HomeMy WebLinkAboutCity Council Committees - Operations Committee - 03/01/2016 (2)
Unless otherwise noted, the Operations Committee meets at 4 p.m. on the first and third
Tuesday of each month in Kent City Hall, Council Chambers East, 220 4th Ave S, Kent, 98032.
For additional information please contact Jennifer Hays at 253-856-5700.
Any person requiring a disability accommodation should contact the City Clerk’s
Office at 253-856-5725 in advance. For TDD relay service call Washington
Telecommunications Relay Service at 1-800-833-6388.
Operations Committee Agenda
Councilmembers: Bill Boyce – Les Thomas – Dana Ralph, Chair
March 1, 2016
4 p.m.
Item Description Action Speaker Time Page
1. Call to order Chair Ralph 1
2. Roll Call Chair Ralph 1
3. Changes to the Agenda Chair Ralph 1
4. Approval of Check Summary Report dated
2/01/2016 thru 2/15/2016
YES Chair Ralph 2
5. Approval of Meeting Minutes Dated
February 16, 2016
YES Chair Ralph 2 1
6. Lease Agreement with Scotch and Vine for
the Riverbend Golf Complex Restaurant -
Recommend
YES Jeff Watling
David Pritchard
10 3
7. Content Management System (Website)
Replacement - Recommend
YES Michelle Wilmot
Tricia Callahan
Greg Sconce
15 45
8. Amended Water Leak Adjustment Ordinance -
Recommend
YES Aaron BeMiller 5 71
9. Director’s Report NO Aaron BeMiller 5 89
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OPERATIONS COMMITTEE MINUTES
February 16, 2016
Committee Members Present: Dana Ralph, Chair; and Bill Boyce. Les Thomas,
excused absence.
The meeting was called to order by D. Ralph at 4:00 p.m.
1. ROLL CALL.
2. CHANGE TO AGENDA.
There were no changes to the agenda.
3. APPROVAL OF THE CHECK SUMMARY REPORT DATED 1/16/2016 THRU
1/31/2015.
B. Boyce moved to approve the check summary report dated 1/16/16 through
1/31/16. D. Ralph seconded the motion, which passed 2-0.
4. APPROVAL OF MINUTES DATED FEBRUARY 2, 2016.
B. Boyce moved to approve the Operations Committee minutes dated February 2,
2016. D. Ralph seconded the motion, which passed 2-0.
5. EMERGENCY MANAGEMENT PERFORMANCE GRANT MOU – RECOMMEND.
City Auditor Robert Goehring made a request to approve a Memorandum of
Understanding between the City and the Kent Regional Fire Authority (RFA) regarding
the Emergency Management Performance Grant (EMPG) that was accepted by the City
in December 2015. The EMPG was awarded by the Washington Military Department in
the amount of $81,876 for the period June 1, 2015 through August 31, 2016.
The purpose of this grant is to assist with the enhancement, sustainment and
improvement of state, local, and tribal emergency management programs. Under
federal grant requirements, regional fire authorities and fire protection districts are not
eligible to receive these grants directly from the Washington Military Department.
B. Boyce moved to recommend Council authorize the Mayor to sign the Memorandum
of Understanding with the Kent Fire Department Regional Fire Authority regarding the
administration of an Emergency Management Performance Grant, subject to final
terms and conditions acceptable to the Finance Director and the City Attorney. D.
Ralph seconded the motion, which passed 2-0.
6. DIRECTOR’S REPORT.
Finance Director Aaron BeMiller updated members on the two bond refunding
opportunities that were discussed earlier this year: 2008 A Series bonds; and, the
Public Facilities District (PFD) sales tax bonds. Finance is recommending moving forward
with the refunding which could bring an approximate $8 million in savings for the City
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Operations Committee Minutes
February 16, 2016
Page: 2
based on July amounts. Once details are worked out with the PFD and the City is
satisfied with the agreements, Mr. BeMiller will bring a formal ordinance to committee
for authorization.
The meeting was adjourned at 4:08 p.m. by D. Ralph.
J. Hays
Jennifer Hays
Operations Committee Secretary
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PARKS, RECREATION AND COMMUNITY SERVICES
Jeff Watling, Director
Phone: 253-856-5100
Fax: 253-856-6050
Address: 220 Fourth Avenue S.
Kent, WA. 98032-5895
DATE: March 1, 2016
TO: Operations Committee
SUBJECT: Lease Agreement with Scotch and Vine for the Riverbend Golf
Complex Restaurant - Recommend
MOTION: Recommend authorizing the Mayor to sign all documents
necessary to enter into a lease agreement with RL Kids LLC, d/b/a Scotch
and Vine, for the restaurant at Riverbend Golf Complex, subject to terms
and conditions acceptable to the Parks Director and the City Attorney.
SUMMARY: The city and Arnold Shain, consultant with Restaurant Group Inc.,
researched and negotiated with a small group of potential restauranteurs to operate
the restaurant facility at the Riverbend Golf Complex. They determined that RL Kids,
LLC, d/b/a Scotch and Vine, was best positioned to successfully operate the
restaurant.
The city then began lease negotiations with Scotch and Vine and recently agreed to
final terms. The attached lease provides for a ten-year lease with one five-year
option to renew. The lease requires payment of eight percent of gross monthly
revenues from restaurant operations, with an established minimum rent. The
restaurant will be open for breakfast, lunch, and dinner 365 days a year, with some
modifications to times of operation during the off-season. The restaurateur will also
provide cart services out on the course during peak golf seasons.
Jeff Watling, Parks, Recreation, and Community Services Director, as well as David
Pritchard, owner of Scotch and Vine, will be in attendance to answer any questions.
EXHIBIT: Draft Lease Agreement
BUDGET IMPACT: The Riverbend Golf Fund
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RIVERBEND GOLF COMPLEX
RESTAURANT LEASE
Between
THE CITY OF KENT,
a Washington Municipal Corporation
as Landlord,
and
RLKids LLC,
d/b/a The Scotch and Vine,
a Washington Limited Liability Company
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TABLE OF CONTENTS
SECTION 1 - BASIC LEASE PROVISIONS AND ENUMERATION OF EXHIBITS ..................................... 1
1.1 Basic Lease Provisions. ...................................................................................................... 1
1.2 Significance of Basic Lease Provisions. .............................................................................. 3
1.3 Enumeration of Exhibits. ..................................................................................................... 4
SECTION 2 - PREMISES ............................................................................................................................. 4
2.1 Premises and Demise-Generally......................................................................................... 4
2.2 Patio Area—Revocable License. ........................................................................................ 4
SECTION 3 – TERM: LANDLORD’S AND TENANT’S WORK .................................................................... 5
3.1 Lease Term ......................................................................................................................... 5
3.2 Landlord’s and Tenant’s Work............................................................................................. 6
3.3 Statement as to Lease Term. .............................................................................................. 7
SECTION 4 - RENT ...................................................................................................................................... 7
4.1 Minimum Rent. .................................................................................................................... 7
4.2 Security Deposit. ................................................................................................................. 7
4.3 Percentage Rent. ................................................................................................................ 7
4.4 Adjustments. ........................................................................................................................ 8
4.5 No Offsets or Deductions/Place of Payment. .................................................................... 10
4.6 Late Charges. .................................................................................................................... 10
4.7 Interest; Insufficient Funds. ............................................................................................... 10
SECTION 5 - USE ....................................................................................................................................... 11
5.1 Permitted Uses. ................................................................................................................. 11
5.2 Uses Prohibited. ................................................................................................................ 11
5.3 Operation of Business. ...................................................................................................... 12
5.4 Compliance with Laws. ...................................................................................................... 12
5.5 Hazardous Material. .......................................................................................................... 13
5.6 Representation and Warranty of Tenant. ........................................................................... 13
SECTION 6 – UTILITIES AND HVAC ................................................................................................. 151514
6.1 Utilities. ...................................................................................................................... 151514
6.2 Non-Liability of Landlord............................................................................................. 151514
SECTION 7 – LEASEHOLD AND PERSONAL PROPERTY TAXES .......................................................... 15
7.1 Tenant’s Obligations. ......................................................................................................... 15
SECTION 8 - LICENSE AND TAXES .................................................................................................. 161615
8.1 Tenant’s Obligations. ................................................................................................. 161615
SECTION 9 - ALTERATIONS .............................................................................................................. 161615
9.1 Acceptance of Premises. ........................................................................................... 161615
9.2 Alterations by Tenant. ................................................................................................ 161615
9.3 Disability Laws. .......................................................................................................... 171716
SECTION 10 - MAINTENANCE OF PREMISES ........................................................................................ 17
10.1 Maintenance and Repair by Tenant. ................................................................................. 17
10.2 Failure to Maintain. .................................................................................................... 181817
10.3 Repairs by Landlord. ................................................................................................. 181817
10.4 Surrender of Premises. ..................................................................................................... 18
10.5 Entry. ................................................................................................................................. 18
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SECTION 11 - LIENS AND ENCUMBRANCES ......................................................................................... 18
11.1 Liens. ................................................................................................................................. 18
11.2 Encumbrances. ......................................................................................................... 191918
SECTION 12 - ASSIGNMENT AND SUBLETTING ............................................................................ 191918
12.1 Assignment or Sublease. .......................................................................................... 191918
12.2 Assignee Obligations. ........................................................................................................ 19
12.3 Sublessee Obligations. .............................................................................................. 202019
12.4 Conditional Consents. ............................................................................................... 202019
12.5 Attorneys’ Fees and Costs. ....................................................................................... 202019
12.6 Excess Rent. ..................................................................................................................... 20
12.7 Transfer of Landlord’s Interest. ......................................................................................... 20
SECTION 13 - COMMON AREAS .............................................................................................................. 20
13.1 Control of Common Areas. ................................................................................................ 20
SECTION 14 - INSURANCE AND INDEMNITY ................................................................................. 212120
14.1 Indemnification. ......................................................................................................... 212120
14.2 Insurance. ................................................................................................................. 222221
14.3 Mutual Release and Waiver of Subrogation. ...................................................................... 22
14.4 Acts of Others. ........................................................................................................... 232322
14.5 Evidence of Coverage Prior to Entry. ................................................................................. 23
SECTION 15 - EMINENT DOMAIN ............................................................................................................. 23
SECTION 16 - TENANT’S DEFAULT ................................................................................................. 242423
16.1 Default. ...................................................................................................................... 242423
16.2 Remedies in Default. ......................................................................................................... 24
16.3 Remedies Cumulative-Waiver. .......................................................................................... 25
16.4 Acceptance of Payment. ................................................................................................... 25
16.5 Waiver of Rights of Redemption. ...................................................................................... 25
16.6 Application of Rents. ......................................................................................................... 25
16.7 Bankruptcy................................................................................................................. 262625
SECTION 17 - DEFAULT BY LANDLORD ......................................................................................... 272726
17.1 Default by Landlord. .................................................................................................. 272726
17.2 Tenant’s Right to Damages. .............................................................................................. 27
SECTION 18 - DESTRUCTION .................................................................................................................. 27
18.1 Damage or Destruction. .................................................................................................... 27
SECTION 19 - ACCESS BY LANDLORD ........................................................................................... 282827
19.1 Right of Entry. ............................................................................................................ 282827
19.2 Excavation. ........................................................................................................................ 28
SECTION 20 - SURRENDER OR ABANDONMENT OF PREMISES ........................................................ 28
20.1 Surrender of Possession. .................................................................................................. 28
20.2 Holding Over. .................................................................................................................... 28
20.3 Voluntary Surrender. ................................................................................................. 292928
SECTION 21 - QUIET ENJOYMENT .................................................................................................. 292928
21.1 Landlord Covenant. ................................................................................................... 292928
SECTION 22 - AUTHORITY OF PARTIES ......................................................................................... 292928
22.1 Authority. ................................................................................................................... 292928
SECTION 23 - SIGNS ................................................................................................................................. 29
23.1 General. ............................................................................................................................. 29
23.2 Tenant’s Interior Signs. ..................................................................................................... 29
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23.3 Sign Requirements. ................................................................................................... 303029
SECTION 24 – DISPLAYS: AUCTIONS AND SALES ....................................................................... 303029
24.1 General. ..................................................................................................................... 303029
SECTION 25 - MISCELLANEOUS ............................................................................................................. 30
25.1 Successors or Assigns. ..................................................................................................... 30
25.2 Tenant Defined. ................................................................................................................. 30
25.3 Broker’s Commission. ....................................................................................................... 30
25.4 Partial Invalidity. ................................................................................................................ 30
25.5 Recording. ................................................................................................................. 313130
25.6 Notices. ...................................................................................................................... 313130
25.7 Plats and Riders; Marginal Headings; Captions. .............................................................. 31
25.8 Waiver. .............................................................................................................................. 31
25.9 Joint Obligations. ............................................................................................................... 31
25.10 Time. .................................................................................................................................. 31
25.11 Inability to Perform. ................................................................................................... 323231
25.12 Choice of Law; Venue. .............................................................................................. 323231
25.13 Legal Expenses. ........................................................................................................ 323231
25.14 Competition. ...................................................................................................................... 32
25.15 Acceptance of Keys. .......................................................................................................... 32
25.16 Landlord’s Consent. .......................................................................................................... 32
25.17 No Light, Air or View Easement. ....................................................................................... 32
25.18 Name. ........................................................................................................................ 333332
25.19 Submission of Lease. ................................................................................................ 333332
25.20 Prior Agreements. ..................................................................................................... 333332
25.21 Construction. ..................................................................................................................... 33
25.22 Financial Statements. ........................................................................................................ 33
25.23 Effective Date. ........................................................................................................... 343433
EXHIBITS
Exhibit A Premises
Exhibit A-1 Depiction of Premises
Exhibit B Landlord Improvements
Exhibit B-1 Landlord’s Improvement Work Schedule
Exhibit C Tenant Improvements
Exhibit C-1 Tenant’s Improvement Work Schedule
Exhibit D Minimum Rent for Extension Period
Exhibit E Insurance Requirements
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RETAIL LEASE
THIS RETAIL LEASE is made by and between the city of Kent, a Washington municipal
corporation (hereinafter referred to as the “Landlord”), and RL Kids LLC, d/b/a Scotch and Vine, a
Washington limited liability corporation (hereinafter referred to as the “Tenant”):
WHEREAS, the Landlord is the owner of certain real property and improvements at the
Riverbend Clubhouse, located at 2019 W. Meeker St., Kent, Washington, 98032, and Landlord intends to
lease a portion of that property, including generally a restaurant dining area, banquet area, kitchen, walk-
in coolers, back offices, and dry storage (the “Leased Premises” or the “Premises”). The Premises are
more particularly described on Exhibit A, attached, and shown on the drawing in Exhibit A-1, attached;
WHEREAS, Landlord desires to lease the Premises to Tenant under the terms of this Lease
agreement and Tenant desires and agrees to take and lease the Premises;
NOW THEREFORE, for and in consideration of the rents reserved and the terms and conditions
in this Lease, the Landlord does rent, demise and lease to Tenant, and Tenant takes and leases from
Landlord the Premises:
SECTION 1 - BASIC LEASE PROVISIONS AND ENUMERATION OF EXHIBITS
1.1 Basic Lease Provisions.
Landlord: The City of Kent, Washington
Landlord’s Address: 220 4th Ave. S.
Kent, WA 98032
Phone: 253-856-5100
Fax: 253-856-6050
Email:
Tenant: RLKids LLC, d/b/a Scotch and Vine
Tenant’s Address:
(For Notice Purposes)
XXX
Tenant’s Address:
(At Leased Premises)
Scotch and Vine at Riverbend
2019 W. Meeker St.
Kent, WA 98032
Tenant’s Permitted
Trade Name:
XXX
Leased Premises:
See Exhibit A and Exhibit A-1, attached
Lease Term:
Ten years plus one five-year option
Possession Date:
Commencement Date:
_____________________, 2016
May 1, 2016
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Termination Date:
Rent Abatement:
Ten years after the Commencement Date, unless the Lease
Term is extended pursuant to Section 3.1(c) below.
Free Rent first 3 months from Rent Commencement
Monthly Rent:
(including escalators;
commencing at end of
90-day Abatement
Period)
Month Minimum
Monthly Rent
Maximum
Monthly Rent
1-3 $0 $0
4-12 $5000.00 $9000.00
13-24 $5000.00 $12,000.00
25-120 $5000.00 Established by
Percentage Rent
Percentage Rent:
Utilities:
Eight percent (8%) of gross sales (as defined in
Subsection 4.3(c)) composed of:
4% true rent
2.5% utilities
1.5% triple net
Included in Rent, in part consideration of 8% Percentage Rent
Leasehold Tax:
Number of Days for Completion of
Landlord’s Work:
Number of Days for Completion of
Tenant’s Work:
Tenant to pay all leasehold tax due under state law, currently
Estimated at 12.84%
_______________
_______________
Security Deposit: $7000.00, to be paid upon Lease execution.
First Month’s Rent: $5000.00, to be paid upon Lease execution and applied to
Minimum Rent for Month four of the Lease Term.
Landlord Improvements:
Tenant Improvement:
Landlord will repair, refurbish, install or construct the items
listed on the Landlord Work List attached as Exhibit B.
Tenant will install or construct improvements generally in
accordance with the plan attached as Exhibit C at an
estimated build-out cost of $300,000 to $350,000.
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Permitted Uses:
Outdoor Seating:
The Tenant will operate the Premises to complement and
enhance the Riverbend Golf Complex golfer and client
experience. Tenant will use the Premises for the operation
of a casual sit down full service restaurant with a Class H
liquor license and full bar serving breakfast, lunch, and
dinner seven (7) days a week. Tenant will provide catering
for golf tournaments and special events, and will provide a
food and beverage cart service at a location and at times as
required and approved by Landlord, which will be expanded
during peak months of the golfing season so as to exceed
golfer’s expectations.
Tenant may, at no additional rent, establish outdoor seating
on the patio area shown on Exhibit A-1 that is adjacent to
the Premises, after first obtaining applicable federal, state,
and local permits or approvals. Excluding any patio
planters, Tenant, at its sole expense, will maintain the patio
in clean, usable condition before, during, and after its use.
Tenant will provide all restaurant amenities, including
without limitation, tables, chairs, waste receptacles, wait
stations, etc.
Exclusive Use: During the initial Lease Term so long as Tenant is not in
default under the Lease, and subject to Section 5.1(b)
below, Landlord agrees that from and after that date
Landlord will not enter into any future lease within the
Riverbend Golf Complex with a tenant whose primary use
is for food or restaurant services.as a full-service sit down
restaurant or for on-site catering. “Full-service sit down” is
defined as a sit down restaurant with table service and wait
staff. Tenant acknowledges and agrees that the Exclusive
Use will automatically term inate and be of no further effect
without notice from Landlord in the event that (i) Tenant
remains in default of the Lease beyond any applicable cure
period, and Tenant is not allowed subsequently to cure the
default; (ii) Tenant discontinues its operations in the
Premises for more than thirty (30) consecutive days (except
in connection with casualty, condemnation, force majeure,
permitted assignment or subletting, periodic remodeling, or
national holidays (collectively, “permitted closures”); or (iii)
subject to the exceptions set forth in subsection (ii) hereof,
Tenant does not operate the Premises for the use
specifically set forth in Section 1.1.
1.2 Significance of Basic Lease Provisions.
Paragraph 1.1 represents a summary of the basic terms of this Lease. In the event of any
inconsistency between the terms contained in Paragraph 1.1 and any specific provision in this Lease, the
terms of the more specific provision will prevail.
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1.3 Enumeration of Exhibits.
The exhibits enumerated in this Section 1.3 and attached to this Lease are incorporated herein by
reference and are to be construed as a part of this Lease. Each party agrees to perform any obligation on
its part stated in any and all exhibits:
Exhibit A Premises
Exhibit A-1 Depiction of Premises
Exhibit B Landlord Improvements
Exhibit B-1 Landlord’s Improvement Work Schedule
Exhibit C Tenant Improvements
Exhibit C-1 Tenant’s Improvement Work Schedule
Exhibit D Minimum Rent for Extension Period
Exhibit E Insurance Requirements
SECTION 2 - PREMISES
2.1 Premises and Demise-Generally.
Landlord hereby leases, rents and demises to Tenant, and Tenant hereby accepts from Landlord, subject
to and with the benefit of the terms and provisions of this Lease, the Premises described in Section 1.1
and generally depicted in Exhibit A-1. The Premises, and the Furniture, Fixtures & Equipment (FF&E)
located therein on the date that the Premises are delivered to Tenant are delivered AS IS WHERE IS.
Landlord warrants it is the owner of the FF&E, free of any claims of third parties. Tenant will pay all
personal property taxes due going forward from the date of this Lease. In addition, Tenant will be
required, at the end of the Lease Term, to leave any affixed FF&E in place (limited to 2 walk-in coolers, 1
walk-in freezer system, and all hoods and venting within the Premises) in the Premises at no cost to
Landlord and in the same condition as at the time of delivery, reasonable wear and tear excepted. The
Premises does not include the space above the suspended ceiling or below the surface of the floor slab;
provided, however, commencing 60 days after the Commencement Date, Tenant will be solely
responsible for the cost of maintaining all systems (such as electrical, lighting, heating and plumbing) or
portions thereof that exclusively serve the Premises, but are located outside the Premises. Landlord
warrants that those systems are in good working condition as of the Commencement Date.
2.2 Patio Area—Revocable License.
Tenant is granted a revocable license to use an area identified as the crosshatched area on Exhibit A-1
(the “Patio Area”) for the purpose of an outdoor seating area, provided that the Tenant’s use does not
violate any governmental rule or restriction, and provided further that Landlord will have the right to
approve the location and design of the Patio Area (including but limited to the partitioning of the Patio
Area), which approval will not be unreasonably withheld. Tenant will, at its sole cost and expense,
comply with all relevant governmental rules, regulations or ordinances and obt ain all necessary permits or
licenses for the same. Tenant’s use and occupancy of the Patio Area will be subject to all of the terms
and provisions of this Lease as if the Patio Area were part of the Premises, including without limitation all
of the insurance and indemnification provisions of the Lease; provided, however, Tenant will not be
obligated to pay any additional Minimum Rent for the Patio Area (but all Gross Sales made from the Patio
Area used by Tenant will be included in determining Tenant’s Percentage Rent obligation under the
Lease). Tenant will at all times when Tenant is using the Patio Area keep the Patio Area in a clean and
neat condition consistent with the standards that would be expected in a first class golf complex.
