HomeMy WebLinkAboutMcCormick, Robert E. and Joyce L. - Leashold Mortgate Recognition AgreementThis Space Provided for Recorder's Use
WHEN RECORDED MAIL TO:
Banner Bank
Bothell Loan Service Center
P.O. Box 1589
Bothell, Washington 98041
LEASEHOLD MORTGAGE RECOGNITION AGREEMENT
Grantor:
Landlord: Yakima Air Terminal - McAllister Field, a department of
the City of Yakima, Washington
Tenant: Robert E. McCormick and Joyce L. McCormick
Grantee:
Lender:
Banner Bank
Legal Description: Ptn of the NE 1/4 of Sec 34, Twn 13, Rg 18
Assessor's Property Tax Parcel or Account No.: 181334-14902
Related Recording Nos.: 7615239
THIS LEASEHOLD MORTGAGE RECOGNITION AGREEMENT ("Agreement") is dated for reference
purposes as of March 6, 2017, and is made by and between Banner Bank ("Lender"), Yakima Air Terminal
- McAllister Field, a department of the City of Yakima, Washington ("Landlord"), and Robert E.
McCormick and Joyce L. McCormick (collectively, the "Tenant").
RECITALS
WHEREAS, Tenant is the tenant or lessee under that certain Lease Agreement #2 ("Lease"), dated August
26, 2004, between Tenant and Landlord, which Lease pertains to the Premises and was recorded on or about
June 10, 2009 in Yakima County, Washington, under recording number 7615239.
BANNER-RP50\00286667.003
WHEREAS, the right, title and interest in the Premises granted to Tenant under .the Lease, are referred to
herein as a "Leasehold Estate." The right, title and interest in the Premises of Landlord, after giving effect
to the Leasehold Estate, are referred to herein as a "Fee Title Estate."
WHEREAS, Robert E. McCormick is about to obtain a loan from Lender to be secured by a deed of trust
(the "Leasehold Mortgage") in favor of Lender encumbering the Tenant's Leasehold Estate in the Premises,
including whatever interest the Tenant may have in the existing or subsequently erected improvements on
the Premises including, but not limited to, any buildings, structures, facilities; additions, furniture, fixtures,
inventory, accounts receivable, chattel paper, and equipment on the Premises, which Leasehold Mortgage
will be recorded in the office of the County Recorder of the county within which the Premises are located.
WHEREAS, Landlord will benefit, directly or indirectly, by the Leasehold Mortgage inasmuch as a portion
of the proceeds of the loan secured by the Leasehold Mortgage will be used to improve the operation of the
Premises.
AGREEMENTS
NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Consent. Landlord consents to the Leasehold Mortgage and to any subsequent sale or
transfer of the Leasehold Estate in order for Lender to enforce the Leasehold Mortgage; provided, however,
that the Leasehold Mortgage shall at all times be subject to all of the terms and conditions of the Lease.
2. Subordination. Landlord and Lender acknowledge that Landlord has an option under
Article 14 of the Lease (the "Option") to purchase all improvements or structures on the Premises and
Landlord agrees that all of Landlord's right under the Option set forth in the Lease are and shall be
subordinated in all respects to the Leasehold Mortgage encumbering the Premises.
3. Estoppel. As of the date of this Agreement, the Lease is in full force and effect, and to the
current actual knowledge of Landlord and Tenant, no default has occurred and there is no condition which,
but for the passage of time or the giving of notice or both, would result in a default by Landlord or Tenant
under the terms of the Lease. As of the date of this Agreement, the Lease constitutes the complete agreement
between Landlord and Tenant for the Premises and no amendments, modifications or assignments of the
Lease, either written or oral, currently exist. From time to time, within fifteen (15) days of written request,
Landlord and Tenant will provide further estoppel certificates, on a form or forms prepared by Lender
(subject to the reasonable approval of Landlord and Tenant), certifying as to the then current status of the
Lease.
4. Lease Termination. Until all obligations of Tenant to Lender ("Loan Obligations") shall
have been completely paid and performed, any action by Landlord as between Landlord and Tenant to
terminate the Lease shall be subject to the cure rights of Lender under the provisions of this Agreement.
5. Lease Modification. Until the Loan Obligations shall have been completely paid and
performed, no amendment or modification of the Lease shall be binding upon Lender unless made with
Lender's written consent (which consent shall not be unreasonably withheld, delayed or conditioned).
6. Merger. In the event the ownership of the Fee Title Estate and Leasehold Estate become
vested in the same person or entity, as long as the Leasehold Mortgage shall remain outstanding, such
BANNER-RP5 0\00286667.003
occurrence shall not result in a merger of title. Rather, the Lease and the Leasehold Mortgage lien thereon
shall remain in full force and effect.
7. No Cancellation or Voluntary Surrender. Until the Loan Obligations shall have been
completely paid and performed, no voluntary cancellation or voluntary surrender of the Lease shall be
binding upon Lender unless made with Lender's written consent.
8. Removal of Collateral. Landlord agrees that the Lender shall have the right to remove
from the Premises any of the Tenant's personal property which is located at the Premises (the "Tenant's
Property"), whenever the Lender shall elect to enforce the security interests given by the Tenant therein,
either during the Term of the Lease or within thirty (30) days after the early termination thereof, so long as
Lender pays the rent and other amounts which would have been due and owing (from Tenant to Landlord)
under the Lease for any period during which Lender occupies the Premises or during any time when
Landlord is unable to use or occupy the Premises (either to remove existing improvements in anticipation
of re-leasing the space, or otherwise) due to Lender's desire to remove from the Premises any of Tenant's
Property. The term "Tenant's Property" shall not include, and Lender shall not have the right to remove
from the Premises, any items which will cause material damage to the Premises (including, without
limitation, building and hangar structures, utilities, ducting, conduit, cabling, plumbing, heating, ventilating
and air conditioning systems and equipment, floor coverings, wall coverings, ceiling tiles and system,
lighting, restroom fixtures, hot water heater, or any other item constituting an integral or permanent part of
the Premises). If any part of the Premises is damaged in connection with Lender's removal of the Tenant's
Property, then Lender shall repair such damage within ten (10) days thereafter at Lender's sole cost. Lender
hereby agrees to indemnify, defend and hold Landlord harmless from and against any and all liabilities,
costs, expenses (including, without limitation, attorneys' fees), losses, damages, claims, actions and causes
of action arising out of or relating to the acts or omissions of Lender or Lenders agents, employees or
contractors upon the Premises and/or in connection with the removal of Tenant's Property. Furthermore,
the Landlord hereby disclaims any title to or rights in the Tenant's Property and subordinates to the Lender's
security interests therein any landlord's lien, encumbrance or other interest which the Landlord may now or
hereafter have or acquire therein under the Lease or applicable law.
9. Notices to Lender; Lender's Right to Cure.
a. As between Landlord and Tenant, Landlord may exercise any of its right to
terminate the Lease because of Tenant's default thereunder or to pursue any other rights and remedies of
Landlord under the Lease as a result of Tenant's default thereunder; however, as between Landlord and
Lender, no such exercise shall be binding upon Lender until Landlord shall have sent to Lender, by certified
or registered mail, return receipt requested, or by Federal Express or other reputable courier, a true, correct
and complete copy of any notice to Tenant of the default by Tenant under the Lease, and Lender shall have
failed to cure such default within the time frames set forth below; provided Landlord has received notice of
the name and address of Lender. Landlord agrees that even if as between Landlord and Tenant the Lease
has been terminated, Landlord shall be required to accept performance or cure of any default by Lender in
accordance with the provisions of this Agreement with the same force and effect as though timely done by
Tenant.
b. With respect to a default or breach that is curable solely by the payment of money
or the issuance of an insurance policy and delivery to Landlord of written evidence of such insurance,
Lender may cure such default or breach within thirty (30) days (90 days if the Leasehold Mortgage is
guaranteed by the United States Small Business Association, hereinafter "SBA") following the delivery of
such notice to Lender; and
BANNER-RP5 0\00286667.003
c. With respect to a default or breach that is not curable solely by the payment of
money, Lender may cure such default or breach within forty-five (45) days (ninety (90) days if the
Leasehold Mortgage is guaranteed by the SBA) following the delivery of such notice to Lender or, if such
default or breach is curable by Lender but cannot be cured by Lender within such time period, Lender may
cure such default or breach provided (i) Lender has notified Landlord within such time period that it intends
to cure such default or breach, (ii) Lender has diligently commenced to cure such default or breach, and
(iii) Lender diligently and continuously prosecute such cure to completion.
d. Notwithstanding anything to the contrary contained herein, if a non -monetary
default by Tenant under the Lease is such that the Leasehold Mortgagee cannot cure same without gaining
possession of the Premises, and if Lender determines to foreclose or otherwise institute appropriate
proceedings to obtain possession, and if the Lender has cured all monetary defaults, the cure period(s) set
forth above as to non -monetary defaults shall be reasonably extended so as to enable Lender to obtain
possession and initiate such cure. Any such proceedings shall be commenced promptly after the notice of
default is delivered to the Lender and shall be diligently prosecuted. Promptly after the Lender or a designee
of the Lender acquires possession of the Premises, Lender shall cure said breach or default.
