6a attach 2
Item No. 6a Attach 2
Date of Meeting April 22, 2014
LEASE AGREEMENT
Between
PORT OF SEATTLE
And
CLIPPER NAVIGATION, INC.
POS Term Lease Agreement, #002534
Clipper Navigation, Inc.
XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
TABLE OF CONTENTS
SECTION 1: LEASED PREMISES ............................................................................................... 1
SECTION 2: TERM ....................................................................................................................... 1
SECTION 3: RENT ........................................................................................................................ 3
SECTION 4: SECURITY ............................................................................................................... 5
SECTION 5: USE OF PREMISES ................................................................................................. 5
SECTION 6: UTILITIES ................................................................................................................ 7
SECTION 7: ALTERATIONS; OWNERSHIP OF CERTAIN INSTALLATIONS ..................... 8
SECTION 8: MAINTENANCE AND REPAIR ............................................................................ 9
SECTION 9: TAXES ...................................................................................................................... 9
SECTION 10: COMMON AREAS .............................................................................................. 10
SECTION 11: INSURANCE AND INDEMNITY ...................................................................... 10
SECTION 12: DAMAGE OR DESTRUCTION .......................................................................... 14
SECTION 13: ASSIGNMENT AND SUBLEASE ...................................................................... 15
SECTION 14: DEFAULT ............................................................................................................ 17
SECTION 15: TERMINATION OTHER THAN FOR DEFAULT ............................................ 19
SECTION 16: ACCESS; EASEMENTS ...................................................................................... 20
SECTION 17: NONWAIVER; RIGHT TO PERFORM ............................................................. 21
SECTION 18: SURRENDER AND HOLDING OVER .............................................................. 22
SECTION 19: ENVIRONMENTAL STANDARDS ................................................................... 23
SECTION 20: MISCELLANEOUS ............................................................................................. 25
SECTION 21: SIGNATURES ...................................................................................................... 30
SECTION 22: ACKNOWLEDGMENTS .................................................................................... 31
POS Term Lease Agreement, #002534 - i -
Clipper Navigation, Inc.
XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
LEASE AGREEMENT FOR
VINE STREET SUBMERGED LAND
THIS LEASE AGREEMENT (the "Lease") is made as of this _______ day of
_______________ 2014 by and between the PORT OF SEATTLE, a Washington municipal
corporation ("the Port"), and CLIPPER NAVIGATION, INC., a Washington corporation
("Lessee").
For and in consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties agree as follows:
SECTION 1: LEASED PREMISES
1.1. Premises. The Port hereby leases to Lessee, and Lessee hereby leases from the
Port, the following described premises ("the Premises") located in Vine Street, west of Alaskan
Way, adjacent to Pier 69. A legal description of Pier 69 is attached hereto as Exhibit A. The
Premises consists of 34,760 square feet of submerged land, which constitutes City of Seattle
Right of Way, but the City of Seattle granted to the Port a permit to construct, maintain, and
operate a Pedestrian Boat Moorage and Passenger Loading Facility consisting of vessels, piers,
pilings, floats and ramps ("Facility"), subject to the terms and conditions of Ordinance 124012,
for a ten-year period beginning January 16, 2012 and ending at 11:59 p.m. on January 15, 2022
in the Premises ("Vine Street Use Permit"). Including overwater structures such as piers, pilings,
floats and ramps that occupy or partially enclose the submerged land and water, the vessels
moored along overwater structures, and the area of associated submerged land and water, the
Facility and associated submerged land and water together comprises the 34,760 square feet of
Premises, as depicted in Exhibit B (Vine Street Right of Way).
1.2. Acceptance of the Premises. Lessee has examined the Premises, accepts them in
their present condition, and agrees to make any changes in the Premises necessary to conform to
federal, state and local law applicable to Lessee's use of the Premises.
1.3. Quiet Enjoyment. So long as Lessee is not in default under this Lease and subject
to the specific provisions, covenants and agreements contained in this Lease, the Port covenants
and agrees that the quiet and peaceful possession and enjoyment of the Premises by Lessee shall
not be disturbed or interfered with by the Port or by any other party claiming by or through the
Port.
SECTION 2: TERM
2.1. Lease Term. This Lease shall be for a term of seven (7) years, eight (8) months
and 15 days, beginning May 1, 2014, and ending January 15, 2022.
2.2. Options to Extend.
POS Term Lease Agreement, #002534 - 1 -
Clipper Navigation, Inc.
XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
2.2.1. Lessee will have an option to extend the lease term by an additional
seven years, three months and 15 days, to expire on April 30, 2029, concurrent with Lessee's
Lease of Pier 69 Premises in Lease #002533 ("First Option"), provided that the following
conditions are met: (a) Lessee is in compliance with the terms and conditions of this Lease; (b)
Lessee has given written notice to the Port that Lessee wishes to exercise the First Option and
such written notice has been given to the Port 270 nor more than 360 days in advance of
expiration of this initial Lease Term; and (c) the Port has been granted a permit by the City for a
new or extension term that extends at least to April 30, 2029 on substantially similar terms and
conditions as apply to the Vine Street Use Permit under Ordinance 124012. In the event that the
City grants to the Port a permit for a new or extension term after the expiration of the Vine Street
Use Permit, but there are changes to the terms and conditions that would materially increase the
cost or risk to the Port, the Port will negotiate in good faith with Lessee a new lease. A change in
the terms and conditions of the City's permit that increases the Permit Fee and/or the
performance bonding and insurance requirements will not be considered a material change and
will thus not trigger a renegotiation of lease terms and conditions.
2.2.2. In the event the First Option is exercised, Lessee will have an option to
extend the lease term beyond the expiration of the First Option term, an additional five years, to
expire on April 30, 2034, concurrent with the expiration of the Option term in Lessee's Lease of
Pier 69 Premises in Lease #002533 ("Second Option") provided that the following conditions
are met: (a) Lessee is in compliance with the terms and conditions of this Lease; (b) Lessee has
given written notice to the Port that Lessee wishes to exercise the Second Option and such
written notice has been given to the Port not less than 270, nor more than 360 days in advance of
the expiration of the First Option term; and (c) the Port has been granted a permit by the City for
a new or extension term that extends at least to April 30, 2034, on substantially similar terms and
conditions as apply to the Vine Street Use Permit under Ordinance 124012.
2.2.2.1. In the event that the Port is granted a permit by the City for a
new or extension term, but there are changes to the terms and conditions that would materially
increase the cost or risk to the Port, the Port will negotiate in good faith with Lessee a new lease.
A change in the terms and conditions of the City's permit that increases the Permit Fee and/or
the performance bonding and insurance requirements will not be considered a material change
and will thus not trigger a renegotiation of lease terms and conditions.
2.2.2.2. In the event that a new or renewal term for the Vine Street Use
Permit extends beyond the First Option term, but falls short of the expiration of the Second
Option term, the Port and Lessee may elect to modify the duration of the Second Option term to
conform to the expiration of the new or renewal term for the Vine Street Use Permit.
2.3. Termination of Existing Leases. Upon the Lease Commencement Date, existing
leases and amendments, including that certain lease by and between the Port of Seattle and
Clipper Navigation, Inc. dated October 10, 2013, that certain lease by and between the Port of
Seattle and Clipper Navigation, Inc. dated July 25, 1989, and subsequent First Amendment to
Lease September 24, 1991, and Second Amendment to Lease dated January 7, 2003, shall
terminate.
POS Term Lease Agreement, #002534 - 2 -
Clipper Navigation, Inc.
XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
2.4. Possession. If the Port shall be unable for any reason to deliver possession of the
Premises, or any portion thereof, at the time of the commencement of the term of this Lease, the
Port shall not be liable for any damage caused thereby to Lessee, nor shall this Lease thereby
become void or voidable, nor shall the term specified herein be in any way extended, but in such
event Lessee shall not be liable for any Rent until such time as the Port can deliver possession. If
Lessee shall, in the interim, take possession of any portion of the Premises, Lessee shall pay as
Rent the full rent specified herein reduced pro rata for the portion of the Premises not available
for possession by Lessee. If the Port shall be unable to deliver possession of the Premises at the
commencement of the term of this Lease, Lessee shall have the option to terminate this Lease by
at least thirty (30) days' written notice, unless the Port shall deliver possession of the Premises
prior to the effective date of termination specified in such notice. If Lessee shall, with the Port's
consent, take possession of all or any part of the Premises prior to the commencement of the term
of this Lease, all of the terms and conditions of this Lease shall immediately become applicable,
with the exception that Lessee shall not be obligated to pay any Rent for the period prior to the
commencement of the term of this Lease unless otherwise mutually agreed.
SECTION 3: RENT
3.1. Base Rent. Commencing on the commencement date, Lessee agrees to pay as rent
("Base Rent") for the Premises as stated below.