Landlord, however, will be responsible for landscaping and planters on the patio area, if any. Tenant will
not allow any music or other noise or any odors to emanate from the Patio Area that would unreasonably
disturb any users of the Riverbend Golf Complex or their clients or customers. If Tenant fails to comply
with the requirements of this Section 2.2 after a reasonable written notice and opportunity to cure,
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Landlord will have the right to cure Tenant’s default, and Tenant will reimburse Landlord for any costs
incurred by Landlord as additional rent. Notwithstanding anything to the contrary set forth in this Section
2.2, in the event that Landlord provides Tenant with more than 2 notices of default, and those defaults are
uncured under this Section 2.2 in any calendar year, Landlord will have the right to revoke this revocable
license on written notice to Tenant, which notice will be effective when received by Tenant.
SECTION 3 – TERM, LANDLORD’S AND TENANT’S WORK
3.1 Lease Term
(a) Possession Date. The “Possession Date” will be the date Landlord delivers the
Premises to Tenant with substantial completion of Landlord’s Work (as defined in Section 3.2(a) below),
which will be no earlier than _________________________, 2016.
(b) Commencement and Termination Date. This Lease will be for the term set forth
in Section 1.1 above (hereinafter referred to as the “Term” or “Lease Term “) and will commence April 1,
2016, and the Lease Term will terminate at midnight of the Termination Date set forth in Section 1.1
above (hereinafter referred to as the “Termination Date”). If the Commencement Date occurs on any other
day other than the 1st day of a calendar month, then the Lease Term will be extended to include that portion
of the calendar month necessary for the Termination Date to occur on the last day of that calendar month. If
Tenant fails to surrender the Premises at the end of the Lease Term, or any renewal or extension, Tenant
will be liable for, and will indemnify Landlord against, all claims and demands made by any succeeding
tenants against Landlord founded upon delay by Landlord in delivering possession of the Premises to the
succeeding tenant.
(c) Option to Extend. Provided that no Event of Default exists at the time Tenant
elects to exercise an option, Tenant may extend the Term of this Lease for one (1) period of five years.
Tenant must exercise this right by delivering written notice of Tenant's exercise at least six, but not more
than nine months prior to the expiration of the Term. The extension of the Term will be on the same
terms, covenants and conditions as in this Lease, other than Minimum Rent. Minimum Rent for the
extension period will be as set forth in Exhibit D.
(d) Landlord’s Redevelopment Option. Tenant acknowledges and agrees that,
beginning April 1, 2026, Landlord will have the right at any time upon twelve (12) months’ prior written notice
from Landlord to Tenant during the Option Period (i.e., notice may be given as early as April 1, 2025) to
redevelop all or any part of the Riverbend Golf Complex, which may include demolishing the Building and/or
Premises and rearranging, contracting or expanding the location, size, dimensions and appearance of the
Riverbend Golf Complex, including without limitation, the buildings, structures, other improvement areas and
facilities, and the common areas (and their entranceways and exits), and/or combine the Premises with
space adjacent to the Premises. If Landlord elects to redevelop the Riverbend Golf Complex that results in
the demolition of Tenant’s Premises, then Landlord or Tenant will have the right to terminate this Lease
upon six (6) months written notice.
(1) No Liability for Landlord. Notwithstanding anything contained in this Lease
to the contrary, Tenant agrees that:
(i) Landlord will have no liability, and Tenant will not be entitled to
any compensation or a reduction or abate of Rent prior to termination, as a result of Landlord’s exercise of
its rights under Section 3.1(d) above;
(ii) Tenant will not commence any action or proceeding seeking
injunctive or declaratory relief in connection with any of the rights reserved to Landlord under Section 3.1(c)
above. If Tenant intends to commence any action or proceeding, it will only seek monetary relief, provided
that in no way will this be deemed a waiver or modification of subsection 3.1(d)(1)(i) above; and
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(iii) If Landlord will prevail in any action or proceeding taken by
Tenant, Tenant will pay to Landlord, as Additional Rent, a sum equal to all legal fees, costs and
disbursements, incurred by Landlord in any way related to, or arising out of, that action or proceeding.
3.2 Landlord’s and Tenant’s Work .
(a) Landlord’s Work. Landlord will, at its sole cost and expense as soon as is
reasonably possible, commence and pursue to completion the improvements to be constructed by
Landlord to the extent shown on the attached Exhibit B (“Landlord’s Work”). The term “substantial
completion of the Landlord’s Work” is defined as the date on which Landlord notifies Tenant in writing that
the Premises are substantially complete to the extent of Landlord’s Work, except work that Landlord
cannot complete until Tenant performs necessary portions of its work. The work schedule for Landlord's
Work is set forth in Exhibit B-1 and Tenant's Work is set forth in Exhibit C-1. In addition, Landlord will
deliver the Premises to Tenant with all utilities (i.e. water, plumbing/sewer, electrical, grease interceptor,
hood system, and all refrigeration/freezers in good working condition). Tenant will notify Landlord within
60 days of the Possession Date if any of these items are not in good working order and Landlord will be
obligated to repair the same.
(b) Tenant’s Work. Tenant will commence the installation of fixtures, equipment and
any other Tenant’s Work promptly following the Possession Date and Tenant will diligently pursue its
installation and work completion within the period set forth in Section 1.1 abov e. Tenant will pursue
issuance of permits with due diligence and will pick up all permits within five days after receipt of
notification from the Landlord that the permits are ready. Tenant’s failure to complete Tenant’s Work
within the period set forth in Section 1.1 will be a material breach of this Lease. All of Tenant’s Work will
be at Tenant’s sole cost and expense and will be pursuant to plans and specifications approved, in
writing, by Landlord. Tenant’s contractor will name Landlord as an additional insured on contractor’s
insurance policies. All Tenant’s Work will be undertaken and completed in a good, workmanlike manner
and Tenant will obtain all necessary governmental permits, licenses and approvals and will fully comply
with all governmental statutes, ordinances, rules and regulations. Tenant covenants that no work by
Tenant or Tenant’s employees, agents or contractors will disrupt or cause a slowdown or stoppage of any
work conducted by Landlord on the Premises or the Riverbend Golf Complex. Tenant’s failure to comply
with the terms and conditions of this provision will be a material breach of this Lease. If required by
Landlord, Tenant will provide its own trash container(s) as needed for containment and removal of
construction debris from Tenant’s Work, and Tenant will remove the trash containers prior to opening for
business. The Landlord must first approve the location of the trash containers. Tenant and its contractor, if
any, will keep adjoining Complex areas free of all construction and related debris. Prior to opening for
business, Tenant will remove all construction and related debris from the Premises and adjacent areas, and
all those areas will be clean and the adjacent areas will be returned to the condition they were in prior to
commencement of Tenant’s Work.
(c) Delay. Tenant will have no claim whatsoever against Landlord for any damages
arising out of Landlord’s failure to achieve substantial completion of the Premises by the Possession
Date; provided, however, if substantial completion is not achieved by , 2016,
then both Landlord and Tenant will have the right to terminate this Lease as their sole and exclusive
remedy for Landlord not achieving substantial completion by sending 30 days prior written notice of its
election hereunder to the other party However, if Tenant gives this termination notice to Landlord, the
notice will be automatically deemed rescinded if Landlord achieves substantial completion prior to the
expiration of the 30 day period.
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3.3 Statement as to Lease Term.
When the Commencement Date and Termination Date of the Lease Term have been determined
as provided in Section 3.1, at Landlord’s request, the Tenant will execute, acknowledge and deliver to the
Landlord, a written statement in recordable form specifying the Commencement Date and Termination
Date of the Lease Term, and those dates will be deemed inserted in Section 1.1 and 3.1 above.
SECTION 4 - RENT
4.1 Minimum Rent.
Tenant will pay to Landlord, without notice or demand and without any set-off deduction
whatsoever, as fixed Minimum Rent the monthly sums set forth in Section 1.1 above (the “Minimum
Rent”). Tenant will pay the Minimum Rent in advance on or before the first day of each calendar month of
the Lease Term commencing with the Commencement Date of this Lease. The Minimum Rent will be
delinquent if not paid on or before the first day of each month. If the Lease Term commences or expires
on a day other than the last day of a calendar month, the Minimum Rent for that month will be a prorated
portion of the monthly Minimum Rent, based upon a 30 day month. The Tenant must have deposited
with Landlord the first month’s Minimum Rent upon the execution of this Lease.
4.2 Security Deposit.
Upon the execution of this Lease, Tenant must have deposited with Landlord as a “Security
Deposit” the sum shown in Section 1.1 above. The Landlord will hold this sum as security for the faithful
performance by Tenant of all the terms, covenants and conditions of this Lease during the entire Term. If
Tenant defaults with respect to any provision of this Lease, including, but not limited to, the provisions
relating to the payment of Minimum Rent, Percentage Rent, Adjustments or other charges or sums due
under this Lease, Landlord may (but will not be required to) use, apply or retain all or any part of the
Security Deposit for (a) the payment of any Minimum Rent, Percentage Rent, Adjustment or other
charges or sums due under this Lease or any sum in default, (b) for the payment of any amount that
Landlord may spend or become obligated to spend by reason of Tenant’s default, or (c) to compensate
Landlord for any other loss, damage, cost or expense (including attorneys’ fees) that Landlord may suffer
or incur by reasons of Tenant’s default. If any portion of the Security Deposit is so used or applied,
Tenant will, within five days after receiving Landlord’s written demand, deposit a certified or cashier’s
check with Landlord in an amount sufficient to restore the Security Deposit. If Tenant fails to restore the
Security Deposit within this five day time period or if Tenant makes at least three consecutive late
payments of any sum required under this Lease, Landlord will have the option to require Tenant to
increase the amount of the Security Deposit by one hundred percent (100%), which increased sum will be
retained by Landlord and may be applied by Landlord as provided in this section. If Tenant fully and
faithfully performs every provision of this Lease, the Security Deposit or any balance remaining after
deduction by Landlord will be returned to Tenant (or, at Landlord’s option to the last assignee of Tenant’s
interest) within 30 days following expiration of the Lease Term; provided, that in the event this Lease is
terminated by or upon the default of the Tenant, the Landlord will retain the Security Deposit and all of
Tenant’s interest in the Security Deposit will terminate. In the event of termination of Landlord’s interest
in this Lease, Landlord will transfer the Security Deposit to Landlord’s successor in interest.
4.3 Percentage Rent.
(a) Tenant’s Obligation. Tenant will pay to Landlord additional percentage rent in an
amount equal to eight percent (8%) per month, comprised of four percent (4%) true rent, two and one-half
percent (2.5%) to pay for Tenant’s share of utilities, and one and one-half percent (1.5%) triple net,
(“Percentage Rent”). The Percentage Rent will be calculated on the Tenant’s gross sales made in, upon
and/or from the Premises, less Minimum Rent paid by Tenant, all as more fully set forth below.
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(b) Monthly Statements. Within 30 days after the end of each calendar month of the
Lease Term, commencing with the 30th day of the month following the month in which the Commencement
Date commences, and ending with the 30th day of the month next succeeding the last month of the Lease
Term, Tenant will furnish to Landlord a written statement certified by Tenant to be correct, showing the total
gross sales made in, upon and/or from the Premises during the preceding calendar month. Tenant will
include with each statement a payment to Landlord equal to the stated percentage of the total monthly gross
sales made in, upon, or from the Premises during that calendar month, less the Minimum Rent for that
calendar month, if previously paid. Notwithstanding any other provision of this Lease, if the Tenant fails or
refuses to submit the monthly statement within the 30 day time period, and Tenant’s failure continues for ten
days after written demand by Landlord to Tenant, then it will be deemed that the gross sales for that month
are double that necessary for the payment of the Minimum Rent, and that amount will be immediately due
and payable.
(c) Definition. The term “gross sales”, as used herein, means the same as Gross
Sales reported by Tenant to the State of Washington, Department of Revenue, for purposes of sales, use
and excise tax reporting.
(d) Records. The Tenant will keep full, complete and proper books, records and
accounts in accord with generally accepted accounting principles of its daily gross sales, both for cash and
on credit, of each separate department, subtenant, and concessionaire at any time operated in the
Premises. The Landlord and its agents and employees will have the right at any reasonable time during
regular business hours to examine and inspect all Tenant’s books and records, including any sales tax
reports, pertaining to the business of the Tenant conducted in, upon, and/or from the Premises, for the
purpose of investigating and verifying the accuracy of any statement of gross sales. Tenant will keep all
these records for at least three years. Tenant will maintain all records on the Premises, or otherwise keep
them readily available. Once in any calendar year, Landlord may cause an audit of the business of Tenant
for any or all years for which records are retained, which audit will be made by an accountant of Landlord’s
selection, and if the statement of gross sales previously made to Landlord is found to be inaccurate, then
there will be an adjustment and the Tenant will pay the Landlord on demand the sums necessary to settle in
full the accurate amount of Percentage Rent that should have been paid to Landlord for the period or
periods covered by the inaccurate statement or statements. If the audit discloses an inaccuracy of greater
than a three percent (3%) error with respect to the amount of gross sales reported by Tenant for the
reporting period, then, in addition to any adjustment, the Tenant will immediately pay the Landlord’s
reasonable cost of the audit; otherwise, the Landlord will pay the audit cost.
(e) No Partnership. It is understood that the fixing of a portion of the rental on a
percentage of the gross sales of the business does not create a partnership or joint venture relationship
between the parties, that Landlord assumes no liability for the Tenant’s business operation, and that these
rent provisions are for the sole purpose of fixing and determining the total rents to be paid by Tenant to
Landlord.
(f) Waiver. The acceptance by Landlord of any monies paid to Landlord by Tenant
pursuant to this Section 4.3 will not be deemed an admission by Landlord of the accuracy of any monthly
statement furnished by Tenant during the time period reported or of the sufficiency of the amount of any
payment, and without impairing the Landlord’s right to inspect the books and records of Tenant and receive
any additional sums due from Tenant disclosed by any audit or inspection, as described above.
4.4 Adjustments.
(a) Taxes, Assessments, and Insurance.
(1) In addition to the Minimum Rent provided in Section 4.1 above, and
commencing on the Commencement Date, Tenant will pay to Landlord in monthly installments, the
Tenant’s pro rata share for all leasehold taxes, if required by law, at the rate established by the State of
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Washington. The current rate is 12.84% as established by Chapter 82.29A, Revised Code of
Washington.
(2) The Tenant will pay its proportionate share of all assessments, whether
special or general and including any road improvement districts, local improvement districts, water
improvement districts, if any, and any other utility installation hookup, connection, tie in or similar charges
or assessments that are levied upon and/or assessed against the Premises or the Riverbend Golf
Complex that become payable during the Lease Term, plus the cost of professional consultants and/or
counsel to analyze tax bills and prosecute any protest, refunds and appeals
(3) The Tenant will obtain all types of insurance with limits as referenced in
Section 1.1 and as more particularly described in Exhibit E.
(b) Common Area Maintenance and Charges.
(1) The terms “common areas” or “Common Areas” refer to all areas within
the exterior boundaries of the Riverbend Golf Complex and all internal areas within the Riverbend Golf
Complex that are not included as part of the Premises that are now or subsequently become available for
general use, convenience and benefit of Landlord and other persons entitled to occupy space in the
Riverbend Golf Complex, which areas will include but not be limited to, parking areas, roofs (including
roof structures and membranes), driveways, sidewalks, cart paths, landscaped and planted areas
(including tees, fairways, greens, and other golf course amenities), streets or roadways, passageways,
service corridors, loading platforms, delivery areas, public bathrooms, directory and wayfinding signage,
common lighting facilities, drainage areas, drinking fountains, public meeting rooms, and all furniture,
decorations and fixtures.
(2) In consideration of the Landlord not imposing a common area
maintenance charge, Landlord reserves the right to:
(i) change the name of the Riverbend Golf Complex, and its
subsidiary parts,
(ii) install, maintain, alter and remove signs on, in or about the
Riverbend Golf Complex, except Tenant’s signage, without Tenant’s prior written consent,
(iii) add land, easements or other interests to or eliminate the same
from the Riverbend Golf Complex, and grant easements and other interests and rights in the Riverbend
Golf Complex to other parties,
(iv) add, alter, expand, reduce, eliminate, relocate or change the
shape, size, location, character, design, appearance, use, number or height of any permanent or
temporary buildings, structures, improvements, surface parking, kiosks, carts, planters, pools, waterfalls,
parking areas, driveways, landscaped areas (including tees, fairways, greens, and other golf course
amenities), and other Common Areas, change the striping of parking areas and direction and flow of
traffic, and convert Common Areas to leasable areas and leasable areas to Common Areas; provided,
that Landlord will not change the size, layout or dimensions of the Premises, nor materially alter the
existing access or visibility of the Premises, to the general public,
(v) grant licenses for use of portions of the Common Areas,
(vi) enclose any other area, or remove any enclosure, or add one or
more additional levels or stories to all or part of any building in the Riverbend Golf Complex, whether or
not the Premises are part of the affected structure, and add structural support columns that may be
required, and
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(vii) in connection with the foregoing matters outlined in Subsections
(i) – (vi) above, or with any other inspections, repairs, maintenance, improvements or alterations in or
about the Riverbend Golf Complex, or as a result of any casualty, incident, strike, condemnation, act of
God, law or governmental requirement or request, or any other cause, erect scaffolding, barricades, and
other structures reasonably required in, or otherwise close to, Common Areas or portions thereof,
including but not limited to public walkways and areas, restrooms, and stairways.
However, in connection with exercising these section 4.4(b) rights, Landlord will insure that: (A)
reasonable steps are taken to minimize or avoid any denial of access to the Premises except when
necessary on a temporary basis, (B) reasonable steps are taken to avoid materially changing the
configuration or reducing the square footage of the Premises, unless required by laws or other causes
beyond Landlord's reasonable control (and in the event of any permanent material reduction, the Rent,
breakpoint, and taxes charge will be proportionately reduced), and (C) at Landlord's expense, move
Tenant's entrance doorway if access is materially impaired.
(3) Landlord will keep the Common Areas in a neat, clean, and orderly
condition, properly lighted and landscaped, and will repair any damage to the facilities.
4.5 No Offsets or Deductions/Place of Payment.
All Minimum Rent, Percentage Rent, other charges will be paid in lawful money of the United
States of America and will be paid without offset or deduction. Landlord will have the right to designate,
from time to time, the place or places at which Tenant will tender all Minimum Rent, Percentage Rent, and
other charge payments.
4.6 Late Charges.
Tenant hereby acknowledges that late payment by Tenant to Landlord in rent or 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. These costs include, but are not limited to, processing and accounting
charges, and late charges that may be imposed upon Landlord by terms of any bond or loan covering the
Premises or Riverbend Golf Complex. Accordingly, if the Landlord does not receive from Tenant any
installment of Minimum Rent, Percentage Rent, or other charge that becomes due on within five days of
the due date (for Minimum Rent and Percentage Rent, the 5th day of each month), then Tenant will pay to
Landlord a late charge equal to the greater of three percent (3%) of the amount past due or One Hundred
Fifty and No/100 Dollars ($150.00), plus any attorneys’ fees that may be incurred by Landlord. The
parties have reviewed this amount and acknowledge that these late charges represent a fair and
reasonable estimate of the cost that Landlord will incur by reason of the late payment by Tenant.
Landlord’s acceptance of this late charge will in no event constitute a waiver of Tenant’s default with
respect to the overdue amount, nor prevent Landlord from exercising any of the other rights and remedies
granted in this Lease. This late charge will apply individually to each payment past due without any daily
pro rata adjustment to any charge.
4.7 Interest; Insufficient Funds.
Whenever in this Lease any sum (except late charges imposed pursuant to Section 4.6) payable
to Landlord is not paid when due, the same will, at Landlord’s option, bear interest from the date due until
paid at the rate of eight percent (8%) per annum. Any payment of any kind returned for insufficient funds
will be subject to a handling fee of $50.00 in addition to any late charge or interest.
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SECTION 5 - USE
5.1 Permitted Uses.
(a) General Use. Tenant will not use, permit or suffer the use of the Premises for
any business or purpose other than those specifically set forth in Section 1.1 above and will not engage in
any use that violates or interferes with Riverbend Golf Complex operations or any other exclusive use
granted by Landlord to other tenants. Landlord warrants that the use set forth in Section 1.1 does not
violate any other exclusive use granted by Landlord within the Riverbend Golf Complex. Further, Tenant
will not conduct any business in the Premises under any trade name other than the Permitted Trade
Name set forth in Section 1.1 above. Landlord makes no representation or warranty and has given no
assurance, express or implied, as to the availability or continued availability of Tenant’s Permitted Trade
Name. Tenant will indemnify, defend and hold Landlord harmless from any and all losses, claims, causes
of action, judgments and liabilities (including but not limited to attorneys’ fees and costs) arising out of or
relating to Tenant’s use of its Permitted Trade Name, including but not limited to trademark and service
mark infringement and dilution claims.
(b) Exclusive Use. Notwithstanding anything to the contrary set forth herein—but
with the exception of any portion of the Riverbend Golf Complex that is sold or leased for redevelopment,
so long as Tenant is not in default under the Lease, Landlord agrees that from and after the date hereof
Landlord will not enter into any future lease within the Riverbend Golf Complex with a tenant whose
primary use is as a full service sit down restaurant with on-site catering services. For purposes of this
Section, “primary use” is defined as activities that generate at least 20% or more of the tenant’s gross
sales. “Full service sit down” is defined as a sit down restaurant with table service and wait staff. Tenant
acknowledges and agrees that this Exclusive Use will automatically terminate and be of no further force
and effect without further notice from Landlord in the event that (i) Tenant remains in default of the Lease
beyond any applicable cure period; or (ii) Tenant discontinues its operations in the Premises for more
than 30 consecutive days (except in connection with casualty, condemnation, force majeure, permitted
assignment or subletting, periodic remodeling, periodic taking of inventory, or national holidays;
collectively, “permitted closures”), Tenant does not operate the Premises for the use specifically set forth
in Section 1.1.