10. Notice of Termination. If Tenant commits a non -curable default under the provisions of
the Lease and Landlord elects to terminate the Lease as a result, Landlord shall send to Lender, by certified
or registered mail, return receipt requested, or by Federal Express or other reputable courier, written notice
of Landlord's election to terminate the Lease; provided Landlord has received notice of the name and
address of Lender. As between Landlord and Tenant, Landlord may exercise its rights to terminate the
Lease because Tenant commits a non -curable default; however, as between Landlord and Lender, no such
exercise shall be binding upon Lender if: (i) Lender, within forty-five (45) days (ninety (90) days if the
Leasehold Mortgage is guaranteed by the SBA) following the delivery of such notice to Lender, commences
and thereafter diligently pursues to completion the enforcement of its rights under its loan documents,
including a foreclosure, a deed in lieu of foreclosure, or the acquisition of Tenant's interest under the Lease
by other means; and (ii) Lender promptly cures all other defaults under the Lease as provided for above.
11. Insurance. If all or any portion of the Premises are damaged and insurance proceeds are
available to repair the damage, and if the value of Lender's security interest in the Premises has been
impaired by such damage, Lender may at Lender's election receive the proceeds of any insurance and, if
there is an event of default under the Leasehold Mortgage, Lender may apply the insurance proceeds to
reduce loan amounts secured by the Leasehold Mortgage. Provided there is no event of default under the
Leasehold Mortgage, Lender shall apply the proceeds first to the restoration and repair of the Premises, and
after the Premises are fully repaired or restored, then as permitted by the Leasehold Mortgage.
12. Condemnation. If all or any portion of the Premises are taken in a condemnation, any
award that is allocated to the value of the improvements constructed or purchased by Tenant with the
proceeds of the Leasehold Mortgage may be retained by Lender to the extent that such condemnation
impairs the value of the Lender's security interest in the Premises; provided, however, that any portion of
the award that is allocated to the cost of restoration or repair shall be used for that purpose provided there
is no event of default under the Leasehold Mortgage; otherwise, Lender may apply the proceeds to reduce
loan amounts secured by the Leasehold Mortgage. The fee title owner of the Premises shall retain that
portion of any award that is allocated to the value of the underlying land.
13. Permitted Transfers.
a. The Leasehold Mortgage may be assigned by Lender in accordance with the
Leasehold Mortgage terms, and unless such transfer is to an affiliate or wholly-owned subsidiary of Lender,
such a transfer shall require the approval and consent of Landlord, which approval and consent shall not be
BANNER-RP50\00286667.003
unreasonably withheld; provided, that if Landlord does not respond within fifteen (15) business days of
delivery of a request for written consent, Landlord shall be deemed to have approved the proposed transfer.
b. A transfer of the Leasehold Estate at foreclosure sale under the Leasehold
Mortgage, including without limitation, Lender's acquisition of the Leasehold Estate at foreclosure sale
under the Leasehold Mortgage, whether pursuant to the power of sale contained therein or a judicial
foreclosure decree, or by an assignment including without limitation an assignment to or for the benefit of
Lender, or deed in lieu of foreclosure, shall not require the approval or consent of Landlord, but any such
transfer shall be subject to all of the other provisions of the Lease, and any such transferee shall be liable
for the obligations of Tenant under the Lease arising or accruing while such transferee holds title to the
Leasehold Estate. Lender shall have the right, but not the obligation, to acquire the Leasehold Estate at
foreclosure sale under the Leasehold Mortgage, whether pursuant to the power of sale contained therein or
a judicial foreclosure decree, or by assignment to or for the benefit of Lender. Notwithstanding anything
to the contrary herein, any purchaser of the Leasehold Estate at a foreclosure sale (other than the Lender or
any affiliate or wholly-owned subsidiary of Lender) must demonstrate to the reasonable satisfaction of
Landlord within three (3) months after the foreclosure sale that the purchaser has the ability to comply with
all applicable FAA regulations or the Landlord can give the purchaser a sixty (60) day notice to terminate
the Lease if any default under the FAA regulations is not cured.
c. If Lender or an affiliate of Lender acquires title to the Leasehold Estate in
accordance with the provisions of the preceding subparagraph of this Agreement, then a subsequent transfer
of the Leasehold Estate by the Lender including without limitation, Lender's sublease of its interest in the
Leasehold Estate (or Lender's affiliate, if an affiliate of Lender is the purchaser at a foreclosure sale or the
assignee or grantee under an assignment or deed in lieu of foreclosure) shall not require the approval and
consent of Landlord, which approval and consent shall not be unreasonably withheld; provided, that if
Landlord does not respond within fifteen (15) business days of delivery of a request for written consent,
Landlord shall be deemed to have approved the proposed transfer. Any such transfer shall be subject to all
of the other provisions of the Lease, and any such transferee shall be liable for the obligations of Tenant
under the Lease arising or accruing while such transferee holds title to the Leasehold Estate. Lender has the
right, but not the obligation, to sublet its interest in the Leasehold Estate subject to all of the other provisions
of the Lease.
14. Bankruptcy Provisions.
a. So long as this Leasehold Mortgage shall remain outstanding, the right of election
arising under the Bankruptcy Code to reject the Lease shall be exercised by the Lender and not by the
Tenant. Any exercise or attempted exercise by the Tenant of such right of election in violation of the
preceding sentence shall be void. If, despite the foregoing provision, Tenant rejects the Lease pursuant to
the Bankruptcy Code, then, within thirty (30) days (ninety (90) days if the Leasehold Mortgage is
guaranteed by the SBA) following notice to Lender of Tenant's rejection of the Lease, Lender shall have
the right to deliver written notice to Landlord requesting that Landlord inform Lender of the sums then
owing by Tenant under the Lease and any and all other defaults of Tenant under the Lease, and Landlord
shall, within ten (10) days following Landlord's receipt of such notice, deliver written notice to the Lender
of the sums then known by Landlord as being owed by Tenant and the other defaults of Tenant under the
Lease then known by the Landlord. The Lender shall have the right, but not the obligation, to serve on the
Landlord within ten (10) days after service of the notice provided in the preceding sentence, a notice that
the Lender elects to (i) assume the Lease, and (ii) cure all defaults outstanding thereunder. If the Lender
serves such notice on Landlord within the above time period, then (i) the rejection and Bankruptcy
termination of the Lease by the Tenant shall not constitute a termination of the Lease as between the
Landlord and Lender, (ii) Lender shall be deemed to have assumed the obligations of the Tenant under the
Lease without any instrument or assignment of transfer from the Tenant, (iii) the Lease shall be deemed in
BANNER -RP 5 0\0028 666 7.003
full force and effect as a direct Lease between Lender and Landlord, (iv) Lender's rights under the Lease
shall be subject to the rights of parties in possession, and (v) Lender shall consummate the assumption of
the Lease and the payment of the amounts payable by it to the Landlord pursuant to this Section within ten
(10) days after the Lender shall have served the notice of assumption. Upon a subsequent assignment of the
Lease by the Lender in accordance with the provisions of this Agreement, and assumption of all obligations
under the Lease by the assignee, Lender shall be relieved of all obligations and liabilities arising from and
after the date of such assignment.
b. Landlord hereby waives any remedy it may have or hereafter have to terminate,
treat as terminated, reject or cause forfeiture of the Lease under Section 365 (or any other applicable section)
of the Bankruptcy Code, any comparable federal or state statute or law, or as part of any receivership,
assignment for the benefit of creditors or creditor work-out. Effective upon the entry of an order for relief
with respect to Landlord under the Bankruptcy Code, or any comparable federal or state statute or law, the
Landlord hereby assigns and transfers to Lender a non-exclusive right to apply to the Bankruptcy Court
under Section 365 of the Bankruptcy Code (or any other applicable section), or any comparable federal or
state statute or law, for an order extending the period during which the Lease may be rejected or assumed.
In the event the terms of this paragraph are unenforceable, Landlord agrees to refrain from exercising any
right of termination it may have, under any bankruptcy or insolvency laws, or as part of any receivership,
assignment for the benefit of creditors or creditor work-out, prior to satisfaction of the indebtedness which
is evidenced, in part, by the Leasehold Mortgage.
c. Landlord and Tenant each agree to immediately notify Lender in writing should
any of them file, or there is filed against any of them, a petition, action or other request for relief under the
Bankruptcy Code, any comparable federal or state statute or law, or as part of any receivership, assignment
for the benefit of creditors or creditor workout and to serve Lender with copies of all notices pleadings or
other documents that any of them serve or receive in connection with any petition, action or other request
for relief under the Bankruptcy Code, any comparable federal or state statute or law, or as part of any
receivership, assignment for the benefit of creditors or creditor work-out.
