UrNT tJ~TS. THr NARROW
UNSHAD(O ARF..A I~PRI[S[NTS THE FUTUR~ P~J4TF,.R
STRIP° ANO THr NM~OW HATO41rO AR[AS ALONG TH[
OUTSK~ R[P~SENT FUTU~ S~0(WAI.KS,
CI1'XI7' R~OUC[0 ~ ,A,q[ HOT TO SCAJ.[)
11-7-02
[X~TWG
R.O.W.
EXISTING
R.O.W.
OI.YUPIC OIL PIP[I.INr lAS[Id[tiT
RIGHT HANO TURN LAN[ AT
I~IT[RSrCTION (MILTON RO. S. &
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(T~[~S t2' TO o')
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PROPOSE0 RIGHT HA~D
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GON~UI, TING ENGINEERS LLO
720 8. 348th 8Ir®et I · I I, 1
Federid Way, WA 98003
~01H[U. (425) 415-0144
www.esmcivil.com ~.[~nTO. (~) ?.-~TS
Public Workl Projec[ Monogement Londlcope ~chltecture
JOB NO.
DRAWING NAM[ :
DATE :
0RAWN :
SHEET I OF' I
6,3-10-O00-002
EXH-LEASE3.DWG
2-05-OO
AW
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EXHIBIT B
CITY OF FEDERAL WAY
GENERAL TERMS AND CONDITIONS
1. LATE PAYMENT, TAXES, AND LICENSES.
A. LATE PAYMENTS.
There will be a late collection charge of twelve percent (12%) of the rent, per annum, for
any delinquent rental not delivered to the City of Federal Way (the "City") by the tenth
(10th) of the month in which rent is due.
B. LICENSE AND TAXES.
Lessee shall pay throughout the term of this Lease, all applicable taxes and all license and
excise fees covering the business conducted on the premises.
C. OTHER CONSIDERATION.
No offset, reduction, or credit toward rent shall be allowed unless it is in writing and
signed by the City Manager of the City.
2. COMPLIANCE WITH ALL LAWS AND REGULATIONS.
In using the premises, Lessee will comply with all applicable laws, ordinances,
and regulations of any and all authorities having jurisdiction. Lessee specifically agrees
to comply, and pay all costs associated with achieving such compliance, without any
notice of requirements from the City, and that the City does not waive this section by
giving notice of demand for compliance in any instance.
3. IMPROVEMENTS AND ALTERATIONS.
A. Lessee shall make no alterations or improvements to or upon the
premises, or install any fixtures (other than trade fixtures which can be removed without
injury to the premises) without first obtaining written approval from the City.
B. Unless otherwise stipulated, all improvements or alterations
existing, erected or made on the premises shall, upon expiration or earlier termination of
this Lease, belong to the City without compensation to Lessee, however, the City shall
have the option, to be exercised on expiration or earlier termination of the Lease, to
require Lessee, at Lessee's expense, to remove any or all such improvements or
alterations.
General Terms and Conditions
#128604 15361-4 2r8cOi!.doc 12/6100
Exhibit B ~ Page I
4. CONDITION OF PREMISES.
Lessee has inspected and knows the condition of the premises and it is understood and
agreed that the premises are leased on an "as is" basis without any obligation on the part
of the City to make any changes, improvements, or to incur any expenses whatsoever for
the maintenance or repair of the premises.
5. CONSTRUCTION DEFECTS.
The City shall not be liable to Lessee for claims or damages arising from any defect in
the construction of or the present condition of the premises, whether known or unknown,
or for damage by storm, rain, or leakage or any other occurrence.
6. MAINTENANCE.
A. Lessee shall, throughout the term of this Lease without cost or
expense to the City, keep and maintain the leased premises and all improvements,
landscaping, fixtures, and equipment which may now or hereafter exist thereon, in a neat,
clean, and sanitary condition and shall, except for reasonable wear and tear, at all times
preserve the premises in good and safe repair. Upon the expiration or sooner termination
of the Lease, Lessee shall forthwith remm the same in as good condition as existed at the
commencement of occupancy (ordinary wear and tear excepted).
B. If, after thirty (30) days' notice from the City, Lessee fails to
maintain or repair any part of the leased premises or any improvement, landscaping,
fixtures or equipment thereon, the City may, but shall not be obligated to, enter upon the
leased premises and perform such maintenance or repair, and Lessee agrees to pay the
costs thereof to the City upon receipt of a written demand. Any unpaid sums under this
paragraph shall be payable as additional rent on the next rent payment date due following
the written demand and will bear interest at the maximum rate allowed by Washington
State Law.