5.2 Uses Prohibited.
(a) Generally. Tenant will not do or permit anything to be done in or about the
Premises nor bring or keep anything there that will in any way increase the existing rate of, or affect any,
fire or other insurance upon the Premises, the building (the “Building”) of which the Premises is a part, or
the Riverbend Golf Complex, nor will Tenant cause a cancellation of any insurance policy covering all or
any part of the Premises, Building, Riverbend Golf Complex, or any of its contents. Tenant will take all
reasonably necessary action to prevent excessive odors, emissions, fumes, liquids or other substances or
excessive noise from escaping or extending beyond the Premises, and Tenant will not use or allow the
Premises to be used for any improper, immoral, unlawful or objectionable or offensive purpose, nor will
Tenant cause, maintain, or suffer or permit any nuisance in, on or about the Premises. Tenant will not
commit or allow to be committed any waste in or upon the Premises and will refrain from using or
permitting the use of the Premises or any portion thereof as living quarters, sleeping quarters or for
lodging purposes. If the Landlord reasonably determines that the Tenant is creating or causing any of
these prohibited uses, then Tenant will be responsible for installing, providing for and maintaining, at
Tenant’s sole cost and expense, measures to mitigate the nuisance or potential nuisance. The Landlord
must first approve the Tenant’s type and adequacy of mitigating measures as well as the time allowed to
complete the measures. The construction, installation, maintenance and repair of the mitigating measures
will be accomplished in accordance with the requirements set forth in Sections 9 and 10 below. If Tenant
fails to complete the mitigating measures as required by Landlord or if Tenant fails to complete the
mitigating measures within the time allowed, Landlord may terminate the Lease upon giving 30 days prior
written notice. Notwithstanding anything to the contrary herein and in addition to all other remedies
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available to Landlord, Tenant will indemnify Landlord for all damages, costs and fees (including attorney’s
fees and costs) incurred by Landlord as a result of Tenant’s breach of this Section 5.2.
5.3 Operation of Business.
(a) General.
(1) Conduct of Business. Tenant will conduct its business on the Premises
during the entire Lease Term with diligence and efficiency to produce all of the Gross Sales that may be
produced by Tenant’s operation, unless prevented from doing so by causes beyond Tenant’s control.
Tenant will keep in stock on the Premises a full and ample line of cookware, serving ware, and food stuffs
for the purpose of operating its business and will maintain staffing sufficient to maximize Tenant’s
operations. Subject to the provisions of this Lease, Tenant will continuously conduct and carry on
Tenant’s business in the Premises without interruption and will keep the Premises open for business and
cause Tenant’s business to be conducted during the days and hours designated from time to time by
Landlord, which at the time of the execution of this Lease Landlord designates to be:
Landlord and Tenant will determine from time to time, in writing, the schedule for
Tenant’s operating hours. If no written schedule is in effect or if Landlord and Tenant cannot agree on an
operating schedule, Monday through Sunday minimum hours of operation will be as follows:
Breakfast
Lunch
Dinner
Cart service on golf course
6:30 a.m. to 10:30 a.m.
11:30 a.m. to 3:00 p.m.
4:30 p.m. to 10:00 p.m.
10:00 a.m. to 4:00 p.m.,
March – October (unless
otherwise agreed between
Landlord and Tenant)
This provision will not apply if the business of Tenant is temporarily discontinued on account of
strikes, lockouts or similar causes beyond Tenant’s reasonable control.
(b) Failure to Operate. If Tenant should fail to be open to the public on a fully-
operational basis during all hours required under this Lease, in addition to being in material breach of this
Lease, Tenant will immediately pay to Landlord, for each day or portion of any day that Tenant fails to
open a “Failure to Open” charge of Two Hundred Dollars ($200.00).
5.4 Compliance with Laws.
Tenant will, at its sole cost and expense, promptly comply with all local, state or federal laws,
statutes, ordinances and governmental rules, regulations or requirements now in force or that may
subsequently be in force with respect to Tenant’s use and occupancy of the Premises and Tenant’s
business. Tenant will also, at its sole cost and expense, comply with the requirements of any board of fire
underwriters or other similar bodies now or hereafter constituted relating to or affecting the condition, use
or occupancy of the Premises (excluding structural changes not related to or affected by Tenant’s
improvements or acts). Landlord represents that the Premises comply with all local, state or federal laws,
statutes, ordinances and governmental rules, regulations or requirements now in force as of the
Possession Date. The judgment of any court of competent jurisdiction or the admission of Tenant in any
action against Tenant, whether or not Landlord is a party, that Tenant has violated any law, statute,
ordinance or governmental rule, regulation or requirement, will be conclusive of that fact as between the
Landlord and Tenant. The Tenant will be solely responsible for and pay, and will indemnify and hold
Landlord harmless from and against all costs, expenses (including attorneys’ fees), fines, damages,
penalties, and surcharges incurred or arising by reason of Tenant’s failure to promptly and completely
perform the Tenant’s obligations under this Section 5.4.
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5.5 Hazardous Material.
Tenant will not cause or permit any Hazardous Material, as defined below, to be brought upon,
kept or used in or about the Premises by Tenant, its agents, employees, contractors or invitees, except in
accordance with all applicable laws, rules and regulations. If Tenant breaches the obligations stated in
the preceding sentence, or if the presence of any Hazardous Material caused or permitted by Tenant
results in contamination of the Premises or any part of the Riverbed Golf complex or any other property,
or if contamination of the Premises or any part of the Riverbend Golf Complex or other property by any
Hazardous Material otherwise occurs for which Tenant may be legally liable to Landlord for the resulting
damage, then Tenant will indemnify, defend and hold Landlord harmless from any and all claims,
judgments, damages, penalties, fines, costs, liabilities or losses (including without limitation, diminution in
value of the property, damages for the loss or restriction on use of rentable or usable space, damages
arising from any adverse impact on marketing or use of the Riverbend Golf Complex, damages to any
other property, and amounts paid in settlement of claims, attorneys’ fees, consultant fees and expert fees)
that arise during or after the Lease Term as a result of the contamination.
Without limiting the foregoing, this indemnification includes, without limitation, costs incurred in
connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work
required by any federal, state or local governmental agency or political subdivision because of Hazardous
Material present in the soil or ground water on or under the Premises or any part of the Riverbend Golf
Complex or other property, if the presence of any Hazardous Material caused or permitted by Tenant
results in any contamination of the Premises or any part of the Riverbend Golf Complex or other property.
Tenant will promptly take all actions at its sole expense as are necessary to return the Premises or the
Riverbend Golf Complex or other property to the condition existing prior to the introduction of any
Hazardous Material; provided that Tenant will first obtain Landlord’s approval of that action, which
approval will not be unreasonably withheld so long as Tenant’s actions would not potentially have any
material adverse long-term or short-term effect on the Premises or the Riverbend Golf Complex or other
property.
As used in this Section 5.5, the term “Hazardous Material” means any hazardous, dangerous,
toxic or harmful substance, material or waste which is or becomes regulated by any local governmental
authority, the State of Washington or the United States Government, but will not mean minimal amounts
of cleaning supplies customary for the restaurant industry.
To the best of Landlord’s knowledge, Landlord has not used, generated, manuf actured,
produced, stored, released, discharged or disposed of on, under, or about the Premises (or off-site of the
Premises that might affect the Premises) or transferred to or from the Premises, any Hazardous Material
or allowed any other person or entity to do so.
5.6 Representation and Warranty of Tenant.
Tenant (and, if Tenant is a corporation, partnership, limited liability company or other legal entity, that
corporation, partnership, limited liability company or entity) makes the following representations and
warranties, each of which is material and relied upon by Landlord, is true in all respects as of the date of
this Lease, and will survive the expiration or termination of the Lease. Tenant will re-certify these
representations to Landlord periodically, upon Landlord’s reasonable request :
(a) to the best of its knowledge, Tenant is not in violation of any Anti-Terrorism Law;
(b) to the best of its knowledge, Tenant is not, as of the date hereof;
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(1) conducting any business or engaging in any transaction or dealing with
any Prohibited Person, including the making or receiving of any contribution of funds, goods or services to
or for the benefit of any Prohibited Person;
(2) dealing in, or otherwise engaging in any transaction relating to, any
property or interests in property blocked pursuant to Executive Order No. 13224; or
(3) engaging in or conspiring to engage in any transaction that evades or
avoids, or has the purpose of evading or avoiding, or attempts to violate any of the prohibitions set forth in,
any Anti-Terrorism Law; and
(c) to the best of its knowledge, neither Tenant nor any of its affiliates, officers,
directors, shareholders, members or lease guarantor, as applicable, is a Prohibited Person.
If at any time any of these representations become false, then it will be considered a material
default under this Lease.
As used herein, “Anti-Terrorism Law” is defined as any law relating to terrorism, anti-terrorism,
money-laundering or anti-money laundering activities, including without limitation the United States Bank
Secrecy Act, the United States Money Laundering Control Act of 1986, Executive Order No. 13224, and
Title 3 of the USA Patriot Act, and any regulations promulgated under any of them. As used herein
“Executive Order No. 13224” is defined as Executive Order No. 13224 on Terrorist Financing effective
September 24, 2001, and relating to “Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism”, as may be amended from time to time. “Prohibited
Person” is defined as (i) a person or entity that is listed in the Annex to Executive Order No. 13224, or a
person or entity owned or controlled by an entity that is listed in the Annex to Executive Order No. 13224; (ii)
a person or entity with whom Landlord is prohibited from dealing or otherwise engaging in any transaction
by any Anti-Terrorism Law; or (iii) a person or entity that is named as a “specially designated national and
blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign
Assets Control at its official website, http://www.treas.gov/ofac/t11sdn.pdf or at any replacement website or
other official publication of this list. “USA Patriot Act” is defined as the “Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” (Public Law 107-
56), as may be amended from time to time.
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SECTION 6 – UTILITIES AND HVAC
6.1 Utilities.
(a) City water, sewer, and storm water use charges, electricity use charges, and gas
use charges are included in Tenant’s monthly rent, in part consideration (two and one-half percent
(2.5%)) of the 8% Percentage Rent.
(b) Tenant is responsible for all telephone, data, and cable TV costs.
(c) Tenant is responsible to pay any change in size or location to meters, piping, or
other utility facilities, if caused or required by Tenant.
(d) Tenant is responsible to pay Landlord _________ percent ( %) of Landlord’s
solid waste utility charges incurred for all solid waste receptacles used for the Premises and the building
of which the Premises is a part.
(e) Landlord will pay to operate and maintain the existing alarm system in the
building, but Tenant will be responsible for all costs incurred to modify that system to the extent caused or
required by Tenant’s operations or by Tenant’s alterations, additions, or improvements.
(f) Landlord will pay to operate and maintain the existing heating, ventilation, and air
conditioning (HVAC) system in the building, but Tenant will be responsible for all costs incurred to modify
that system to the extent caused or required by Tenant’s alterations, ad ditions, or improvements.
6.2 Non-Liability of Landlord.
Landlord will not be liable or deemed to be in default, nor will there be any abatement of Rent for
any interruption, reduction or failure in the supply of any utilities (including telephone service) to the
Premises or the Riverbend Golf Complex unless caused by the gross negligence or willful act of Landlord.
No interruption or failure in the supply of any utilities or services will be deemed an eviction or disturbance of
Tenant or relieve Tenant from the full and complete performance of all of Tenant’s obligations under this
Lease.
SECTION 7 – LEASEHOLD AND PERSONAL PROPERTY TAXES
7.1 Tenant’s Obligations.
Tenant will pay, or cause to be paid, effective as of the Commencement Date, and before
delinquency, all leasehold tax if required by law, at a rate established by the State of Washington,
currently estimated at 12.84%. Tenant will also pay, or cause to be paid, effective as of the Possession
Date, and before delinquency, any and all taxes levied, assessed and/or that become payable during the
Lease Term upon all or any part of Tenant’s leasehold improvements, equipment, furniture, fixtures, and
any other personal property located in the Premises. In the event any or all of the Tenant’s leasehold
improvements, equipment, furniture, fixtures and other personal property will be assessed and taxed with
the real property, Tenant will pay to Landlord its share of those taxes within ten days after delivery to Tenant
by Landlord of a statement in writing setting forth the amount of those taxes applicable to Tenant’s property.
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SECTION 8 - LICENSE AND TAXES
8.1 Tenant’s Obligations.
Tenant will be liable for, effective as of the date of full execution of this Lease, and will pay
throughout the Lease Term, all license and excise fees and occupation taxes covering the business
conducted on the Premises. If any governmental authority or unit under any present or future law effective
at any time during the Lease Term will in any manner levy a tax on Rents payable under Lease or rents
accruing from use of the Premises or a tax in any form against Landlord because of, or measured by,
income derived from the leasing or rental of the Premises, Tenant will pay that tax, either directly or through
Landlord, and upon Tenant’s default, Landlord will have the same remedies as upon failure to pay Minimum
Rent.
SECTION 9 - ALTERATIONS
9.1 Acceptance of Premises.
Upon delivery of the Premises to Tenant, Tenant will acknowledge to Landlord in writing within three
days of delivery of possession of the Premises to Tenant that Tenant has inspected the Premises and
accepts it in its then condition or else, within that three day period, will notify Landlord in writing of any
patent deficiencies then apparent; provided, that a failure by Tenant to provide the above written notices to
Landlord within the three day period will be deemed acceptance of the Premises in their then condition,
except for latent defects. The Landlord’s obligation and/or liability to Tenant for deficiencies will be strictly
limited to the correction of the noted deficiencies, which correction will be made only to the extent of
compliance with the Landlord’s Work as set forth herein and in “Exhibit B.”
9.2 Alterations by Tenant.
Tenant will not make any alterations, additions or improvements in or to the Premises, including
without limitation any penetration to the roof, without the prior written consent of Landlord, which consent
to nonstructural alterations will not be unreasonably withheld, conditioned or delayed, and as to structural
alterations may be conditioned by Landlord as Landlord may deem appropriate; provided, that Tenant
may make minor non-structural alterations, additions or improvements to the Premises that in the
aggregate do not exceed a cost of $5,000 per calendar year without the Landlord’s prior written consent .
Any alterations, additions or improvements consented to by Landlord, including roof penetration, will be
made at Tenant’s sole cost and expense. Tenant will provide its own trash container and/or container for
construction debris; will provide its own portable toilets; will promptly remove all construction and related
debris from all Common Areas; will return the Common Areas to the condition they were in immediately prior
to construction immediately following completion of construction; will repair and restore any portions of the
Common Areas harmed as result of the construction activities to the condition they were in immediately prior
to construction; will use service entrances to the Premises, if any; will conduct no core drillings during
business hours; and will disrupt Riverbend Golf Complex users as little as possible, and will pay to
Landlord the amount of any and all damage to the roof caused by Tenant’s penetration, and the amount of
any and all damages to the Riverbend Golf Complex as a result of roof leaks caused by the penetration.
Tenant will secure any and all governmental permits, approvals, or authorizations required in connection
with this work, and will hold Landlord harmless from any and all liability, costs, damages, expenses
(including attorneys’ fees) and any and all liens resulting therefrom. Except trade fixtures, appliances and
equipment that do not become a part of the Premises, all alterations, additions and improvements
(expressly including all light fixtures and floor covering), will immediately become the property of the
Landlord without any obligation to pay for them . Upon completion of Tenant’s alterations, additions, or
improvements, Tenant will provide Landlord a complete and accurate set of as-built drawings showing, in
detail, the exact location and extent of each of Tenants alterations, additions, and improvements. By way
of explanation and without limitation, these drawings would include location of wiring, conduit, and other
facilities installed within the roofs, walls, and floors.
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9.3 Disability Laws.
Notwithstanding anything in this Lease to the contrary, if Tenant constructs, makes or installs or
causes to be constructed, made or installed any alteration, addition, or improvement in or to the Premises
or surrounding areas, Tenant will be solely responsible for ensuring that those alterations, additions, or
improvements do not violate any provision in any local, state or federal law or regulation relating to
accessibility for handicapped persons or the removal of architectural or communication barriers to
accessibility (“Disability Law”), including but not limited to RCW Chapter 70.92 and The Americans with
Disabilities Act. Any approval by Landlord of Tenant’s plans or specifications for any alterations,
additions or improvements will not be a representation or warranty, express or implied, by Landlord that
the plans will comply with any Disability Law. If any claim under any Disability Law relates directly or
indirectly to any alterations, additions, or improvements installed, made, or constructed, directly or
indirectly, by or for Tenant in or to the Premises or relates directly or indirectly to any trade fixture or
personal property item used by Tenant in the Premises, Tenant will defend, indemnify and hold Landlord
harmless from and against the claim and any and all charges, liabilities, obligations, penalties, damages,
judgments, costs and expenses (including attorneys’ fees) arising or incurred against or suffered, directly
or indirectly, by Landlord relating to those claims. If it should be determined that any alterations, additions,
or improvements constructed, made or installed in or to the Premises, directly or indirectly, by or for
Tenant or any trade fixture or personal property item used by Tenant in the Premises is an illegal
architectural or communication barrier under any Disability Law, Tenant will immediately, at its sole cost
and expense, remove the barrier or, to the extent allowed by the Disability Law, provide alternatives to the
barrier to make the Premises accessible to disabled persons. No alteration or improvement in the
Premises will be approved by Landlord if it will require that barriers outside the Premises be removed
under any Disability Law. Tenant will not have any basis for objecting to Landlord’s judgment regarding
the probable application of any Disability Law, provided Landlord does not act arbitrarily.
SECTION 10 - MAINTENANCE OF PREMISES
10.1 Maintenance and Repair by Tenant.
Tenant will at all times throughout the Lease Term at its sole cost and expense keep the
Premises (including exterior doors and entrances, all windows, moldings and trim of all doors and
windows, and the Patio Area, if applicable) and all partitions, door surfaces, fixtures, grease receptacles,
equipment and appurtenances (including lighting, heating and plumbing fixtures and any air conditioning
system) in good order, condition and repair (including damage from burglary or attempted burglary of the
Premises). The costs of these repairs will be billed directly to, and paid by, Tenant. Landlord will operate,
maintain and pay for the system used for heating, ventilating and air conditioning (“HVAC”) serving the
Premises, but Tenant agrees to pay for any modifications to the system caused or required by Tenant’s
alterations, additions, or improvements to the Premises during the Lease term. Tenant will keep the glass
of all windows, doors, and showcases clean and presentable; immediately replace all broken glass in the
Premises; at reasonable intervals paint or refinish the interior of the Premises, including entrances as
determined by Landlord; make any necessary repairs to, or replacements of, all door closure apparatuses
and mechanisms; keep all plumbing clean and in good state of repair including pipes, drains, toilets,
basins and those portions of the heating system within the walls of the Premises; keep sidewalks and
service areas adjacent to the Premises clear of dirt, rubbish, snow, ice and excess moisture or water;
store all trash, refuse and recyclable materials in appropriate containers within the Premises or the
Riverbend Golf Complex, as applicable, and attend to the daily disposal in a manner approved by
Landlord (and if Tenant fails to do so, Landlord may arrange for disposal, and Tenant will reimburse the
cost for that disposal upon demand, plus a handling charge of Fifty Dollars ($50.00) per invoice, all of
which will be additional rent under this Lease); and keep all utilities within the Premises in a good state of
repair.
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10.2 Failure to Maintain.
If Tenant fails to keep and preserve the Premises as set forth in Section 10.1 above, Landlord
may, at its option, upon reasonable notice to Tenant and opportunity to cure, put or cause the same to be
put in the condition and state of repair agreed upon, and in that case, upon receipt of written statements
from Landlord, Tenant will promptly pay the entire cost as additional rent. Landlord will have the right,
without liability, to enter the Premises for the purpose of making those repairs upon Tenant’s failure to do
so.
10.3 Repairs by Landlord.
Landlord will keep the structure of the roof, exterior walls, foundations and building structure of
the Premises in a good state of repair, and will accomplish those repairs as may be needed promptly after
receipt of written notice from Tenant and said repairs will be at the sole cost of Landlord. Landlord will
replace the roof when Landlord determines in its reasonable discretion that replacement is necessary.
Landlord will also paint the exterior portion of the Premises as reasonably needed. Should any painting
or repairs be required by reason of Tenant’s negligent acts or failure to act, Tenant will promptly pay
Landlord for that cost as additional rent. Tenant will immediately inform Landlord of any necessary repairs
and Tenant will make none of those repairs without Landlord’s prior written consent. Landlord will not be
liable for any failure to make any repairs or to perform any maintenance required of Landlord unless the
failure persists for an unreasonable time after Tenant has given written notice of the need for those
repairs to Landlord. Except as otherwise specifically provided in this Lease, there will be no abatement of
rent and no liability of Landlord by reason of any injury to or interference with Tenant’s business arising
from the making of any repairs, alterations or improvements in or to any portion of the Premises or
Premises building or in or to their fixtures, appurtenances and equipment.
10.4 Surrender of Premises.
At the expiration or sooner termination of this Lease, Tenant will return the Premises to Landlord
in the same condition in which received (or, if altered by Landlord or by Tenant with the Landlord’s
consent, then the Premises will be returned in the altered condition), reasonable wear and tear and
damage by casualty excepted. Tenant will remove all trade fixtures, appliances and equipment (where
removal will not require structural changes to the Premises) which do not become a part of the Premise s
and alterations which Landlord designates to be removed pursuant to Section 9.2 above, and will restore
the Premises to the condition they were in prior to the installation of said items. In addition, Tenant will be
required, at the end of the Lease Term, to leave any affixed FF&E in place (including, but not limited to, two
walk-in coolers, one walk-in freezer system, and all hoods and venting within the Premises) in the
Premises at no cost to Landlord and in the same condition as originally delivered by Landlord, reasonable
wear and tear excepted. Tenant’s obligation to perform this covenant will survive the expiration or
termination of this Lease.
10.5 Entry.
By entry on the Possession Date, Tenant will be deemed to have accepted the Premises as being
in good and sanitary order, condition and repair.
SECTION 11 - LIENS AND ENCUMBRANCES
11.1 Liens.
Tenant will promptly file and/or record, as applicable, all notices of completion provided for by
law, and will pay and discharge all claims for work or labor done, supplies furnished or services rendered
at the request of Tenant or at the request of Landlord on behalf of Tenant, and will keep the Premises and
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Riverbend Golf Complex free and clear of all mechanics’ and materialmen’s liens in connection with that
work, labor, supplies, or services. In the event any material or labor lien is recorded, Tenant will cause
the lien to be removed within ten days after receipt of written notice from Landlord, or will provide a bond
or other security in the amount of 150% of the lien within that ten day period.
11.2 Encumbrances.
The Tenant will not cause or suffer to be placed, filed or recorded against the title to the
Premises, the Premises building, the Riverbend Golf Complex, or any part thereof, any mortgage, deed of
trust, security agreement, financing statement, or other encumbrance. The form of any mortgage, deed
of trust or other security agreement or financing statement that includes a legal description of the
Premises, or the Premises building, or the Riverbend Golf Complex or its address, or any part thereof , will
be subject to Landlord’s prior written approval, which approval may be conditioned as the Landlord
deems appropriate.
SECTION 12 - ASSIGNMENT AND SUBLETTING
12.1 Assignment or Sublease.
Tenant will not assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any
interest in this Lease, nor sublet the whole or any part of the Premises, nor will this Lease or any interest
in this Lease be assignable or transferable by operation of law or by any process or proceeding of any
court, or otherwise, without the prior written consent of Landlord, which consent will not be unreasonably
withheld, conditioned or delayed. Any of these transactions undertaken without Landlord’s prior written
consent will be null and void.