Base Rent is generally computed as follows:
34,760 sf of Vine Street Right of Way @ $.50/sf/yr = $17,380/yr 12 = $1,448.33/mo.
The Base Rent shall constitute the contract rent for purposes of determining taxable rent for
assessment of leasehold excise tax. The Base Rent shall be paid to the Port in advance on the
first day of each and every month during the term, at such place as the Port may designate,
without any prior demand, and without any abatement, deduction or setoff whatsoever. If the
term commences on any day other than the first day of a calendar month, Base Rent for any
fractional month shall be prorated based upon the actual number of days in such fractional
month.
3.2. Adjustments to Base Rent.
3.2.1. Consumer Price Index. The Base Rent stated in Section 3.1 shall be
adjusted on the anniversary of the commencement date and every twelfth (12th) month thereafter
through the term of this Lease, including any extension term (if any), by a percentage equal to
the percentage increase for the previous twelve (12) month period in the Consumer Price Index
for All Urban Consumers, U.S. City Average, all items, as published by the United States
Department of Labor, Bureau of Labor Statistics, or at the Port's option for the Seattle-Tacoma-
Bremerton Area (19824= 100) (the "CPI"). In no event will the Port adjust the Base Rent
downward as a result of a change in the CPI. If the CPI is not published for any month pertinent
to such calculation, the percentage adjustment shall be calculated with reference to the most
recent month for which the CPI has been published. If the CPI is discontinued or revised during
POS Term Lease Agreement, #002534 - 3 -
Clipper Navigation, Inc.
XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
the Lease term, the Port, at its sole option may use such other government index or computation
with which it is replaced shall be used in order to obtain substantially the same results as would
be obtained if the CPI had not been discontinued or revised.
3.2.2. Rent Renegotiation. The Rent stated in Section 3.1 shall be subject to
renegotiation at least 365 days prior to the expiration of the initial term of this Lease in the event
the First Option is exercised and at least 365 days prior to the expiration of the First Option term,
in the event that the Second Option is exercised. The parties shall negotiate in good faith for a
renegotiated Rent. Unless expressly provided to the contrary in another paragraph of this Lease,
such renegotiated Rent shall be the fair market rental value of the Premises. In the Port's initial
offer during renegotiation of Rent, the Port may rely on past appraisals of properties that the Port
deems comparable. In the event that the parties cannot agree on the Rent prior to one hundred
eighty (180) days before the effective date for renegotiated rent for the Option Term, the Rent
shall be determined, according to the foregoing formula, by three arbitrators, each of whom shall
be a member of either the Society of Industrial Realtors or of the Washington-British Columbia
Chapter of the American Institute of Real Estate Appraisers and shall be experienced in the
valuation of the type of premises subject to this Lease. The appraisal arbitration shall be based on
an approach to valuation consistent with the standards of professional appraisal practice and shall
include reference to the fair market rental value of comparable properties. The selection of
comparable properties and the application of appropriate valuation methodology, is to be
determined by the arbitrators as a panel. The arbitration panel may ask questions and request
further information from each party and will issue a conclusion with regard to valuation. Each
party shall select an appraiser to be a member of the arbitration panel within 21 days of either
party invoking the arbitration process and each party shall compensate the member selected by
the party. The third arbitrator shall be selected by the other two members of the panel and be
compensated in equal shares by the parties. Each party shall cooperate to expedite the selection
of the three arbitrators and in no case may either party delay the selection of the arbitration panel.
3.3. Late Charges.
3.3.1. Lessee hereby acknowledges that late payment by Lessee to the Port of
Rent, or any portion thereof, or any other sums due hereunder will cause the Port to incur costs
not otherwise contemplated by this Lease. Accordingly, if any installment of Rent, or any portion
thereof, or any other sum due from Lessee shall not be received by the Port within ten (10) days
after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall
pay the Port a late charge equal to 5% of such overdue amount. The parties agree that such late
charge represents a fair and reasonable estimate of the costs the Port will incur by reason of late
payment by Lessee. Acceptance of such late charge by the Port shall in no event constitute a
waiver of Lessee's default with respect to such overdue amount, nor prevent the Port from
exercising any of the other rights and remedies granted hereunder.
3.3.2. In addition to the late charges provided for in this Section, interest shall
accrue on any unpaid Rent and/or other remuneration, or any other sums due hereunder, at the
rate of 18% per annum or the maximum rate provided by law, whichever is less, ("the Default
Rate") from the date due until paid.
POS Term Lease Agreement, #002534 - 4 -
Clipper Navigation, Inc.
XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
3.4. Use of Term Rent. The Port and Lessee agree that the term "Rent" shall mean and
refer collectively to sums denominated as either Base Rent, Percentage Rent (if any), Additional
Rent (if any) or any such other sums or charges otherwise payable by Lessee under the terms of
this Lease. Failure by Lessee to pay any sum denominated as Rent shall entitle the Port to pursue
any or all remedies specified in this Lease as well as remedies specified in RCW Chapter 59.12
or otherwise allowed by law.
SECTION 4: SECURITY
4.1. Security. Lessee shall, upon execution of this Lease, obtain and deliver to the Port
a good and sufficient corporate surety company bond, irrevocable stand-by letter of credit, cash
deposit or other security in an amount of equal to SEVEN THOUSAND SIX HUNDRED
FORTY-TWO AND 23/100 DOLLARS ($7,642.23) approximately four and one-half months'
rent over the term of the lease.(hereinafter referred to as "Security"), to secure Lessee's full
performance of this Lease, including the payment of all fees and other amounts now or hereafter
payable to the Port hereunder. The amount, form, provisions and nature of the Security, and the
identity of the surety or other obligor thereunder, shall at all times be subject to the Port's
approval. The Security shall remain in place at all times throughout the full term of this Lease
and throughout any holdover period. If the Security is in a form that periodically requires
renewal, Lessee must renew the Security not less than 45 days before the Security is scheduled to
expire. No interest shall be paid on the Security and the Port shall not be required to keep the
Security separate from its other accounts. No trust relationship is created with respect to the
Security.
4.2. Return of Security. The Security is a part of the consideration for execution of this
Lease. If Lessee shall have fully performed all terms and conditions of this Lease, any cash
deposit security shall be paid to Lessee within thirty (30) days following the termination (or
expiration) date without interest; otherwise the Port shall, in addition to any and all other rights
and remedies available under this Lease or at law or equity, retain title thereto.
4.3. Application of Security. The Port may apply all or part of the Security to unpaid
Rent or any other unpaid sum due hereunder, or to cure other defaults of Lessee. If the Port uses
any part of the Security, Lessee shall restore the Security to its then-currently required amount
within fifteen (15) days after the receipt of the Port's written request to do so. The retention or
application of such Security by the Port pursuant to this Section does not constitute a limitation
on or waiver of the Port's right to seek further remedy under law or equity.
SECTION 5: USE OF PREMISES
5.1. Use of Premises. Lessee shall use the Premises for maintenance and operation of a
Pedestrian Boat Moorage and Passenger Loading Facility consisting of vessels, piers, pilings,
floats and ramps consistent with the Permission granted in Ordinance 124012 and consistent with
the provision of waterborne passenger transportation services in the State of Washington, and
between the State of Washington and the Coast of British Columbia, and shall not use them for
any other purpose without the written consent of the Port.
POS Term Lease Agreement, #002534 - 5 -
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XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
5.2. General Standards Regarding Use.
5.2.1. Lessee shall occupy and use the entire Premises for the purpose set forth
in Section 5.1 in a first-class manner continuously during the entire term of this Lease, with the
exception of temporary closures for such periods as may reasonably be necessary for repairs or
redecorating or for reasons beyond Lessee's reasonable control.
5.2.2. Lessee shall not use or occupy or permit the Premises or any part thereof
to be used or occupied, in whole or in part, in a manner which would in any way: (i) violate any
present or future Legal Requirements, (ii) violate any of the covenants, agreements, provisions
and conditions of this Lease, (iii) violate the certificate of occupancy then in force with respect
thereto, (iv) as will constitute a public or private nuisance, (v) impair, in the Port's reasonable
judgment, with the character, reputation or appearance of the Port, (vi) be out of compliance with
any sign affixed by the Port in or on the Premises relative to maximum floor loadings, or (vi)
occasion discomfort, inconvenience or annoyance to either the Port or its adjoining tenants. For
purposes of this Lease, the term "Legal Requirements" shall mean and refer to all laws, statutes
and ordinances including building codes and zoning regulations and ordinances and the orders,
rules, regulations and requirements of all federal, state, county, city or other local jurisdiction
departments, agencies, bureaus, offices and other subdivisions thereof, or any official thereof, or
of any other governmental, public or quasi-public authority, which may be applicable to or have
jurisdiction over the Premises, or the sidewalks or streets adjacent thereto and all requirements,
obligations and conditions of all instruments of record on the date of this Lease.