15. Notices. Any notices required or permitted hereunder shall be in writing and shall be given
via certified first class mail, postage prepaid, return receipt requested, and addressed as follows:
If to Landlord:
And to:
Yakima Air Terminal - McAllister Field,
a department of the City of Yakima, Washington
3110 West Washington Avenue
Yakima, Washington 98903
City of Yakima
c/o City Manager
129 N. 2nd St.
Yakima, Washington 98901
BANNER-RP5 0\00286667.003
If to Tenant:
Robert E. McCormick
Joyce L. McCormick
161 Mapleway Road
Selah, Washington 98942
If to Lender:
Banner Bank
Yakima Branch, Attn: Patti Vasquez
502 W. Yakima Ave.
P.O. Box 183
Yakima, Washington 98907
or to such other address as any party may designate by notice to the other parties.
16. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure
to the benefit of each party's respective successors and assigns.
17. Integration. This Agreement contains the whole agreement between the parties relating to
the terms of this Agreement. There are no agreements, written or oral, outside or separate from this
Agreement concerning the subject matter hereof, and all prior negotiations, if any, are merged into this
Agreement.
18. Conflicts. If there is a conflict between any of the provisions of this Agreement, or the
documents evidencing the Leasehold Mortgage, this Agreement shall prevail.
19. Continued Effectiveness of this Agreement. The terms of this Agreement and the rights
and obligations of the parties hereunder, shall not be affected, modified or impaired in any manner or to
any extent by (a) any renewal, replacement, amendment, extension, substitution, revision, consolidation,
modification or termination of any of the Loan Obligations; (b) the validity or enforceability of any
document evidencing or securing the Loan Obligations; (c) the release, sale, exchange or surrender, in
whole or in part, of any collateral security, now or hereafter existing, for any of the Loan Obligations; (d)
any exercise or non -exercise of any right, power or remedy under or in respect of the Loan Obligations; or
(e) any waiver, consent, release, indulgence, extension, renewal, modification, delay or other action,
inaction or omission in respect of the Loan Obligations, all whether or not any Landlord shall have had
notice or knowledge of any of the foregoing and whether or not it shall have consented thereto.
20. Refinance. Landlord agrees to enter into and to substitute an agreement for this
Agreement, with specifically consistent scope and content, with regard to any loan made to generate
proceeds to refinance and/or pay off the loan which is referred to in the Loan Documents.
21. Disbursements by Lender. In making disbursements pursuant to any of the Loan
Documents, Lender shall have no obligation or duty to, nor has Lender represented that it will, supervise
the application of any proceeds by the person or persons to whom Lender disburses such proceeds, and any
application or use of such proceeds for purposes other than those provided for in the Loan Documents shall
not defeat the Landlord's covenants and agreements herein. Further, in making disbursements pursuant to
the Loan Documents, Lender may waive any and all conditions to a disbursement as contained in the Loan
Documents at its sole discretion.
BANNER -RP 5 0\0028666 7.003
22. Termination. Notwithstanding anything contained in this Agreement to the contrary, this
Agreement shall terminate and be of no further force or effect upon payment in full of the Loan Obligations
or voluntary reconveyance of the Leasehold Mortgage. If Landlord terminates the Lease and Lender fails
to avail itself of the cure rights provided by this Agreement under the terms set forth in this Agreement,
then this Agreement will terminate and Lender agrees to execute any documents reasonably requested by
Landlord to clear title to the Premises as to this Agreement.
23. Counterparts. This Agreement may be executed in counterpart, and the counterpart
original signature and notary acknowledgements pages may be inserted into one document for purposes of
recordation. This Agreement shall be effective and binding when counterparts hereof have been executed
by the parties. This Agreement may be amended in like fashion.
24. Dispute Resolution/Venue. Any disputes arising with respect to the performance or
enforcement of this Agreement shall be resolved in a court of competent jurisdiction in Yakima County,
Washington, unless the parties mutually agree in writing to another dispute resolution process.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their proper officers or
representatives to be effective as of the day and year first above written.
LANDLORD:
Yakima Air Terminal - McAllister Field, a
department of the City of Yakima, Washington
By:
Cliff •ire
Its: City Manager
TENANT:
cl,r06-1.
Obert E. McCormick
LENDER:
Banner Bank
By:
Its:
BANNER - R P 5 0 \0 02 8 6 66 7.003
CITY CONTRACT NO:
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STATE OF All stir 4 / Y) )
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I certify that I know or have satisfactory evidence that Cliff Moore is the person who appeared
before me, and said person acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as the City Manager of the City of Yakima,
WaAj,gXpn, to be the free and voluntary act of such party for the uses and purposes mentioned in the
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I certify that I know or have satisfactory evidence that Robert E. McCormick is the person
who appeared before me, and said person acknowledged that he signed this instrument and acknowledged
it to be his free and voluntary act for the uses and purposes mentioned in the instrument.
Dated:�el 420 /7
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I certify that I know or have satisfactory evidence that Joyce L. McCormick is the person
who appeared before me, and said person acknowledged that she signed this instrument and acknowledged
it to be her free and voluntary act for the uses and purposes mentioned in the instrument.
Dated:
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Notary Public E _
State of Washington _ My Commission Expires./• a0/9
LYNNI M. SERRATA
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VPS �� (�{ `� 5�' `P ryvI,i,le,.- of Banner Bank, to be the free and voluntary act of such party
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Exhibit "A"
Legal Description
"PARCEL A"
THAT PORTION OF NORTHEAST QUARTER OF SECTION 34, TOWNSHIP 13 NORTH, RANGE 18
EAST, W.M., DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTER OF SECTION 35, TOWNSHIP 13 NORTH, RANGE 18 EAST, W.M.;
THENCE NORTH 90°00'00" WEST 2688.05 FEET ALONG THE SOUTH LINE OF THE NORTHWEST
CORNER OF SAID SECTION 35 TO THE WEST QUARTER CORNER THEREOF;
THENCE NORTH 03°36'41" WEST 649.22 FEET;
THENCE NORTH 78°51'02" WEST 180.00 FEET;
THENCE NORTH 11 °08'58" EAST 315.00 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF
WASHINGTON AVENUE AND THE POINT OF BEGINNING;
THENCE SOUTH 11°08'58" WEST 320.00 FEET;
THENCE NORTH 78°52'47" WEST 22.00 FEET:
THENCE SOUTH 12°21'26" WEST 222.40 FEET;
THENCE NORTH 70°04'19" WEST 360 00 FEET;
THENCE NORTH 12°08'08" EAST 70.22 FEET;
THENCE NORTH 70°09'57' WEST 236.00 FEET;
THENCE NORTH 20°09'34" EAST 384.99 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF
WASHINGTON AVENUE;
THENCE SOUTHEASTERLY ALONG SAID SOUTHERLY RIGHT OF WAY LINE TO THE POINT OF
BEGINNING.
SITUATE IN YAKIMA COUNTY, WASHINGTON.
LEASEHOLD MORTGAGE RECOGNITION AGREEMENT - 11
BANNER -RP 50\00286667.001 3/3/2017
LEASE AGREEMENT #2
ROBERT E. & JOYCE L. McCORMICK
THIS LEASE, executed this � day of , 2004, between the YAKIMA AIR
TERMINAL - McALLISTER FIELD, an agency of the City of Yakima and County of
Yakima, Washington, hereinafter referred to as "LESSOR," and ROBERT E. & JOYCE
L. McCORMICK, a married couple, hereinafter referred to as "LESSEE":
WITNESETH:
WHEREAS, LESSOR operates the Yakima Air Terminal - McAllister Field, under the
authority granted by the Joint Operations Agreement signed by the City and County of
Yakima, July 1, 1982, hereinafter referred to as "Airport," and
WHEREAS, LESSOR has approved property available for lease as provided by this
Lease, and LESSEE desires to occupy and use such property in accordance with this
Lease,
NOW THEREFORE, in consideration of the mutual promises contained herein and the
benefit to be derived by each party, the parties agree as follows:
. PREMISES:
LESSOR does hereby lease and let unto LESSEE, and LESSEE does hereby
lease and take from LESSOR, approximately 271,010 sq ft of land and at 3202-
3210 W Washington Ave in the City of Yakima, Yakima County, Washington, as
that property is depicted on the drawing marked Exhibit "A", attached hereto and
by this reference made a part hereof, together with the right of ingress to and
egress from the leased premises and the public use areas/facilities used in
connection therewith, over designated Airport property and roadways, subject to
rules and regulations governing the use of the Airport and as the same may be
promulgated by LESSOR from time to time. The LESSOR may, at any time
hereafter, provide a legal description of the premises and such description shall
become a part of this Lease.
Filename: Lease/McCo04 1
2. TERM:
The tenancy created by this Lease shall commence on September 1, 2004 and
terminate on August 31, 2044, unless otherwise terminated as provided for
herein.
The term of this Lease shall extend by one Ten (10) year period (to wit, August
31, 2054); unless either party delivers to the other written notification of the intent
to terminate prior to August 31, 2044.