(a) Change in Ownership. No assignment, sublease or other transfer will relieve
Tenant of any liability under this Lease. The prohibition set forth in this Section 12 includes, without
limitation (and the following will be deemed to be “assignments”): (1) a consolidation or merger of Tenant;
(2) a change in the ownership or voting rights of more than fifty percent (50%) of the issued and
outstanding stock, units or membership interest of any corporate or limited liability company tenant; (3)
any sublease, assignment or transfer which would otherwise occur by operation of law, merger,
consolidation, reorganization, transfer or other significant change in corporate, proprietary or limited
liability company structure; (4) the sale, assignment or transfer of all or substantially all of the assets of
Tenant, with or without the specific assignment of this Lease; and (5) a change in control in any Tenant.
(b) No Waiver. The acceptance by Landlord of any amounts following any
transaction prohibited in this Section 12.1 will not be deemed to be consent by Landlord nor will it be
deemed a waiver of any right or remedy by Landlord. Consent to any assignment, sublease or other
transfer will not operate as a waiver of the necessity for consent to any subsequent assignment, sublease
or transfer.
(c) Documentation. In connection with any approved sublease, assignment or
transfer, Tenant will promptly provide Landlord with fully executed copies of all assignment, sublease,
transfer and assumption instruments.
12.2 Assignee Obligations.
As a condition to Landlord’s consent, any potential assignee or transferee otherwise approved by
Landlord will expressly assume all existing and future obligations of Tenant under this Lease and will be
jointly and severally liable with Tenant for the payment of Minimum Rent, Percentage Rent, Adjustments,
additional rent, and the performance of all terms, covenants and conditions of this Lease. Tenant will not
be relieved from any liability under the Lease.
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12.3 Sublessee Obligations.
As a condition to Landlord’s consent, any potential sublessee otherwise approved by Landlord
will expressly assume all existing and future obligations of Tenant under the Lease during the term of the
sublease and will be jointly and severally liable with Tenant for the payment of Minimum Rent,
Percentage Rent, Adjustments, additional rent, and the performance of all terms, covenants, and
conditions of this Lease. Tenant will not be relieved from any liability under the Lease.
12.4 Conditional Consents.
Any consent by Landlord to any assignment, sublease or other transfer may be subject to any
terms or conditions as Landlord will reasonably determine appropriate (including but not limited to
requiring that any and all guarantors of the Lease agree to continue to guarantee the Lease obligations
after the assignment) and those terms and conditions will be binding upon any person holding by, under
or through Tenant.
12.5 Attorneys’ Fees and Costs.
Tenant and any assignee, sublessee or transferee will reimburse Landlord for Landlord’s
reasonable attorneys’ fees and costs incurred in conjunction with the processing and documentation of
any requested transfer, assignment, sublease or similar encumbrance. Notwithstanding the foregoing,
the maximum charge to Tenant in connection with that assignment, sublease or transfer will be One
Thousand Five Hundred Dollars ($1,500.00).
12.6 Excess Rent.
As a condition to Landlord’s consent, Tenant will deliver to Landlord any “excess rent” within 30
days of Tenant’s receipt pursuant to that assignment, sublease or transfer. As used herein, “excess rent”
will mean any sums or economic consideration received by Tenant pursuant to an assignment, sublease
or transfer in excess of the amount of the Minimum Rent of the Premises (or the applicable portion
thereof) payable by Tenant under the Lease.
12.7 Transfer of Landlord’s Interest.
In the event of any transfers of Landlord’s interest in the Premises or the Premises building, other
than a transfer for security purposes only, the transferor will be automatically relieved of any and all
obligations and liabilities on the part of Landlord accruing from and after the date of the transfer and
Tenant agrees to attorn to the transferee.
SECTION 13 - COMMON AREAS
13.1 Control of Common Areas.
The Landlord will manage the Common Areas of the Riverbend Golf Complex. The Common
Areas will include but not be limited to all automobile parking areas, access roads, driveways, entrances,
retaining walls and exits, truck ways, loading docks or loading areas, package pick-up stations,
washrooms, courts, sidewalks and ramps, landscaped areas, exterior stairways, and other areas,
improvements, facilities and special services provided by Landlord for the general use of all employees,
invitees and customers of the Riverbend Golf Complex. With respect to the Common Areas, Landlord will
have the right to cause from time to time to establish, modify and enforce reasonable rules and
regulations; construct, maintain and operate lighting facilities; police the Common Areas and facilities;
from time to time to change the area, level, location and arrangement of parking areas and other facilities
within the Common Areas; and to do, perform or cause to be performed other acts in and to the Common
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Areas as, in the use of good business judgment, Landlord determines to be advisable with a view to the
improvement of the convenience and use of the Riverbend Golf Complex by its employees, invitees and
customers.
SECTION 14 - INSURANCE AND INDEMNITY
14.1 Indemnification.
(a) Generally. Landlord will not be liable for the loss of or damage to any property
(including property of Tenant and others) occurring in or about the Premises or for injury to any person
occurring in or about the Premises except and to the extent the damage or injury is caused by Landlord’s
negligence. Except to the extent an injury to any person is caused by Landlord’s negligence, Tenant will
defend, indemnify and hold Landlord harmless from and against any and all claims, charges, liabilities,
obligations, penalties, damages, costs and expenses (including attorneys’ fees) arising, claimed, charged
or incurred against or suffered, directly or indirectly, by Landlord from any matter or thing arising from
Tenant’s use of the Premises, the conduct of its business or from any activity, work , or other things done
or permitted by Tenant in or about the Premises, and Tenant will further defend, indemnify and hold
Landlord harmless from and against any and all claims arising, directly or indirectly, from any breach or
default in the performance of any obligation of or to be performed by Tenant under the terms of this
Lease, or arising from any act or omission of Tenant, or any officer, agent, employee, guest, or invitee of
Tenant, and from all costs, attorneys’ fees, and liabilities incurred in or about the defense of any claim or
any action or proceeding brought on that basis. If any action or proceeding is brought against Landlord
by reason of a claim, Tenant, upon notice from Landlord, will defend the same at Tenant’s expense by
legal counsel reasonably satisfactory to Landlord.
(b) Concurrent Negligence of Landlord and Tenant Relating to Construction, Repair
and Maintenance Activities. Notwithstanding Section 14.1 (a) above, in the event of the concurrent
negligence of Tenant, its agents, employees, sublessees, invitees, licensees or contractors on the one
hand, and that of Landlord, its agents, employees or contractors on the other hand, which concurrent
negligence results in injury or damage to persons or property and relates to the construction, alteration,
repair, addition to, subtraction from, improvement to or maintenance of the Premises or the Riverbend
Golf Complex, Tenant’s obligation to indemnify Landlord as set forth in this Section 14.1 will be limited to
the extent of Tenant’s negligence, and that of its agents, employees, sublessees, invitees, licensees or
contractors, including Tenant’s proportional share of costs, and attorneys’ fees and expenses incurred in
connection with any claim, action or proceeding brought with respect to that injury or damage.
(c) Waiver of Workers’ Compensation Immunity. THE LANDLORD AND TENANT
SPECIFICALLY AGREE THAT THE PROVISIONS OF THIS SECTION 14 ALSO APPLY TO ANY CLAIM
OF INJURY OR DAMAGE TO THE PERSONS OR PROPERTY OF THE TENANT’S EMPLOYEES, AND
TENANT ACKNOWLEDGES AND AGREES THAT AS TO THOSE CLAIMS, TENANT, WITH RESPECT
TO LANDLORD, DOES HEREBY WAIVE ANY RIGHT OF IMMUNITY WHICH TENANT MAY HAVE
UNDER INDUSTRIAL INSURANCE (TITLE 51 RCW AS AMENDED AND UNDER ANY SUBSTITUTE OR
REPLACEMENT STATUTE). THIS WAIVER AND AGREEMENT WAS SPECIFICALLY NEGOTIATED BY
LANDLORD AND TENANT AND IS SOLELY FOR THE BENEFIT OF LANDLORD AND TENANT AND
THEIR SUCCESSORS AND ASSIGNS AND IS NOT INTENDED AS A WAIVER OF TENANT’S RIGHTS
OF IMMUNITY UNDER SAID INDUSTRIAL INSURANCE FOR ANY OTHER PURPOSE.
Date: _________________________, 2016
_____________________________Landlord
Date: _________________________, 2016
_____________________________Tenant
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14.2 Insurance.
(a) Tenant will, as of the date of full execution of this Lease and at its own cost and
expense, keep and maintain in full force and effect during the Lease Term, insurance policies of the types
and in the amounts required as described in Exhibit E.
(b) Tenant will immediately notify Landlord if claims made against Tenant and covered
by any single policy exceed fifty percent (50%) or more of the aggregate limit. Notwithstanding the
foregoing, if during the Lease Term, in Landlord’s reasonable judgment, the Exhibit E policy limits are no
longer adequate to provide reasonable protection to Landlord, Landlord may notify Tenant of the
inadequacy and Tenant, within 30 days of receiving the notice, will obtain and provide Landlord with
evidence of additional amounts of insurance.
(c) Tenant will deliver to Landlord upon the Commencement Date and from time to
time thereafter as requested by Landlord copies of all policies of these insurance or certificates thereof
showing the parties named above as a primary additional insureds and the applicable policy limits
thereof. In no event will the limits of these policies be considered as limiting the liability of Tenant under
this Lease.
(d) Service of Alcoholic Beverages. The insurance to be carried by Tenant pursuant
to Section 14.2(a) above will not exclude liability for violation of any governmental statute, ordinance,
regulation or rule pertaining to the sale, gift, distribution or use of any alcoholic beverages, or liability by
reason of the selling, serving, or giving of any alcoholic beverage to a minor or to a person under the
influence of alcohol or any other person, or which causes or contributes to the intoxication of any persons.
Accordingly, the indemnification obligations in Section 14.1 of this Lease will extend, as well, to damages
occurring at locations other than the Premises and resulting from risks insurable by any of the following
(1) so-called dram shop liability insurance; (2) host liquor liability insurance; (3) liquor legal liability
insurance; or (4) insurance otherwise related to the sale, gift, distribution or use of alcoholic beverages.
(e) Failure to Maintain. If Tenant fails or refuses to maintain any insurance required by
this Section 14, Landlord, at its discretion, may obtain and maintain insurance for those items and interests
to protect Landlord in amounts as Landlord may determine to be appropriate, and any and all premiums
paid or payable by Landlord will be deemed to be additional rent and will be due on the payment date of the
next installment of Rent. The failure to obtain or maintain any insurance required by this Section 14 will
constitute a material breach of this Lease.
(f) Increase in Insurance Premium. Notwithstanding anything in this Lease to the
contrary, Tenant will not keep, use, sell or offer for sale in or upon the Premises any article, nor conduct any
activities or operations, which are or may be prohibited by Landlord’s insurance carriers. Tenant will pay
any increase in premiums for property or liability insurance maintained by Landlord resulting from Tenant’s
use or occupancy of the Premises, whether or not Landlord has consented to the increase. In the event of
Landlord’s increased insurance premiums, Tenant also will pay immediately to Landlord an amount equal to
any additional premium on the insurance policy or policies that Landlord may carry for its protection against
loss resulting from any insured event. In determining whether increased premiums are the result of
Tenant’s use or occupancy of the Premises, the rates and premiums determined by the organization setting
the insurance premiums will be conclusive evidence of the several items and charges which make up the
insurance premiums. Landlord will deliver bills for these additional amounts to Tenant, and Tenant will
immediately pay Landlord.
14.3 Mutual Release and Waiver of Subrogation.
Landlord and Tenant hereby mutually release each other from liability, and waive all right of
recovery against each other, for any injury, loss or damage to any building, structure, inventory or other
tangible property and any revenues, profit and rents to be generated therefrom, whether due to negligence
or any other insured cause, if the injury, loss or damage is caused by any of the perils that are covered by a
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first-party insurance policy benefiting the party suffering the injury, loss or damage or if the injury, loss or
damage was required to be covered by insurance pursuant to this Lease; provided that this Section 14.3 will
be inapplicable if it would have the effect, but only to the extent it would have the effect, of invalidating any
insurance coverage of Landlord or Tenant. Landlord and Tenant acknowledge that their current insurance
policies, as of the date of this Lease, will not be invalidated. In the future, if avoiding any invalidation can be
effected by the payment of money to an insurer, the other party may elect to pay that amount to obtain a
waiver of subrogation for its benefit. Landlord and Tenant, respectively, will promptly notify the other if its
insurance will be invalidated by the foregoing release and waiver or if any payment is required to avoid
invalidation. Notwithstanding anything to the contrary, this Section will not apply to any claim by Landlord for
any Minimum Rent, Percentage Rent, Adjustments and additional rent payable under this Lease. Landlord
and Tenant specifically intend, however, that this Section will apply to any potential claim that could
otherwise be made by Landlord for any rents to be paid by other occupants of the Project or any claim that
could potentially be made by Tenant for any lost sales, profits or revenues that could have been generated
from or operating expenses related to the Premises or elsewhere.
14.4 Acts of Others.
Landlord will not be responsible or liable to Tenant, or to those claiming by, through or under
Tenant, for any loss or damage which may be occasioned by or through the acts or omissions of third
parties or persons occupying space adjoining the Premises, any part of the Premises, the Premises
building, or any other part of the Riverbend Golf Complex. In addition, Landlord will not be responsible or
liable to Tenant for any loss or damage resulting to Tenant, or those claiming by, through or under
Tenant, or any of its property, from fire; explosion; falling plaster; the breaking, bursting, stoppage or
leaking of water, gas, sewer, electrical cables, wires or steam pipes; or from water, rain or other
substances leaking or coming from the roof, street, subsurface or from any other place or from dampness
or from any similar risks or causes. Landlord will not be liable for any loss or damage to any person or
property sustained by Tenant or any other persons, which may be caused by theft, or by any act or
neglect of any tenant or occupant of the Project, or of any other third parties.
14.5 Evidence of Coverage Prior to Entry.
Notwithstanding the foregoing, prior to entry upon the Premises, Tenant will provide Landlord with
written evidence of the required insurance coverage in the form of a certificate of insurance with the
applicable endorsements attached or, at Landlord’s request, a copy of the policy. With respect to industrial
labor and industry insurance, this requirement will be satisfied by a letter from the appropriate state agency
confirming participation in accordance with statutory requirements. Tenant will submit all accurate and
complete certifications and endorsements required under this Section 14 no later than five days prior to
opening for business. All corrections and/or modifications to the certifications and endorsements requested
by Landlord must be completed to Landlord’s satisfaction prior to Tenant’s opening for business.
SECTION 15 - EMINENT DOMAIN
If all or part of the Premises are taken by the power of eminent domain exercised by any
governmental or quasi-governmental authority, this Lease will terminate as of the date Tenant is required to
vacate the Premises and all Minimum Rent, Percentage Rent, Adjustments and other rentals and charges
due hereunder will be paid to that date. The term “eminent domain” will include the taking or damaging of
property by, through or under any governmental or quasi-governmental authority, and any purchase or
acquisition in lieu thereof, whether or not the damaging or taking is by the government or any other person.
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SECTION 16 - TENANT’S DEFAULT
16.1 Default.
The occurrence of any one or more of the following events will constitute a default and breach of
this Lease by Tenant:
(a) Vacating the Premises. The vacating or abandonment of the Premises by
Tenant or the violation of the operating covenant in Section 5.3. Vacation or abandonment of the
Premises will be deemed to exist if Tenant’s business in the Premises remains closed to the public for
more than five consecutive days.
(b) Failure to Pay Rent. The failure by Tenant to make any payment of Minimum
Rent, Adjustments, additional rent or any other payment required to be made by Tenant, as and when
due.
(c) Failure to Perform. The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease, other than described in Section 16.1 (b) above, where
Tenant’s failure continues for a period of at least 30 days after the Landlord provides written notice
(unless a shorter period is specifically provided for in this Lease with respect to any covenant, condition or
provision); provided, however, that if the nature of Tenant’s default is such that more than 30 days are
reasonably required for its cure, then Tenant will not be deemed to be in default if Tenant commences the
cure within 30 days and diligently prosecutes the cure to completion.
(d) Bankruptcy. The making by Tenant or Guarantor, if any, of any general
assignment or general arrangement for the benefit of creditors, or by the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt, or a petition or reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against Tenant, the same is dismissed within
60 days of filing); or the appointment of a trustee or a receiver to take possession of substantially all of
Tenant’s assets located at the Premises or of Tenant’s interest in this Lease, where that seizure is not
discharged within 30 days after appointment of a trustee or receiver, or the filing of a petition for the
appointment of a trustee or receiver, whichever occurs first.
(e) Repeated Defaults. Tenant’s third failure to perform or observe any of Tenant’s
obligations under the Lease during any calendar year (despite the fact Tenant may have cured the
previous failures after notice from Landlord and within the notice period).
(f) Default by Guarantor. A default by Guarantor, if any, in its obligations under its
guaranty in favor of Landlord.
16.2 Remedies in Default.
In the event of any of these defaults or breaches by Tenant, Landlord may at any time with or
without notice of demand and without limiting Landlord in the exercise of a right or remedy which Landlord
may have by reason of the default or breach:
(a) Terminate Lease. Terminate Tenant’s right to possession of the Premises by
any lawful means, in which case this Lease will terminate and Tenant will immediately surrender
possession of the Premises to Landlord. In this event Landlord will be entitled to recover from Tenant (1)
any unpaid rent which has been earned at the time of termination plus interest at the rates contemplated
by this Lease; plus (2) the amount by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of that rental loss that Tenant proves could have
been reasonably avoided plus interest at the rates contemplated by this Lease; plus (3) any other amount
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necessary to compensate Landlord for all the damage proximately caused by Tenant’s failur e to perform
under this Lease;
(b) Continue the Lease. Maintain Tenant’s right to possession, in which case this
Lease will continue in effect whether or not Tenant has abandoned the Premises. In this event Landlord
will be entitled to enforce all Landlord’s rights and remedies under this Lease, including the right to
recover the Minimum Rent, damages from Tenant’s breach or default and any other charges and
Adjustments as may become due, and to specifically enforce Tenant’s obligations and obtain injunctive
relief from further defaults or breaches;
(c) Remove Persons and Property. Landlord will also have the right with or without
terminating this Lease, to re-enter the Premises and remove all persons and property from the Premises;
property may be removed and stored in a public warehouse or elsewhere at the cost of and for the
account of the Tenant. No re-entry or taking possession of the Premises by Landlord pursuant to this
subsection (c) will be construed as an acceptance of a surrender of the Premises or an election to
terminate this Lease unless Landlord gives a written notice of that intention or unless a court decrees
termination; and
(d) Other Remedies. Landlord may also pursue any other remedy available to
Landlord under the laws or judicial decisions of the State of Washington, including but not limited to
specific performance, injunctive relief or any other equitable remedy, and/or the right to assess against
Tenant an amount equal to the attorneys’ fees incurred by Landlord in collecting any ren t or other
payment due, which amount will be due in full within ten days of Tenant’s receipt of the assessment by
Landlord.
16.3 Remedies Cumulative-Waiver.
It is understood and agreed that the Landlord’s exercise of any right or remedy due to a default or
breach by Tenant will not be deemed a waiver and will not alter, affect or prejudice any right or remedy
that Landlord may have under this Lease or by law or in equity. Neither the acceptance of Minimum or
Percentage Rent nor any other acts or omission of Landlord at any time or times after the happening of
any event authorizing the cancellation or forfeiture of this Lease, will operate as a waiver of any past or
future violation, breach or failure to keep or perform any covenant, agreement, term, or condition or to
deprive Landlord of its right to cancel or to forfeit this Lease.
16.4 Acceptance of Payment.
It is specifically understood and agreed that Landlord’s acceptance of any sum, whether as
Minimum Rent, Percentage Rent, Adjustments or otherwise, which is less than the amount claimed as
due by the Landlord, will not act as, or be deemed to be, a waiver of the claimed amount or a compromise
or accord and satisfaction of the amount due Landlord.
16.5 Waiver of Rights of Redemption.
Tenant hereby expressly waives any and all rights of redemption granted by or under any present
or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of
Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the
covenants or conditions of this Lease, or otherwise.
16.6 Application of Rents.
In the event that Landlord elects to re-let, the rents received by Landlord from that re-letting may,
in Landlord’s sole subjective discretion, be applied as follows: f irst to the payment of any indebtedness
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other than rent due from Tenant; second to the payment of any costs of re-letting; third, to the payment of
the cost of any alterations and repairs to the Premises; fourth, to the payment of rent due and unpaid; and
the residual, if any, held by Landlord and applied to payment of future rent as it will become due. Should
that portion of rents received from re-letting during the month which is applied to the payment of rent be
less than the rent payable during that month, then Tenant will pay any deficiency immediately upon
Landlord’s demand. The deficiency will be calculated and paid monthly. Tenant will also pay Landlord,
as soon as is certain, any of the costs and expenses incurred by Landlord in re-letting or in making any
alterations and repairs not covered by the rents received from re-letting.
16.7 Bankruptcy.
Landlord and Tenant (as either debtor or debtor-in-possession) agree that if a petition (“Petition”)
is filed by or against tenant under any chapter of Title 11 of the United States Code (the “Bankruptcy
Code”), the following provisions will apply:
(a) Adequate Protection. Adequate protection for Tenant’s obligations accruing after
filing of the Petition and before this Lease is rejected or assumed will be provided within 15 days after
filing in the form of a security deposit equal to three months’ Minimum Rent and Adjustments and other
Lease charges, to be held by the court or an escrow agent approved by Landlord and the court.
(b) Reasonable Compensation. The sum of all amounts payable by Tenant to
Landlord under this Lease constitutes reasonable compensation for the occupancy of the Premises by
Tenant.
(c) Abandonment. Tenant or Trustee will give Landlord at least 30 days written
notice of any abandonment of the Premises or any proceeding relating to administrative claims. If Tenant
abandons without notice, Tenant or Trustee will stipulate to entry of an order for relief from stay to permit
Landlord to re-enter and re-let the Premises.
(d) Timely Performance. If Tenant failed to timely and fully perform any of its
obligations under this Lease before the filing of the Petition, whether or not Landlord has given Tenant
written notice of that failure and whether or not any time period for cure expired before the filing of the
Petition, Tenant will be deemed to have been in default on the date the Petition was filed for all purposes
under the Bankruptcy Code.
(e) Prompt Cure. For the purposes of Section 365(b)(1) of the Bankruptcy Code,
prompt cure of defaults will mean cure within 30 days after assumption.