7. INDEMNITY AND HOLD HARMLESS.
Lessee agrees to indemnify and hold the City harmless as provided herein to the
maximum extent possible under law. Accordingly, Lessee agrees for itself, its
successors, and assigns, to defend, indemnify, and hold harmless the City, its appointed
and elected officials, and employees from and against liability for all claims, demands,
suits, and judgments, including costs of defense thereof for injury to persons, death, or
property damage which is caused by, arises out Of, or is incidental to Lessee's exercise of
rights and privileges granted by this Lease. Lessee's obligations under this section shall
include:
(a) Indemnification for such claims whether or not they arise fi.om the
sole negligence of either the City or Lessee, the concurrent negligence of both parties, or
the negligence of one or more third parties;
General Terms and Conditions
//128604 15361-4 2r8c'Ol!.doc 12/6/00
Exhibit B- Page 2
(b) The duty to promptly accept tender of defense and provide defense
to the City at Lessee's own expense;
(c)
Indemnification of claims made by Lessee's own employees or
agents; and
(d) Waiver of Lessee's immunity under the industrial insurance
provisions of Title 51 RCW, of which the waiver has been mutually negotiated by the
parties.
In the event it is necessary for the City to incur attorney's fees, legal expenses or
other costs to enforce the provisions of this section, all such fees, expenses and costs shall
be recoverable from Lessee.
In the event it is detehnined that RCW 4.24.115 applies to this Lease, Lessee
agrees to defend, hold harmless, and indemnify the City to the maximum extent permitted
thereunder, and specifically for its negligence concurrent with that of the City to the full
extent of Lessee's negligence. Lessee agrees to defend, indemnify, and hold harmless the
City for claims by Lessee's employees and agrees to waiver of its immunity under
Title 51 RCW, of which waiver has been mutually negotiated by the parties.
8. LIABILITY INSURANCE.
Lessee shall procure and maintain for the duration of this Lease, insurance against claims
for injuries to persons or damages to property which may arise from, or in connection
with Lessee's operation and use of the rental premises.
A. MINIMUM SCOPE OF INSURANCE.
Coverage shall be at least as broad as:
Insurance Services Office Form No. GL0002 (ED.1/73) covering
Comprehensive General Liability, and Insurance Services Office Form
No. GL0404 covering Broad from Comprehensive General Liability; or
Insurance Services Office Commercial General Liability Coverage
("Occurrence" form #CG0001).
B. MINIMUM LIMITS OF INSURANCE.
Lessee shall maintain limits no less than:
Comprehensive General Liability: $2,000,000.00 per occurrence, and
$5,000,000.00 in the aggregate, for bodily injury, personal injury, and
property damage.
Automobile: $2,000,000.00 per occurrence, and $5,000,000.00 in the
aggregate, for bodily injury, personal injury, and property damage.
General Terms and Conditions
#128604 15361-4 2rS¢01!.doe 12/6/00
Exhibit B ~ Page 3
C. DEDUCTIBLES AND SELF-INSURED RETENTIONS.
Any deductibles or self-insured retentions must be declared to and
approved by the City. At the option of the City, the insurer shall reduce or eliminate such
deductibles or self-insured retentions. In no event shall the deductible or self-insured
retention exceed $5,000.00.
D. OTHER INSURANCE PROVISIONS.
The policy is to contain, or be endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, and volunteers
are to be covered as insured as respects liability arising out of premises rented or used by
Lessee.
2. Lessee's insurance coverage shall be primary insurance as
respects the City, its officers, employees, and volunteers. Any insurance or
self-insurance maintained by the City, its officers, officials, employees, or volunteers
shall be excess of Lessee's insurance and shall not contribute with it.
3. Any failure to comply with reporting provisions of the
policy shall not affect coverage provided to the City, its officers, officials, employees, or
volunteers.
4. Coverage shall state that Lessee's insurance shall apply
separately to each insured against whom claim is made or suit is brought except with
respect to the limits of the insurer's liability.
5. Insurance policy shall be endorsed to state that coverage
shall not be suspended, voided, cancelled, reduced in coverage or in limits, except after
thirty (30) days' prior written notice by certified mail, return receipt requested, has been
given to the City.