5.2.3. Lessee shall not conduct or permit to be conducted without the prior
written consent of the Port, any auction, fire, bankruptcy, "going out of business" or other
distress sales of any nature upon or from the Premises, whether voluntary, involuntary, pursuant
to any assignment for the payment of creditors, or pursuant to any bankruptcy or other
insolvency proceeding, unless ordered by a court of competent jurisdiction.
5.3. Continuing Compliance. Throughout the term of this Lease, Lessee shall, at its
own cost and expense, promptly and diligently observe and comply with: (i) all Legal
Requirements (including, without limitation, those relating to environmental matters) and the
requirements of any fire insurance rating organization and all insurance companies writing
policies covering the Premises or any part or parts thereof; (ii) all applicable rules and
regulations of the Port pertaining to the building or other realty of which the Premises are a part
now in existence or hereafter promulgated for the general safety and convenience of the Port, its
various tenants, invitees, licensees and the general public; and (iii) all permits, licenses,
franchises and other authorizations required for Lessee's use of the Premises or any part thereof.
Lessee shall comply with each of these whether or not they are now in force or at any time in the
future may be passed, enacted, or directed.
5.4. Terminal Security.
5.4.1. Without limiting the generality of either Section 5.1 or 5.3, Lessee shall
comply at all times with all local, state and federal laws, rules and regulations relating to
POS Term Lease Agreement, #002534 - 6 -
Clipper Navigation, Inc.
XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
homeland security ("Security Laws") applicable to the Premises or any larger facility of which
the Premises are a part. If the Premises, either directly or as a result of its location within a larger
Port facility, are subject to a government-required security plan ("Security Plan"), Lessee will
fully and promptly comply with the Security Plan. Lessee shall be solely responsible for all of its
costs of complying with any applicable Security Laws or Security Plan as well as any fines or
penalties incurred (whether by Lessee or the Port) as result of its failure to comply with such
Security Laws or Security Plan.
5.4.2. Lessee shall notwithout the Port's separate, express written
agreementundertake any activities or handle any cargo that would either: (i) subject the
Premises, or any larger facility of which the Premises are a part, to any Security Laws to which it
is not already then-subject, or (ii) require the adoption of, or any material modification to, a
Security Plan applicable to the Premises, or any larger facility of which the Premises are a part
(together, "Additional Security Requirement"). In addition to its own costs of complying with
any Additional Security Requirement, Lessee shall further be responsible to the Port for any
costs it incurs in complying with any Additional Security Requirement or any fines or penalties
incurred as a result of its failure to implement, or comply with, such Additional Security
Requirement.
5.5. No Liens. Lessee will not directly or indirectly create or permit to be created
and/or to remain, a Lien upon the Premises, including any Alterations (as defined below in
Section 7.1), fixtures, improvements or appurtenances thereto, except those Liens expressly
permitted by in writing by the Port. In the event any such Lien(s) have been created by or
permitted by Lessee in violation of this provision, Lessee shall immediately discharge as of
record, by bond or as otherwise allowed by law, any such Lien(s). Lessee shall also defend (with
counsel approved by the Port), fully indemnify, and hold entirely free and harmless the Port from
any action, suit or proceeding brought on or for the enforcement of such lien(s). As used in this
Section, "Lien" shall mean and refer to any mortgage, lien, security interest, encumbrance,
charge on, pledge of, conditional sale or other encumbrance on the Premises, any Alteration,
fixture, improvement or appurtenance thereto, or any larger building and/or property of which
the Premises may be a part.
5.6. Signs. No sign, symbols or other advertising matter shall be attached to or painted
on or within the Premises, including windows and doors thereof, without the prior written
approval of the Port. At the expiration or sooner termination of this Lease, all signs, symbols,
advertising matter or canopies placed on or in the Premises by Lessee shall be removed by
Lessee at its expense, and Lessee shall repair any damage or injury to the Premises and correct
any unsightly condition caused by the maintenance or removal of said signs or other advertising
matter.
SECTION 6: UTILITIES
6.1. Utilities. Lessee shall be liable for and shall pay throughout the term of this Lease,
all charges for all utility services furnished to the Premises, including, but not limited to, light,
heat, electricity, fire alarm system, natural gas, water, sewerage, recycling, garbage disposal and
POS Term Lease Agreement, #002534 - 7 -
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Item No. 6a Attach 2
Date of Meeting April 22, 2014
janitorial services. In the event that the Premises are part of a building or part of any larger
premises to which any utility services are furnished on a consolidated or joint basis, Lessee
agrees to pay to the Port Lessee's pro rata share of the cost of any such utility services,
specifically including a reasonable cost associated with management of such utility services.
Lessee's pro rata share of any such services may be computed by the Port on any reasonable
basis, and separate metering or other exact segregation of cost shall not be required.
6.2. Utility Interruptions. With respect to any utility service provided to the Premises
as a part of a building or any larger premises of which the Premises are a part, the Port shall have
the right to shut down electrical or other utility services to the Premises when necessitated by
safety, repairs, alterations, connections, upgrades, relocations, reconnections, or for any other
reason, with respect to any such utility system (singularly or collectively, "Utility Work"),
regardless of whether the need for such Utility Work arises in respect of the Premises, any other
part of the building or larger premises. Whenever possible, the Port shall give Lessee no less than
two (2) days prior notice for such utility shutdown. The Port shall not be liable to Lessee for any
losses, including loss of income or business interruption, resulting from any interruptions or
failure in the supply of any utility to the Premises, except when such losses result from the Port's
gross negligence.
6.3. Energy Conservation. The Port shall have the right to institute such reasonable
policies, programs and measures as may be necessary or desirable, in the Port's discretion, for
the conservation and/or preservation of energy or energy related services, or as may be required
to comply with any applicable codes, rules and regulations, whether mandatory or voluntary.
SECTION 7: ALTERATIONS; OWNERSHIP OF CERTAIN INSTALLATIONS
7.1. Limitation on Alterations. Lessee shall make no changes, alterations, additions,
substitutions or improvements (collectively referred to as "Alterations") to the Premises, unless
Lessee shall first deliver to the Port plans and specifications for, and obtain the Port's prior
written approval of, such Alterations. All such Alterations shall be done at Lessee's sole cost and
expense and at such times and subject to such conditions as the Port may from time to time
designate.
7.2. Requirements for All Alterations. In addition to, and not in lieu of, conditions
imposed by the Port pursuant to Section 7.1, any alterations or improvements permitted by the
Port shall be performed: (i) in a good and workmanlike manner; (ii) in compliance with all Legal
Requirements; and (iii) in a manner which will not unreasonably interfere with or disturb other
tenants of the Port. In addition, prior to commencement of any Alterations, Lessee shall furnish
to the Port proof of insurance for any and all contractors working on behalf of Lessee in the
minimum form and limits as set forth in Sections 11.2.1.1 and 11.2.1.2. Any Alterations shall
immediately become the property of the Port without any obligation on its part to pay therefor,
and shall not be removed by Lessee unless directed to do so in connection with any consent
issued under Section 7.1 or pursuant to Section 18:.
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Item No. 6a Attach 2
Date of Meeting April 22, 2014
7.3. Trade Fixtures. Lessee shall retain ownership of all trade fixtures and business
equipment and furnishings from time to time installed by Lessee at its expense. Lessee may
remove any of such fixtures, equipment or furnishings at any time during the term and shall
remove all thereof prior to the expiration of the term. Any such property not removed at the
expiration of the term shall, at the election of the Port, become the property of the Port without
payment to Lessee, or be deemed abandoned and removed by the Port, at Lessee's expense.
Upon any removal of such property, Lessee shall promptly repair any and all damage to the
Premises caused thereby and reimburse the Port for its costs and expenses in removing any such
property not removed by Lessee and repairing any such damage not repaired by Lessee; this
covenant shall survive the termination of this Lease.
SECTION 8: MAINTENANCE AND REPAIR
8.1. Maintenance and Repair by Lessee.
8.1.1. Lessee shall, at its sole cost and expense, keep the Premises together
with all Alterations, equipment and installations in good order, condition and repair at all
times. Lessee shall make all repairs and replacements (ordinary as well as extraordinary,
foreseen and unforeseen) which may be necessary or required so that at all times the Premises
are in good order, condition and repair. Without limiting the generality of the foregoing, Lessee
shall, at its sole cost and expense be responsible for the repair and maintenance of the Facility
and/or any and all over-water structures and any installation Lessee requires for security.
8.1.2. Lessee shall also keep the Premises and entryways neat, clean and in
sanitary condition, free from infestation of pests and conditions which might result in harborage
for, or infestation of pests. As used in this Section, the word "pests," as used herein, shall include
without limitation, rodents, insects, and birds in numbers to the extent that a nuisance is created.