(f) Adequate Assurance of Future Performance. For the purposes of Section
365(b)(1) and 365(f)(2) of the Bankruptcy Code, adequate assurance of future performance of this Lease
by Tenant, Trustee or any proposed assignee will require that Tenant, Trustee or the proposed assignee
deposit three months of Minimum Rent, Adjustments and other Lease charges into an escrow fund (to be
held by the court or an escrow agent approved by Landlord and the court) as security for future
performance. In addition, if this Lease is to be assigned, adequate assurance of future performance by
the proposed assignee will require that: (1) the assignee have a tangible net worth not less than the net
worth of Tenant as of the Commencement Date or that the assignee’s performance be unconditionally
guaranteed by a person or entity that has a tangible net worth not less than the net worth of Tenant as of
the Commencement Date; (2) the assignee demonstrate that it possesses a history of success in
operating a business of similar size and complexity in a similar market as Tenant’s business; and (3) the
assignee assumes in writing all of Tenant’s obligations relating to the Premises or this Lease.
(g) Assignment/ Assumption. If Tenant or Trustee intends to assume and/or assign
this Lease, Tenant or Trustee will provide Landlord with 30 days written notice of the proposed action,
separate from and in addition to any notice provided to all creditors. Notice of a proposed assumption will
state the assurance of prompt cure, compensation for loss and assurance of future performance to be
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provided to Landlord. Notice of a proposed assignment will state: (1) the name, address, and federal tax
identification and registration numbers of the proposed assignee; (2) all of the terms and conditions of the
proposed assignment, and (3) the assignee’s proposed adequate assurance of future performance to be
provided to Landlord.
(h) No Obligation. If Tenant is in default under this Lease when the Petition is filed,
Landlord will not be required to provide Tenant or Trustee with services or supplies under this Lease or
otherwise before Tenant assumes this Lease, unless Tenant compensates Landlord for those services
and supplies in advance.
SECTION 17 - DEFAULT BY LANDLORD
17.1 Default by Landlord.
Landlord will not be in default unless Landlord fails to perform obligations required of Landlord
within a reasonable time, but in no event later than 30 days after written notice by Tenant to Landlord.
The notice will specify how Landlord has failed to perform its obligation; provided, however, that if the
nature of Landlord’s obligation requires more than 30 days for performance, then Landlord will not be in
default if Landlord commences performance within 30 days and diligently prosecutes remedying the
default obligation to completion. Tenant further agrees not to invoke any of its remedies under this Lease
until 30 days (or longer as provided in this section) have elapsed. In no event will Tenant have the right
to terminate this Lease as a result of Landlord’s default, and Tenant’s remedies will be limited to damages
and/or an injunction.
17.2 Tenant’s Right to Damages.
Tenant’s right to seek damages from Landlord as a result of a default by Landlord under this
Lease will be conditioned on Tenant taking all actions reasonably required, under the circumstances, to
minimize any loss or damage to Tenant’s property or business, or to any of Tenant’s officers, employees,
agents, invitees, or other third parties that may be caused by any Landlord default.
SECTION 18 - DESTRUCTION
18.1 Damage or Destruction.
If during the Term of this Lease, any portion of the Premises, access to the Premises or any part
of the Riverbend Golf Complex that is economically and physically essential to the use of the Premises is
damaged or destroyed and that damage or destruction can, in Landlord’s reasonable estimation, be
repaired within 240 days following the damage or destruction, this Lease will remain in full force and
effect, and Landlord promptly will begin repairs and restore the damage or destruction to substantially the
same condition as existed prior to the damage event and then diligently complete the repair and
restoration in compliance with all then existing laws. Landlord will give Tenant written notice of this
determination within 60 days after the date of the damage event. If the damage or destruction cannot, in
Landlord’s reasonable estimation, be repaired within 240 days from the date the damage occurs, then
either party may, in its sole discretion, terminate this Lease by delivery of written notice to the other party
at least 30 days prior to the termination date. In addition, if (i) more than forty percent (40%) of the
Riverbend Golf Complex is damaged or destroyed (regardless of its impact on the Premises); or (iii) the
damage or destruction is not covered in full by Landlord’s insurance required by this Lease, or Tenant’s
insurance by this Lease (or combination of both policies), or (iv) the damage or destruction occurs within
the last 12 months of the Term of this Lease or any extensions, then Landlord may, in its sole discretion,
terminate this Lease by delivery of notice to Tenant within 60 days of the date Landlord learns of the
damage.
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(a) Rent Abatement. In the event of repair, reconstruction and restoration by
Landlord as described in this Section 18.1, the Minimum Rent payable under this Lease will be abated
proportionately with the degree to which Tenant’s use of the Premises is economically or physically
impaired during the repair, reconstruction, or restoration period. Tenant will not be entitled to any
compensation or damages for loss of the use of the whole or any part of the Premises, damage to
Tenant’s personal property, and/or any inconvenience or annoyance occasioned by the repair,
reconstruction, or restoration.
(b) Tenant’s Obligation to Repair. If Landlord is obligated to or elects to repair or
restore under this Section 18.1, Landlord will be obligated to make repair or restoration only to those
portions of the Riverbend Golf Complex and the Premises that were originally provided at Landlord’s
expense, and the Tenant will be responsible for the repair and restoration of items not provided at
Landlord’s expense. Tenant agrees to coordinate the restoration and repair of those items it is required
to restore or repair with Landlord’s repair and restoration work . Further, Tenant’s work will be performed
in accordance with the terms, standards and conditions contained in Section 10 above.
SECTION 19 - ACCESS BY LANDLORD
19.1 Right of Entry.
Landlord or Landlord’s employees, agents and/or contractors will have the right to enter the
Premises at any time to examine the Premises, to show them to prospective purchasers or tenants, and,
after giving reasonable notice (except in emergencies) to make repairs, alterations, improvements or
additions as Landlord may deem necessary or desirable. If Tenant is not personally present to permit
entry and an entry is necessary, Landlord or its agents may forcibly enter, without rendering Landlord
liable for that entry.
19.2 Excavation.
If an excavation is made upon property adjacent to the Premises, Tenant will afford to the person
authorized to cause the excavation, license to enter the Premises for the purpose of doing necessary
work to preserve the wall of the Premises Building from injury or damage or to support the foundations,
without any claim for damages or indemnification against Landlord for diminution or abatement of Rent.
SECTION 20 - SURRENDER OR ABANDONMENT OF PREMISES
20.1 Surrender of Possession.
Tenant will promptly yield and deliver to Landlord possession of the Premises at the expiration or
prior termination of this Lease. Landlord may place and maintain a “For Lease” sign in conspicuous
places on the Premises for 60 days prior to the expiration or prior termination of this Lease.
20.2 Holding Over.
Any holding over by Tenant after the expiration or termination of the Lease Term, with or without
Landlord’s consent, will be construed to be a tenancy from month-to-month on all of the terms and
conditions set forth in this Lease, to the extent not inconsistent with a month-to-month tenancy; provided,
that the Minimum Rent for this hold-over period will be an amount equal to one hundred twenty five
percent (125%) of the Minimum Rent due for the last month of the Lease Term.
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20.3 Voluntary Surrender.
Tenant’s voluntary or other surrender of this Lease will not work a merger, and Landlord’s
removal of Tenant’s personal property will not be construed or deemed to be a termination of this Lease
or an actual or constructive eviction of Tenant, nor will it relieve Tenant of its obligations under this Lease.
Landlord will have rights of entry and removal in order to attempt to mitigate L andlord’s damages in the
event of Tenant’s abandonment of the Premises.
SECTION 21 - QUIET ENJOYMENT
21.1 Landlord Covenant.
Tenant, upon fully complying with and promptly performing all of the terms, covenants and
conditions of this Lease, and upon the prompt and timely payment of all sums due, will have and quietly
enjoy the Premises for the Lease Term.
SECTION 22 - AUTHORITY OF PARTIES
22.1 Authority.
Each individual executing this Lease on behalf of Tenant personally represents and warrants that
he or she is duly authorized to execute and deliver this Lease on behalf of Tenant, and that this Lease is
binding upon Tenant in accordance with its terms. T enant will, within 30 days after execution of this
Lease, deliver to Landlord a certified copy of a resolution of the board of directors, members, or partners
(as applicable) of Tenant authorizing or ratifying the execution of this Lease.
SECTION 23 - SIGNS
23.1 General.
Tenant will not place or suffer to be placed on the exterior walls of the Premises or upon the roof
or any exterior door or wall or on the exterior or interior of any window any sign, awning, canopy,
marquee, advertising matter, decoration, letter or other thing of any kind (exclusive of the signs, if any,
which may be provided for in the original construction or improvement plans and specifications approved
by the Landlord) without the prior written consent of Landlord, which consent may be withheld in
Landlord’s sole subjective discretion. Landlord reserves the exclusive right to the use for any purpose the
roof and exterior of the walls of the Premises or the Premises building. In the event Tenant installs any
sign without the Landlord’s prior written approval, Landlord will have the right and authority without liability
to Tenant to enter upon the Premises, remove and store the sign and repair all damage caused by the
removal of the sign. All costs and expenses incurred by Landlord will be immediately paid by Tenant as
additional rent. Tenant will be responsible for all maintenance and repair costs for its signs and awnings
(if any). The Landlord reserves the right to remove the Tenant’s signs or awnings during any period that
Landlord repairs, restores, constructs or renovates the Premises or the Premises building.
23.2 Tenant’s Interior Signs.
Except as otherwise herein provided, Tenant will have the right, at its sole cost and expense, to
erect and maintain within the interior of the Premises all signs and advertising matter customary and
appropriate in the conduct of Tenant’s business; so long as the signage complies with the provisions set
forth in Landlord’s sign criteria; provided, however, that Tenant will upon demand of the Landlord
immediately remove any sign, advertisement, decoration, lettering or notice which Tenant has placed or
permitted to be placed in, upon or about the Premises and which Landlord deems objectionable or
offensive, and if Tenant fails or refuses so to do, the Landlord may enter upon the Premises and remove
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the same at Tenant’s cost and expense. In this connection, Tenant acknowledges that the Premises are
a part of an integrated Project, and agrees that control of all signs by Landlord is essential to the
maintenance of uniformity, propriety and the aesthetic values in or pertaining to the Project.
23.3 Sign Requirements.
Notwithstanding anything to the contrary provided for in this Lease, Tenant will be obligated, at its
sole cost and expense and on or before the date Tenant opens its doors for business, to design, fabricate
and install a primary storefront sign on the Premises (“Storefront Sign”); provided further that the
Storefront Sign will remain subject to Landlord’s approval prior to installation with respect to and without
limitation, design, method of attachment, location or other conditions.
SECTION 24 – DISPLAYS, AUCTIONS AND SALES
24.1 General.
Tenant agrees not to install any exterior lighting, amplifiers or similar devices or use in or about
the Premises, such as flashing lights, searchlights, loudspeakers (although Tenant may play music at a
reasonable level in the outdoor seating areas), phonographs or radio broadcasts, nor to make, or allow to
be made, any excessive noise in or around the Premises. No advertisement or sound of advertising will
be heard outside the Premises, unless Tenant first receives Landlord’s prior written approval. If music or
any other audio transmission emanating from within the Premises is objectionable or offensive (in the
reasonable judgment of Landlord), Landlord may require Tenant to stop or decrease the volume of those
sounds to a reasonable level, as determined by Landlord, and Tenant will immediately comply. The
Tenant may not display, sell or store merchandise outside the defined exterior walls and permanent
doorways of the Premises.
SECTION 25 - MISCELLANEOUS
25.1 Successors or Assigns.
All the terms, conditions, covenants and agreements of this Lease will extend to and be binding
upon Landlord, Tenant and their respective heirs, administrators, executors, successors, subtenants,
subleases, concessionaires, assigns and marital communities, if any, and upon any person or person
coming into ownership or possession of any interest in the Premises by operation of law or otherwise.
25.2 Tenant Defined.
The word “Tenant” will mean each and every person, partnership or corporation who is mentioned
as a Tenant or who executes this Lease as Tenant.
25.3 Broker’s Commission.
Tenant represents and warrants that it has incurred no liabilities or claims for brokerage
commissions or finder’s fees in connection with the execution of this Lease.
25.4 Partial Invalidity.
If any term, covenant, or condition of this Lease or its application to any person or circumstance
is, to any extent, determined to be invalid or unenforceable, the remainder of this Lease, or the
application of that term, covenant or condition to persons or circumstances other than those as to which it
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is held invalid or unenforceable, will not be affected and each term, covenant or condition of this Lease
will be valid and be enforced to the fullest extent permitted by law.
25.5 Recording.
Tenant will not record or file this Lease, or any assignment or security document pertaining to this
Lease or all or any part of Tenant’s interest in this Lease without the prior written consent of Landlord,
which consent may be withheld or granted in Landlord’s sole discretion.
25.6 Notices.
Any notice, demand, request, consent, approval or communication that either party desires or is
required to give to the other party or any other person will be in writing and either served personally or
sent by registered or certified United States mail, or by overnight courier (collectively, “Notice”). Any
Notice will be addressed to the other party at the address appearing in Section 1.1. Notice will be
deemed communicated within three business days from the time of deposit in the United States mail if
mailed as provided in this section, or upon delivery or refusal of delivery if delivered personally or by
overnight courier. Although either party will have the right to change its address for notice purposes from
time to time, any notice delivered pursuant to this Section to the address set forth in Section 1.1. of this
Lease or to other addresses as may be specified in writing in accordance with this Section will be
effective even if actual delivery cannot be made as a result of a change in the address of the recipient if
the party delivering the notice has not received actual written notice in accordance with the provisions of
this Section of the current address to which notices are sent.
25.7 Plats and Riders; Marginal Headings; Captions.
Clauses, plats, riders, exhibits and addendums, if any, affixed to this Lease are incorporated
herein by reference. To the extent any Exhibits conflict with the terms of this Lease, the terms of this
Lease will control. Except to the extent any Addendum specifically modifies terms of this Lease, the
terms of this Lease otherwise will control. Any section or paragraph titles or captions are for convenience
only and will not be deemed to define, limit or otherwise modify the scope and intent of this Lease or any
provision thereof.
25.8 Waiver.
The waiver by Landlord of any term, covenant or condition will not be deemed to be a waiver of
that term, covenant or condition or any subsequent breach of that or any other term, covenant or
condition. Landlord’s subsequent acceptance of Minimum or Percentage Rate or any other Adjustment or
sum will not be deemed to be a waiver of any preceding default by Tenant, other than the failure of the
Tenant to pay the particular sum so accepted, regardless of Landlord’s kn owledge of the preceding
default at the time of the acceptance of that sum.
25.9 Joint Obligations.
If there be more than one Tenant the obligations hereunder imposed will be joint and several.
25.10 Time.
Time is of the essence of this Lease.
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25.11 Inability to Perform.
In the event that either party will be delayed or hindered in or prevented from the performance of
any covenant, agreement, work, service, or other act required under this Lease (other than monetary
obligations), and that delay or hindrance is due to causes entirely beyond its control, such as riots,
insurrections, martial law, lawsuits, court orders or injunctions, civil commotion, war, fire, flood,
earthquake, or other casualty or acts of God, the performance of the covenant, agreement, work, service,
or other act will be excused for the period of delay and the time period for performance will be extended
by the same number of days in the period of delay.
25.12 Choice of Law; Venue.
This Lease will be governed by the laws of the State of Washington. The venue for any action to
enforce the terms of this Lease or collect any amounts owing by Tenant to Landlord will be in the Superior
Court for King County, Washington.
25.13 Legal Expenses.
If either party is required to bring or maintain any action (including assertion of any counterclaim
or cross-claim, or claim in a proceeding in bankruptcy, receivership or any other proceeding instituted by
a party hereto or by others), or otherwise refers this Lease to an attorney for the enforcement of any of
the covenants, terms or conditions of this Lease, each party will be responsible to pay all its costs and
attorneys’ fees incurred as a result.
25.14 Competition.
During the Lease Term, and any extensions, and for a period of one year from the date of Lease
termination (as may be shortened or extended),Tenant will not directly or indirectly engage in any similar
or competing business within a radius of three miles from the property line of the Riverbend Golf Complex
closest to the location of the proposed competing business location, unless the Landlord first provides its
prior written approval; provided, that if Tenant does directly or indirectly engage in any similar or
competing business within this radius during the Lease Term (as may be shortened or extended), then
the Gross Sales by Tenant (as defined above) from the competing location will be added to Gross Sales
from the Premises for the computation of Percentage Rent due under this Lease.
25.15 Acceptance of Keys.
The acceptance of keys to the Premises by the Landlord, its agents, employees, contractors or
any other person on Landlord’s behalf will not be deemed or constitute a termination of this Lease unless
termination is evidenced in writing signed by the Landlord.
25.16 Landlord’s Consent.
Unless otherwise specifically stated, whenever Landlord’s consent is required, Landlord’s consent
may be withheld in Landlord’s sole subjective discretion.
25.17 No Light, Air or View Easement.
Any diminution or shutting off of light, air or view by any structure that may be erected on or
adjacent to the Premises will not affect this Lease or Tenant’s obligations under the Lease, and will not
impose any liability on Landlord.
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RL Kids, LLC d/b/a Scotch and Vine Riverbend Restaurant Lease Page | 33
25.18 Name.
Tenant will not, without the prior written consent of Landlord, use the name of the building or
project for any purpose other than as the address of the Premises, and in any event, Tenant will not
acquire any rights in or to those names.
25.19 Submission of Lease.
This Lease will not bind Landlord in any way until (a) Tenant has executed and delivered at least
one original copy of the Lease to Landlord, and (b) Landlord has executed and delivered at least one
fully-signed copy to Tenant.
25.20 Prior Agreements.
It is understood that there are no oral or written agreements or representations between Landlord
and Tenant affecting this Lease and that this Lease supersedes and cancels any and all previous
negotiations, arrangements, representations, brochures, displays, projections, estimates, agreements and
understandings, if any, made by or between Landlord and Tenant, nor will they be used to interpret,
construe, supplement or contradict this Lease. This Lease, and all mutually-executed, written
amendments, is and will be considered to be the only agreement between Landlord and Tenant and their
representatives and agents. All negotiations and oral agreements acceptable to Landlord and Tenant
have been merged into and are included in this Lease. There are no other representations, covenants or
warranties between Landlord and Tenant and all reliance with respect to representations is solely upon
the express representations, covenants and warranties contained in this Lease. Landlord and Tenant
agree that the interlineation, obliteration or deletion of language from this Lease prior to its mutual
execution by Landlord and Tenant will not be construed to have any particular meaning or to raise any
presumption, canon of construction, or implication, including, without limitation, any implication that
Landlord or Tenant intended to state the converse, obverse or opposite of the deleted language. This
Lease will be read as if the obliterated or deleted language had never existed and the interlineated
language had always existed.
25.21 Construction.
Each party acknowledges and agrees that it has participated in the drafting and the negotiation of
this Lease and has been afforded a full and fair opportunity to seek advice from legal counsel. Tenant
acknowledges that Landlord’s attorney represents Landlord and not Tenant. Although the printed
provisions of this Lease were drawn by Landlord, Landlord and Tenant agree that this circumstance will
not create any presumption, canon of construction, or implication favoring the position of either Landlord
or Tenant. Accordingly, in the event of a dispute with respect to the interpretation or enforcement of this
Lease, no provision will be construed so as to favor or disfavor either party.
25.22 Financial Statements.
Tenant will, prior to Tenant’s execution of this Lease and within 10 days after Landlord’s request
at any time of Tenant’s default hereunder during the Term, deliver to Landlord complete, accurate and up-
to-date financial statements with respect to Tenant and any Guarantor(s) or other parties obligated upon
this Lease, which financial statements must be (a) prepared according to generally accepted accounting
principles consistently applied, and (b) certified by an independent certified public accountant or by
Tenant’s (or Guarantor’s, as the case may be) chief financial officer , or Guarantor if Guarantor is an
individual, that the same are a true, complete and correct statement of Tenant’s (or Guarantor’s) financial
condition as of the date of those financial statements.
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RL Kids, LLC d/b/a Scotch and Vine Riverbend Restaurant Lease Page | 34
25.23 Effective Date.
This Lease will take effect on the last date provided below.
LANDLORD:
THE CITY OF KENT,
a Washington municipal corporation
By: Suzette Cooke
Its: Mayor
Date:
TENANT:
RL KIDS, L.L.C., d/b/a SCOTCH AND VINE
a Washington Limited Liability Company
By:
Its:
Date:
41
RL Kids, LLC d/b/a Scotch and Vine Riverbend Restaurant Lease Page | 35
TENANT:
in his/her individual capacity and for his/her
marital community
by
(print name)
Date:
42
RL Kids, LLC d/b/a Scotch and Vine Riverbend Restaurant Lease Page | 36
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Suzette Cooke is the person who appeared
before me, and said person acknowledged that she signed this instrument, on oath stated that she was
authorized to execute the instrument and acknowledged it as the Mayor of the City of Kent to be the free
and voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated:
-Notary Seal Must Appear Within This Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year
first above written.
(Signature)
NOTARY PUBLIC, in and for the State
of Washington, residing at
My appointment expires
43
RL Kids, LLC d/b/a Scotch and Vine Riverbend Restaurant Lease Page | 37
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person acknowledged that (he/she) signed this
instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it as
the of to be the free and
voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated:
p:\civil\files\open files\0463-riverbend\scotch and vine\riverbendscotchvinelease022316kakrevdtcb.docx
-Notary Seal Must Appear Within This Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year
first above written.
(Signature)
NOTARY PUBLIC, in and for the State
of Washington, residing at
My appointment expires
44
OFFICE OF THE MAYOR
Derek Matheson, CAO
Phone: 253-856-5711
Fax: 253-856-6700
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
DATE: March 1, 2016
FROM: Michelle Wilmot, Community and Public Affairs Manager
Tricia Callahan, IT Project Manager/Business Analyst
Gregg Sconce, IT Webmaster
SUBJECT: Content Management System (Website) Replacement -
Recommend
MOTION: Recommend the Council authorize the Mayor to sign all necessary
documents to enter into a contract with Vision Internet to replace the City’s
Content Management System (website) and to develop and implement a new
website.
SUMMARY: With over 900,000 annual visitors, the City’s website is its primary
communication tool. As such, it is important that the website be easy to navigate so
visitors can find important information quickly. For staff, posting regular updates
should be simple and easy to perform. Interviews among Council members,
department directors and staff reveal concerns with the City’s website and its 1,569
pages, which is double what industry best practices note should be between 600 – 800
pages.
Citing inconsistency across pages, lack of information, or too much unnecessary
information, broken links, difficulty in navigation, and frustration with visual elements
or lack thereof, the need to coordinate and consolidate content is imperative. Currently
the City’s website is populated with content by over 60 employees, making a
coordinated, easily navigable, visually-pleasing site impossible.