E. ACCEPTABILITY OF INSURERS.
Insurance is to be placed with insurers with a Bests' rating of no less than
F. VERIFICATION OF COVERAGE.
Lessee shall furnish the City with certificate(s) of insurance and with original
endorsement(s) effecting coverage required by this contract. The certificate and
endorsement for each insurance policy are to be signed by a person authorized by that
insurer to bind coverage on its behalf. The certificates and endorsements or each
insurance policy are to be provided by the City and are to be received and approved to the
City before occupancy commences. The City reserves the right to require complete
certified copies of all required insurance policies at any time.
General Terms and Conditions
#128604 15361-4 2rS¢01!.do~ 12/6/00
Exhibit B ~ Page 4
9. RELEASE AND WAIVER.
To the extent a loss is covered by insurance in force, and to the extent the City is not
indemnified for such loss by Lessee under Section 7 above, the Lessee hereby releases
the City from liability and waives all right of recovery against the City for any loss from
perils insured against under the City's respective fire or comprehensive general liability
insurance policies, including any extended coverage endorsements hereto; provided, that
this Lease shall be incapable if it would have the effect of invalidating any insurance
coverage of the City.
10. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease, Lessee shall promptly surrender
possession of the premises to the City.
:
11. DEFAULT AND RE-ENTRY.
If any rents above reserved or other obligations provided herein, or any part thereof shall
be and remain unpaid when the same shall become due, or if Lessee shall violate or
default on anyof the covenants and a~eements herein contained, the City may cancel
this Lease upon giving the notice required by law and re-enter said premises using such
force as may be required.
12. ASSURANCE OF PERFORMANCE.
In the event of a default in the performance of any obligation under this Lease that
remains uncured for more than ten (10) days after demand, the City may request and
Lessee shall provide adequate assurance of the future performance of all obligations
under this Lease. The adequacy of any assurance shall be determined according to
commercially reasonable standards for Lessors of real property in the County of King,
State of Washington. Adequate assurance shall include, but not be limited to, a deposit in
escrow, a guarantee by a third party acceptable to the City, a surety bond, or a letter of
credit. Lessee's failure to provide adequate assurance within twenty (20) days of receipt
shall constitute a material breach and the City may in its discretion terminate this Lease.
13. ADVANCES BY THE CITY FOR LESSEE.
If Lessee fails to pay any fees or perform any of its obligations under this Lease other
than payment of rent, the City will mail notice to Lessee of its failure to pay or perform.
Twenty (20) days after mailing notice, if Lessee's obligation remains unpaid or
unperformed, the City may pay or perform these obligations at Lessee's expense. Upon
written notification to Lessee of any costs incurred by the City under this paragraph,
Lessee will reimburse the City within twenty (20) days.
14. NON-WAIVER.
It is hereby agreed that no waiver of any condition or covenant in this Lease or any
breach thereof, shall be taken to constitute waiver of any subsequent breach.
General Terms and Conditions
#128604 15361-4 2rS¢01!.do¢ 12/6/00
Exhibit B ~ Page 5
15. INSPECTION AND "FOR RENT" SIGNS.
The City reserves the right to inspect the premises at any and all reasonable times
throughout the term of this Lease, provided that the City shall not interfere unduly with
Lessee's operations. The right of inspection reserved to the City hereunder shall impose
no obligation on the City to make inspections to ascertain the condition of the premises,
and shall impose no liability upon the City for failure to make such inspections.
16. LIENS.
It is understood and agreed that this Lease is executed and delivered upon the express
condition that Lessee will not and cannot contract any debt or debts for labor, materials,
services, or otherwise which will or may become a lien against the interest of the City in
the premises, or the City hereby denies to Lessee any right, power, or authority to do any
act, or contract any obligati6n or liability which would in any way subject the interest of
the City in the premises to any lien, claim, or demand whatsoever.
17. ASSIGNMENT OR SUBLEASE. Lessee may not assign this Lease nor
transfer occupancy of the Premises or use or ownership of any improvements installed
thereon, in whole or in part, without the prior written consent of City, which may not be
unreasonably withheld. City may inquire into the qualifications and financial stability of a
potential assignee or transferee and reasonably request any information related to such
inquiry and may also condition such approval upon the financial, legal and technical
expertise of a proposed assignee or transferee and upon the resolution of any compliance
obligation under the Lease. If the City has not responded to a written request to assign or
transfer with a decision within forty-five (45) days, City approval shall be deemed given.
Lessee may, however, upon notice to City and without City approval, mortgage or grant a
security interest in any improvements installed on the Premises.