3. MORTGAGE:
LESSEE and its assigns shall have, and are hereby given, the right to mortgage
the leasehold created by this Lease for an amount not to exceed the possessory
interest of the LESSEE and for any term not exceeding the lease term, or any
renewal thereof. LESSOR shall be given written notice thereof of any such
mortgage, including the mortgagee's address and loan number. LESSOR shall
have no right to terminate this Lease or retake possession of the premises or
expel LESSEE unless 30 days' advance written notice of such default is given by
the LESSOR to LESSEE and LESSEE's mortgagee at the last address provided
in writing by LESSEE to LESSOR. The mortgagee is hereby given the power
and authority, at its option, to cure all such events of default, which may be cured
by action of the LESSEE, and in the name, place, and stead of the LESSEE. In
the event a mortgage on the leasehold interest, subject to approval by LESSOR
of any such assignment and sale may assign, sell, or otherwise dispose of the
leasehold interest, subject to approval by LESSOR of any such assignment and
sale and subject to approval by LESSOR of the assignee or purchaser; such
approval shall not be unreasonably withheld. The assignment or sale of this
Lease shall not relieve the assignee or purchaser of any obligation under this
Lease nor relieve it from any terms of this Lease, nor from any obligation to meet
Airport rules, regulations and standards.
4. RENT: 1-1401t2351.
A. LESSEE promises and agrees to pay rent to LESSOR at the rate of
$ 3,,1-8-r.78 per month for the leased premises, made in advance on or before the
10th day of each month. Payments shall be made to the Yakima Air Terminal -
McAllister Field in care of the Airport Manager's office. Any rental payment past
due shall accrue a delinquency charge of twelve percent (12%) per annum.
Filename: Lease/McCo04 2
B. The lease rental rate as provided for above shall be subject to review and
modification on every two year anniversary of this Lease and shall be set at the
then current Aviation Rate.
5. DEPOSIT:
Upon execution of this lease by both parties, LESSEE shall deposit with
LESSOR the amount of one month's rent plus leasehold tax as a guarantee of
LESSEE's performance of this Lease and the timely payment of the rental
provided for herein; and in the event LESSEE shall fail to pay the rental as
provided herein, or otherwise breach this Lease, then the Airport Manager may
apply such deposit, or any part thereof as may be necessary, to the payment of
rental or to the payment of damages for such breach or pursue any other
remedies provided herein. This deposit shall be adjusted from time to time to
reflect adjustments in the rent and/or leasehold tax.
6. TAXES AND LIENS:
In addition to the rent payable above, LESSEE promises and agrees to pay, as
the same become due and payable, all licenses, fees and taxes, including but not
limited to the leasehold excise, required to be paid by LESSEE by reason of this
Lease and by reason of LESSEE's use and occupancy of the leased premises
and by reason of LESSEE's construction or ownership of improvements to the
leased premises. LESSEE shall neither suffer nor permit the attachment of any
lien or other encumbrance on the leased premises by reason of LESSEE's
occupancy thereof. LESSEE agrees to indemnify LESSOR and shall hold
LESSOR harmless from any such taxes and liens.
7. USE:
LESSEE agrees to use the leased premises only for an aeronautical oriented
activity or for any other use allowed by the Master Plan and the zoning of the
property by the appropriate jurisdiction as approved by the LESSOR. The use of
the property for any other purpose shall be deemed a material breach of this
Lease constituting grounds for its termination. This provision shall apply to any
assignment of this Lease, whether voluntary or due to mortgage foreclosure or
for any other reason. Failure of the assignee to comply with this Section shall be
reasonable cause for LESSOR to withhold approval or consent to assignment.
Filename: Lease(McCo04 3
8. UTILITIES:
LESSEE shall be responsible for all utility services including, but not limited to,
power, natural gas, water, sewer, and garbage.
9. PREMISES CONDITION:
LESSEE has made a full inspection of the premises, is fully aware of its condition
except with respect to environmental conditions and accepts the premises on an
"AS -IS" basis. LESSEE agrees to pay for any improvements, repairs and/or
modifications necessary to the operation of LESSEE's business.
10. MAINTENANCE:
LESSEE agrees to keep and maintain the premises in at least as good a
condition as the condition of the premises at the beginning of LESSEE's
occupancy, normal wear and tear excepted. LESSEE further agrees that
LESSEE shall be responsible to maintain all leased areas, buildings, trade
fixtures and other improvements, existing and future, in an attractive and usable
manner as determined by the Airport Manager and consistent with other
properties at the Airport. Maintenance shall include, but not be limited to weed
control, garbage and debris removal, ash removal, painting, snow removal and
pavement maintenance.
11. SIGNS:
LESSEE, at LESSEE's own expense, may erect a sign(s) of a type, number and
location suitable to LESSOR. No signs or other advertising matter or devices
shall be used or displayed in or about the leased premises or upon any portion of
the Airport without the prior written approval of the Airport Manager, which
approval shall not be unreasonably withheld.
12. IMPROVEMENTS:
All buildings, trade fixtures and other improvements to the leased property by
LESSEE shall conform to applicable rules, regulations and codes, and LESSEE
shall procure all building and other permits therefore. All buildings trade fixtures
Filename: Lease/McCo04 4
and other improvements shall be designed with a view toward aesthetic
considerations and installation shall not commence until pians and specifications
therefore have been submitted to and approved in writing by the Airport
Manager, which approval shall not be unreasonably withheld. Approval of
LESSEE's improvements shall be deemed granted twenty (20) days after
submission in writing to the Airport Manager if no response has been received by
LESSEE.
LESSOR makes no representation or guarantee as to the suitability of the leased
area for construction of buildings, roads, ramps, etc., and is not responsible for
the costs of excavation and/or removal of any object found either above or below
ground level except for hazardous materials and archaeological artifacts existing
prior to tenancy.
13. REVERSION OF IMPROVEMENTS:
Upon termination of this lease for any reason Lease, LESSOR may, at its option,
either accept ownership of the improvements constructed or installed on the
Premises, except for trade fixtures, or require LESSEE to remove such
improvements within sixty (60) days of such termination. Such removal shall
include removing the foundation, utilities and other land improvements and
restoring the land to grade level. LESSOR shall notify LESSEE of its intent
within sixty (60) days of the cancellation or expiration. LESSOR shall notify
LESSEE of its intent within twenty (20) days of the termination.
Prior to the expiration of this Lease, LESSEE shall remove all such trade fixtures
and repair any damage to the premises caused by removal of trade fixtures to
the reasonable satisfaction of the Airport Manager. Fixtures not removed within
sixty (60) days after termination become the property of the LESSOR unless
other arrangements have been previously approved in writing by the Airport
Manager.
LESSEE shall, as additional consideration for grant of this Lease, insure that all
liens, security interest and other encumbrances against said improvements and
structures except those created or suffered by LESSOR, whether consensual or
involuntary, shall be paid, discharged or satisfied prior to time for reversion
thereof to LESSOR; and, in any event, the parties acknowledge that LESSOR
shall not, by virtue of termination of the leasehold interest nor reversion of the
structures or other improvements, be liable for any debt or encumbrance
associated therewith, whether now existing or hereafter incurred, levied or
attached.
Filename: Lease/McCo04 5
14. LESSOR'S OPTION TO PURCHASE:
LESSOR shall have the right of first refusal on all improvements or structures on
the demised premises as hereinafter set forth. If at any time during the term,
LESSEE shall receive a bona fide offer from a third person for the purchase of
any or all improvements or structures on the demised premises, which offer
LESSEE shall desire to accept, LESSEE shall promptly deliver to LESSOR a
copy of such offer and LESSOR may, within thirty (30) days thereafter, elect to
purchase the demised premises on the same terms as those set forth in such
offer.
If LESSOR shall not accept such offer with the time herein specified therefor,
said right of refusal shall cease to exist, but this lease shall continue otherwise on
all the other terms, covenants, and conditions in this lease set forth. This right of
refusal shall be inapplicable to a transfer, by way of sale, gift or device, including
a trust, to or for a party related to a LESSEE , or to any transfer, in whole or in
part, from one such related party to another, but shall apply to any subsequent
transfer to a third person. For the purpose of this Article, if the then LESSEE
shall be an individual, a related party shall include a spouse, lineal descendant or
spouse of such descendant, ancestor or sibling (whether by the whole or half
blood), a partnership or limited liability company of which such owner is a
member, a joint ownership or ownership in common, which includes the then
LESSEE, or a corporation, the majority of whose shares is owned by the
LESSEE, or any one or more of the foregoing parties. If the then LESSEE shall
be a corporation, a related party shall include an affiliate, subsidiary or parent
corporation, a successor by merger or consolidation, or the holder or holders of
the majority of the shares of such corporation.
15. REGULATIONS:
LESSEE agrees to comply with all applicable laws, ordinances, rules, regulations
and policies of all governmental authorities having jurisdiction over the Airport,
including policies adopted by LESSOR, as such laws, ordinances, rules,
regulations and policies apply to the use and operation of Airport property,
facilities and operations as those laws, ordinances, rules, regulations and policies
now exist or may hereafter become effective. LESSEE further agrees to accept
responsibility for not allowing unauthorized persons access to the Airport
Operations Area (AOA).