Complicating matters is an extremely difficult user interface for those who create the
site’s content. The site was last updated five years ago. Industry-speaking, websites
are out-of- date and in need of a refresh every three -four years.
After evaluating 16 different website products, three rose to the top as contenders
which could best meet the needs expressed by staff. These were “test driven” by
several department representatives who provided great feedback.
Since then, a pro/con list was developed that heavily scrutinized these products
against the City’s requirements. Vision Internet far exceeded what was provided by the
other vendors in terms of their service offerings, customized approach and cost.
45
Vision Internet will provide the following:
User-friendly site, both for visitors and content providers
A site customized to the Kent community based on the pages visited currently
A site that is compatible for mobile devices
Training - how to upload content, how to provide better content, writing for the
web and ongoing training
On online survey for the community to gather information regarding their level
of satisfaction; identifying common tasks as well as potential goals of our
website visitors
A redesign in 4 years, which is considered the maximum website lifespan.
A Content Strategy to help remove usability challenges and provide a user-
friendly site architecture and governance model. By moving away from
departmental webpages, and towards pages by service, the site will be designed
with the visitor as its primary focus.
Exhibits:
Master Agreement
IT Department Position Paper
Budget Impact: $117,519.70 Technology Fund
46
IT Department – Position Paper
PM/BA: Tricia Callahan Presentation Date: 01/26/16
Form Last Modified: 2/23/2016 Page 1 of 5
TOPIC TITLE: CMS Replacement Project
SITUATION
Our current CMS platform is built on the Ektron CMS400.net platform which was purchased at the end of last year by the private equity firm Accel-KKR, who also
owns the competing CMS platform EPiServer. While Ektron CMS400.net is still currently “supported” (see support issues below) it is for all intents and purposes a
dead product. Accel-KKR has announced that they will be merging the two products and moving forward under the EPiServer brand. Existing Ektron customers will
eventually have to migrate to the EPiServer CMS platform, which is a more expensive product and will require a complete data migration and redesign of the city
website.
Both the Ektron and EPiServer platforms are primarily Business-to-Consumer products, with their primary focus on marketing, sales, and ecommerce. As such, all new
enhancements to the platforms over the last few years have been focused on ecommerce, marketing, and customer retention functionality, and have therefore been
of little use to the city. While at the same time functionality needed to support the city’s primary goals of communication and citizen engagement have either been
scaled back or are non-existent.
Internal Web Authors find the existing Ektron CMS400.net CMS unintuitive with a poorly designed editing interface that is error prone and cumbersome making it
difficult to use. This also makes it hard to train new Web Authors as staff member change responsibilities or leave the city.
Several key pieces of functionality that promote communication and citizen engagement, including automatic email notification to content subscribers (eAlerts) and
the ability to run accurate reports for surveys and other online forms, are currently broken. Attempts have been made to work with Ektron support to resolve these
issues but so far they have been unable or unwilling to resolve the issues.
In addition, the layout and design of the city website is in need of an overhaul. Both citizens and city staff find the current design of the city website cumbersome and
the organization of content is unintuitive. This makes it difficult for citizens to find the information they are looking for and leads to frustration and drives them to
contact city staff to get the information they need. This wastes the time of staff and the public.
Since the migration from Ektron CMS to EPiServer platform would be a complete data migration and site rewrite/redesign anyway, this provides us with a perfect
opportunity to re-evaluate the city’s CMS needs and research other CMS vendors to find a platform that is a better fit for the city’s communication goals.
By focusing our search for a replacement CMS platform on the smaller segment of the CMS market that specializes in the Government and Non-profit market
segment, we are looking to find a vendor whose CMS platform has functionality that better supports the city’s strategic goals of communication, citizen participation
and citizen engagement.
POSITION
IT has evaluated 16 different CMS products. The list was narrowed down to 3 products of which we invited representatives from each Department to participate in a
demonstration as well as the opportunity to test the products in a sandbox environment. Following these activities, we narrowed the list down to two products.
PRODUCT EVALUATION
Cost Analysis:
CivicPlus VisionInternet
CMS Package 109,356 (1000 pages) 20,530 (500 pages)
Content Migration – Up to 500 pages n/a 8,500
Content Consulting Package – Plus 15,000 17,500 (2 on-site days)
Kick off meeting 10,000 Included in CMS Package (1 hour remote intro call)
Advanced Website Analysis 3,600 3,000
Search Engine Registration n/a $270
Approval Cycle n/a $4,630
Document Central PDF Converter n/a $1,750
Google Translation Integration Included in Content Consultation Package Included in Content Consultation Package
VisionSearch n/a $1,000
Process roadmap consultation 10,000 Included in Content Consultation Package
Public engagement evaluation 7,800 Included in Content Consultation Package
Responsive Design (makes all pages viewable from
mobile device and tablet)
Included in CMS Package 2,000
Home Page view from Mobile Device (app look and
feel)
Included in CMS Package (GoCitizen Pro Mobile
Application)
4,500 (Mobile Home Page Enhancement)
Onsite Consultation n/a 4,860 (one day on-site)
Onsite Consultation – Additional on-site day 2,500
Onsite Training Program 7,800 (2 days on-site) 3,290 (one day on-site)
Onsite Training Program- Additional on-site day 2,500
TOTAL: $154,556 $76,830
47
IT Department – Position Paper
PM/BA: Tricia Callahan Presentation Date: 01/26/16
Form Last Modified: 2/23/2016 Page 2 of 5
Cost Analysis (continued):
*NPV = Net Present Value of future costs of each solution over the next 4 years. (4% interest rate)
Pro/Con Analysis:
CivicPlus VisionInternet
Pros Cons Pros Cons
Established in 1998 Established in 1995
Dedicated Support Person Dedicated Account Manager
Unlimited web pages Unlimited web pages
Alt Text (photos) Compliant Alt Text (photos) Compliant
508 Compliant 508 Compliant
ADA Compliant ADA Compliant
Integration with GIS Software/Google
maps
Integration with GIS Software/Google
maps
Not Open Source Not Open Source
CivicPlus is a larger company with
more resources available to them
(~200 employees)
VisionInternet is a smaller company
with less resources (~52 employees)
1900+ Government Agency Clients 100+ Government Agency Clients
Virtual Webmaster Available (5 hours
of content updates per month) -
Additional cost of $5,700
No Virtual Webmaster Available.
CP is a total government solution.
They have additional products to assist
goverments in other ways: CivicReady
(coordinate back end teams during
emergencies), CivicSend (Mass Emails),
CivicEngage (Government Content
Management), CivicHR (full HR suite)
Company only does websites
Closed Caption (videos) Compliant Closed Caption (videos) – NOT
Compliant
Unlimited Server Storage Space Limited Storage Space (250 GB) – cost
for additional space
5 days of onsite training for up to 20
people
3 days of onsite refresher training 60-
120 days past go-live
Scope includes a web-based training
session
CivicPlus VisionInternet
Subscription Fees (annual) 18,591
(subject to annual 5% increase year 3 and beyond)
9,500
(Plus edition- subject to annual 5% increase year 3
and beyond))
Maintenance & support (annual) included included
Annual Recurring Training (remote) 2,000 (10K - 3 day on-site Annual Refresher) included
Premium Disaster Recovery Option n/a 2,000
NPV of recurring costs (year 2- 4) $73,689.08 $40,689.70
Total upfront costs (year 1) $154,556 $76,830
NPV of recurring costs (years 2 – 4) $73,689.08 $40,689.70
TOTAL NPV OF ALL COSTS: $228,245.08 $117,519.70
48
IT Department – Position Paper
PM/BA: Tricia Callahan Presentation Date: 01/26/16
Form Last Modified: 2/23/2016 Page 3 of 5
CivicPlus Vision Internet
Pros Cons Pros Cons
Free redesign after 4 years. Cost for
making changes to code in the interim.
Free redesign after 4 years or make
redesign changes gradually using
credits to make changes to code
(flexible)
Process starts at the design stage. Process starts at the UX stage – much
more customization to our cities
needs.
Additional cost associated with making
changes to the home page.
Ability to change home page
background to reflect events or
seasons (No limit, included)
Pages have responsive design but
users lack the ability to optimize the
format and make changes.
Ability to move, hide and reorder
content for mobile site
4 hour disaster recovery time (no
other options available)
2 hour disaster recovery time (2K
option: Instantaneous Disaster
recovery time with premium package)
Responsive websites do not present
well in mobile mode.
(http://www.dublin.ca.gov/ >> side by
side view in desktop and mobile
mode)
Responsive websites present well in
mobile mode.
Online Community Survey is an
additional cost ($7,800)
Design Phase includes Online
Community Survey
Up to 1000p of content development –
migrate everything over and then train
clients on being better moving forward
Up to 1000 pages of content migration
–Lean, strategic and nimble with what
is migrated
Additional cost of $1,000 - Media
Center with Live Streaming Video
Streaming Video Center included
Additional cost of $7,800 for a 2 day
on-site meeting to present website to
stakeholders
Included in budget
Content consultation not customized
(one-size fits all approach)
Content consultations customized to
our community using the CoK’s
analytics, heatmap results and real
examples of citizens in our community
to teach the CoK how to write and edit
better content.
“World Class Government Agent
Expert” available but deliverables not
well defined (Option 1. During design
to launch phase: 2 weeks; 15K Option
2. Prior to design to launch phase: 2
weeks; 28K/ 35K w/o commitment to
purchase CP)
GoCitizen Pro Mobile Application.
Citizens required download app to
their mobile device (takes up space on
their phones.)
Mobile Home Page Enhancement (ie
http://weho.org/ vs
http://www.goodyearaz.gov/ ) >> 4K
(Automatically looks like a mobile
phone without having to download an
app.) Way to get everyone to interact
without requiring their action.
Additional cost of (10K-add up to 6
dept per additional day for $2,200)
On-site Kick off meeting to discuss
design goals, audience goals and meet
with dept to discuss project objectives
Included in budget
49
IT Department – Position Paper
PM/BA: Tricia Callahan Presentation Date: 01/26/16
Form Last Modified: 2/23/2016 Page 4 of 5
Site Examples:
http://www.co.pierce.wa.us/
http://snohomishcountywa.gov/
http://issaquahwa.gov/
http://wa-portangeles.civicplus.com/
http://burlingtonwa.gov/
http://www.desmoineswa.gov/
http://www.ci.bainbridge-isl.wa.us/
www.jeffersontownky.com
http://www.banff.ca/
http://www.blueearthcountymn.gov/
http://www.co.walton.fl.us/
Site Examples:
Example of anchor scrolling – http://www.cityofnorthport.com/
Example of parallax scrolling - http://www.fortlauderdale.gov/
Example of tiles - https://portal.ehawaii.gov/
Example of video background – http://www.iaf.gov/
http://www.ci.tumwater.wa.us/
http://www.culvercity.org/
http://www.ci.palm-springs.ca.us/
http://www.palmbayflorida.org/
http://www.ci.seatac.wa.us/
http://www.maplevalleywa.gov/
http://www.cityofshoreline.com/
https://www.wenatcheewa.gov/
http://www.cityofcashmere.org/
http://www.sandyspringsga.org/
http://soldotna.org/
http://www.mesaaz.gov/
http://www.reno.gov/
http://www.provo.org/
50
IT Department – Position Paper
PM/BA: Tricia Callahan Presentation Date: 01/26/16
Form Last Modified: 2/23/2016 Page 5 of 5
RECOMMENDATION
It is the opinion of the IT Department that either of these products will meet the business needs and deliver an amazing City of Kent website in 2016. However, IT
believes that the content consultation piece that Vision Internet provides will allow the City of Kent to not only deploy a great website but provide us the training and
guidance with regards to best practice to ensure that our website is amazing 3-6-12 months AFTER it is deployed. For this reason and the large cost savings over the
course of 4 years I strongly recommend that the City of Kent purchase Vision Internet.
Next steps recommended:
1.) IT recommends that we schedule two 1-hour sandbox sessions with the same group of web authors that participated in the previous demos/sandbox sessions.
The vendor will provide training remotely at these sessions. Following the sandbox sessions, IT will send a brief 5-minute survey to those that participated
requesting their feedback on the products. IT will record the results of the survey to present to project stakeholders.
2.) Tricia will schedule a meeting with all project stakeholders to confirm which solution to move forward with (analyzing survey results, requirements matrix and
position paper).
3.) Tricia or Michelle will send out an email to those the participated in the demo/sandbox sessions, thanking everyone for their time/effort and let them know what
product was selected (and why) and what the next steps will be with regards to their involvement in the design/training phases.
4.) IT will work with the vendor to sign appropriate contracts. (Tricia has the information required to request that we do not need to go through RFP process.)
5.) Once Tricia is connected with the vendor PM and the schedule and deployment plan is confirmed, Tricia will provide status update to project stakeholders and
current web author team….More detailed next steps will be communicated to everyone impacted.
Revised Schedule:
Deliverable Start Date End Date
2nd round of Sandbox Sessions February 1 February 5
Survey sent February 5
Product Selection February 12
Contracts Management February
15
February
26
Product Vision to Launch Time Estimate (~20
weeks)
March 1 July 8
City of Kent 2016 Website Launch AUGUST 2016
Supporting Documents:
Requirements Matrix
Product Information on Teamspace
5 Things Local Government Gets Wrong about Websites – written by Senior Director of Marketing and Strategic Partnerships at Vision Internet
Assumptions
- The Web Author Team, the content they add/edit and the layout of site will determine the ultimate success of the website.
- Estimates include planning, design, programming, marketing setup and launch.
- New website will be mobile/tablet-responsive.
- Website will be built in a CMS framework to empower non-technical staff to edit most content themselves.
- Departments will provide all text content (body copy, product/ team images). Graphics supplied and managed by Multimedia (Refer to Website Online Team
structure recommendation on Teamspace.)
- As a result of Vision Internet being a smaller company, more hand holding will be available for content editors.
51
2016-0108 vS/PE 1
creating what’s next
for the City of Kent
Project Name:
List of Services
Vision will perform the following services for the City of Kent:
Website Development Services
visionLiveTM Subscription Services
Contacts
City Project Manager
Name:
Address:
Phone:
Email:
Fax:
City Contract Contact
Name:
Address:
Phone:
Email:
Fax:
Vision Project Manager
Name: Kristoffer Von Bonsdorff, or his designee
Address: 222 N. Sepulveda Blvd., Suite 1500, El Segundo, CA 90245
Phone: (310) 656-3100
Email:
Fax: (310) 656-3103
Vision Contract Contact
Name: Contract Administrator
Address: 222 N. Sepulveda Blvd., Suite 1500, El Segundo, CA 90245
Phone: (310) 656-3100
Email: contracts@visioninternet.com
Fax: (310) 656-3103
52
2016-0108 vS/PE 2
terms and conditions
This Master Services Agreement (“Agreement”) is made and entered into effective as of the date of the last
signature below (the “Effective Date”) by and between Vision Technology Solutions, LLC dba VISION INTERNET
PROVIDERS (“Contractor”), and the customer which is a signatory hereto (“Client”). Client and Contractor are
sometimes individually referred to as a “Party” and collectively as the “Parties.”
1. Services. This Agreement (which includes and incorporates the Addendum(s) attached hereto
and Contractor’s acceptable use policy (“AUP”) posted at www.visioninternet.com) sets forth the entire terms and
conditions by which Contractor will deliver and Client will receive any and all of the services provided by
Contractor, including one or more of the following: website development, visionLiveTM subscription services,
maintenance services, and/or other extra work and services (collectively, the “Services”) and supersedes all other
written or oral agreements, proposals or understandings with regard to the Services provided for herein. This
Agreement is intended to cover any and all Services ordered by Client and provided by Contractor.
Contractor will provide Services to Client as requested by Client and as set forth in the applicable
Addendum(s) in exchange for payment of related fees specified in such Addendum(s), and compliance with the
terms and conditions of this Agreement, and compliance with Contractor’s AUP as such policy may change from
time to time. In the event of conflict with an Addendum with respect to the terms of this main body of this
Agreement, then this Agreement shall govern.
2. Subsequent Extra Work/Other Services. Additional services not initially covered in this Agreement
(including the Addendum referenced above) and extra hours will be presented to Client for approval prior to
commencement of work (“Extra Work”). Extra Work will be set forth in an amendment to this Agreement signed by the
Parties and designated as Addendum C-1, C-2, etc., as applicable, and such Addendum shall become part of this
Agreement when executed by both parties. Such addendum will be billed at Contractor’s then prevailing hourly rates,
which are currently as follows: Content Migration, $85/hr; Graphic Production, $95/hr; Quality Assurance, Testing,
Debugging, Technical Support, Webmaster Services, HTML Programming, $105/hr; Consulting, Project Management,
Database Design, Dynamic Programming, $135/hr; Graphic Design, Training, $125/hr; Straight flatbed scanning will be
billed at $10 per scan. Touch up work to images will be billed at the Graphic Design hourly rate. Client shall be
responsible for any or all additional fees including, without limitation: photography, stock images, illustration, fonts,
scanning, software, applications, online promotion, marketing, copy writing, redesign, change orders, mailings, and fees
to any third party vendors if applicable. Calls outside of Business Hours for support services unrelated to the website being
down for more than ten (10) minutes will be subject to a minimum fee of $135.
3. Ownership; Limited Licensing of Intellectual Property.
3.1. Designs. Upon payment in full of the website development fees provided under
Addendum A, Contractor grants a non-exclusive, non-transferrable, and perpetual license for Client to reproduce,
modify or create derivative works for its own use, public display, and use any and all of Contractor’s copyrights in
the homepage layout wireframe, sitemap, draft homepage design concept(s) interior page layouts (collectively,
the “Contractor Designs”) embodied in Client’s website, which are prepared or caused to be prepared by
Contractor under this Agreement. The Contractor Designs provided under this Agreement is licensed and not sold.
Client understands and agrees that the Contractor Designs as a whole is an original work of authorship by
Contractor and that Contractor shall retain all rights, title, and interests therein. Contractor retains its right to use
any web pages developed for the Client in any of its own promotional materials as examples of its work.
3.2. Vision Content Management SystemTM. Contractor also grants a limited, non-exclusive,
and non-transferrable license for Client to use the Vision Content Management SystemTM (also known as the Vision
Internet Content Management System, VCMT, VCMS and the Vision Content Management Tool, collectively, the
53
2016-0108 vS/PE 3
“VCMS”), and Dynamic and Interactive Components of the VCMS to the extent necessary for the Client’s use and
operation of its website; provided, Client does not modify the VCMS and maintains a visionLive TM Subscription in
accordance with this Agreement and Addendum B. The VCMS provided under this Agreement is licensed and not
sold, and Client understands and agrees that Contractor shall retain all rights, title, and interests in the VCMS,
Dynamic and Interactive Components, and any other Contractor intellectual property not provided for in this
Section.
4. Limited Warranty. If Contractor performs Website Development and/or Custom Programming
services, Contractor warrants that the deliverables set forth in Addendum A will be conveyed to Client upon
transfer of the website to the production server with a public Internet Protocol address (“Completion”). All
programming code developed by Contractor within Addendum A is warranted to be free of any errors or bugs that
prevent the code from performing as originally intended (“Warranted Problem”) for a period of twelve (12) months
from the date of Completion. Contractor will create a backup of the website on the date of Completion. If any
Warranted Problem arises while Client or its designee is maintaining the website, Contractor will restore the website
back to its condition as it existed at Completion. If Contractor is hosting and/or maintaining the website pursuant to
one or more Addendums to this Agreement, Contractor shall restore the website back to its condition as it existed
at the day of the most recent backup. Contractor shall provide compiled code upon Client’s request. Contractor
shall only be responsible for any costs associated with correcting any unmodified programming code during this
twelve (12) month period following the Completion. Except as expressly set forth above, CONTRACTOR MAKES NO
GUARANTEE OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING OF MERCHANTABILITY OR
FITNESS OF THE SERVICES FOR A PARTICULAR PURPOSE WHATSOEVER, AND USE OF THE SERVICES OR ANY
INFORMATION THAT MAY BE OBTAINED THERE FROM IS AT CLIENT'S OWN RISK AS THE SERVICES ARE PROVIDED TO
CLIENT ON AN “AS IS” BASIS. In consideration of Contractor’s warranty promises, Contractor’s aggregate liability
under this Agreement or otherwise shall not exceed the amount of $117,776 , and Contractor shall not be
responsible for any lost profits or other damages, including indirect, incidental, special, consequential or any other
damages, however caused. Contractor does not warrant any connection to, transmission over, nor results of use of,
any network connection or facilities provided, nor any third-party applications and software obtained by, for, or on
behalf of Client. Except to the extent directly arising out of Contractor’s intentional misconduct or failure to perform
obligations under this Agreement, Contractor assumes no responsibility for any damages suffered by the Client,
including, but not limited to, server down time, loss of data, loss of business, mis-deliveries, delays, non-deliveries,
access speed, or service interruptions of any kind. Client acknowledges that the information available through the
interconnecting networks may not be accurate. Contractor has no ability or authority over the material. In
addition, Contractor has no liability for the quality, accuracy, or validity of the data/information gathered from the
Internet. Use of information gathered through the use of Contractor services is at the risk of the Client.
Notwithstanding the foregoing, there shall be no limitation whatsoever on Contractor’s li ability in connection with its
indemnity obligations, personal injury or willful, intentional destruction of property, and the foregoing shall not
preclude claims up to the full amount payable under the insurance requirements of this Agreement.
5. Rights Regarding Content. Each Party warrants that it holds all rights and/or licenses necessary to
display all of the images, data, information or other items supplied by such Party and being displayed on the
Client’s web pages during the effective period of this Agreement. Contractor agrees that Client will retain
ownership of all information and content (including Client provided logos and images) owned exclusively by Client
and provided by Client for use on its website. Client shall supply all necessary information to Contractor in a timely
manner in digital format including without limitation copy, text, audio files, video files, pdf files, photographs,
artwork and preexisting graphics. Contractor is not responsible for content migrated by Client or any third party.
Client expressly authorizes Contractor to display and/or modify any Client supplied images, data, information and
other items in connection with the services provided herein.
6. Contractor’s Mark. Client agrees that Contractor may place in the website footer an unobtrusive
text link reading “Developed by Vision Internet” or the equivalent. Contractor’s footer text credit shall always be
linked to a Contractor web page.
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7. Indemnity.
7.1. Indemnification of Contractor. Client will defend, hold harmless, and indemnify Contractor,
its officers, directors, shareholders, employees, and agents from and against all Costs resulting from any claim of
injury to person, damages to property, or monetary damages arising out of Client’s negligence or intentional
misconduct or failure to perform obligations under this Agreement.