8.2. No Maintenance and Repair by Port. Notwithstanding anything to the contrary in
Section 8.1, the Port shall have no responsibility for repair and maintenance of the Facility or any
part of the Premises.
SECTION 9: TAXES
9.1. Payment of Taxes. Lessee shall be liable for, and shall pay throughout the term of
this Lease, all license fees and all taxes payable for, or on account of, the activities conducted on
the Premises and all taxes on the property of Lessee on the Premises and any taxes on the
Premises and/or on the leasehold interest created by this Lease and/or any taxes levied in lieu of
a tax on said leasehold interest and/or any taxes levied on, or measured by, the rentals payable
hereunder, whether imposed on Lessee or on the Port. With respect to any such taxes payable by
the Port which are on or measured by the Rent payments hereunder, Lessee shall pay to the Port
with each Rent payment an amount equal to the tax on, or measured by, that particular payment.
All other tax amounts for which the Port is or will be entitled to reimbursement from Lessee
shall be payable by Lessee to the Port at least fifteen (15) days prior to the due dates of the
POS Term Lease Agreement, #002534 - 9 -
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Date of Meeting April 22, 2014
respective tax amounts involved; provided, that Lessee shall be entitled to a minimum of ten (10)
days' written notice of the amounts payable by it.
9.2. Personal Property Taxes. Lessee shall pay or cause to be paid, prior to
delinquency, any and all taxes and assessments levied upon all trade fixtures, inventories and
other real or personal property placed or installed in and upon the Premises by Lessee. If any
such taxes on Lessee's personal property or trade fixtures are levied against the Port or the Port's
property, and if the Port pays the taxes based upon such increased assessment, Lessee shall, upon
demand, repay to the Port the taxes so levied.
SECTION 10: COMMON AREAS
10.1. Control of Common Areas by Port. The Port shall at all times have the exclusive
control and management of all parking areas, access roads, driveways, sidewalks, entrances,
exits, loading docks, signs, drainage facilities, landscaped areas, washrooms, stairways, hallways
and other areas, improvements, facilities and/or special services provided by the Port for the
general use, in common, of tenants of any larger property of which the Premises are a part
("common areas and facilities"). Without limiting the Port's right of control and management,
the Port specifically reserves the right to: (i) establish, modify from time to time, and enforce
reasonable rules and regulations governing the use of the common areas and facilities; (ii) police
the common areas and facilities; (iii) change the area, level, location and arrangement of parking
and other areas or facilities within common areas and facilities; (iv) provided Lessee is not
deprived of reasonable access to its Premises, close all or any portion of the common areas and
facilities; and (v) do and perform such other acts in and to the common areas and facilities as, in
the use of good business judgment, the Port shall determine to be advisable with a view to the
improvement of the convenience and use thereof by the Port and tenants of any larger property of
which the Premises are a part.
SECTION 11: INSURANCE AND INDEMNITY
11.1. Indemnity.
11.1.1. The Port, its officers, employees and agents shall not be liable for any
injury (including death) to any persons or for damage to any property regardless of how such
injury or damage be caused, sustained or alleged to have been sustained by Lessee or by others,
including but not limited to all persons directly or indirectly employed by Lessee, or any agents,
contractors, subcontractors, licensees or invitees of Lessee, as a result of any condition
(including existing or future defects in the Premises) or occurrence (including failure or
interruption of utility service) whatsoever related in any way to Lessee's use or occupancy of the
Premises and of areas adjacent thereto.
11.1.2. Lessee shall defend (with counsel approved by the Port), fully
indemnify, and hold entirely free and harmless the Port and its Commissioners, officers, agents
and employees from any and all loss, damages, expenses, attorneys' fees, consultants' fees, court
costs and other costs for or from:
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Date of Meeting April 22, 2014
11.1.2.1. anything and everything whatsoever arising from the condition
the Premises or out of the occupancy by the Lessee or subtenant, licensee, invitee or
concessionaire of Lessee; and
11.1.2.2. any accident, injury, death or damage to any party however
caused in or about the Premises or upon the sidewalks adjacent to the Premises, whether or not
caused by the negligence of Lessee or any third party; and
11.1.2.3. any damage, death or injury arising out of negligence in the
maintenance, repair, or operation of the Facility at the Premises by Lessee or Lessee's contractor,
sublessee, licensee, or invitee or officer, agent, employee, or invitee of Lessee or Lessee's
contractor, sublessee, licensee or invitee.; and
11.1.2.4. any failure on Lessee's part to comply with any of the
covenants, terms and conditions contained in this Lease; and
11.1.2.5. any damage, death, or injury to members of the public or any
other party arising out of:
11.1.2.5.1. the existence, condition, construction, reconstruction,
modification, maintenance, operation, use or removal of the Facility or any portion thereof; or
11.1.2.5.2. the use, occupation, or restoration of right of way or
other public place within the Premises or any portion thereof; or
11.1.2.5.3. failure to comply with the requirements of Ordinance
124012, including but not limited to the obligations to protect, support, or relocate existing
utilities consistent with said Ordinance Section 3A; remove the Facility in the event described in
said Ordinance Section 3B; restore the Premises consistent with Ordinance Section 4; repair or
reconstruct consistent with Ordinance Section 5, correct unsafe conditions consistent with
Ordinance Section 6, maintain a performance bond in accordance with Ordinance Section 9A,
ensure that contractors performing work on the Premises name the Port and the City of Seattle as
additional insured and construction indemnities and warranties are extended to the Port and City
of Seattle consistent with Ordinance Section 9D;
11.1.2.6. damage to existing utilities in the Premises or consequential
damages arising out of interruption in service of said utilities due to construction, repair,
reconstruction maintenance, operation or removal of the Facility or due to failure of Lessee to
protect, support or relocate existing utilities;
Provided, however, nothing herein shall require Lessee to indemnify the Port
from any accident, injury, death or damage arising out of the sole negligence of the Port or its
Commissioners, officers, agents and employees. Lessee agrees that the foregoing indemnity
specifically covers actions brought by its own employees, and thus Lessee expressly waives its
immunity under industrial insurance, Title 51, as necessary to effectuate this indemnity.
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Date of Meeting April 22, 2014
11.1.3. Notwithstanding anything to the contrary in Section 11.1.2, in the event
of the concurrent negligence of Lessee, its subtenants, licensees, assignees, concessionaires,
agents, employees, or contractors on the one hand and the negligence of the Port, its agents,
employees or contractors on the other hand, which concurrent negligence results in injury or
damage to persons or property of any nature and howsoever caused, and relates to the
construction, alteration, repair, addition to, subtraction from, improvement to or maintenance of
the Premises such that RCW 4.24.115 is applicable, Lessee's obligation to indemnity the Port as
set forth in this Section shall be limited to the extent of Lessee's negligence and that of Lessee's
officers, sublessees, assignees, agents, employees, contractors or licensees, including Lessee's
proportional share of costs, court costs, attorneys' fees, consultants' fees and expenses incurred
in connection with any claim, action or proceeding brought with respect to such injury or
damage.
11.1.4. LESSEE AND PORT AGREE AND ACKNOWLEDGE THAT THIS
PROVISION IS THE PRODUCT OF MUTUAL NEGOTIATION. Lessee's obligations under
this Section shall survive the expiration or earlier termination of this Lease.
11.2. Insurance.
11.2.1. Required Policies. Lessee shall obtain and keep in force, at its sole cost
and expense the following types of insurance, in the amounts specified and in the form
hereinafter provided for:
11.2.1.1. General Liability Insurance. Lessee shall obtain and keep in
force a commercial general liability policy of insurance, written on ISO Form CG 00 01 10 01
(or equivalent), that protects Lessee and the Port, as an additional insured using ISO Form 20 26
(either 11 85 or 07 04 revision) or equivalent, against claims for bodily injury, personal injury
and property damage based upon, involving or arising out of the tenancy, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto, and specifically including the
action/inaction of any subtenant, licensee or concessionaire. Such insurance shall be on an
occurrence basis providing single limit coverage in an amount not less than one million dollars
($1,000,000) per occurrence. The policy shall not contain any intra-insured exclusions as
between insured persons or organizations. The policy shall contain a minimum $250,000 sublimit
that covers damage to premises rented or leased to Lessee, including fire damage.
11.2.1.2. Automobile Liability Insurance. Lessee shall obtain and keep
in force a commercial automobile liability policy of insurance, written on ISO Form CA 00 01
07 97 (or equivalent), that protects Lessee and the Port against claims for bodily injury and
property damage based upon, involving or arising out of motor vehicle operations on or about the
Premises and all areas appurtenant thereto. Such insurance shall cover any "Auto" (i.e. owned,
hired and non-owned) and shall be on an occurrence basis providing single limit coverage in an
amount not less than one million dollars ($1,000,000) per occurrence. The policy shall not
contain any intra-insured exclusions as between insured persons or organizations.
