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HomeMy WebLinkAboutR-2002-002 Albert E. DeAtley Streetcar Lease (Electric Trolley Cars / Yakima Interurban Lines Association YILA)RESOLUTION NO. R-2002- 02 A RESOLUTION ratifying and approving a Personal Property Lease with Albert E. DeAtley for two Brill Master Unit Street Cars. WHEREAS, two original 1930 Brill Master Unit Street Cars operated on the Yakima Valley Transportation System within the City of Yakima during the 1930's and 1940's; and WHEREAS, these two Brill Master Unit Street Cars are in jeopardy of being sold and removed from the City of Yakima to pay outstanding debts and judgments of the now defunct Yakima Interurban Lines Association; and WHEREAS, the City of Yakima has an opportunity to retain these original Yakima street cars within the City of Yakima; and WHEREAS, Mr. Albert E. DeAtley has offered to lease the two street cars to the City during calendar year 2002; and WHEREAS, the City Councilfinds that this Personal Property Lease with Albert E. DeAtley would be in the best interests of the City of Yakima; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The attached Personal Property Lease with Albert E. DeAtley is approved, and the 'Acting City Manager's execution of the Personal Property Lease is ratified. ADOPTED BY THE CITY COUNCIL this 8th day of January, 2002. ATTEST: Ka 4-.‘-- City Clerk (Ik)res/DeA[Iev Lease.rp 64-/l Mayor PERSONAL PROPERTY I EASE DATE: December, 2001 LESSOR: ALBERT E. DeATLEY, d/b/a 82 CO. P. O. Box 10268 Yakima, Washington 98909 Telephone: 509/248-6823 LESSEE: CITY OF YAKIMA a Washington municipal corporation c/o Legal Department 200 South Third Street Yakima, Washington 98901 Telephone: 509/575-6030 1 0 LEASED PROPERTY Subject to the terms and conditions of this Personal Property Lease, Lessor hereby leases to Lessee the following described personal property hereinafter referred to as "leased" property" Two 1930 Brill Master Unit Street Cars, Car Nos. 21 and 22, and related rail equipment 2.0 2002 TERM. The term of this Lease shall be for a period from January 1, 2002 to December 31, 3 0 LOCATION OF LEASED PROPERTY. The Trolleys shall remain the City of Yakima or environs and garaged at the city -owned facilities for its railroad or trolley cars. 3.1 Change of Location. Lessee shall not cause the location of the leased property to be changed without first notifying Lessor in writing of the change of location in writing and obtaining Lessor's written consent to a change of location if the location is to be in a county other than Yakima County. Failure to notify of the change of location and/or to obtain Lessor's consent to a change of location outside of Yakima County shall constitute an event of default under the terms of this Lease 4.0 RENTAL. The rental for the leased property for the term of this Lease, together with applicable sales or use tax (or comparable tax), shall be Five Thousand Two Hundred Fifty and No/100 Dollars ($5,250.00), payable in advance on or before January 15, 2002. 4.1 Late Charge. If the rental payments are not received within ten (10) days of the due date, a late charge shall be imposed at the rate of one percent (1%) per month of the delinquent rental payment(s), compounded monthly Late charges shall be payable by Lessee upon demand, and failure to pay the same shall constitute an event of default under this Lease. The right of Lessor to impose a late charge shall not be considered as a waiver of Lessor's right to insist upon strict performance of the terms of this Lease. 4.2 Security Deposit. None. 5.0 TITLE - LESSEE'S INTEREST - PROTECTION OF LESSOR'S INTEREST. Title to the leased property is now and shall remain at all times during the term of this Lease in the Lessor. It is PERSONAL PROPERTY LEASE 1 3651 •c:\data\lease\perprop\deailey.city.of.yakima understood that this Personal Property Lease creates a lease only of leased property and not a sale thereof, Lessee's rights hereunder being only for the possession and use of the leased property in accordance with the terms of this Personal Property Lease. If requested by Lessor, Lessee shall execute any and all documents deemed necessary to protect all of Lessor's rights under this Personal Property Lease and Lessor's ownership of the leased property. Without limiting the generality of the foregoing, Lessee agrees, at Lessee's cost, to mark, sign, tag or otherwise cause the leased property to be identified as property of the Lessor. The marking, identification or signing shall be in such manner as reasonably required by Lessor. Lessor reserves the right and is hereby granted authority to enter Lessee's property for the purpose of marking, signing, tagging or otherwise identifying the leased property as being owned by Lessor. 