7.2. Intellectual Property Indemnity. Contractor will defend, hold harmless and indemnify
Client against any third-party action, suit, or proceeding (“Claims”) for infringement or alleged infringement of any
United States’ letters patent, trademark, or copyright (“Intellectual Property”) contained in Contractor’s VCMS
provided under this Agreement. Notwithstanding the foregoing, Contractor shall have no defense or indemnity
obligations for Intellectual Property modified by a party other than Contractor, for Intellectual Property modified in
accordance with Client’s specifications or instructions, or Claims of infringement bas ed on Client’s other products or
other third-party products.
7.3. Indemnification of Client. Contractor will defend, hold harmless, and indemnify Client, its
officers, directors, shareholders, employees, and agents from and against all Costs resulting from any claim of injury
to person, damages to property, or monetary damages arising out of Contractor’s negligence or intentional
misconduct or failure to perform obligations under this Agreement.
8. Timing. Estimated times are included for convenience. Actual times will vary depending on Client
interaction and participation. However, the Parties agree to reasonably cooperate with one another in all respects
including, if applicable, in the construction and design of the website in a timely manner.
9. Governing Law and Venue. This Agreement shall be governed by and construed in accordance
with the laws of the United States of America, and the State of Washington, excluding choice of law provisions
thereof. Any cause of action of Client with respect to the services provided hereunder must be instituted within
three years after the claim or cause of action has arisen or be forever barred. The Uniform Computer Information
Transactions Act or any version thereof, adopted by any state in any form (“UCITA”), shall not apply to this
Agreement and, to the extent that UCITA is applicable, the parties agree to opt-out of its applicability pursuant to
its provisions. In the event a judicial proceeding is necessary, except for permitted equitable relief, the sole forum
for resolving disputes arising under or relating to this Agreement are the State and/or federal district courts located
in King County, State of Washington, and all related appellate courts, and the parties hereby consent to the
jurisdiction of such courts, and that venue shall be in King County, State of Washington. Each party hereto waives
any right to challenge or move the foregoing designated jurisdictions and venue on grounds of inconvenient
forum. Service of process may be made in any manner provided for by applicable law.
10. Modification and Waiver.
10.1. Modification. Any modification of this Agreement is valid only if the modification is in
writing and signed by both Parties.
10.2. Waiver. The waiver by one Party of any term or condition of this Agreement, or any
breach thereof, shall be in writing and shall not be construed to be a general waiver by said Party or as a waiver of
any other term or breach.
10.3. Conduct. Neither the course of conduct between the Parties nor any trade practice shall
act to modify the provisions of this Agreement, except as expressly stated herein.
11. Confidentiality. Except as permitted by law, Contractor activities and all discussions regarding
Client website development, including without limitation demonstrations, know-how, techniques, designs,
specifications, drawings, compilations, diagrams, models, samples, flow charts, business, strategic and marketing
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2016-0108 vS/PE 5
plans, and other technical, financial or business information of Contractor, shall be treated as confidential and shall
not be disclosed to parties other than representatives of Contractor and the authorized representatives of Client,
and shall be used only in furtherance of the Services provided under this Agreement.
12. Authority. With the intent to be legally bound, each of the undersigned hereby covenants and
acknowledges that he or she (a) has read each of the terms set forth herein, (b) has the authority to execute this
Agreement and each initialed Addendum for such person or entity, and (c) expressly consents and agrees that the
entity upon behalf of which the undersigned is acting shall be bound by all terms and conditions contained herein.
13. Interpretation. It is understood and agreed that if any interpretation is to be made of this
Agreement, the same shall not be construed for or against any of the Parties.
14. Counsel. The Parties have each been advised to seek independent legal counsel in entering into
this Agreement and the transactions described herein. In the event a Party chooses not to seek independent legal
counsel, that Party does so freely and knowingly and waives any such rights to counsel. Since the Parties or their
agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be
construed simply, according to its fair meaning, and not strictly for or against any Party.
15. Attorney Fees. Should a dispute, including but not limited to any litigation or arbitration be
commenced (including any proceedings in a bankruptcy court) between the Parties hereto or their representatives
concerning any provision of this Agreement, or the rights and duties of any person or entity hereunder, each Party
shall be responsible to pay all its attorney’s fees and court and expert costs incurred by reason of such action.
16. Independent Contractor Relationship. The relationship of Contractor, including, without limitation,
its employees and subcontractors) with Client is that of an independent contractor and nothing in this Agreement
and/or any Addendum shall be construed to create a partnership, joint venture, or employer-employee
relationship. Contractor acknowledges and agrees that neither it, nor any of its employees or subcontractors, is or
shall be an agent of Client and none of the foregoing is or shall be authorized to make any representation,
contract, or commitment on behalf of Client.
17. Counterparts. This Agreement may be executed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same Agreement.
18. Force Majeure. Any delay in the performance by either Party hereto of its obligations hereunder
shall be excused when such delay in performance is due to any cause or event of any nature whatsoever beyond
the reasonable control of such Party, including, without limitation, any act of God; any fire, flood, or weather
condition; any computer virus, worm, denial of service attack not caused, issued or transmitted by or through
Contractor’s software or services provided under this Agreement ; any earthquake; any act of a public enemy, war,
insurrection, riot, explosion or strike; provided, that written notice thereof must be given by such Party to the other
Party within twenty (20) days after occurrence of such cause or event.
19. Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable
by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
20. Headings. The titles and headings of the paragraphs of this Agreement have been inserted for
convenience of reference only and are not intended to summarize or otherwise describe the subject matter of such
paragraphs and shall not be given any consideration in the construction of this Agreement.
21. Survival. The terms and conditions of Sections 4 (Limited Warranty), 7.2 (Intellectual Property
Indemnity), 9 (Governing Law & Venue), 11 (Confidentiality), 15 (Attorney Fees), 21 (Survival) and 24 (No Hire) shall
survive any termination or expiration of this Agreement.
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22. Cooperative Programs. Contractor shall agree to offer the prices and terms and conditions
offered herein to other state, local, county, education, and municipal government agencies in the United States
who wish to participate in a cooperative purchase program with Contractor.
23. No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any
person or entity other than the Parties and their respective successors and permitted assigns.
24. No Hire. During the period Contractor provides any Services to Client and for one (1) year
thereafter, Client shall not, directly or indirectly, solicit or offer to hire, hire, or retain as an employee or contractor
persons employed or retained then or within the preceding six (6) months by Contractor (or any of its affiliates),
without Contractor’s prior written consent in each instance ; provided, nothing contained herein shall prevent
employment of any person who responds to a general media advertisement or non-directed search inquiry, or who
makes an unsolicited contact for employment. If Client violates this Section and hires or retains any such person(s),
then Client shall immediately pay to Contractor, as liquidated damages, an amount equal to the annual gross
compensation (including all salary, commissions, and bonuses, whether paid in cash, equity or otherwise) paid to or
earned by the applicable person(s) in the preceding twelve-month period.
25. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the
Parties named herein and their respective successors and permitted assigns. No Party may assign either this
Agreement or any of its rights, interests or obligations hereunder without the prior written approval of the other Party
hereto, except that Contractor may assign this Agreement without Client’s consent to an “Affiliate” of Contractor
or in connection with an acquisition of Contractor, merger (whether Contractor is the surviving or disappearing
entity) or consolidation of Contractor with another entity, or in connection with the sale, assignment, or majority
transfer of any stock, membership or other ownership interest in Contractor.
“Affiliate” shall mean (a) a domestic entity formed, existing and governed pursuant to the laws of one of the fifty
(50) states of the United States of America (or the District of Columbia) controlling, controlled by, or under common
control with Contractor. Contractor shall notify Client of an assignment to Contractor’s Affiliate within a reasonable
time after such assignment.
26. Term. This Agreement will remain in effect for 5 years from the Effective Date. Thereafter, it will
renew for successive 1 year periods, unless either Party refuses such renewal by written notice 30 or more days
before the end of the current term. Client shall permanently delete all copies of the VCMS upon termination of this
Agreement.
27. Notices. All notices under this Agreement shall be in writing and effective on the date of delivery if
delivered by personal service, Federal Express, or facsimile; or effective three (3) days after deposit in first class U.S.
mail, postage prepaid, to each Party as indicated on Page 1 of this Agreement.
28. Invoices. Contractor will submit itemized invoices to Client for the payments required by the
applicable Addendum(s), and all invoices will be due and payable within 30 days. Payments not received by
Contractor 30 days after the date of the invoice will be considered delinquent. Returned checks are subject to a
charge of $25.00. Client agrees to be liable for all costs of collection of any delinquent invoices including, but not
limited to, collection agency fees, reasonable attorneys’ fees, and court costs.
29. Insurance. During the term of this Agreement, including any extensions, Contractor shall provide
insurance of the type and in the amounts described on Exhibit A-1.
Signatures follow.
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IN WITNESS WHEREOF, the Parties have caused this Master Services Agreement to be signed by their duly
authorized representatives and given effect as of the “Effective Date” below.
“Client” “Contractor”
CITY OF KENT VISION TECHNOLOGY SOLUTIONS, LLC, DBA VISION
INTERNET PROVIDERS
Signature: Signature:
Name: Name: David M. Nachman
Title: Title: Chief Executive Officer
Date: Date: ________________, 2016
Addendums:
A Website Development Services (and/or Other Services, if applicable)
B visionLiveTM Subscription Services
C Extra Work (if and when applicable): not applicable at this time.
D Maintenance Services: not applicable.
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Addendum A
website development services
Included Services
Pursuant to the terms herein, Contractor agrees to provide website development services as provided
below in exchange for payment of fees and compliance with the terms and conditions of this Addendum and the
Agreement. Website development services include the following:
Content Consulting Plus
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Advanced Website Analysis Package
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Navigation and Graphic Design.
The Contractor will consult with Client on how to organize Client website content. Based on this consultation, the
Contractor will create a homepage layout wireframe that shows the placement of key information and dynamic
content. The Client will review the homepage layout wireframe and may provide feedback to Contractor. The
Contractor will then provide Client with one draft homepage design concept via Client-accessible software or as
an email attachment (“Delivery”). The Contractor will revise the homepage design concept. After Client reviews
the final homepage design concept, the Contractor will provide three interior page designs per standard layouts
available through Contractor’s template builder and VCMS widget requirements. The Contractor will deliver the
following:
One homepage design concept
Approved homepage design
Up to three interior page templates
Mobile Homepage Enhancement
Contractor will create a new and unique mobile homepage for Client. This enhancement includes the following:
A new background for the mobile homepage.
The mobile homepage will consist of an upper and lower section which will be quick launching links and will
be programmed to easily be modified through a new Custom Content section; users will have the ability to
modify, add, and remove any buttons as well as manage the URLs of each individual icon/button.
The upper section will have iOS like icons in 4x4 layouts where we will design the initial sixteen icons.
The lower section will be a more traditional style buttons similar to the mobile site of West Hollywood, CA
(www.weho.org), but without the expansion/collapse capabilities. Contractor will create the initial six
buttons.
Icon and button titles to be determined based on consultation with Client.
Scrolling will be vertical, not horizontal.
Vision Content Management SystemTM Interactive Components and
Features.
The Contractor will implement Client’s website using the VCMS. Customization of the VCMS includes the frontend
graphic design and layout as well as adding or subtracting fields.
The VCMS will be implemented with the components provided under Addendum B.
Integration of Third-Party Components and Databases.
Google Translate Integration
Contractor will implement the free Google Translate link in the website. This link will direct
website visitors to the Google Translate website. Contractor will provide links at the top of the
homepage that allow for easy navigation between the different language sites.
Online Payment Integration
The Online Payments functionality is a core tool integrated into the VCMS, and used by other
components requiring online transactions. It includes integration with an online transaction
service where transaction information would be transmitted securely to a third-party vendor.
This vendor would then process the credit card or e-check and transfer the funds from the
transaction to Client’s bank account. A recording of each transaction is logged into a local
database for reconciliation with the transaction report made available from the vendor.
Transactions recorded within the central database would also be associated with the
transactions by different applications using the tool. For security reasons, however, credit card
information will not be stored into the database. Transaction based forms and/or functions are
an additional cost beyond the Online Payments tool. Client will be responsible for fees paid to
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third-party online transaction services. Our standard online payment services are Authorize.Net
and PayPal. Integration of other services may result in additional fees.
SMS Component
On the standard eNotification page, users will be able to opt in to receive SMS text messages
and enter their phone number. Users will also be to sign up for email notifications and choose
categories. The backend user will be able to create and send out SMS text messages to SMS
subscribers. The backend user will be able to view a list of SMS subscribers, and add, edit or
delete subscribers. Basic statistics will be available for SMS messages and subscribers. All text
messages will be sent via a third-party SMS text messaging service provider. Please note that
this is a third-party tool that requires a separate client account with the third-party service
provider. Client shall be responsible for all SMS text messaging charges.
Streaming Video Center
The Streaming Video Center includes video streaming for up to 25 meetings per year, with an
average of 4 hours per meeting, and up to 120 hours of specialty content per year.
Contractor will not be responsible for any changes that a third-party tool makes to its system or its
functions. Contractor will not provide technical support for any third-party tool in the event that the
feature is unavailable or malfunctions. If changes are made to the third-party API, Contractor will
not be able to provide immediate service to accommodate whatever changes are necessary.
Client requests to accommodate changes to the applicable API will be treated as Extra Work.
Additional HTML Template
The Contractor will provide Client an HTML template that vendors of third-party components can
use. Contractor will also integrate links to these third-party components into the overall website
navigation. Additional web-interfaces with third-party databases and systems are outside the
scope of work of this Addendum A.
Website Development Fees
Client agrees to pay Contractor for Website Development as follows:
1. Price. Contractor agrees to perform work set forth in this Addendum A for $76,830.
Service Cost
Website Development Package
3 consecutive days onsite consultation sessions
Navigation and Graphic Design
VCMS
Up to 1,000 pages of content migration
Integration of third-party tools
3 consecutive days onsite training sessions
$42,180
Content Consulting Plus Package (2 onsite days) $17,500
Advanced Website Analysis Package $3,000
Search Engine Registration $270
Mobile Homepage Enhancement $4,500
Approval Cycle $4,630
Document Central PDF Converter $1,750
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visionSearch $1,000
Responsive Design $2,000
Total $76,830
2. Payment. Contractor will submit itemized invoices to Client for the payments required by this Section, and
all invoices will be due and payable within 30 days:
(a) An initial payment equal to 40% of the total cost;
(b) A payment equal to 20% of the total cost upon Contractor’s Delivery of the draft homepage
design concept to the Client;
(c) A payment equal to 20% of the total cost upon implementation of the website into the VCMS on a
Contractor-hosted development server; and
(d) A payment equal to 20% of the total cost upon Completion; provided, however that Client has
completed training. If Client has not completed training, then Contractor shall invoice Client at the
earlier of: (i) completion of training, or (ii) 21 days after Completion.
3. Non-Contractor Hosting. If Contractor is not providing hosting services under Addendum B then, at Client’s
request, Contractor will assist Client with setting up the website on Client’s server. A flat rate of $475 for up to four
hours of Technical Support will be charged for assistance in setting up the website according to Contractor’s
Standard Hosting Procedure. Any additional work will be billed at the Technical Support hourly rate.
Additional Website Development Terms and Conditions
1. Client understands and agrees that Contractor will develop website frontend to be compatible with
Internet Explorer 9, 10, and 11, and the latest released versions at the time of Completion of: Firefox, Chrome, and
Safari. Website backend will be compatible with Internet Explorer 9, 10, and 11, and the latest released version of
Firefox at the time of Completion. Website may not be compatible with previous or future versions. Website
backend will be optimized for 1024 x 768 pixels resolution or above. Client understands and agrees that the website
will be developed with Hypertext Markup Language (“HTML”), CSS, JavaScript, and Microsoft ASP.NET (“MS-ASP”)
interfaced with a database created in Microsoft SQL Server (“MS-SQL”). Client understands and agrees that the
website is developed to run on a Microsoft Windows Server 2012 (“MS-Server”), or later. visionMobileTM, if provided
under this Agreement, will be compatible with the latest released versions at the time of Completion of iOS Safari,
Android Chrome, and Windows Phone 7 Internet Explorer. visionMobile TM may not be compatible with previous or
future versions. visionMobileTM, if provided under this Agreement, shall include “Powered by Vision Internet” in the
footer and always be linked to a Contractor web page. Client is responsible for the costs of all software licensing. All
of the web browsers listed in this section, and any others added by Contractor at its discretion are herein referred to
collectively as the “Supported Web Browsers”.
2. Client understands and agrees that the website frontend and content migrated by Contractor will be
designed to be compliant with Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), as amended by the
Workforce Investment Act of 1998 (P.L. 105-220), hereinafter referred to as “Section 508” guidelines on accessibility
as follows: Compliance standards will be verified via SortSite™ to be compliant to automatic checkpoints prior to
Completion. Client understands and agrees that website backend and third party tools may not be Section 508
compliant. Contractor is not responsible for content migrated by Client or any third party.
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Addendum B
visionLiveTM subscription services
plus edition
Subscription Services
Pursuant to the terms herein, Contractor agrees to provide Hosting Services, VCMS Licensing Services, and
Support Services (collectively “Subscription Services”) as provided below. Contractor will provide Subscription
Services to the Client in exchange for payment of fees and compliance with the terms and conditions of this
Addendum and the Agreement. Subscription Services include the following:
Hosting Services. Contractor will provide shared website hosting on a Microsoft Windows Server
and shared database hosting on a Microsoft SQL Server for one (1) unique VCMS website. The shared server hosting
service includes:
SOC-certified datacenter
Full hardware redundancy
Redundant generator backup
Daily data backups
Intrusion protection
24/7 monitoring
99.9% uptime
DDoS mitigation service
Up to 275 GB of website content storage; provided, however, Client executes the Agreement on or before
March 25, 2016. If Client executes the Agreement on or after March 26, 2016, then the hosting service shall
include 250 GB of website content storage.
Standard disaster recovery service with 90 minute failover
Premium Disaster Recovery Services. Contractor will provide, in a separate colocation
facility (“DR Facility”), shared website hosting on an additional Microsoft Windows Server and shared
database hosting on an additional Microsoft SQL Server for one (1) unique VCMS website. The
Premium Disaster Recovery Service includes:
o Data replication from primary hosting facility to DR Facility initiated every 5 minutes at
minimum
o In the event of failure in primary hosting facility, website recovery in DR facility within 5
minutes or less after failure
VCMS Licensing Services. Contractor will provide a license to the Plus edition of the VCMS,
which includes the following functionalities indicated by the applicable check marks:
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2016-0108 vS/PE 16
Additional Interactive Components and Features
Approval Cycle
Document Central PDF Converter
Extranet
Responsive Design with visionMobileTM
visionSearch
VCMS Licensing Services include:
Periodic functional enhancements.
New visionLiveTM Interactive Components that may be released from time to time by Contractor.
Bug fixes to the VCMS code.
Updates to provide compatibility to future versions of Supported Web Browsers (as listed in
Addendum A) within three months of their release. Compatibility with previous versions of
Supported Web Browsers is not guaranteed.
VCMS Licensing Services do not include:
Optional Interactive Components.
Modules, Programs, or Software Applications.
Conversion to new platforms.
Modification of third-party products.
Compatibility with Client’s third-party products.
Website design services.
All other services not expressly provided for in this Agreement and its applicable Addendum(s).
Support Services. Support Services is defined as technical support, account management,
and education and training for the VCMS. Contractor will provide Support Services to a designated Client account
manager, system administrator or webmaster. Technical support is generally available by email and telephone
from 6:00 AM to 6:00 PM Pacific Time Monday through Friday excluding holidays (“Business Hours”), with emergency
support available 24 hours a day, 7 days a week. An emergency is defined as Client’s website being down for more
than ten (10) minutes. Support Services also include:
Dedicated Account Manager
Account Management*
o Semi-annual account reviews (Health Checks)
o Semi-annual site analytics report
o Semi-annual graphics site audit
o Up to 30 hours of site improvement credits**
Education and Training
o Training and best practices webinars
o Access to On-Demand Training Library
o On-going new user training (via remote meeting service)
o Monthly office hours (via remote meeting service)
* Health Checks, Site Analytics Report and Graphics Site Audit will not be performed until the second
year of the Agreement and every year thereafter.
** Thirty site improvement credits will be available beginning the second year of the Agreement and
every year thereafter. Any unused hours in a given year may be carried over to the following year.
Customizations. The following are customizations provided in Client’s project: None.
Unless Client has retained other Services from Contractor under the applicable Addendum, Client is solely
and exclusively responsible for all services not expressly provided for in this Addendum. Any changes, alterations or
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modification requested by the Client to its Website may be subject to a fee to be quoted by a Contractor
representative at the time of the request. Client may, at any time, upgrade from its current edition to either a
Standard or Plus Edition, as applicable. Client may not, during the Initial Term (defined below) or any renewal term,
downgrade from its current edition to either a Standard or Basic Edition, as applicable. Client acknowledges that
the Subscription Services may be modified or improved because of the dynamic nature of technology. Contractor
may, from time to time, make minor modifications to the Subscription Services, as a whole or any part thereof. Such
minor modifications may be implemented at any time and without notice to Client. Continued use of the
Subscription Services following any modification shall constitute binding acceptance of the modification.
Subscription Fees
Rate: All Subscription Services provided for the Client during the first year of the Agreement shall be at no
cost to Client. Contractor shall invoice Client $9,500 per year beginning the second year of this Agreement, which
rate shall be increased by five percent (5%) per year, for each year of the Agreement Term, and any and all
renewal terms. Contractor shall invoice Client annually every year thereafter, including any renewal term. All
invoices will be due and payable by Client within 30 days. Websites exceeding 250 GB of storage shall be subject
to an additional monthly fee of $50 per 5GB increment.
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Addendum C-_
extra work
Sample Only.
This Addendum is made and entered into by Vision Technology Solutions, LLC (“Contractor”) and CLIENT, STATE
(“Client”) as of the date of full execution.
Contractor and Client hereby mutually acknowledge and agree that:
1. On DATE, Contractor and Client entered into the Master Services Agreement (“Agreement”), incorporated
herein by reference.
2. The Agreement, including all other terms and conditions therein, shall continue in effect.
3. In the event of any conflict or inconsistency between the provisions of this Addendum and the Agreement,
the provisions of this Addendum shall control only to the extent of the services provided in this Addendum, and not
any other subject matter covered by the Agreement.
Included Services
Extra Work Fees
Client agrees to pay Contractor as follows:
1. Price. Contractor agrees to perform work set forth in this Addendum for [$a,bcd].
2. Payment. Contractor will submit itemized invoices to Client for the payments required by this
Addendum, and all invoices will be due and payable by Client within 30 days:
(a) An initial payment equal to 50% of the total cost; and
(b) A payment equal to 50% of the total cost 21 days after completion of the services in this
Addendum.
