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John De Boer - Zen Escape - Vending AgreementJOSH DE BOER DBA: ZEN ESCAPE THIS AGREEMENT, executed this, Q f>— 44,2q,/4 , 2008, ,no . _ day of .--, between the YAKIMA AIR TERMINAL — McALLISTER FIELD, an agency of the City of Yakima and County of Yakima, Washington, hereinafter referred to as "BOARD," and JOSH DE BOER DBA ZEN ESCAPE, a (single man) hereinafter referred to as "COMPANY' WIT N ESE TH: WHEREAS, BOARD 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, BOARD has approved property available for use as provided by this Agreement, and COMPANY desires to occupy and use such property in accordance with this Agreement, 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: BOARD grants unto COMPANY the right to operate two (2) massage chairs in the Terminal Building at the Yakima Air Terminal - McAllister Field at a location to be determined by the Airport Manager, The tenancy created by this Lease shall commence on August 1, 2008 and continue on a month-to-month basis until terminated by either party, unless otherwise terminated as provided for herein. t, COMPANY agrees to pay to the BOARD a commission of 15% on gross sales by the tenth (10th) day of the month for the previous quarter. Any commission payment past due shall accrue a delinquency charge of twelve percent (12 %) per annum from due date until paid. 4, STATEMENTSIRECORDS: COMPANY shall furnish to the BOARD a monthly statement of gross receipts showing the activity on the massage chairs, This statement shall be submitted with the commission fee on or before the tenth (10th) day of the month for the previous quarter. Company will also provide to the Board a copy each quarter of the B &O tax form submitted to Washington State. i -I e r -761 5. DEPOSIT: �~ 6. TAXES AND LIENS: In addition to the rent payable above, COMPANY promises and agrees to pay, as the same become due and payable, all licenses, fees and taxes, including but not limited to the agreement hold excise, required to be paid by COMPANY by reason of this and by reason of COMPANY's use and occupancy of the leased premises and by reason of COMPANY's construction or ownership of improvements to the leased premises. COMPANY shall neither suffer nor permit the attachment of any lien or other encumbrance on the leased premises by reason of COMPANY's occupancy thereof. COMPANY agrees to indemnify BOARD and shall hold BOARD harmless from any such taxes and liens, COMPANY 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 BOARD. The use of the property for any other purpose shall be deemed a material breach of this Hename:Deboe :2008 2 Agreement constituting grounds for its termination. This provision shall apply to any assignment of this Agreement, 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 BOARD to withhold approval or consent to assignment. I 19 14 1 W&.14 WTI M BOARD shall provide all electrical power without additional cost to the COMPANY. The COMPANY shall pay any and all costs related to the installation, repair, operation or removal of machines, and the cost of installing additional electrical outlets and other items necessary for the operation of the vending machine concession. A. COMPANY shall provide types of vending machines as determined by agreement between COMPANY and the Airport Manager, B. COMPANY agrees to keep vending machines clean and in working condition, and shall encase machines in a finished presentation area at their expense. COMPANY further agrees that COMPANY's machines and services shall at all times be subject to inspection by any person or persons designated by the BOARD. C. COMPANY agrees to provide competent service and maintenance personnel operating from the local office on a 24-hour, 7 day week basis. COMPANY agrees to post emergency repair telephone numbers on each piece of equipment and repairman shall be on the job three hours from receipt of emergency call, 10. SIGNS: 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 Yakima Air Terminal - McAllister Field without the prior written approval of the Airport Manager. Filename:Deb=2008 3 11. SUBLETTING: There shall be no subletting of the Agreement. 12. REGULATIONS: COMPANY 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 BOARD, 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. 13. ASSIGNMENT: There shall be no assignment of this Agreement. 