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Date of Meeting April 22, 2014
11.2.1.3. Property Insurance. Lessee shall obtain and keep in force
property insurance using an ISO CP 10 20 Cause of Loss Broad Form (or an equivalent
manuscript form) insuring Lessees personal property and Alterations (specifically including
"betterments and improvements") made by or for Lessee against physical damage, including loss
of use of the Premises. The policy shall include coverage for any additional costs resulting from
debris removal and reasonable amounts of coverage for the enforcement of any ordinance or law
regulating the reconstruction or replacement of damaged property including any undamaged
sections of the Premises required to be demolished or removed by reason of the enforcement of
any Legal Requirement as the result of a covered cause of loss. The amount of such insurance
shall be procured on a replacement cost basis (or the commercially reasonable and available
insurable value thereof if, by reason of the unique nature or age of the improvements involved,
such latter amount is less than full replacement cost). The policy shall also contain an agreed
valuation provision in lieu of any coinsurance clause. The Port of Seattle shall be included as an
Additional Insured and Loss Payee on Lessee's property insurance policy with respect to the
Port's interest in Alterations.
11.2.1.4. Protection and Indemnity Liability Insurance. Lessee shall
obtain and keep in force Protection and Indemnity liability insurance, written on a form
acceptable to the Port, protecting Lessee and the Port, as an Additional Assured, against claims
involving or arising out of operations in which owned or non-owned vessels, boats, work skiffs,
or floating platforms, are used on or about the Premises. Such insurance shall be on an
occurrence basis providing single limit coverage in an amount not less than one million dollars
($1,000,000) per occurrence. The policy shall not contain any intra-insured exclusions as
between insured persons or organizations.
11.2.1.5. Other Insurance. Lessee shall further obtain and keep in force
such other and further insurance as the Port may from time to time reasonably request for the
protection by insurance of its interest in the Premises.
The limits of insurance specified in this Section shall be subject to periodic
adjustment to reflect changes in insuring practices for similar properties in the same geographic
area and changes in insurance products.
11.2.2. Insurance Policies.
11.2.2.1. Insurance Companies. Insurance required hereunder shall be
in companies duly licensed to transact business in the State of Washington, and maintaining
during the policy term a General Policyholders Rating of 'A-' or better and a financial rating of
'IX' or better, as set forth in the most current issue of "Best's Insurance Guide."
11.2.2.2. Policies Primary; Deductibles Endorsement. All insurance to
be carried by Lessee shall be primary to and not contributory with any similar insurance carried
by the Port, whose insurance shall be considered excess insurance only. No insurance required
herein shall contain a deductible or self-insured retention in excess of $100,000 without the prior
written consent of the Port.
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Date of Meeting April 22, 2014
11.2.2.3. Cancellation, Non-Renewal. Insurance is to remain current
throughout the term of the Lease. The Port shall receive documentation annually to include a
certificate of insurance and any applicable endorsements to validate the insurance required herein
has been purchased and is compliant with the Lease requirements within 10 (ten) days of each
insurance renewal. Should any insurance required herein be terminated, cancelled, or not
renewed, the Lessee will have five (5) days to obtain replacement insurance from the date of the
termination, cancellation or non-renewal notice Lessee receives from their insurer(s). In the
event the insurance is not replaced within the five (5) days, the Lease will be considered under
Default in accordance with Section 14.
11.2.2.4. Evidence of Insurance. Lessee shall deliver, or cause to be
delivered, to the Port, certificates of insurance, additional insured endorsements, waivers of
subrogation and any other documentation or endorsement that provides that the insurance
requirements of this Section have been met. Upon request by the Port, Lessee shall deliver or
cause to be delivered to the Port, certified copies of the policies of insurance that Lessee has
purchased in order for the Port to verify insurance coverage, limits, and endorsements or view
any exclusions to the Lessee's insurance policies.
11.2.2.5. No Limitation of Liability. The limits of insurance required by
this Lease or as carried by Lessee shall not limit the liability of Lessee nor relieve Lessee of any
obligation hereunder.
11.3. Waiver of Subrogation. Without affecting any other rights or remedies, Lessee
(for itself and on behalf of anyone claiming through or under it by way of subrogation or
otherwise) hereby waives any rights it may have against the Port, its officers, agents and
employees (whether in contract or in tort) on account of any loss or damage occasioned to Lessee
arising out of or incident to the perils required to be insured against under this Lease.
Accordingly, Lessee shall cause each insurance policy required by this Section 11.2 to further
contain a waiver of subrogation clause. The effect of such release and waiver of the right to
recover damages shall not be limited by the amount of insurance carried or required, or by any
deductibles applicable thereto.
11.4. Increase in Port's Cost of Insurance. Lessee shall not use the Premises in such a
manner as to increase the existing rates of insurance applicable to the buildings or structures of
which the Premises are a part. If it nevertheless does so, then, at the option of the Port, the full
amount of any resulting increase in premiums paid by the Port with respect to the buildings or
structures of which the Premises are a part, and to the extent allocable to the term of this Lease,
may be added to the amount of Rent and shall be paid by Lessee to the Port upon the monthly
rental day next thereafter occurring.
SECTION 12: DAMAGE OR DESTRUCTION
12.1. Duty to Repair. If the Premises or any buildings or structures of which the
Premises are a part are damaged by fire, the elements, earthquake, accident or other casualty
(collectively, "Casualty"), the Port shall, except to the extent either party has the right to
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Item No. 6a Attach 2
Date of Meeting April 22, 2014
terminate this Lease under Section 12.2, use reasonable efforts to repair and restore the Premises
and/or the buildings or structures of which the Premises are a part to substantially their former
condition to the extent permitted by then-applicable Legal Requirements; provided, however, the
Port's obligation to repair and restore shall not extend to any Alterations or any of Lessee's
personal property, specifically including that which Lessee retains ownership of under
Section 7.3.
12.2. Right to Terminate. The Port may elect to terminate this Lease in the event that
the Port, in its sole judgment, concludes that the damage to the Premises or any buildings or
structures of which the Premises are a part cannot be repaired within thirty (30) days of the
Casualty (with the repair work and the preparations therefor to be done during regular working
hours on regular work days). In the event that the Port elects to terminate this Lease, the Port
shall advise Lessee of that fact within thirty (30) days of the date of the Casualty and notify
Lessee of the date, not more than ninety (90) days after the Casualty, on which the Lease will
terminate.
12.3. Abatement of Rent. Unless the casualty results from Lessee's negligence or
breach of the terms of this Lease, the Base Rent and Additional Rent, if any, shall be abated for
any portion of the Premises that is rendered untenantable or inaccessible from the period from
the date of the Casualty through the date of substantial completion of the repairs to the Premises
(or to the date of termination of the Lease if either party shall elect to terminate the Lease). The
Port shall not otherwise be liable to Lessee for any loss in the use in the whole or any part of the
Premises (including loss of business) and/or any inconvenience or annoyance occasioned by the
Casualty, by any damage resulting from the Casualty, or by any repair, reconstruction or
restoration.
12.4. Waiver. Except as specifically set forth in this Lease, Lessee hereby waives any
right that Lessee may have, under any applicable existing or future law, to terminate this Lease in
the event of any damage to, or destruction of, the Premises or any buildings or structures of
which the Premises are a part.
SECTION 13: ASSIGNMENT AND SUBLEASE
13.1. Prohibition. Lessee shall not, in whole or in part, assign, sublet, license or permit
occupancy by any party other than Lessee of all or any part of the Premises, without the prior
written consent of the Port in each instance. Lessee shall at the time the Lessee requests the
consent of the Port, deliver to the Port such information in writing as the Port may reasonably
require respecting the proposed assignee, subtenant or licensee including, without limitation, the
name, address, nature of business, ownership, financial responsibility and standing of such
proposed assignee, subtenant or licensee. Within twenty (20) business days after receipt of all
required information, the Port shall, in its sole discretion, elect one of the following: (a) to
consent to such proposed assignment, sublease or license or (b) to refuse such consent.
13.1.1. As a condition for the Port's consent to any assignment, encumbrance
or sublease, the Port may require that the assignee, sublessee or licensee remit directly to the Port
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Date of Meeting April 22, 2014
on a monthly basis, all monies due to Lessee by said assignee, sublessee or licensee (except with
respect to excess rentals otherwise due Lessee pursuant to Section 13.2). In addition, a condition
to the Port's consent to any assignment, sublease or license of this Lease or the Premises shall be
the delivery to the Port of a true copy of the fully executed instrument of assignment, sublease or
license and an agreement executed by the assignee, sublessee or licensee in form and substance
satisfactory to the Port and expressly enforceable by the Port, whereby the assignee, sublessee or
licensee assumes and agrees to be bound by the terms and provisions of this Lease and perform
all the obligations of Lessee hereunder.