Filename: LeasefMcCo04 6
16. SUBLETTING:
LESSEE shall not sublet any part of the premises without the prior written
approval of LESSOR, such approval not to be unreasonably withheld. Subleases
shall give preference to aeronautical activities and shall comply with all laws,
ordinances, rules, regulations and policies applicable to the use and operation of
Airport property, facilities and operations as those laws , ordinances, rules,
regulations and policies now exist or may hereafter become effective. A consent
to sub -lease by LESSOR shall not be construed to be a consent to any
subsequent sub -lease. The LESSOR, in determining whether or not to approve
a sub -lease, shall consider the extent of the aeronautical activities performed on
the premises.
Any income to LESSEE derived from sub -leasing shall be distributed to LESSOR
in accordance with its policy on SUB -LEASING INCOME in effect at the time of
the final execution of this Lease.
According to the policy on SUB -LEASING INCOME in effect at the time of this
Lease, there is no requirement to share sub -lease income because this Lease is
for land only.
17. ASSIGNMENT:
LESSEE shall not assign this Lease without the prior written approval of
LESSOR, such approval not to be unreasonably withheld. Such assignment
shall be in conformance with all applicable Airport Board, local, state and federal
laws, ordinances, rules, regulations and policies. LESSEE shall give preference
to aeronautical activities and all assignees shall comply with all laws, ordinances,
rules, regulations and policies applicable to the use and operation of Airport
property, facilities and operations as those laws, ordinances, rules, regulations
and policies now exist or may hereafter become effective. A consent to
assignment by LESSOR shall not be construed to be a consent to any
subsequent assignment.
18. MISCELLANEOUS PROVISIONS:
A. The parties agree that LESSOR, through its Airport Manager or other person
authorized by the Airport Manager, may enter upon the leased premises at any
reasonable time to make such inspections as LESSOR may deem necessary to
Filename: Lease/McCoO4 7
the proper enforcement of any term, provision or condition of this Lease. No
such entry or inspection by LESSOR is required by this provision, and the failure
of LESSOR to enter and make inspection shall not alter the relationship of the
parties and their respective rights and duties provided by this Lease. LESSEE
shall be granted the right of quiet enjoyment upon performance of all terms of this
Lease.
B. LESSOR may further develop or improve Airport property and facilities,
regardless of the desire or views of LESSEE regarding any such development or
improvement, and without interference or hindrance on the part of LESSEE and
without liability to LESSEE, provided the operations of the LESSEE are not
unreasonably interrupted.
C. LESSOR reserves the right, but shall not be obligated to LESSEE, to
maintain and keep in repair the landing area of the Airport and all publicly owned
facilities of the Airport, together with the right to direct and control all activities of
LESSEE in that regard.
D. LESSOR reserves the right to take any action necessary or desirable by
LESSOR to protect the operations of the Airport against obstruction, or any other
activity interfering with the efficient operation of the Airport, together with the right
to prevent LESSEE from erecting, or permitting to be erected, any building or
other structure on the Airport which, in the opinion of the Airport Manager, would
limit the usefulness of the Airport or constitute a hazard to aircraft.
Lessee shall limit the building area to that portion of the property which is north of
the building restriction line as defined by the Airport Layout Plan and to a height
not to exceed thirty five (35) feet.
E. During time of war or national emergency, LESSOR shall have the right to
lease the landing area or any part thereof to the United States of America for
military use, and, if any such lease is executed, the provisions of this Lease shall
be suspended insofar as they are inconsistent with the provisions of the lease
agreement with the United States of America.
F. This Lease shall be subordinate to the provisions of any existing or future
agreement between LESSOR and the United States of America relative to the
operation or maintenance of the Airport, the execution of which has been or may
be required as a condition to the expenditure of federal funds for the
development of the Airport.
Filename: Lease/McCo04 8
G. If the leased premises or any interest therein is taken as a result of the
exercise of the right of eminent domain, this Lease shall terminate as to such
portion as may be taken. If the portion taken does not feasibly permit the
continuation of the LESSEE's operations, LESSEE shall have the right to
terminate this Lease. Such termination shall be effective as of the date
LESSEE's operations cease. LESSEE shall be entitled to a portion of the award
representing its interest in the premises. LESSOR shall be entitled to the
remainder of the award.
19. INDEMNITY/DUTY TO DEFEND:
A. At no expense to LESSOR, LESSEE shall defend against and indemnify fully
and save harmless the Board of the Yakima Air Terminal - McAllister Field, the
Yakima Air Terminal - McAllister Field, the City of Yakima and Yakima County
and their elected and appointed officials, employees and agents, from any and all
liability, damages, suits, claims, actions, judgements or decrees, made against
the Board of the Yakima Air Terminal - McAllister Field, the Yakima Air Terminal -
McAllister Field, the City of Yakima or Yakima County or their elected and
appointed officials, employees and agents, including all expenses incidental to
the investigation and defense thereof, including reasonable attorney fees, based
on or arising from the occupancy or use of the leased premises by LESSEE or as
a result of LESSEE'S operations at the Airport or from any other act or omission
of LESSEE, its servants, employees, agents, invitees, independent contractors or
any other entity, person, firm or corporation acting on behalf of LESSEE or under
its direction, whether such claim shall be by LESSEE or a third party; provided,
however, that LESSEE shall not be liable for any injury, damage or loss
occasioned solely by the sole negligence of LESSOR, its agents or employees.
LESSOR shall give to LESSEE prompt and reasonable notice of any such claims
or actions and LESSEE shall have the right to investigate, compromise and
defend the same to the extent of its interest.
B. LESSOR agrees to defend, indemnify and hold LESSEE harmless against
and from any claim or liability arising from or alleged to arise from the presence
of hazardous material or toxic waste on the subject leased premises at the
inception of this Lease and the introduction to the premises of such materials due
to LESSOR'S activities or under its control.
C, LESSEE shall keep and hold the Board of the Yakima Air Terminal -
McAllister Field, the Yakima Air Terminal - McAllister Field, the City of Yakima
and County of Yakima, their elected and appointed officials, agents and
employees, free and harmless from any and all claims and actions, loss,
Filename: Leasc/McCoO4 9
damage, expense or cost, including reasonable attorneys fees, incidental to the
investigation and defense thereof, resulting from, arising out of, or caused by
LESSEE resulting in any liability under the Federal Comprehensive
Environmental Response Compensation Liability Act of 1980, as amended, 42
U.S.C. 9601 et seq.; Hazardous Materials Transportation Act, 49 U.S.C. 1801 et
seq.; Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., the
Clean Water Act, 42 U.S.C. 1251 et seq.; the Washington Environmental Policy
Act, RCW Ch. 43.21C; the Washington Water Pollution Control Act, RCW Ch.
90.48; the Washington Hazardous Waste Management Act, RCW Ch. 70.105;
the Washington Model Toxic Control Act, RCW Ch. 70.105D, and the regulations
promulgated thereunder, or under any applicable local or state environmental
ordinance, statute, law, rule or regulation. The provisions of this Sub -section
shall survive the termination of this Lease.
20. INSURANCE:
LESSEE shall file with LESSOR a certificate of insurance, or other proof of
insurance acceptable to LESSOR, evidencing an insurance policy with the
Yakima Air Terminal -McAllister Field, the City of Yakima and County of Yakima
as additional insureds providing:
1. Comprehensive general liability insurance coverage in amounts of not
less than $1,000,000 Combined Single Limit for bodily injury and property
damage covering LESSEE's occupancy of and activities pertaining to the
leased premises.
LESSEE specifically agrees that insurance limits shall be reviewed at least every
five (5) years and that LESSOR may make reasonable adjustments to the
required limits.
Not Tess than 30 days written notice, or other such time period as may be
acceptable to LESSOR, must be supplied to LESSOR in the event of
cancellation, material change to the policy or non -renewal of any or all policies.
Certificate shall be issued by carrier(s) with a minimum A.M. BEST rating of A -VII
which are admitted in the State of Washington or other such carriers as shall be
acceptable to LESSOR,
21. DAMAGE OR DESTRUCTION:
Filename: Lease/McCo04 10
A. TENANT IMPROVEMENTS: In the event the construction in accordance
with Section 12 - IMPROVEMENTS herein, or improvements thereto, is partially
or totally damaged by fire or other casualty, the LESSEE shall repair or replace
the same at its own expense. The new improvements shall be at least the same
size, design and quality as that which existed prior to any damage or destruction.
Both parties agree, however, that any insurance proceeds shall be first applied to
the cost of repair or replacement of improvements.
LESSEE may elect not to repair or replace said construction or improvements.
LESSEE shall advise LESSOR of its intent within thirty (30) days of the damage
or destruction. If LESSEE elects not to repair or replace the improvements, this
Lease shall be terminated. In such event, LESSOR may either accept ownership
of the improvements or require LESSEE to remove the improvements and
restore the Premises to a condition satisfactory to the LESSOR. The insurance
proceeds shall be used for such restoration and the balance divided between the
LESSOR and LESSEE as their interest bear in accordance with a straight line
depreciation schedule. The straight line depreciation schedule shall be over the
initial term of the lease and shall begin to run on the lease effective date. The
amount so depreciated shall vest in the LESSOR. LESSOR shall notify LESSEE
of its intent within thirty (30) days of receipt of LESSEE's notification. If LESSOR
elects to have LESSEE remove the improvements, LESSEE shall have sixty (60)
days to do so.