OR
Payment. Contractor will submit an itemized invoice to Client for the payment required by this
Addendum, and the invoice will be due and payable by Client within 30 days.
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70
FINANCE
Aaron BeMiller, Director
Phone: 253-856-5260
Fax: 253-856-6255
Address: 220 Fourth Avenue S.
Kent, WA. 98032-5895
DATE: March 1, 2016
FROM: Aaron BeMiller, Finance Director
SUBJECT: Amended Water Leak Adjustment Ordinance - Recommend
MOTION: Recommend adoption of an ordinance amending Chapter 7.02 of
the Kent City Code, entitled “Water,” pertaining to the process through
which an owner may request an adjustment to a water utility bill, and to
reconcile current inconsistencies in the City Code.
SUMMARY: The current leak adjustment ordinance for the City of Kent is
cumbersome and in parts conflicting and these proposed adjustments will help to
streamline the City’s policy regarding what constitutes a leak and the adjustment
process the City uses to help customers affected by a leak.
In addition to some minor housekeeping changes, the adjustments to the ordinance
Finance is proposing address and modify the following central items:
- Removes the one-time only adjustment per owner; and
- Deletes ambiguity regarding the location of the leak; and
- Increases the number of billing periods the adjustment can cover from one
billing period to two billing periods; and
- Changes the calculation for determining when a water utility bill triggers the
threshold level for adjustment; and
- Increases the amount of the adjustment the City will provide to customers
affected by a leak.
BUDGET IMPACT: The proposed changes to the water leak adjustment ordinance
will not have a negative impact on expenditures. The proposed adjustments will
help to alleviate a cumbersome and inefficient process, which can take a significant
amount of staff time for short periods. Revenue impact is difficult to estimate
because of the variable number of leaks in any given period, but is not expected to
be material.
BACKGROUND: Currently, an adjustment is permitted only once per property
owner; adjustment is available only for an accidental water leak or water line failure
on the subject property, or an “unexplained, abnormal water meter reading” that
occurs on the subject property even though City inspection reveals no water meter
malfunction; the billing adjustment cannot exceed 50 percent of the difference
between the amount of the bill to be adjusted and the average water usage over
the preceding 12 months; and the bill will only qualify for adjustment if the bill is
more than twice as high as the highest bill for any single billing period in the
preceding 12 months.
71
ORDINANCE NO.
AN ORDINANCE of the City Council of the
City of Kent, Washington, amending Chapter 7.02
of the Kent City Code, entitled “Water,” to
streamline the process through which an owner
may request an adjustment to an unexpectedly
exorbitant water bill, and to reconcile current
inconsistencies in the City Code to provide clarity to
both property owners and City staff.
RECITALS
A. Through passage of Ordinance No. 2732 on July 7, 1987, the
Kent City Council recognized that leaks or defects in water pipes or
systems hooked up to City water, but located on private property, were
often undetected until a water customer received an unusually high bill for
water service, and that unintentionally excessive water consumption was
costly for both the customer and the City.
B. To address this issue, Ordinance No. 2732 authorized the City
to partially reduce an unusually high water bill, not to exceed one month’s
worth of service; but this reduction was available only once in a lifetime,
and the customer had to first provide the City with proof that the private
water pipe or other portion of the system that caused the undetected leak
had been repaired to the City’s satisfaction before the partial reduction was
granted.
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C. This one-time water bill reduction has been amended and re-
codified numerous times over the ensuing years, but the basic elements
remain the same. Currently, an adjustment is still permitted only once per
property owner; adjustment is available only for an accidental water leak
or water line failure on the subject property, or an “unexplained, abnormal
water meter reading” that occurs on the subject property even though City
inspection reveals no water meter malfunction; the rate adjustment cannot
exceed 50 percent of the difference between the amount of the bill to be
adjusted and the average water usage over the preceding 12 months; and
the bill will only qualify for adjustment if the bill is more than twice as high
as the highest bill for any single billing period in the preceding 12 months.
D. Furthermore, the code requires that the affected water
system must be, “located between the city’s water meter and owner’s
residence or structure.” This language has proved confusing for both the
public and City staff, especially when there is a leak at the point of contact
with the structure, or when the bill is due to an unexplained, abnormal
water meter reading. This confusion is compounded by the fact that the
same requirements are listed in two separate sections of Chapter 7.02 of
the Kent City Code.
E. Lastly, the Finance Director currently determines whether or
not to grant the requested reduction; proof of repair work is still required,
which may require staff to conduct on-site inspections and review of
invoices for parts and/or labor; and an aggrieved owner may appeal the
Director’s determination to the City Council’s Operations Committee.
F. After reviewing the problems with the existing structure of the
leak adjustment provisions in the City Code, the Finance Department
recommends amending the Code to delete the ambiguity regarding the
location of the leak; to allow more than one bill adjustment per person; to
lower the qualifying threshold level of the unusually high water bill to more
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than twice the average usage in the preceding 12 months, as opposed to
the highest usage in the preceding 12 months; to allow adjustments to be
made to two billing periods instead of one; and permitting a 100 percent
reduction of the difference between the bill(s) to be adjusted and the
average usage in the preceding 12 months. In the case of an owner who
has less than 12 months’ worth of billing history at the subject property,
an adjustment can still be made using additional consumption data.
G. The City’s Customer Services Manager will make the initial
determination regarding the bill(s) submitted for reduction, and requests
for reconsideration may be submitted to the Finance Director. A first-time
request will not require proof of repair, but subsequent requests by the
same owner for the same property may be submitted on an annual basis,
provided that proof of completed repair work accompany all subsequent
requests.
H. The ordinance also includes minor housekeeping changes.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. - Amendment. Section 7.02.300 of the Kent City Code
is hereby amended as follows:
Sec. 7.02.300. Water rates within the city.
A. Water rates. The following staggered rates apply during the time
periods listed below to all water customers within the city limits of Kent.
Within each time period, the lower rate applies per one hundred (100)
cubic feet of water used for up to or equal to seven hundred (700) cubic
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feet, and the higher rate applies per one hundred (100) cubic feet of water
used in excess of seven hundred (700) cubic feet:
Effective
Date
October 1 –
April 30
May 1 –
September
30
≤ 700
ft3
> 700
ft3
≤ 700
ft3
> 700
ft3
01/01/2005 $1.44 $1.95 $1.90 $2.42
06/01/2009 $2.13 $2.89 $2.81 $3.58
01/01/2010 $2.77 $3.75 $3.66 $4.66
01/01/2011 $2.85 $3.86 $3.77 $4.80
01/01/2012 $2.94 $3.98 $3.88 $4.94
01/01/2013 $3.03 $4.10 $3.99 $5.09
01/01/2014 $3.12 $4.22 $4.11 $5.24
All customers are also subject to a monthly demand charge for service and
meter, which is as follows:
Meter size
(inches)
Charge
Effective
January 1,
2008
Charge
Effective
April 1, 2009
Charge
Effective
June 1, 2009
Charge
Effective
January 1,
2010
5/8 x 3/4 $5.26 $6.05 $8.95 $11.64
1 $8.94 $10.28 $15.21 $19.78
1 1/2 $13.64 $15.69 $23.22 $30.19
2 $18.09 $20.80 $30.78 $40.02
3 $38.35 $44.10 $65.27 $84.85
4 $46.47 $53.44 $79.09 $102.82
6 $69.03 $79.38 $117.48 $152.73
8 $88.50 $88.51 $150.63 $195.82
10 $113.03 $129.98 $192.37 $250.08
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Meter size
(inches)
Charge
Effective
January 1,
2011
Charge
Effective
January 1,
2012
Charge
Effective
January 1,
2013
Charge
Effective
January 1,
2014
5/8 x 3/4 $11.99 $12.35 $12.72 $13.10
1 $20.37 $20.98 $21.61 $22.26
1-1/2 $31.09 $32.03 $32.99 $33.98
2 $41.22 $42.46 $43.73 $45.04
3 $87.39 $90.02 $92.72 $95.50
4 $105.90 $109.08 $112.35 $115.72
6 $157.31 $162.03 $166.89 $171.90
8 $201.70 $207.75 $213.98 $220.40
10 $257.58 $265.31 $273.27 $281.47
B. Lifeline customers. The city council will establish eligibility criteria for
lifeline customers. For lifeline-qualified water service customers within the
city limits, the following rates apply for water use per one hundred (100)
cubic feet:
Effective
Date January 1 – December 31
01/01/2005 $0.51
06/01/2009 $0.53
01/01/2010 $0.54
01/01/2011 $0.56
01/01/2012 $0.57
01/01/2013 $0.59
01/01/2014 $0.61
All lifeline rates are also subject to the monthly demand charge for service
and meter as set forth in subsection (A) of this section.
C. Rate adjustment.
1. Subject to the right of access and inspection by a
representative of the city, water service customers of the city may apply
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for a one (1) time rate adjustment for any single billing period under the
following circumstances:
a. An accidental water leak has been discovered on the
subject property; or
b. A water line failure has occurred on the subject
property; or
c. An unexplained, abnormal water meter reading has
occurred on the subject property even though subsequent city inspection
of the water meter indicates that the meter is functioning properly.
This rate adjustment shall not exceed fifty (50) percent of the difference
between the total amount of the billing period sought for adjustment
minus the customer’s average water usage. For the purposes of this
subsection, the average water usage shall be computed by determining the
total volume of water consumed, under normal use conditions, during the
preceding twelve (12) months and dividing that total volume by the
number of times the city would typically read the customer’s water meter
in a twelve (12) month period.
2. This rate adjustment is permitted on a one (1) time basis only
and can only be applied to one (1) billing period. To be eligible for this rate
adjustment, the affected water system must be owned by or subject to the
exclusive control of the customer and be located between the city’s water
meter and owner’s residence or structure. The bill sought for adjustment
must exceed two (2) times the customer’s highest usage in any single
billing period during the twelve (12) months prior to the billing period
sought for adjustment.
3. Following a request for rate adjustment as provided under
this subsection, the city’s finance director, or his/her designee, shall review
the request and determine whether or not to adjust the customer’s
monthly billing. In order to make a proper determination, city staff shall be
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entitled to access, inspect, and approve the customer’s water system
repair prior to granting a rate adjustment.
4. If approved, the city shall make this rate adjustment by
issuing a credit to the customer’s account after verification of leakage or
water system failure, inspection of water meter and water system, where
applicable, and verification of corrective repairs. All repairs shall occur
within thirty (30) days of application to the city.
5. The owner may request reconsideration of the decision of the
finance director, or his/her designee, by the city council through the city
council’s operations committee.
SECTION 2. - Amendment. Section 7.02.300 of the Kent City Code
is hereby amended as follows:
7.02.310 Water rates outside city.
A. Water rates. The following staggered rates apply during the time
periods listed below to all customers outside the city limits of Kent. Within
each time period, the lower rate applies per one hundred (100) cubic feet
of water used for up to or equal to seven hundred (700) cubic feet, and
the higher rate applies per one hundred (100) cubic feet of water used in
excess of seven hundred (700) cubic feet:
Effective
Date
October 1 –
April 30
May 1 –
September
30
≤ 700
ft3
> 700
ft3
≤ 700
ft3
> 700
ft3
01/01/2005 $1.90 $2.42 $2.32 $2.85
06/01/2009 $2.81 $3.58 $3.43 $4.22
01/01/2010 $3.66 $4.66 $4.46 $5.48
01/01/2011 $3.77 $4.80 $4.60 $5.65
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Effective
Date
October 1 –
April 30
May 1 –
September
30
≤ 700
ft3
> 700
ft3
≤ 700
ft3
> 700
ft3
01/01/2012 $3.88 $4.94 $4.74 $5.82
01/01/2013 $3.99 $5.09 $4.88 $5.99
01/01/2014 $4.11 $5.24 $5.02 $6.17
All customers are also subject to a monthly demand charge for service and
meter, which is as follows:
Meter size
(inches)
Charge
Effective
January 1,
2008
Charge
Effective
April 1, 2009
Charge
Effective
June 1, 2009
Charge
Effective
January 1,
2010
5/8 x 3/4 $5.26 $6.05 $8.95 $11.64
1 $8.94 $10.28 $15.21 $19.78
1-1/2 $13.64 $15.69 $23.22 $30.19
2 $18.09 $20.80 $30.78 $40.02
3 $38.35 $44.10 $65.27 $84.85
4 $46.47 $53.44 $79.09 $102.82
6 $69.03 $79.38 $117.48 $152.73
8 $88.50 $88.51 $150.63 $195.82
10 $113.03 $129.98 $192.37 $250.08
Meter size
(inches)
Charge
Effective
January 1,
2011
Charge
Effective
January 1,
2012
Charge
Effective
January 1,
2013
Charge
Effective
January 1,
2014
5/8 x 3/4 $11.99 $12.35 $12.72 $13.10
1 $20.37 $20.98 $21.61 $22.26
1-1/2 $31.09 $32.03 $32.99 $33.98
2 $41.22 $42.46 $43.73 $45.04
3 $87.39 $90.02 $92.72 $95.50
4 $105.90 $109.08 $112.35 $115.72
6 $157.31 $162.03 $166.89 $171.90
8 $201.70 $207.75 $213.98 $220.40
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Meter size
(inches)
Charge
Effective
January 1,
2011
Charge
Effective
January 1,
2012
Charge
Effective
January 1,
2013
Charge
Effective
January 1,
2014
10 $257.58 $265.31 $273.27 $281.47
B. Lifeline customers. The city council will establish eligibility criteria for
lifeline customers. For lifeline-qualified water service customers outside the
city limits, the following rates apply for water use per one hundred (100)
cubic feet:
Effective
Date
January 1 – December
31
01/01/2005 $0.56
06/01/2009 $0.58
01/01/2010 $0.59
01/01/2011 $0.61
01/01/2012 $0.63
01/01/2013 $0.65
01/01/2014 $0.67
All lifeline rates are also subject to the monthly demand charge for service
and meter as set forth in subsection (A) of this section.
C. Rate adjustment.
1. Subject to the right of access and inspection by a
representative of the city, water service customers of the city may apply
for a one (1) time rate adjustment for any single billing period under the
following circumstances:
a. An accidental water leak has been discovered on the
subject property; or
b. A water line failure has occurred on the subject
property; or
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c. An unexplained, abnormal water meter reading has
occurred on the subject property even though subsequent city inspection
of the water meter indicates that the meter is functioning properly.
This rate adjustment shall not exceed fifty (50) percent of the difference
between the total amount of the billing period sought for adjustment
minus the customer’s average water usage. For the purposes of this
subsection, the average water usage shall be computed by determining the
total volume of water consumed, under normal use conditions, during the
preceding twelve (12) months and dividing that total volume by the
number of times the city would typically read the customer’s water meter
in a twelve (12) month period.
2. This rate adjustment is permitted on a one (1) time basis only
and can only be applied to one (1) billing period. To be eligible for this rate
adjustment, the affected water system must be owned by or subject to the
exclusive control of the customer and be located between the city’s water
meter and owner’s residence or structure. The bill sought for adjustment
must exceed two (2) times the customer’s highest usage in any single
billing period during the twelve (12) months prior to the billing period
sought for adjustment.
3. Following a request for rate adjustment provided under this
subsection, the city’s finance director, or his/her designee, shall review the
request and determine whether or not to adjust the customer’s monthly
billing. In order to make a proper determination, city staff shall be entitled
to access, inspect, and approve the customer’s water system repair prior
to granting a rate adjustment.
4. If approved, the city shall make this rate adjustment by
issuing a credit to the customer’s account after verification of leakage or
water system failure, inspection of water meter and water system, where
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applicable, and verification of corrective repairs. All repairs shall occur
within thirty (30) days of application to the city.
5. The owner may request reconsideration of the decision of the
finance director, or his/her designee, by the city council through the city
council’s operations committee.
SECTION 3. – Amendment. Section 7.02.370 of the Kent City Code
is hereby amended as follows:
7.02. 370 Penalty for violation.
Any person found guilty of violating this chapter or any part thereof shall
be guilty of a misdemeanor, and, upon conviction thereof, shall be subject
to a fine not exceeding three hundred dollars ($300).
A. Any violation of this chapter constitutes a civil violation under Chapter
1.04 KCC, for which a monetary penalty may be assessed and abatement
may be required as provided therein.
B. In addition to, or as an alternative to any other penalty provided in this
chapter or by law, any person who violates this chapter shall be guilty of a
misdemeanor and, upon conviction thereof, shall be subject to the
penalties provided for in KCC 1.04.030.
SECTION 4. – New Section. Chapter 7.02 of the Kent City Code is
hereby amended by adding a new section 7.02.315, entitled “Water billing
adjustments,” as follows:
7.02.315. Water billing adjustments.
A. Subject to the right of access and inspection by a representative of
the city, a property owner receiving water service from the city may apply
for adjustment of a city water bill under the following circumstances:
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1. A water leak has been discovered on the subject property; or
2. A water line failure has occurred on the subject property; or
3. An inadvertent error on the part of the occupant of the
subject property caused excessive water usage; or
4. An unexplained, abnormal water meter reading has occurred
on the subject property.
This adjustment shall not exceed 100 percent of the difference between
the total amount charged by the city for the billing period for which
adjustment has been requested, and the average water usage at the
subject property. For purposes of this subsection, “inadvertent error” does
not include actions constituting knowing or willful neglect. Furthermore,
the average water usage shall be computed by determining the total
volume of water consumed, under normal use conditions, during the
preceding 12 months and dividing that total volume by the number of
times the city reads the customer’s water meter. If there is insufficient
usage history by the owner at the subject property, the city may use
additional consumption history before an adjustment can be made. This
additional consumption history may include, but is not limited to: the
owner’s prior usage at another location receiving water service from the
city; the previous owner’s consumption history; and historical water
consumption at comparable properties within the city.
B. This water bill adjustment can be applied to no more than two
consecutive billing periods. Any bill submitted for adjustment must exceed
two times the average usage in the preceding 12 months prior to the
earliest billing period for which the adjustment is requested. The property
owner must submit a signed application for adjustment, on a form
prescribed by the finance director, within 90 days of the last day of the
billing period for which an adjustment is requested, in order to be eligible
for the adjustment.
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C. Following receipt of an application for a water bill adjustment, the
city’s customer services manager, or the manager’s designee, shall review
the application and determine whether or not to adjust the water bill based
on the criteria listed in this section. In order to make a proper and fair
determination, city staff shall be entitled to enter upon and inspect the
subject property, if necessary, and shall verify that the water meter
serving the subject property does not indicate that excessive water usage
is continuing. The customer services manager shall not approve an
application for water bill adjustment if the city determines that the water
meter shows the continued existence of abnormally high water usage.
D. If approved, the customer services manager shall adjust the water
bill by issuing a credit to the water service billing account. In the
alternative, if the owner no longer owns the subject property or is
otherwise no longer legally responsible for the water bill, the city may,
upon approval of the finance director, issue a check to the owner in an
amount not to exceed what would have been credited to the water service
billing account.
E. The owner may request reconsideration of the decision of the city’s
customer services manager by the city’s finance director. This request
must be in writing and delivered to the city no later than 30 days after the
customer services manager’s decision is delivered to the property owner.
For purposes of this subsection, delivery is deemed complete upon the
third day following the day upon which the written determination or
request for consideration is placed in the mail, unless the third day falls on
a Saturday, Sunday, or legal holiday, in which event service shall be
deemed complete on the first day other than a Saturday, Sunday, or legal
holiday following the third day. This request for reconsideration must
contain all relevant facts and circumstances pertaining to why the owner
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believes that the decision of the customer service manager was incorrect.
The finance director shall issue a written decision to the requestor within
45 days of receipt of the request for reconsideration. The finance
director’s determination cannot be appealed to the hearing examiner or
the city council, and any further appeals may only be made pursuant to
applicable state law.
F. A property owner may submit an application for adjustment of a
water bill only once every 12 months; provided, however, that this does
not prohibit an owner from submitting an application for adjustment of two
billing periods simultaneously, pursuant to subsection (B) of this section.
If a property owner has previously submitted an application for adjustment
of a water bill to the city for the same property, the customer services
manager will reject any subsequent application that does not also include
tangible proof that repair work to correct the leak has already been
completed, such as original or certified copies of invoices for parts and/or
labor. The city may also enter onto the subject property to confirm that
necessary repairs have been made, prior to granting a subsequent request
for a water bill adjustment.
G. Subsection (F) of this section notwithstanding, a property owner
submitting an application pertaining to a property for which that owner has
not previously submitted a request for a water bill reduction, or a new
owner applying for a water bill reduction pertaining to a property for which
a water bill reduction was previously requested by a prior owner, shall be
treated as a first-time applicant under this section. The finance director
shall not consider an heir, devisee, person related by blood or marriage, an
affiliated corporate entity or an entity under common control with a prior
owner of the subject property to be treated as a “first-time applicant” for
purposes of this subsection.
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SECTION 5. – Retroactivity. This ordinance shall be effective and
shall apply retroactively to all billing periods that began on or after March
1, 2016.
SECTION 6. – Severability. If any one or more section, subsection,
or sentence of this ordinance is held to be unconstitutional or invalid, such
decision shall not affect the validity of the remaining portion of this
ordinance and the same shall remain in full force and effect.
SECTION 7. – Corrections by City Clerk or Code Reviser. Upon
approval of the city attorney, the city clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; ordinance, section, or subsection numbering;
or references to other local, state, or federal laws, codes, rules, or
regulations.
SECTION 8. – Effective Date. This ordinance shall take effect and
be in force 30 days from and after its passage as provided by law.
SUZETTE COOKE, MAYOR
ATTEST:
RONALD F. MOORE, CITY CLERK
APPROVED AS TO FORM:
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TOM BRUBAKER, CITY ATTORNEY
PASSED: day of , 2016.
APPROVED: day of , 2016.
PUBLISHED: day of , 2016.
I hereby certify that this is a true copy of Ordinance No.
passed by the City Council of the City of Kent, Washington, and approved
by the Mayor of the City of Kent as hereon indicated.
(SEAL)
RONALD F. MOORE, CITY CLERK
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Kent Council Operations Committee Consolidating Budget Adjustment
FINANCE
Aaron BeMiller, Director
Phone: 253-856-5260
Fax: 253-856-6255
Address: 220 Fourth Avenue S.
Kent, WA. 98032-5895
DATE: March 1, 2016
TO: Kent City Council Operations Committee
FROM: Aaron BeMiller, Finance Director
SUBJECT: Director’s Report
MOTION: Information only
SUMMARY: The Finance Director will report out financial or operational item(s).
BUDGET IMPACT:
BACKGROUND:
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