17.
18. CONDEMNATION.
A. The City and Lessee will give to the other immediate written
notice of the receipt of notice of any proceedings with respect to a condemnation and of
any intention of any authority to exercise the power of eminent domain.
B. If all of the premises are taken by any lawful authority under the
power of eminent domain for a period which will end on or extend beyond the expiration
of the term of this Lease, this Lease terminates as of the date condemner takes
possession, and Lessee will have no claim or interest in or to any award of just
compensation except that Lessee will be entitled to an amount equal to the fair market
value of Lessee's leasehold interest in any improvement taken by the condemner made to
the premises by Lessee, but not to exceed the amount of that part, if any, of the award
attributable to the value of the. improvements.
General Terms and Conditions
#128604 15361.4 2rgc01!.doc 12/6/00
Exhibit B ~ Page 6
C. If part of the premises is taken by any lawful authority under the
power of eminent domain for a period which will end on or extend beyond the expiration.
of the term oft_his Lease, the City or Lessee may choose to terminate this Lease as of the
date the condemner takes possession. If neither the City nor Lessee elects to terminate
this Lease, the rent will be reduced in the same proportion that the value of the portion of
the premises to be taken bears to the value of the entire premises as of the date
condemner takes possession. Lessee will have no claim or interest in or to any award of
just compensation or damages except that Lessee will be entitled to an amount equal to
the fair market value of Lessee's leasehold interest in the part taken by the condemner of
any improvements made to the premises by Lessee, but not to exceed the amount of that
part, if any, of the award attributable to the value of the improvements.
D. If temporary use of all or a portion of the premises is taken by any
lawful authority for a period.which would reduce the leasehold and, consequently, would
cause the premises to be untenantable for the use by Lessee for the purposes set forth in
the section of this Lease title "Use," then, at Lessee's determination, the City or Lessee
may choose to terminate this Lease. If the City or Lessee elect to terminate the Lease, the
Lease will terminate the date the condemner takes possession and Lessee will have no
claim or interest in or to any award of just compensation except that Lessee will be
entitled to an amount equal to the fair market value of Lessee's leasehold interest in any
improvements made to the premises by Lessee. If neither the City or Lessee elects to
terminate this Lease, the Lease will continue in full force and Lessee will be entitled to
receive any award form condemner for the use of all or part of the premises, EXCEPT
that Lessee may elect to have the rents reduced by the amount proportionally attributable
to any partial temporary taking, in which event Lessee shall not be entitled to any portion
of the award attributable to said use.
E. It is understood and agreed that Lessee shall not be party to any
negotiation or proceedings at law wherein the City claims compensation other than that
which is defined statutorily as constituting "just compensation."
19. ANTI-DISCRIMINATION.
In all services or activities and all hiring or employment made possible by or resulting
from this Lease, there shall be no discrimination against any employee or applicant for
employment because of sex, age (except minimum age and retirement provisions), race,
color, creed, national origin, martial status, sexual orientation, or the presence of any
sensory, mental, or physical handicap, unless based upon a bona fide occupational
qualifications. This requirement shall apply to but not be limited to the following:
Employment, advertising, layoff or termination, rates of pay or other forms of
compensation, and selection for any of the terms of RCW 49.60, Title VII of the civil
Rights Act of 1964 or any other applicable federal, state, or local law or regulations
regarding non-discrimination. Any violation of this provisions shall be considered a
violation of a material provision of this Lease and shall be grounds for cancellation,
termination, or suspension, in whole or in part of the Lease by the City and may result in
ineligibility for further City agreements.
General Terms and Conditions
#128604 153614 2rScOl!.doc 12/6/00
Exhibit B ~ Page 7
20. HEIRS, AGENTS, AND ASSIGNS.
Subject to and without limiting any provisions of this Lease pertaining to assignment and
subletting, the provisions of this Lease bind the heirs, successors, agents and assigns of
any of the parties to this Lease.
21. CAPTIONS.
The captions in this Lease are for convenience only and do not in any way limit or
amplify the provisions of this Lease.
22. TIME IS OF THE ESSENCE.
Time is of the essence of this Lease, and in the event of the failure of Lessee to pay any
charges at the time in the maimer herein specified, or to keep any of the covenants or
agreements herein set forth, Lessee shall be in default.
23. CUMULATIVE REMEDIES.
No provision of this Lease precludes the City from pursuing any other remedies for
Lessee's failure to perform its obligations. Further, this Lease may be enforced at both law
and equity. Damages are not an adequate remedy for breach.