14. MISCELLANEOUS PROVISIONS: A. The parties agree that BOARD, 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 BOARD may deem necessary to the proper enforcement of any term, provision or condition of this Agreement. No such entry or inspection by BOARD is required by this provision, and the failure of BOARD to enter and make inspection shall not alter the relationship of the parties and their respective rights and duties provided by this Agreement. COMPANY shall be granted the right of quiet enjoyment upon performance of all terms of this Agreement. B. BOARD may further develop or improve Airport property and facilities, regardless of the desire or views of COMPANY regarding any such development or improvement, and without interference or hindrance on the part of COMPANY and without liability to COMPANY, provided the operations of the COMPANY are not unreasonably interrupted, C. BOARD reserves the right, but shall not be obligated to COMPANY, to maintain and keep in repair the landing area of the Airport and all publicly owned Filenanie:Deb=2008 4 facilities of the Airport, together with the right to direct and control all activities of COMPANY in that regard. D. BOARD reserves the right to take any action necessary or desirable by BOARD 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 COMPANY 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. E. During time of war or national emergency, BOARD 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 Agreement is executed, the provisions of this Agreement shall be suspended insofar as they are inconsistent with the provisions of the agreement with the United States of America. F. This Agreement shall be subordinate to the provisions of any existing or future agreement between BOARD 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. G. If the leased premises or any interest therein is taken as a result of the exercise of the right of eminent domain, this Agreement shall terminate as to such portion as may be taken. If the portion taken does not feasibly permit the continuation of the COMPANY's operations, COMPANY shall have the right to terminate this Agreement. Such termination shall be effective as of the date COMPANY's operations cease. COMPANY shall be entitled to a portion of the award representing its interest in the premises. BOARD shall be entitled to the remainder of the award. 15. INDEMNITYIDUTY TO DEFEND: A. At no expense to BOARD, COMPANY 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 Hename:Deb=2008 5 incidental to the investigation and defense thereof, including reasonable attorney fees, based on or arising from the occupancy or use of the [eased premises by COMPANY or as a result of COMPANY'S operations at the Airport or from any other act or omission of COMPANY, its servants, employees, agents, invitees, independent contractors or any other entity, person, firm or corporation acting on behalf of COMPANY or under its direction, whether such claim shall be by COMPANY or a third party; provided, however, that COMPANY shall not be liable for any injury, damage or loss occasioned solely by the sole negligence of BOARD, its agents or employees. BOARD shall give to COMPANY prompt and reasonable notice of any such claims or actions and COMPANY shall have the right to investigate, compromise and defend the same to the extent of its interest. B. COMPANY agrees to reimburse BOARD for any damage to the premises caused by the occupancy of COMPANY, its employees, agents, servants, invitees, independent contractors or any other person acting on behalf of COMPANY or under its direction. C. BOARD agrees to defend, indemnify and hold COMPANY 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 Agreement and the introduction to the premises of such materials due to BOARD'S activities or under its control. D, COMPANY 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, damage, expense or cost, including reasonable attorneys fees, incidental to the investigation and defense thereof, resulting from, arising out of, or caused by COMPANY 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 Agreement. Fflenanie:Deb=2008 6 COMPANY shall file with BOARD a certificate of insurance, or other proof of insurance acceptable to BOARD, 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 COMPANY's occupancy of and activities pertaining to the leased premises. Not less than 30 days written notice, or other such time period as may be acceptable to BOARD, must be supplied to BOARD 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 BOARD, 17. DEFAULT, TERMINATION & FORFEITURE: A. The failure by COMPANY to pay rent in the amounts and at the times specified herein, or the failure by COMPANY to otherwise comply with any term, provision or condition of this Agreement, shall constitute grounds for termination of this Agreement and forfeiture of all rent paid by COMPANY to the time of termination. This Agreement and tenancy shall terminate and rent paid shall be forfeited for cause as specified above on written notice by BOARD to COMPANY stating the amount of rent in default or otherwise stating accurately the manner in which COMPANY fails or has failed to comply with this Agreement. COMPANY shall make full payment or otherwise comply with this Agreement in the manner specified in the notice within thirty (30) days (except three (3) days for payment of rent) from COMPANY's receipt of such notice, otherwise this Agreement and tenancy shall be terminated and rent forfeited. Such notice shall be given in writing and served on COMPANY by personal delivery or mailed by certified mail with return receipt