B. OTHER AIRPORT PROPERTY: In the event of damage or destruction of
Airport property caused by the LESSEE, its agents, employees, aircraft or other
equipment, LESSEE agrees to repair, reconstruct, or replace the affected
property to the condition which existed prior to such damage or destruction, to
the extent that same is not covered by insurance required under this Lease.
LESSEE further agrees to cause such repair, reconstruction or replacement or
affected property with due diligence.
22. DEFAULT, TERMINATION & FORFEITURE:
A. The failure by LESSEE to pay rent in the amounts and at the times specified
herein, or the failure by LESSEE to otherwise comply with any term, provision or
condition of this Lease, shall constitute grounds for termination of this Lease and
forfeiture of all rent paid by LESSEE to the time of termination. This Lease and
tenancy shall terminate and rent paid shall be forfeited for cause as specified
above on written notice by LESSOR to LESSEE stating the amount of rent in
default or otherwise stating accurately the manner in which LESSEE fails or has
failed to comply with this Lease. LESSEE shall make full payment or otherwise
Filename: Lease/McCo04 11
comply with this Lease in the manner specified in the notice within thirty (30)
days (except three (3) days for payment of rent) from LESSEE's receipt of such
notice, otherwise this Lease and tenancy shall be terminated and rent forfeited.
Such notice shall be given in writing and served on LESSEE by personal delivery
or mailed by certified mail with return receipt requested addressed to LESSEE at
its address stated below LESSEE's signature to this Lease or such other address
as the parties may advise each other in writing. It is further agreed that after
receipt of notices and as an additional condition to avoid forfeiture, LESSEE shall
pay LESSOR's costs and expenses, including attorney's fees, for the preparation
and service of such notice. Nothing contained herein shall release or diminish
LESSEE's obligation to pay rent for the full term of this Lease save such amount
as LESSOR recovers as rent from any subsequent lessee during the term of this
Lease. Notices shall be deemed received three (3) days after mailing to
LESSEE at the address below LESSEE's signature to this Lease or such other
address as the parties may advise each other in writing.
B. As additional and not alternative remedy, optional with LESSOR and upon
thirty (30)days written notice to LESSEE, should LESSEE be in default
hereunder other than default in the payment of rent, LESSOR may cure or
correct the same and the cost of such action by LESSOR shall immediately
become due and payable from LESSEE, together with late fees on said sum at a
rate of twelve percent (12%) per annum, and the non-payment of said sum by
LESSEE shall be adequate grounds for LESSOR to invoke the other remedies as
provided in this Lease.
C. Upon termination of this Lease for any reason, LESSEE shall immediately
surrender the premises to the LESSOR in good condition and repair, ordinary
wear and usage excepted; and LESSEE shall remove all of LESSEE'S personal
property, trade fixtures, equipment or improvements removable by prior
agreement with LESSOR from the premises and shall repair any damage to the
premises caused by such removal. Any personal property of LESSEE, or
anyone claiming under LESSEE, which shall remain upon the premises at the
expiration or termination of this Lease shall be deemed to have been abandoned
and may be retained by LESSOR as LESSOR'S property or disposed of by
LESSOR in such manner as LESSOR sees fit without compensation to any
party.
23. INSOLVENCY
In the event LESSEE is declared bankrupt by a court of competent jurisdiction or
in the event LESSEE makes an assignment for the benefit of creditors, or if a
Filename: Lease/McCo44 12
receiver otherwise is appointed for LESSEE, or in the event LESSEE's leasehold
estate is subjected to execution to satisfy any judgement against LESSEE, then
in that event LESSOR may immediately or at any time thereafter without notice
or demand enter into and upon the premises or any part thereof and repossess
the same and expel LESSEE or any person upon the premises and remove their
effects, and thereupon this Lease and the tenancy hereby created shall
absolutely terminate, without prejudice to any remedies which might otherwise be
available to LESSOR for collection of past due or future rent.
It is understood and agreed that the mortgagee (ref. Section 3) shall have the
option to cure any default under this Section.
24. VENUE, ATTORNEY FEES:
In the event of litigation to enforce the rights and obligations hereunder, venue
shall lie in Yakima County Superior Court, and the prevailing party shall be
entitled to its reasonable attorney fees in addition to court costs.
25. NON-DISCRIMINATION CLAUSE:
To the extent required by law, LESSEE, for itself, its personal representative,
successors in interest and assigns, as a part of the consideration hereof, does
hereby covenant and agree as follows:
A. No person, on the grounds of race, color, religion, sex, age, marital status,
handicap or national origin, shall be unreasonably excluded from participation in,
denied the benefits of, or be otherwise subjected to discrimination in LESSEE's
personnel policies and practices or in the use or operation of LESSEE's services
or facilities.
B. LESSEE agrees that in the construction of any improvements on, over or
under Airport land and the furnishing of services thereon, no person, on the
grounds of race, color, religion, sex, marital status, handicap, age or national
origin, shall be unreasonably excluded from participation in, denied the benefits
of, or otherwise be subjected to discrimination.
C. LESSEE shall use the Premises in compliance with all other requirements
imposed by or pursuant to Title 49. Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in
Federally Assisted Programs of the Department of Transportation -Effectuation of
Filename: Lease/MeCoO4 13
Title VI of the Civil Rights Act of 1964, and as said Regulations may be
amended.
I7. It is the policy of the Department of Transportation that minority business
enterprise as defined in 49 CFR Part 23, i.e., firms owned and controlled by
minorities; firms owned and controlled by women and firms owned and controlled
by financially disadvantaged persons; shall have the maximum opportunity to
participate in the performance of leases as defined in 49 CFR Section 23.5.
Consequently, this Lease is subject to 49 CFR Part 23 as applicable.
Lessee hereby assures that no person shall be excluded from participation in,
denied the benefits of or otherwise discriminated against in connection with the
award and performance of any contract, including leases, covered by 49 CFR
Part 23 on the grounds of race, color, national origin or sex.
Lessee hereby assures that it will include the above clauses in all sub -leases and
cause sub -lessees to similarly include clauses in further sub -leases.
26. INTEGRATION:
This document embodies the entire Lease between the parties with respect to
the subject matter herein contained. No amendments or modifications hereof
shall be enforceable unless in writing, signed by the party to be charged.
Time is of the essence of this entire Lease.
Filename: Lease/McCo44 14
LESSOR:
YAKIMA AIR TERMINAL - McALLUSTER FIELD
2400 W. Washington Avenue
Yakima, Washington 98903
(509) 575-6149 - phone
(509) 575-6185 - fax
Doug
Fre J. Iraol., Secretary
STATE OF WASHINGTON
County of Yakima
I certify that I know or have satisfactory evidence that Douglas C. Hahn and Fred J.
lraola signed this instrument, on oath stated that they were authorized to execute the
instrument and acknowledged it as the Chairman and the Secretary respectively of the
Board of the Yakima Air Terminal - McAllister Field to be the free and voluntary act of
such party for the uses and purposes mentioned in the instrument.
Date)L-- . C--0 5/
By: . 11.2r1-14
Notary Publi
Appointment Expires 1/ — / ' 017
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My Crane. Expires
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Filename: Lease/McCo44 15
LESSEE:
ROBERT E. & JOYCE L. McCORMICK
191 Mapleway Road
Selah, Washington 98942
(509) -5230 (home)
(509 945 9,(celllar
RT E. M RMICK
JO Z E 4, cCORMCK
STATE OF WASHINGTON
County of Yakima
Date
Date
I certify that I know of have satisfactory evidence that Robert E. McCormick signed this
instrument and acknowledged it to be his free and voluntary act for the uses and
purposes mentioned in the instrument.
Date: --Q 9
By: /Q.4
Notary Public
Appointment
xpires /--
STATE OF WASHINGTON
County of Yakima
ilt
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.
my cendieofee
�U) . Novemb_I 1, 2007 ;
puBip
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I certify that I know of have satisfactory evidence that Joyce L. McCormick signed this
instrument and acknowledged it to be her free and voluntary act for the uses and
purposes mentioned in the instrument.
Date:
By: /(/
Notary Public
Appointment Exp
Filename: Lease/McCoO4
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16
Exhibit "A"
To Lease Agreement No. 2
between Robert E. and Joyce L McCormick
and the Yakima Air Tem'►inal
Effective Date: Sept ember 1, 2004
--� Total Leased Area: 271,010 sq. ft.
Lease Boundary
271,010 sq. ft.�
Existing
Hangar
Apt
i Note: Ameruln nt increases square footage
of leased area from 146,435 sqft. to 271,010 sq. ft.
to reflect the new aircraft parking ramp
completed August 2004.
Site Map
McCormick Aviation
Self -Service Aviation Fuel Facility
3210 West Washington Avenue
Yakima, WA 98903
W. Washington Ave.
Praposed Self Service
Fuel Facility
(2)12,000 Tanks, JetA
(1)12,000 lank, Av Gas
10'-0"
Existing Hangars
39' 6"
Note: Vehicle protection may not
be necessary on building side of
tanks. Building provides vehicle
protection.