6.0 SELECTION AND INSPECTION. IT IS UNDERSTOOD THAT LESSEE HAS REQUESTED AND SELECTED THE LEASED PROPERTY AND THE SUPPLIER AND/OR VENDOR THEREOF; THAT LESSEE HAS EITHER INSPECTED THE LEASED PROPERTY OR HAS HAD AN OPPORTUNITY TO INSPECT THE LEASED PROPERTY AND ACCEPTS THE SAME IN ITS PRESENT CONDITION. IT IS FURTHER AGREED AND UNDERSTOOD THAT LESSOR MAKES AND HAS MADE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXCEPT AS CONTAINED IN THIS LEASE, AND, SPECIFICALLY, THAT LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE LEASED PROPERTY, ITS MERCHANTABILITY, OR ITS FITNESS FOR A PARTICULAR PURPOSE. By the separate initialing of this clause, it is agreed that the parties have negotiated the terms of the disclaimer contained herein. 7.0 NONASSIGNABILITY BY LESSEE. Neither this Lease nor Lessee's rights hereunder, including, but not limited to, the possession and use of the leased property, shall be assignable by Lessee without the written consent of Lessor, which consent may be conditioned upon the payment of an assumption fee to be paid to Lessor. Further, Lessee shall not sublease or transfer, in whole or in part, the possession of the leased property without the written consent of Lessor. It is understood that Lessee has no property rights in the leased property, other than the right to use the same in accordance with the terms of this Personal Property Lease, and Lessee shall not encumber the leased equipment or any rights under the terms of this Personal Property Lease by either voluntary or involuntary lien. 8.0 LESSOR'S OBLIGATIONS DURING FIRST YEAR OF LEASE. 8.1 Maintenance and Use. Lessee shall maintain the leased property in a good and safe operating condition and working order, using as a guide the maintenance program prescribed in the Owner's Manual, if any, for such item of leased property, and shall perform all preventive maintenance reasonably required, including, but not limited to, such preventive maintenance required to insure full validation of a manufacturer's warranty, if any, on the leased property In addition, Lessee shall repair and provide replacement parts necessary to keep the leased property in a good and safe operating condition and working order. All replacement parts, as required hereunder, and accessories shall immediately become the property of Lessor. It is understood that this is a net lease and Lessor assumes no obligation whatsoever for the maintenance, repair or replacement of the leased property or any portion thereof. 8.2 Return of Leased Property. When the leased property is returned to Lessor, at the expiration of the term of this Lease or as otherwise provided for under the terms hereof (in the event of default, etc.), it shall be returned in the same condition as when the leased property was delivered to Lessee under the terms of this Lease, ordinary depreciation for normal use excepted Unless otherwise agreed in writing, Lessee shall be responsible for returning, at Lessee's expense, the leased property to such location in Yakima County, state of Washington, as selected by Lessor. In the event the leased property is not returned in such condition and state of repair, the costs incurred for replacing the same in such condition and repair shall be paid by Lessee to Lessor, upon demand After the return of the leased property, Lessee shall have no further interest and/or rights of any kind or nature in and to the leased property. PERSONAL PROPERTY LEASE 2 3651-c:\data\lease\perprop\deatley.city.of.yakima 9.0 RISK OF LOSS/PROPERTY INSURANCE/INDEMNITY/LIABILITY INSURANCE/ COMPREHENSIVE -COLLISION. 9.1 Risk of Loss. Lessee hereby assumes and shall bear the entire risk of loss and damage to the leased property from any cause whatsoever and regardless of whether the loss is insured. 9.2 Property Insurance During the term of this Lease, Lessee shall cause the leased property to be insured against all perils normally and customarily insured against with an insurer acceptable to Lessor, the insurance to be in the amount of the full insurable value of the leased property Lessor shall be named as an insured and/or loss payee under said policy or policies to the extent of Lessor's interest. A Certificate of Insurance providing for thirty (30) days notice of cancellation to Lessor shall be furnished by the insurer or insurers The proceeds of such insurance payable as a result of loss or damage to any or all of the leased property shall be applied, at the option of Lessor, as follows: (a) toward the replacement, restoration or repair of the leased property which may be lost, stolen, destroyed or damaged; or (b) toward the payment of any obligations of Lessee hereunder or arising out of Lessee's use and possession of the leased property Lessee hereby irrevocably appoints Lessor as Lessee's attorney-in-fact to make claim for, receive payment of and execute and endorse all documents, checks or drafts