13.1.2. In the event of any assignment, Lessee and each respective assignor,
waives notice of default by the tenant in possession in the payment and performance of the Rent,
covenants and conditions of this Lease and consents that the Port may in each and every instance
deal with the tenant in possession, grant extensions of time, waive performance of any of the
terms, covenants and conditions of this Lease and modify the same, and in general deal with the
tenant then in possession without notice to or consent of any assignor, including Lessee; and any
and all extensions of time, indulgences, dealings, modifications or waivers shall be deemed to be
made with the consent of Lessee and of each respective assignor.
13.1.3. Lessee agrees that any sublease or license will contain a provision in
substance that if there be any termination whatsoever of this Lease then the subtenant or licensee,
at the request of the Port, will attorn to the Port and the sublessee or licensee, if the Port so
requests, shall continue in effect with the Port, but the Port shall be bound to the subtenant or
licensee in such circumstances only by privity of estate. Nothing herein shall be deemed to
require the Port to accept such attornment.
13.1.4. No assignment, subletting or license by Lessee shall relieve Lessee of
any obligation under this Lease, including Lessee's obligation to pay Rent or any other sum
hereunder. Any purported assignment, subletting or license contrary to the provisions hereof
without consent shall be void. The consent by the Port to any assignment or subletting shall not
constitute a waiver of the necessity for such consent to any subsequent assignment or subletting.
13.1.5. Lessee shall reimburse the Port in the sum of FIVE HUNDRED
DOLLARS ($500.00) plus any reasonable professionals' fees and expenses incurred by the Port
in connection with any request by Lessee for consent to an assignment, subletting or license.
13.2. Excess Rental. If in connection with any assignment, sublease or license, Lessee
receives rent or other monetary consideration, either initially or over the term of the assignment
or sublease, in excess of the Rent called for hereunder, or in case of the sublease of a portion of
the Premises, in excess of such Rent fairly allocable to such portion, after appropriate
adjustments to assure that all other payments called for hereunder and out-of-pocket
expenditures, operating costs or concessions incurred by Lessee in connection with such
assignment, sublease or license, are appropriately taken into account, Lessee shall pay to the
Port, as Additional Rent hereunder, seventy-five percent (75%) of the excess of each such
payment of rent or other consideration received by Lessee after its receipt.
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Item No. 6a Attach 2
Date of Meeting April 22, 2014
13.3. Scope. The prohibition against assigning or subletting contained in this Section
13 shall be construed to include a prohibition against any assignment or subletting by operation
of law. Furthermore, for purposes of this Section 13, any sale, transfer or other disposition in the
aggregate of fifty percent (50%) or more of the equity ownership in Lessee (i.e. stock with
respect to tenant corporation, partnership interests with respect to a tenant partnership, etc.) shall
be deemed an assignment. If this Lease be assigned, or if the underlying beneficial interest of
Lessee is transferred, or if the Premises or any part thereof be sublet or occupied by anybody
other than Lessee, the Port may collect Rent from the assignee, subtenant or occupant and apply
the net amount collected to the Rent herein reserved and apportion any excess Rent so collected
in accordance with the terms of Section 13.2, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant
or occupant as tenant, or a release of Lessee from the further performance by Lessee of
covenants on the part of Lessee herein contained. No assignment or subletting shall affect the
continuing primary liability of Lessee (which, following assignment, shall be joint and several
with the assignee), and Lessee shall not be released from performing any of the terms, covenants
and conditions of this Lease.
SECTION 14: DEFAULT
14.1. Defaults. Time is of the essence of this Lease. The occurrence of any one or more
of the following events constitutes a default of this Lease by Lessee with or without notice from
the Port:
14.1.1. The vacating or abandonment of the Premises by Lessee.
14.1.2. The failure by Lessee to make any payment of Rent, or any other
payment required by this Lease, when due.
14.1.3. The failure by Lessee to observe or perform any covenant, condition, or
agreement to be observed or performed by Lessee in this Lease.
14.1.4. The discovery by the Port that any required report, financial statement
or background statement provided to the Port by Lessee, any successor, grantee, or assign was
materially false.
14.1.5. The filing by Lessee of a petition in bankruptcy, Lessee being adjudged
bankrupt or insolvent by any court, a receiver of the property of Lessee being appointed in any
proceeding brought by or against Lessee, Lessee making an assignment for the benefit of
creditors, or any proceeding being commenced to foreclose any mortgage or other lien on
Lessee's interest in the Premises or on any personal property kept or maintained on the Premises
by Lessee.
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Date of Meeting April 22, 2014
14.2. Remedies.
14.2.1. Whenever any default (other than a default under Section 14.1.5 above,
upon which termination of this Lease shall, at the Port's option, be effective immediately without
further notice) continues unremedied in whole or in part for thirty (30) days after written notice
is provided by the Port to Lessee (or for ten (10) days after written notice in the case of default
for failure to pay any Rent, or other required payment when due), this Lease and all of Lessee's
rights under it will automatically terminate if the written notice of default so provides. Upon
termination, the Port may reenter the Premises using such force as may be necessary and remove
all persons and property from the Premises. The Port will be entitled to recover from Lessee all
unpaid Rent or other payments and damages incurred because of Lessee's default including, but
not limited to, the costs of re-letting, including tenant improvements, necessary renovations or
repairs, advertising, leasing commissions, and attorney's fees and costs ("Termination
Damages"), together with interest on all Termination Damages at the Default Rates from the date
such Termination Damages are incurred by the Port until paid.
14.2.2. In addition to Termination Damages, and notwithstanding termination
and reentry, Lessee's liability for all Rent or other charges which, but for termination of the
Lease, would have become due over the remainder of the Lease term ("Future Charges") will not
be extinguished and Lessee agrees that the Port will be entitled, upon termination for default, to
collect as additional damages, a Rental Deficiency. "Rental Deficiency" means, at the Port's
election, either:
14.2.2.1. An amount equal to Future Charges, less the amount of actual
rent, if any, which the Port receives during the remainder of the Lease term from others to whom
the Premises may be rented, in which case such Rental Deficiency will be computed and payable
at the Port's option either:
14.2.2.1.1. In an accelerated lump-sum payment; or
14.2.2.1.2. In monthly installments, in advance, on the first day
of each calendar month following termination of the Lease and continuing until the date on
which the Lease term would have expired but for such termination, and any suit or action
brought to collect any portion of Rental Deficiency attributable to any particular month or
months, shall not in any manner prejudice the Port's right to collect any portion of Rental
Deficiency by a similar proceeding; or
14.2.2.2. An amount equal to Future Charges less the aggregate fair
rental value of the Premises over the remaining Lease term, reduced to present worth. In this
case, the Rental Deficiency must be paid to the Port in one lump sum, on demand, and will bear
interest at the Default Rate until paid. For purposes of this subparagraph, "present worth" is
computed by applying a discount rate equal to one percentage point above the discount rate then
in effect at the Federal Reserve Bank in, or closest to, Seattle, Washington.
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Date of Meeting April 22, 2014
14.2.3. If this Lease is terminated for default as provided in this Lease, the Port
shall use reasonable efforts to re-let the Premises in whole or in part, alone or together with other
premises, for such term or terms (which may be greater or less than the period which otherwise
would have constituted the balance of the Lease term), for such use or uses and, otherwise on
such terms and conditions as the Port, in its sole discretion, may determine, but the Port will not
be liable for, nor will Lessee's obligations under this Lease be diminished by reason for any
failure by the Port to re-let the Premises or any failures by the Port to collect any rent due upon
such re-letting.
14.2.4. In addition to the rights granted by Section 7.3, if upon any reentry
permitted under this Lease, there remains any personal property upon the Premises, the Port, in
its sole discretion, may remove and store the personal property for the account and at the expense
of Lessee. In the event the Port chooses to remove and store such property, it shall take
reasonable steps to notify Lessee of the Port's action. All risks associated with removal and
storage shall be on Lessee. Lessee shall reimburse the Port for all expenses incurred in
connection with removal and storage as a condition to regaining possession of the personal
property. The Port has the right to sell any property which has been stored for a period of 30 days
or more, unless Lessee has tendered reimbursement to the Port for all expenses incurred in
removal and storage. The proceeds of sale will be applied first to the costs of sale (including
reasonable attorney's fees), second to the payment of storage charges, and third to the payment
of any other amounts which may then be due and owing from Lessee to the Port. The balance of
sale proceeds, if any, will then be paid to Lessee.
14.3. Remedies Cumulative. All rights, options and remedies of the Port contained in
this Lease shall be construed and held to be distinct, separate and cumulative, and no one of them
shall be exclusive of the other, and the Port shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law or in equity, whether or
not stated in this Lease.