requested addressed to COMPANY at its address stated below COMPANY's signature to this Agreement 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, COMPANY shall pay BOARD's costs and expenses, including attorney's fees, for the preparation and service of such notice. Nothing contained herein shall release or diminish COMPANY's obligation to pay rent for the full term of this Agreement save such Filename:Deb=2008 7 amount as BOARD recovers as rent from any subsequent COMPANY during the term of this Agreement. Notices shall be deemed received three (3) days after mailing to COMPANY at the address below COMPANY's signature to this Agreement or such other address as the parties may advise each other in writing. B. As additional and not alternative remedy, optional with BOARD and upon thirty (30) days written notice to COMPANY, should COMPANY be in default hereunder other than default in the payment of rent, BOARD may cure or correct the same and the cost of such action by BOARD shall immediately become due and payable from COMPANY, together with late fees on said sum at a rate of twelve percent (12%) per annum, and the non-payment of said sum by COMPANY shall be adequate grounds for BOARD to invoke the other remedies as provided in this Agreement. C. Upon termination of this Agreement for any reason, COMPANY shall immediately surrender the premises to the BOARD in good condition and repair, ordinary wear and usage excepted; and COMPANY shall remove all of COMPANY'S personal property, trade fixtures, equipment or improvements removable by prior agreement with BOARD from the premises and shall repair any damage to the premises caused by such removal. Any personal property of COMPANY, or anyone claiming under COMPANY, which shall remain upon the premises at the expiration or termination of this Agreement shall be deemed to have been abandoned and may be retained by BOARD as BOARD'S property or disposed of by BOARD in such manner as BOARD sees fit without compensation to any party. 18. INSOLVENCY In the event COMPANY is declared bankrupt by a court of competent jurisdiction or in the event COMPANY makes an assignment for the benefit of creditors, or if a receiver otherwise is appointed for COMPANY, or in the event COMPANY's leasehold estate is subjected to execution to satisfy any judgement against COMPANY, then in that event BOARD 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 COMPANY or any person upon the premises and remove their effects, and thereupon this Agreement and the tenancy hereby created shall absolutely terminate, without prejudice to any remedies which might otherwise be available to BOARD for collection of past due or future rent. w� — T iginum, 01[slanwalaw-3 FilenameDeboer2008 8 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. qll� Lroli!]III&MVIM] To the extent required by law, COMPANY, 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 COMPANY's personnel policies and practices or in the use or operation of COMPANY's services or facilities. B. COMPANY 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. COMPANY 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 Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. D. 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 Agreement is subject to 49 CFR Part 23 as applicable. COMPANY 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. Filename:Deb=2008 9 COMPANY hereby assures that it will include the above clauses in all sub-leases and cause sub-COMPANYs to similarly include clauses in further sub-leases. A. CONCESSIONAIRE OBLIGATION: This Agreement is subject to the requirements of the U. S. Department of Transportation's regulations, 49 CFR Part 23, Subpart F. BOARD agrees that it will not discriminate against any business owner because of the owner's race, color, national origin or sex in connection with the award or performance of any concession agreement covered by 49 CFR Part 23 Subpart F. 23. INTEGRATION: This document embodies the entire Agreement 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 Agreement. FilenameDeboer2008 10 YAKIMA AIR TERMINAL - McALLISTER FIELD 2400 W. Washington Avenue Yakima, Washington 98903 (509) 575-6149 - phone (509) 575-6185 ax William Wheeler,,Chairman Les Flue, Secretary STATE OF WASHINGTON County of Yakima I certify that I know or have satisfactory evidence that William Wheeler and Les Flue 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. �'flv I 100 W111 ;Ill ' V111, "Ame Notary Puelc6l Appointment Expires_ FikiiameDeboer2008 I 1 11%111 ..N%l A 3 0 Y, N 0104 LIC WASIAV� '011$111114100 LESSEE: JOSH D_• dba: Zen Escape 16041 Yakima Valley H Zillah, WA 98953 1 Signatuild, Date STATE OF WASHINGTON County of Yakima I certify that I know or have satisfactory evidence that Josh De Boer signed this instrument and acknowledged it to be his free and voluntary act for the uses and purposes mentioned in the instrument. Date 16 By: Notary Public Z/V Appointment Expires °\Sly J0 z 4SHING\ Fflename:Deb=2008 12