received in payment for such loss or damage under such insurance policy or policies 9.3 Indemnity - Liability Insurance. Lessee covenants and agrees to indemnify and hold harmless Lessor against liability of any kind or nature, including, but not limited to, the liability arising under any statute, ordinance or regulation in connection with the use of the leased property and against liability from any claim for personal injury, death or property damage to any person or party whatsoever, including Lessee, by reason of the transportation, installation, use or operation of the leased property or the condition of the leased property. To insure such indemnification and hold harmless agreement, Lessee shall provide insurance liability coverage through its self-insurance program, provided that such program is maintained in accordance with actuarially sound and accepted self-insurance practices 9.4 Failure to Insure or Pay for Insurance. In addition to any other remedies available hereunder, in the event Lessee fails to provide or maintain any insurance required by this Personal Property Lease, Lessor may obtain the same at Lessee's expense and Lessee shall reimburse Lessor all of Lessor's costs so incurred, on demand, together with interest at the highest rate allowable by law from the date of payment by Lessor to the date of reimbursement by Lessee. 10.0 USE - OPERATION ACCORDING TO LAW. Lessee shall comply with all applicable statutes, ordinances and regulations with respect to the use, operation and/or condition of the leased property. No leased equipment shall be used contrary to the provisions of any applicable insurance policy covering said leased property, and the Lessee shall immediately indemnify and hold Lessor harmless from any and all fines, forfeitures, damages or penalties resulting from the violation of any laws, ordinances, rules or regulations. 11.0 ABATEMENT. All obligations of the Lessee under the terms of this Lease, including, but not limited to, the obligation to pay the aggregate rent for the full term hereof shall remain in full force and effect during the entire term of this Lease, notwithstanding any loss, destruction, damage or loss of possession by the Lessee of the leased property, or any part thereof, except to the extent of insurance proceeds that may be applied to Lessee's obligations hereunder or to the extent of any credit Lessee may be entitled to as a result of Lessor's obligation to mitigate its loss, if any, as required by law 12.0 PERMITS, BONDS, LICENSES AND TAXES. If required, because of Lessee's use and/or possession of the leased property, Lessee shall pay, as the same shall become due and payable, all taxes, PERSONAL PROPERTY LEASE 3 3651-c:\data\lease\perprop\deatley.city.of.yakima fees, or other governmental charges levied against the leased property by reason of its use or ownership by any governmental entity or agency. in addition, within thirty (30) days following the date on which such tax, fee or other charge becomes due and payable, Lessee shall deliver to Lessor written proof of payment thereof, upon request by Lessor. In the event Lessee shall fail or refuse to pay any such tax, fee or other governmental charge, Lessor shall have the right to pay the same and Lessee shall reimburse Lessor, on demand, for all sums so paid by Lessor, together with interest thereon at the highest rate allowable by law from the date of payment by Lessor to the date of reimbursement by Lessee. 13.0 EVENTS OF DEFAULT. Time is of the essence of this Personal Property Lease, and in any of the following events, Lessor, at its option, may declare Lessee in default and exercise any and all remedies as hereinafter provided for under the terms of this Lease: (a) Any failure by Lessee to pay, when due, the full amount of any rental payment, taxes, insurance premiums or other charges herein to be paid by Lessee after ten (10) days written notice of such default by Lessor to Lessee; (b) Any failure by Lessee to perform, as required, any covenant, condition, provision or agreement herein set forth after ten (10) days notice of such default by Lessor to Lessee; (c) The falsity of any representation by Lessee herein or any financial statement or other material representation given by Lessee or any guarantor of Lessee to Lessor as a basis for entering into and executing this Lease; (d) If the leased property should be seized or levied upon under any legal or governmental process against Lessee or against the leased property; (e) If the Lessee becomes insolvent or is the subject of a petition in bankruptcy, either voluntary or involuntary, or makes an assignment for the benefit of creditors, or if Lessee is named in or the leased property is subject to a suit for the appointment of a receiver, or if any action be taken for the dissolution of Lessee, if Lessee be a corporation, (f) If, by reason of any act or omission of Lessee, the leased property is threatened with or subject to any unreasonable depreciation in value, waste or loss; or (g) If Lessee defaults in the performance of any obligation owed to Lessor or Lessor's affiliates under the provisions of any other agreement now or hereafter entered into between the parties. 