24. ATTORNEYS' FEES/COLLECTION CHARGES.
In the event legal action is brought by either party to enforce any of the terms, conditions,
or provisions of this Lease, the prevailing party shall recover against the other party in
addition to the costs allowed by law, such sum as the court may adjudge to be reasonable
attorneys' fees.
25. HOLDING OVER.
If Lessee holds over after the expiration or earlier termination of the term hereof without
the express written consent of the City, Lessee shall become a tenant at sufferance only at
a rental rate equal to one hundred fifty percent (150%) of the rent in effect upon the date
of such expiration (prorated on a daily basis), and otherwise subject to the terms,
covenants, and conditions herein specified so far as applicable Acceptance by the City of
rent after sftch expiration or earlier termination shall not result in a renewal of this Lease,
nor affect the City's fight of re-entry or any rights of the City hereunder or as otherwise
provided by law. If Lessee fails to surrender the premises upon the expiration or
termination of this Lease despite demand to do so by the City, Lessee shall indemnify,
defend, and hold the City harmless from ail loss or liability including, without limitation,
any claim made by any succeeding tenant founded on or resulting fi:om the failure to
surrender, and including without limitation any design, engineering, construction or other
costs for construction, installation, modification or alteration of street, sidewalk or related
improvements within the Premises or within the Milton Road South right-of-way,
attributable to or resulting from the failtire to surrender. Lessee's indemnification herein
shall be together with interesti' attorney's fees, and costs.
General Terms and Conditions
#128604 15361-4 2rgcOILdoc 12/6/00
Exhibit B ~ Page 8
26. HAZARDOUS SUBSTANCES.
Lessee shall not without first obtaining the City's proper written approval, generate,
release, spill, store, deposit, transport, or dispose of (collectively referred to as "Release")
any hazardous substances, sewage, petroleum products, radioactive substances,
medicinal, bacteriological, or disease-producing substances, hazardous materials, toxic
substances or any pollutants or substances defined as hazardous or toxic as defined and in
accordance with applicable federal, state, and local laws and regulations in any reportable
quantities ("Hazardous Substances") in, on, or about the premises. In the event, and only
in the event, the City approves such Release of Hazardous Substances on the premises,
Lessee agrees that such release shall occur safely and in compliance with all applicable
federal, state, and local laws and regulations. Lessee shall indemnify and hold the City
harmless form any and all claims, liabilities, lawsuits, damages, and expenses, including
reasonable attorneys' fees (hereinafter "Claim") for bodily injury or death, property
damage or loss, or cleanup ~osts arising out of this Lease to the extent such injury, death,
damage, loss, or costs are caused by the Release by Lessee or any of its agents,
representatives or employees in, on, or about the premises occurring during the term of
this Lease.
Lessee shall be fully and completely liable to the City for any and all clean-up
costs, and any and all other charges, fees, penalties (civil and criminal) imposed by any
governmental authority with respect to Lessee's use, disposal, transportation, generation
and/or sale of Hazardous Substances in or about the premises, common areas, or
buildings. Lessee shall indemnify, defend, and save the City harmless from any and all
of the costs, fees, penalties, and charges assessed against or imposed upon the City (as
well as the City's attorney's fees and costs) as a result of Lessee's use, disposal,
transportation, generation and/or sale of hazardous substances.
Upon Lessee's default under this Section, the City shall be entitled to the
following rights and remedies:
(a) At the City's option, to terminate this Lease immediately; and/or,
(b) To recover any and all damages associated with the default,
including, but not limited to clean-up costs and charges, civil and criminal penalties and
fees, adverse impact on marketing a space in the building, loss of business and sales by
the City and other tenants of the building, diminution of value of the premises and/or
building, the loss or restriction of useful space in the premises and/or building, any and
all damages and claims asserted by third parties and the City's attorney's fees and costs.
General Terms and Conditions ~> Exhibit B ~ Page 9
#128604 153614 2rSe01!.doe 12/6/00 - { ~
27. SEVERABILITY.
If any term or provision of this Lease or the application of any term or provision to any
person or circumstance is invalid or unenforceable, the remainder of this Lease, or the
application of the term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected and will continue in full
force.
END OF GENERAL TERMS AND CONDITIONS
General Terms and Conditions
#128604 15361.4 2rg¢Ol!.do¢ 12/6/00
Exhibit B-- Page 10