SECTION 15: TERMINATION OTHER THAN FOR DEFAULT
15.1. Major Capital Improvement. In the event that the Port, at its sole discretion, shall
require the use of the Premises for a major capital improvement for public or private use in
connection with the operation of the business of the Port, then this Lease may be terminated by
the Port by written notice delivered or mailed by the Port to Lessee not less than three hundred
sixty-five days (365) days before the termination date specified in the notice. If Lessee is not in
default under any of the provisions of this Lease on the effective date of such termination, any
Rent prepaid by Lessee shall, to the extent allocable to any period subsequent to the effective
date of the termination, be promptly refunded to Lessee. Lessee shall not be entitled to any
compensation at termination for the bargain value of the leasehold or any relocation expenses.
15.2. Condemnation.
15.2.1. Total Taking. In the case of a taking by eminent domain of either all of
the Premises or such portion of either the Premises or any buildings or structures of which the
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Date of Meeting April 22, 2014
Premises are a part as shall, in the Port's sole judgment, be required for reasonable use of the
Premises, this Lease shall terminate as of the date of such taking. If Lessee is not in default under
any of the provisions of this Lease on said date, any Rent prepaid by Lessee shall, to the extent
allocable to any period subsequent to the effective date of the termination, be promptly refunded
to Lessee.
15.2.2. Partial Taking. In the case of a taking of portion of the Premises or any
buildings or structures of which the Premises are a part as shall not, in the Port's sole judgment,
be required for reasonable use of the Premises, this Lease shall continue in full force and effect,
and the Base Rent shall, as of the date of such taking, be equitably reduced based on the
proportion by which the Premises (but not the buildings or structures of which the Premises are a
part) is reduced.
15.2.3. Damages. The Port reserves all right to the entire damage award or
payment for taking by eminent domain, and Lessee waives all claim whatsoever against the Port
and/or the authority exercising eminent domain for damages for termination of its leasehold or
for interference with its business. The Port and Lessee further agree that all decisions regarding
how the eminent domain proceeding should be handled shall be made in the sole discretion of the
Port (specifically including any response to a motion for order adjudicating public use and
necessity or and request for immediate possession), and Lessee shall take no actions or steps
which interfere with the Port's ability to control the handling of the eminent domain proceeding.
Notwithstanding the foregoing, nothing in this Section shall be considered to be a waiver or
assignment by Lessee of any right to relocation assistance payments or relocation advisory
services which may be available in connection with the eminent domain proceeding.
15.2.4. Eminent Domain. The term "eminent domain" as used in this Section
15.2 shall including taking or damaging of property by, through or under any governmental or
quasi-governmental authority and the purchase or acquisition in lieu thereof.
15.3. Court Decree. In the event that any court having jurisdiction in the matter shall
render a decision which has become final and which will prevent the performance by the Port of
any of its obligations under this Lease, then either party hereto may terminate this Lease by
written notice, and all rights and obligations hereunder (with the exception of any undischarged
rights and obligations that accrued prior to the effective date of termination) shall thereupon
terminate. If Lessee is not in default under any of the provisions of this Lease on the effective
date of such termination, any Rent prepaid by Lessee shall, to the extent allocable to any period
subsequent to the effective date of the termination, be promptly refunded to Lessee. Lessee is not
entitled to any compensation at termination for the bargain value of the leasehold.
SECTION 16: ACCESS; EASEMENTS
16.1. Access to Premises.
16.1.1. The Port shall have the right to show the Premises at all reasonable
times during business hours of Lessee to any prospective purchasers, tenants or mortgagees of
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the same, and may at any time enter upon the Premises, or any part thereof, for the purpose of
ascertaining the condition of the Premises or whether Lessee is observing and performing the
obligations assumed by it under this Lease, all without hindrance or molestation from the Lessee.
The Port shall also have the right to enter upon the Premises for the purpose of making any
necessary repairs and performing any work that may be necessary by reason of Lessee's failure
to make any such repairs or perform any such work. The above-mentioned rights of entry shall
be exercisable upon request made on reasonable advance notice to Lessee (except that no notice
shall be required in the event of an emergency) or an authorized employee of Lessee at the
Premises, which notice may be given orally.
16.2. Easements.
16.2.1. The Parties recognize that the Port facilities are continuously being
modified to improve the utilities, services and premises used and provided by the Port. The Port
and its authorized utility service providers are hereby granted a continuous easement or
easements that the Port believes is necessary within the Premises of Lessee, without any
additional cost to the Port for the purposes expressed hereinabove. The Port, its authorized utility
service provider, and their respective agents, shall have the right to enter the Premises of Lessee,
and to cross over, construct, move, reconstruct, rearrange, alter, maintain, repair and operate the
sewer, water, and drainage lines, the electrical service, the roadways (specifically including
routes of ingress and egress) and all other services and facilities required by the Port for its own
use. Provided, however, that the Port by virtue of such use, does not substantially deprive Lessee
from its beneficial use or occupancy of its leased area for an unreasonable period of time, not to
exceed thirty (30) working days, without consent of Lessee.
16.2.2. In the event that the Port permanently deprives Lessee from such
beneficial use or occupancy, then an equitable adjustment in Rent, or in the cost required to
modify its Premises to allow the Lessee to operate its business, will be negotiated and paid by the
Port to Lessee. In the event that such entry by the Port is temporary in nature, then the Port shall
reimburse Lessee for the cost required to modify its Premises for the temporary period that
Lessee is inconvenienced by such Port entry. The Port will not be responsible to Lessee for any
reduced efficiency or loss of business occasioned by such entry.
SECTION 17: NONWAIVER; RIGHT TO PERFORM
17.1. Receipt of Monies Following Termination. No receipt of monies by the Port from
Lessee after the termination or cancellation of this Lease in any lawful manner shall (i) reinstate,
continue or extend the term of this Lease; (ii) affect any notice theretofore given to Lessee;
(iii) operate as a waiver of the rights of the Port to enforce the payment of any Rent and fees then
due or thereafter falling due; or (iv) operate as a waiver of the right of the Port to recover
possession of the Premises by proper suit, action, proceeding or remedy; it being agreed that
after the service of notice to terminate or cancel this Lease, or after the commencement of suit,
action or summary proceedings, or any other remedy, or after a final order or judgment for the
possession of the Premises, the Port may demand, receive and collect any monies due, or
thereafter falling due, without in any manner affecting such notice, proceeding, suit, action or
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judgment; and any and all such monies collected shall be deemed to be payments on account of
the use and occupation and/or Lessee's liability hereunder.
17.2. No Waiver of Breach. The failure of the Port to insist in any one or more
instances, upon a strict performance of any of the covenants of this Lease, or to exercise any
option herein contained, shall not be construed as a waiver of or relinquishment for the future of
the performance of such covenant, or the right to exercise such option, but the same shall
continue and remain in full force and effect. The receipt by the Port of the Rent or fees, with
knowledge of the breach of any covenant hereof, shall not be deemed a waiver of such breach,
and no waiver by the Port of any provision hereof shall be deemed to have been made unless
expressed in writing and signed by the Port. The consent or approval of the Port to or of any act
by Lessee requiring the Port's consent or approval shall not be deemed to waive or render
unnecessary the Port's consent or approval to or of any subsequent similar acts by Lessee.
17.3. No Waiver of Rent. The receipt by the Port of any installment of Rent or of any
amount shall not be a waiver of any Rent or other amount then due.
17.4. Application of Payments. The Port shall have the right to apply any payments
made by Lessee to the satisfaction of any debt or obligation of Lessee to the Port, in the Port's
sole discretion and regardless of the instructions of Lessee as to application of any such sum,
whether such instructions be endorsed upon Lessee's check or otherwise, unless otherwise
agreed upon by both parties in writing. The acceptance by the Port of a check or checks drawn
by others than Lessee shall in no way affect Lessee's liability hereunder nor shall it be deemed
an approval of any assignment of this Lease or subletting by Lessee.
17.5. Port's Right to Perform. Upon Lessee's failure to perform any obligation or make
any payment required of Lessee hereunder, the Port shall have the right (but not the obligation)
to perform such obligation of Lessee on behalf of Lessee and/or to make payment on behalf of
Lessee to such parties. Lessee shall reimburse the Port the reasonable cost of the Port's
performing such obligation on Lessee's behalf, including reimbursement of any amounts that
may be expended by the Port, plus interest at the Default Rate.
SECTION 18: SURRENDER AND HOLDING OVER
18.1. Surrender. At the expiration or sooner termination of this Lease, Lessee shall
promptly: (i) surrender possession of the Premises to the Port in the same condition in which
received (or, if altered, then the Premises shall be returned in such altered condition unless
otherwise directed), reasonable wear and tear excepted, and (ii) deliver to the Port all keys that it
may have to any and all parts of the Premises. If the Premises are not surrendered as provided in
this Section, Lessee shall indemnify and hold the Port harmless against loss or liability resulting
from the delay by Lessee in so surrendering the Premises, including, without limitation, any
claims made by any succeeding occupant founded on such delay.