14.0 REMEDIES. In the event of default by Lessee, Lessor shall have all remedies as allowed by law, including, but without limitation, the right to exercise any or all of the following remedies: (a) To terminate the Lease, and without court order or other process and without notice to Lessee, to enter in or upon Lessee's premises or any other premises where the leased property is located and recover said leased property; for such entry or recovery Lessee hereby grants an irrevocable license to Lessor. (b) To declare the entire amount of the rental for the full term hereof and all other obligations of the Lessee for the full term of this Lease immediately due and payable, and without court order or other process and without notice to Lessee, to enter upon Lessee's premises or any other premises whereon the leased property is located and recover the leased property; for such entry or recovery Lessee grants an irrevocable license to Lessor. Lessor's right to receive unpaid rental accruing from and after the date of judgment (or from the date Lessee actually pays off the entire amount owing to Lessor under the terms of this Lease) to the end of the term of this Lease shall be discounted to present value (discounted at an annual rate equal to the Seattle -First National Bank (or its successors) prime rate of interest) on the date of the commencement of this Lease. In addition, Lessee shall be liable to Lessor in an amount equal to the present PERSONAL PROPERTY LEASE 4 3651-c:\data\lease\perprop\deatley.city.of.yakima value of Lessee's option to purchase the leased property as of the date of judgment or payoff date, as the case may be, discounted at the same rate as provided for above. (c) Upon taking possession of the leased property, to sell and/or lease the leased property for the purpose of mitigating Lessor's loss as a result of Lessee's default. (d) Unless this Lease is specifically terminated by Lessor, the recovery of the possession of the leased property by Lessor under the remedies as provided for hereunder or as allowed by law shall not constitute a termination of this Lease and the obligations of the Lessee thereunder for the full term thereof. (e) If Lessor elects not to make any further claim against Lessee after the leased property has been returned to Lessor, then Lessor shall not be responsible to provide any further notices or accountings with respect to the disposition of the leased property and Lessee shall have no right of any kind or nature with respect to the proceeds thereof. (f) If Lessor elects to make a claim against Lessee under this Lease after the leased property has been returned, then the following provisions shall be applicable: (i) Lessee shall be entitled to a credit against Lessee's obligations under this Personal Property Lease to the extent of the value of the leased property so returned; (ii) Lessor shall determine the value of the leased property and shall notify Lessee in writing of the value so established; and (iii) Lessee or Lessee's assigns shall have the exclusive right, for a period of twenty (20) days from the date of Lessor's notification of value, to purchase the leased property at said value from Lessor for cash at the price equal to the value fixed by Lessor, plus applicable sales tax. 15.0 DEFAULT INTEREST. In the event there is no applicable maximum rate of interest established by law, the interest rate shall be the greater of eighteen percent (18%) per annum or the then prime rate of Bank of America, a national banking association (or its successors), plus five percent (5%) per annum 16.0 COSTS IN THE EVENT OF DEFAULT - VENUE. All costs incurred by Lessor in protecting the leased property or any costs incurred by Lessor in the event of a default by Lessee shall be paid by Lessee to Lessor upon demand. Such costs shall include, but not be limited to, Lessor's attorneys' fees incurred (including those incurred at both trial and on appeal if litigation is necessary), costs of taking possession, insurance and transporting the leased property to Lessor's place of business or such other place as designated by Lessor, and costs for restoring the leased property to a good and safe condition and working order for the purpose of sale or lease of said property in the event of any suit or action arising by virtue of this Lease; venue of such action shall be laid at the option of Lessor in Yakima County, state of Washington 17.0 GOVERNING LAW. This Lease and the rights and obligations of the parties hereto shall be govern„ d by and construed at all times by the laws of the state of Washington. 