CONCRETEDAP
6" PIPI33OLLARD
GROUT
8" PVC PIPE
SONOTUBESLEEVE
BOLLARD
DETAIL
CONCRETE SPECS.:
1. MINIMUM CONCRETE
STRENGTH: fc = 3,000 PSI
GRADE 60.
2. BAR REINFORCEMENT
SHALL CONFORM TO ASTM
A615.
3. DESIGN BASED ON SOIL
BEARING CAPACITY OF
3,000 PSF MINIMUM.
4, THE SLAB MUST BE
PLACED ON FREE
DRAINING SOIL OR
CRUSHED STONE TO
PRECLUDE THE EFFECTS
OF FROST HEAVE
5. THE CONTRACTOR
SHALL EVALUATE THE
EFFECTS OF SUBSURFACE
UTILITIES OR UNUSUAL
CONDITIONS ON THE
FOUNDATION.
6. INSTALL A MINIMUM OF
6" OF CONCRETE IN ALL
LOCATIONS WITH A HEAVY
BROOM FINISH.
7. MINIMUM SIZE OF SLAB
IS TO NO SMALLER THAN
12" LARGER THAN THE
SIZE OF THE TANK
INCLUDING THE LADDER
AND THE CANOPY
PLATFORM.
8. K RAIL OR 6" BOLLARD
ARE TO INSTALLED
LEAVING NOOPENING
BETWEEN EACH OTHER
GREATER THAT 48',
9. K RAIL MUST BE
INSTALLED NO CLOSER
THAN 12" OR BOLLARDS 48"
FROM THE TANK AND
PLATFORMS.
10. CONCRETE PIERS MAY
BE INSTALLED INSTEAD OF
A CONCRETE SLAB. THE
MINIMUM SIZE MUST NOT
BE LESS THAT 36" HIGH, 24"
WIDE, AND NOT LESS THAN
THE DIAMETER AND THE
TANK. THE REINFORCED
CONCRETE MUST MEET
THE ABOVE SPECS. SEE
DETAIL 'IN'
3' 3.01"
10' 0.00"
1' 6.00'
39' 6.00" 10 0.00"
1' 8.00"
10 0.00"
3'299"
Fuel Storage Tank Installation
McCormick Aviation
Typical Site Details
See Site Map
February 10, 2003
AMENDMENT #1
TO LEASE AGREEMENT #2 (Main FBO)
ROBERT E. & JOYCE L. McCORMICK
THIS LEASE, executed this day�a�"C 2012, between the
of 172e
YAKIMA AIR TERMINAL — McALLISTER FIELD, an agency of the City of
Yakima and County of Yakima, Washington, hereinafter referred to as
"LESSOR," and ROBERT E. & JOYCE L. McCORMICK a married couple,
hereinafter referred to as "LESSEE."
WITNESETH:
WHEREAS, LESSOR operates the Yakima Air Terminal — McAllister Field, under
the authority granted by the Joint Operations Agreement signed by the City and
County of Yakima, July 1, 1982, hereinafter referred to as "Airport"; and,
WHEREAS, LESSOR has approved property available for lease as provided by
this Lease, and LESSEE desires to occupy and use such property in accordance
with this Lease,
PREMISES
TERM
RENT
ENVIRONMENTAL STANDARDS (NEW SECTION)
AIRPORT SECURITY & ACCESS CONTROL (NEW SECTION)
NOW THEREFORE, in consideration of the mutual promises contained herein
and the benefit to be derived by each party, the parties agree as follows:
1. PREMISES: Delete in its entirety and replace with:
LESSOR does hereby lease and let unto LESSEE, and LESSEE does
hereby lease and take from LESSOR, approximately 234,488 sq ft of land
and at 3202-3210 W Washington Ave in the City of Yakima, Yakima
County, Washington, as that property is depicted on the drawing marked
Exhibit "A", attached hereto and by this reference made a part hereof,
together with the right of ingress to and egress from the leased premises
and the public use areas/facilities used in connection therewith, over
designated Airport property and roadways, subject to rules and regulations
governing the use of the Airport and as the same may be promulgated by
LESSOR from time to time.
Lease/McCo04 Ise #2 amd #1
Delete current Exhibit `A' in its entirety. Replace with new metes and
bounds survey, Exhibit `A'.
GATE 3112: LESSEE acknowledges that access from Washington
Avenue to the gate and the gate itself is essential for emergency mid -
airfield access by police, fire and ambulance personnel. Consequently,
this access will not be blocked for any reason at any time.
By its physical location, LESSEE recognizes it has predominant use of the
gate. Consequently, LESSEE takes full responsibility for the repair and
maintenance of the gate to include all mechanical and electrical
breakdowns and malfunctions. This includes any accidents occurring to
the gate by any person(s) using the gate, and, as such, will be covered by
whatever property insurance coverage LESSEE provides on its property in
general. No cost share will be provided by LESSOR.
All security/access control and code authority remains with the YAT, and
LESSEE will act in accordance with all YAT Airport access and security
requirements.
2. TERM: Delete second paragraph and replace with:
LESSEE shall have the option to extend the term by one ten (10) year
period (to wit, August 31, 2054); provided LESSEE delivers to LESSOR
not less than three -hundred and sixty-five days (365) (one calendar year)
before the expiration of the original term written notification of its intent to
extend the term.
4. RENT: Delete in its entirety and replace with:
A. LESSEE promises and agrees to pay rent to LESSOR at the rate of
$ 3,517.32 per month for the leased premises, made in advance on or
before the 1st day of each month. Payments shall be made to the Yakima
Air Terminal - McAllister Field in care of the Airport Manager's office. Any
rental payment past due shall accrue a delinquency charge of twelve
percent (12%) per annum.
B. The lease rental rate as provided for above shall be subject to review
and modification every two (2) years beginning January 1, 2014, and shall
be set at the then current "aviation rate".
C. In the event the parties are unable to agree upon the fair market rental
rate for the succeeding periods, upon written notice of either party to the
other, but not later than thirty (30) days prior to the expiration of the then
current rental period, the matter of establishment of fair market rental shall
be referred to arbitration. Within thirty (30) days of such notice, each party
shall select one arbitrator. The two arbitrators shall jointly select a third
Lease/McCo04 Ise #2 amd #1 2
arbitrator who shall be a real estate broker with at least five (5) years
experience in sales or leases of commercial property in the Yakima Valley.
The decision of a majority of the arbitrators as to the fair market rental
value for the property shall be made within forty-five (45) days of said
written notice and shall be binding. Each of the parties shall bear the cost
of its designated arbitrator. The parties shall share equally the expense of
the third arbitrator. The arbitration decision shall be binding upon both
parties and shall be enforceable in accordance with laws of the State of
Washington. The arbitrator's decision shall relate back to the beginning of
the new rental period.
30. ENVIRONMENTAL STANDARDS (NEW SECTION)
Except for conditions prior to the original occupancy of the assigned area
by LESSEE, LESSEE agrees to accept responsibility for full compliance
with any and all applicable present and future federal, state, and local
rules, regulations, restrictions, ordinances, statutes, laws, and/or other
orders of any governmental entity regarding the use, storage, handling,
distribution, processing and/or disposal of hazardous wastes, hazardous
chemicals, toxic chemicals, toxic substances, pollutants, contaminants, or
other similarly regulated substances (hereinafter referred to as "hazardous
substances") in and on the space subject to this permit, Said hazardous
substances shall include, but not be limited to: gasoline; diesel; jet fuel;
lubricating oils; hydraulic fluid; deicing fluids, and cleaning fluids.
Except for conditions existing prior to the original occupancy of the
assigned area by LESSEE, in the case of any hazardous substance spill,
leak, discharge, or improper storage on the LESSEE's assigned area, or
contamination of the LESSEE's assigned area by the LESSEE or its
contractor(s), or subcontractor(s), employee(s), and agent(s), the LESSEE
agrees to make or cause to be made any necessary repairs or corrective
actions as well as to clean up and remove any spill, leakage, discharge,
release, or contamination. In the case of any hazardous substance spill,
leak, discharge, release, or contamination by the LESSEE or its
contractor(s), or subcontractor(s), employee(s), and agent(s), in, on, or
around the assigned area, or as may be discharged or released in, on,
around, or under the adjacent property which affects in any way other
property of the LESSOR, or its tenants, the LESSEE agrees to make or
cause to be made any necessary corrective actions. in accordance with
requirements of all applicable environmental laws, regulations, and permits,
to clean up and remove any spill, leakage, discharge, release, or
contamination to the reasonable satisfaction of LESSOR. If the LESSEE
fails to repair, clean up, properly dispose of, or take any other corrective
actions as required herein, the LESSOR may (but shall not be required to)
take all steps it deems necessary to properly repair, clean up, or otherwise
Lease/McCo04 Ise #2 amd #1 3
correct the conditions resulting from the spill, leak, discharge, release, or
contamination. Any such repair, clean up, or corrective action taken by the
LESSOR shall be at the LESSEE's cost and expense, and the LESSEE
shall indemnify and pay for and/or reimburse the LESSOR for any and all
costs (including any administrative costs) the LESSOR incurs as a result of
any repair, clean up, or corrective action it takes.