18.0 NOTICES With reference to any notices given under this Personal Property Lease, the same shall be delivered personally, or deposited in, the United States mail, postage prepaid, addressed to the respective parties at the addresses appearing on page 1 of this Lease Each of the parties shall be responsible for notifying the other party or parties in writing of any change of address. 19.0 ENTIRE AGREEMENT. This Personal Property Lease contains the entire agreement between the parties and shall be binding upon their respective heirs, executors, administrators, legal representatives, successors and assigns, personal representatives, successors and assigns; subject, however, to any other supplemental or other agreements in writing by and between the parties. This Personal Property Lease may not be altered or amended except in writing and signed by both parties. 20.0. WAIVER The forbearance on the part of Lessor to exercise any right or remedy available hereunder in the event of Lessee's default, or Lessor's failure to demand punctual performance of any PERSONAL PROPERTY LEASE 5 3651-c:\data\Jease\perprop\deatley.city.of.yakima obligation of Lessee shall not be deemed a waiver of (a) any such right or remedy, or (b) the requirement of punctual performance, or (c) any subsequent breach or default on the part of Lessee. 21.0 SEVERABILITY. If any provision of this Lease is contrary to, prohibited by, or held invalid under applicable laws or regulations of any jurisdiction in which it is sought to be enforced, then such provision shall be considered severable and inapplicable, but shall not invalidate the remaining provisions of this Personal Property Lease NOTICE: THIS PERSONAL PROPERTY LEASE SHOULD NOT BE SIGNED BY LESSEE UNTIL LESSEE HAS READ THIS ENTIRE LEASE AGREEMENT AND ANY WRITTEN SUPPLEMENTS OR WRITTEN MODIFICATIONS OF THE SAME. LESSEE DOES NOT HAVE THE RIGHT TO CANCEL THIS LEASE PRIOR TO THE EXPIRATION OF THE TERM. UNDER THE LAWS OF THE STATE OF WASHINGTON, LESSEE'S FAILURE TO RETURN THE LEASED PROPERTY WHEN REQUIRED UNDER THE TERMS OF THIS LEASE MAY RESULT IN CRIMINAL PROSECUTION. LESSOR. ALBERT E. DeAT , d/b/a 82 CO. STATE OF WASHINGTON ) ss. County of Yakima LESSEE CITY OF YAKIMA By: n Rice, Acting City Manager I certify that I know or have satisfactory evidence that ALBERT E. DeATLEY, d/b/a 82 CO., 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 therein mentioned. Dated thisoc u day of December, 2001. % - /1/7' a. 1 .'t N CL Z ,M'C// (print name) NOTARY PUBLIC in and for the state of Washington, residing at f'r'i,ir,1, My appointment expires 5/.11/6..;7 PERSONAL PROPERTY LEASE 6 3651-c:\data\lease\perprop\deatley.city. of.yaki ma BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. % For Meeting of 1/8/02 ITEM TITLE: Resolution Ratifying Personal Property Lease for Brill Master Unit Streetcars SUBMITTED BY: Glenn Rice, Assistant City Manage CONTACT PERSON/TELEPHONE: Glenn Rice, 575-6040 SUMMARY EXPLANATION: The Yakima Interurban Lines Association has been embroiled in disputes over debt, ownership of rolling stock, and the rail service lines of the Yakima Transportation System. The original 1930 Yakima streetcars were pledged as collateral for a YILA loan and then seized by Yakima National Bank as security for debts incurred. Yakima National Bank has been working with City staff to find a way that these irreplaceable Brill Master Unit Street Cars could be retained in the Yakima Trolley system. Liens have been released against these cars with the assistance of the Washington State Departments of Revenue, Employment Security, and Labor and Industries. Yakima National Bank sought an organization or individual that might be interested as a benefactor in supporting the history of Yakima's trolley system. Mr. Albert E. DeAtley, DBA 82 Co. has agreed to purchase the two Brill Master Unit Streetcars from Yakima National Bank. As part of the business negotiations, Mr. DeAtley will lease both streetcars to the City of Yakima in 2002 for $5,250. It is expected that both units will be transferred to the Yakima Interurban System at the end of the lease term (December 31, 2002) to be kept in perpetuity as part of Yakima's heritage. The City recognizes and thanks Mr. DeAtley for supporting the City in this endeavor. For this transaction to take place, a lease had to be completed between the City and Mr. DeAtley, DBA 82 Co. prior to the end of 2001. Attached is a copy of the personal property lease, which requires Council's ratification. Resolution X Ordinance Contract Other (Misc. Information) Funding Source APPROVED FOR SUBMITTAL /// City Manager STAFF RECOMMENDATION: Adopt resolution. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2002--02