31. AIRPORT SECURITY AND ACCESS CONTROL (NEW SECTION)
A. Access to Non -Movement Area/Ingress and Egress. LESSEE is
granted only that vehicular and/or pedestrian access which is reasonably
necessary to allow LESSEE access to the hangar ramp/apron once
LESSEE is on Airport property. Vehicular access to and egress from
Airport by the LESSEE shall be made into and out of only Airport Gate No.
3112, vehicle gate, and Airport Gate No. 2112A, 3207, 3208, 3208A,
3203, 313, 3112A pedestrian gate. Vehicular or pedestrian access to any
and/or all movement areas, whether active or inactive, is expressly
prohibited by this Agreement. For the purpose of this Agreement, a
movement area is any runway or taxiway utilized for taxiing, takeoffs, and
landings of aircraft, exclusive of aircraft loading ramps, aircraft parking
areas, and aircraft aprons and tie down spaces.
B. There will be one Authorized Signatory for airport security, airport
ID, and access control for the entire lease area,
C. Access Identification (ID). Airport Administration will assign one (1)
Yakima Air Terminal (YAT) identification card to the LESSEE's Authorized
Signatory only. The cost of the badge is dependent on costs associated
with the requisite and mandated background check.
D. A request by the LESSEE for an additional card(s) shall be made in
writing stating through the Authorized Signatory providing the reason(s) or
rationale why an additional card(s) is/are required. Any request for an
additional card may or may not be approved by the Airport Manager at
his/her sole discretion. The minimum information required for the
issuance of any additional card will include the name, local address, and
contact phone number of the individual. The same fees outlined above
are applicable for any additional badge. If any card is lost, stolen, or made
unusable for any reason, the LESSEE will pay the applicable fine and
costs associated with the issuance of a new or replacement badge in
effect at that time.
E. The control and monitoring of access is paramount to Airport
security. Accordingly, only authorized users with access to the Airport
granted pursuant to this Agreement may hold an ID card to access the
Airport. Lost or stolen Airport -issued access cards shall be reported
Lease/McCo04 Ise #2 amd #1 4
immediately by any means possible to Airport Administration, whereupon
the loss or theft will be recorded, and the card will be made "inactive".
"Reported immediately" means within twenty-four (24) hours or the next
business day, not including weekends or holidays. A new card may then
be issued by Airport Administration bearing a number different from the
one lost or stolen.
F. Fraud and Intentional Falsification of Records.
(1) No person may make any fraudulent or intentionally false
statement in any application for any security program, access
medium, or identification medium.
(2) No person may make any fraudulent or intentionally false
entry in any record or report that is kept, made or used to show
compliance or exercise any privileges.
G. Security Responsibilities. No person may:
(1) Tamper or interfere with, compromise, modify, attempt to
circumvent, or cause a person to tamper or interfere with,
compromise, modify, or attempt to circumvent any security system,
measure, or procedure.
(2) Enter, or be present within a secured area without complying
with the systems, measures, or procedures being applied to control
access to, or presence or movement in such areas.
(3) Use, allow to be used, or cause to be used, any Airport -
issued or Airport -approved identification medium that authorizes the
access, presence, or movement of persons or vehicles in secured
areas in any other manner than that for which it was used by the
appropriate authority.
H. "Non -Movement Area Certification of Training — Application for
Permit to Operate Ground Vehicles at the Yakima Air Terminal", Any
person given vehicular access to the Airport shall be required to read,
apply for and pass the test associated with the current edition of the
Airport Driving Rules & Regulations document provided by the Airport to
qualify for access to the Airport. A copy of the application and test will be
kept in the LESSEE's File.
1 Airport Safety and Security. In the interest of Airport safety and
security, in the event LESSEE fails to abide by this Agreement, the Airport
Manager of YAT is authorized by the Airport's Governing Authority, to
Lease/McCo04 Ise #2 amd #1 5
immediately declare this Lease void, to cancel the same without any legal
proceeding and take possession of the tie down.
This amendment shall become effective (insert date here).
Time is of the essence of this entire lease.
NOTHING FOLLOWS
Lease/McCoO4 Ise #2 amd #1 6
LESSOR:
YAKIMA AIR TERMINAL - McALLISTER FIELD
2400 W. Washington Avenue
Yakima, Washington 98903
(509) 575-6149 - phone
(509) 575-6185 - fax
William A. Wheeler, Chairman
STATE OF WASHINGTON
County of Yakima
I certify that I know or have satisfactory evidence that William A. Wheeler and
Don Baumbach signed this instrument, on oath stated that they were authorized
to execute the instrument and acknowledged it as the Chairman and the
Secretary respectively of the Board of the Yakima Air Terminal - McAllister Field
to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Date —% ' - r✓ 2
By: IOW, Bill~
Notary Publ/
Appointment Expires `/�
Lease/McCo04 Ise #2 amd #1 7
LESSEE:
ROBERT E. & JOYCE L. McCORMICK
191 Mapieway Road
Selah, Washington 98942
(509) 697-5230 (home)
(5.: 94 •-2219 (cellular) /7
5 -?--\4*
ERT E. McCORICK
J�L. McCORMICK
STATE OF WASHINGTON
County of Yakima
Date
3—to—l�..-
Date
I certify that I know of have satisfactory evidence that Robert E. McCormick
signed this instrument and acknowledged it to be his free and voluntary act for
the uses and purposes mentioned in the instrument.
Date:
By:
Notary Public/` _/
Appointment xpire if- /1-5". S
STATE OF WASHINGTON
County of Yakima
,NOA t30 Yil` „��r'i
puwe
V3NseR .44:k°,.$"::
„6 iit;s0
• ytt
I certify that I know of have satisfactory evidence that Joyce L. McCormick signed
this instrument and acknowledged it to be her free and voluntary act for the uses
and purposes mentioned in the instrument.
Date: �'`/ !'` f 2
By:
Notary Public !�t/-/-r �
Appointment Expire
til JtO it frrr,`'�
*`•
ssioiy
NOTAq yWASP `
-Az?
rtltit,0
Lease/McCo04 Ise #2 amd #1 8
Yakima Air Terminal
Lease Exhibit— McCormick Air
HLA Project # 10101S
November 30, 2010
Lease Area
That portion of the Southeast Quarter of the Northeast Quarter of Section 34, Township 13
North, Range 18 East, W.M., described as follows:
Commencing at the East Quarter corner of said Section 34;
Thence North 00°18'22" East along the East line thereof 634.91 feet;
Thence North 79°05'28" West 247.99 feet to the Point of Beginning;
Thence South 12°21'26" West 132.86 feet to the Northerly edge of the Airport Service Road;
Thence North 69056'08" West along said Northerly edge 593.66 feet;
Thence North 20°09'34" East 365.82 feet to the Southerly right of way line of Washington
Avenue;
Thence South 79°03'36" East along said right of way line 545.57 feet;
Thence South 11°10'17" West 322.42 feet;
Thence North 79°05'28" West 13.44 feet to the Point of Beginning.
Situate in Yakima County, Washington.
pec . 2, Zot�
--r CASED MON FOUND
5.5 (SEE R.O.S. 7625062)
VW cal
791)3j389 W t31,41.00'
M�y1
. Ormiack
3 ao -- o V. VQ si,'ro ->'e,h
LIV
ASHiNGTON
EXISTING BUILDING
285
LEASE AREA
234,4881 SF
EXISTING BUILDING
EXISTING BUILDIN
Plite
N 79
247;98 --,
Yakima Air Terminal
Lease Exhibit -- McCormick Air
HLA Project # 10101S
November 30, 2010
Lease Area
That portion of the Southeast Quarter of the Northeast Quarter of Section 34, Township 13
North, Range 18 East, W.M., described as follows:
Commencing at the East Quarter corner of said Section 34;
Thence North 00°18'22" East along the East line thereof 634.91 feet;
Thence North 79°05'28" West 247.99 feet to the Point of Beginning;
Thence South 12°21'26" West 132.86 feet to the Northerly edge of the Airport Service Road;
Thence North 69°56'08" West along said Northerly edge 593.66 feet;
Thence North 20°09'34" East 365.82 feet to the Southerly right of way line of Washington
Avenue;
Thence South 79°03'36" East along said right of way line 545.57 feet;
Thence South 11°10'17" West 322.42 feet;
Thence North 79°05'28" West 13.44 feet to the Point of Beginning.
Situate in Yakima County, Washington.
Oec, . 2 , Zo lm
0
CASED N FOUND
34,
CASED MON FOUND
2T
388.05'
•' f«03
4*fN' tea"
41, Lao
pec
2e to
CENTER, SEC. 35,
T.13N., R.18E., W.M.
BC FOUND
SEE LCR 1M-1160
Haibregtse, Leaman Associates, A'°"AI R TERMINAL
CIVIL ENGINEERING • LAND SURVEYING • PLANNING CITY OF YAKIMA,
anI North 39th AvenueYaWma. WA 98902 A COUNTY, WASHINGTON
(509) 966-7000 o FAX (509) 965-3800
EXHIBIT -- McCormick Air
SHEET
1
OF