18.2. Holding Over. If Lessee, with the consent of the Port, holds over after the
expiration or sooner termination of this Lease, the resulting tenancy will, unless otherwise
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mutually agreed, be for an indefinite period of time on a month-to-month basis. During such
month-to-month tenancy, Lessee shall pay to the Port, at the Port's sole discretion, the same
rental rate that was in effect immediately prior to the month-to-month tenancy times 150%.
Lessee will continue to be bound by all of the additional provisions of this Lease insofar as they
may be pertinent.
18.3. For Rent Signs. The Port shall have the right to place and maintain "For Rent"
signs in conspicuous places on the Premises for ninety (90) days prior to the expiration or sooner
termination of this Lease.
SECTION 19: ENVIRONMENTAL STANDARDS
19.1. Definitions. "Law or Regulation" as used herein shall mean any environmentally
related local, state or federal law, regulation, ordinance or order (including without limitation any
final order of any court of competent jurisdiction), now or hereafter in effect. "Hazardous
Substances" as used herein shall mean any substance or material defined or designated as a
hazardous waste, toxic substance, or other pollutant or contaminant, by any Law or Regulation.
19.2. Hazardous Substances. Lessee shall not allow the presence in or about the
Premises of any Hazardous Substance in any manner that could be a detriment to the Premises or
in violation of any Law or Regulation. Lessee shall not allow any Hazardous Substances to
migrate off the Premises, or the release of any Hazardous Substances into adjacent surface
waters, soils, underground waters or air. Lessee shall provide the Port with Lessee's USEPA
Waste Generator Number, and with copies of all Material Safety Data Sheets (MSDS),
Generator Annual Dangerous Waste Reports, environmentally related regulatory permits or
approvals (including revisions or renewals) and any correspondence Lessee receives from, or
provides to, any governmental unit or agency in connection with Lessee's handling of Hazardous
Substances or the presence, or possible presence, of any Hazardous Substance on the Premises.
19.3. Violation of Environmental Law. If Lessee, or the Premises, is in violation of any
Law or Regulation concerning the presence or use of Hazardous Substances or the handling or
storing of hazardous wastes, Lessee shall promptly take such action as is necessary to mitigate
and correct the violation. If Lessee does not act in a prudent and prompt manner, the Port
reserves the right, but not the obligation, to come onto the Premises, to act in place of the Lessee
(Lessee hereby appoints the Port as its agent for such purposes) and to take such action as the
Port deems necessary to ensure compliance or to mitigate the violation. If the Port has a
reasonable belief that Lessee is in violation of any Law or Regulation, or that Lessee's actions or
inactions present a threat of violation or a threat of damage to the Premises, the Port reserves the
right to enter onto the Premises and take such corrective or mitigating action as the Port deems
necessary. All costs and expenses incurred by the Port in connection with any such actions shall
become immediately due and payable by Lessee upon presentation of an invoice therefor.
19.4. Inspection; Test Results. The Port shall have access to the Premises to conduct an
annual environmental inspection. In addition, Lessee shall permit the Port access to the Premises
at any time upon reasonable notice for the purpose of conducting environmental testing at the
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Port's expense. Lessee shall not conduct or permit others to conduct environmental testing on the
Premises without first obtaining the Port's written consent. Lessee shall promptly inform the Port
of the existence of any environmental study, evaluation, investigation or results of any
environmental testing conducted on the Premises whenever the same becomes known to Lessee,
and Lessee shall provide copies to the Port.
19.5. Removal of Hazardous Substances. Prior to vacation of the Premises, in addition
to all other requirements under this Lease, Lessee shall remove any Hazardous Substances placed
on the Premises during the term of this Lease or Lessee's possession of the Premises, and shall
demonstrate such removal to the Port's satisfaction. This removal and demonstration shall be a
condition precedent to the Port's payment of any Security to Lessee upon termination or
expiration of this Lease.
19.6. Remedies Not Exclusive. No remedy provided herein shall be deemed exclusive.
In addition to any remedy provided above, the Port shall be entitled to full reimbursement from
Lessee whenever the Port incurs any costs resulting from Lessee's use or management of
Hazardous Substances on the Premises, including but not limited to, costs of clean-up or other
remedial activities, fines or penalties assessed directly against the Port, injuries to third persons
or other properties, and loss of revenues resulting from an inability to re-lease or market the
property due to its environmental condition (even if such loss of revenue occurs after the
expiration or earlier termination of this Lease).
19.7. Environmental Indemnity. In addition to all other indemnities provided in this
Lease, Lessee agrees to defend, indemnify and hold the Port free and harmless from any and all
claims, causes of action, regulatory demands, liabilities, fines, penalties, losses, and expenses,
including without limitation cleanup or other remedial costs (and including attorneys' fees, costs
and all other reasonable litigation expenses when incurred and whether incurred in defense of
actual litigation or in reasonable anticipation of litigation), arising from the existence or
discovery of any Hazardous Substance on the Premises, or the migration of any Hazardous
Substance from the Premises to other properties or into the surrounding environment, whether
(1) made, commenced or incurred during the term of this Lease, or (2) made, commenced or
incurred after the expiration or termination of this Lease if arising out of events occurring during
the term of this Lease.
19.8. Performance Bond. Lessee shall ensure that sufficient bond executed by a surety
company authorized and qualified to do business in the State of Washington is delivered to the
City of Seattle. Such bond shall be delivered to the attention Director of the Department of
Transportation, for filing with the City Clerk and shall be in the amount of $415,000 and
conditioned with a requirement that the Port and Lessee comply with every provision of
Ordinance 124012 and with every order the Director of Seattle Department of Transportation
issues under Ordinance 124012. Lessee shall ensure such bond remains in effect until the
Director has issued a certification that the removal and restoration obligations under Section 4 of
Ordinance 124012 has been fulfilled. In the event that the Director of SDOT notifies the Port of
new requirements related to bonding or adjustment to the level of existing surety bond
requirements, the Port will forward such notice to Lessee within two business days of receipt of
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such notice. Lessee shall ensure that the new bond requirement is met and provide proof of the
adjusted surety bond level to the Port and the Director of SDOT within 60 days of such notice.
19.9. Permit Fee. Lessee shall be responsible to reimburse the Port for the cost of the
annual fee for the Vine Street Use Permit in accordance with the Street Use Permit Fee Schedule
or as adjusted annually by the City. Lessee shall reimburse the Port the annual fee within 10 days
from the date of the invoice from the Port or remedies in Section 14 will apply.
19.10. Lessee Subject to Ordinance 124012. Lessee accepts the terms, conditions and
possible interruptions contained in Ordinance 124012, or in any City ordinance now existing or
adopted in the future which further or additionally conditions the Port's or Lessee's use of the
Premises.
19.11. Removal and Restoration of Premises. In the event that the permission granted
under Ordinance 124012 expires without an application for a new permission being granted or is
earlier terminated, then within 90 days after the expiration or termination of the permission, or
earlier date ordered by the City, the Lessee shall, at its sole expense, do the following: (a)
remove the Facility and all portions of Lessee's equipment and personal property from the
Premises; (b) following removal of the Facility, Lessee shall replace and restore all portions of
the Premises that may have been disturbed by the construction, maintenance or operation of the
Facility to as good condition for public use as it was prior to construction of the Facility and in at
least as good condition in all respects as the abutting portion of the right of way and public place
as required by SDOT right-of-way restoration standards. Lessee shall not reconstruct or relocate
the Facility except with the Port's prior written permission.
19.12. Contractor insurance. Lessee shall require in any contract with contractors
performing work in the Premises that the Port and the City of Seattle, and their elected and
appointed officers, officials, employees and agents, are named as additional insured for primary
and non-contributory limits of liability on all Commercial General Liability, Automobile and
Pollution liability insurance and/or self-insurance. Lessee shall also include in contract
documents with contractors performing work in the Premises a third party beneficiary provision
extending to the City and the Port construction indemnities and warranties.
SECTION 20: MISCELLANEOUS
20.1. Notice. All notices hereunder shall be in writing and shall be delivered
personally, by certified or registered mail, by facsimile or by recognized overnight courier
addressed as follows:
To Lessor:
Port of Seattle
Attention: Lease Administration
P. O. Box 1209
2711 Alaskan Way
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Seattle, WA 98111
Facsimile: (206) 787-3280
For payments only, the following mailing address should be used:
Port of Seattle
P. O. Box 34249
Seattle, WA 98124-1249
To Lessee:
Clipper Navigation, Inc.
2701 Alaskan Way, Pier 69
Seattle, Washington
Facsimile: (206) 443-2583
or to such other respective addresses as either party hereto may hereafter from time to time
designate in writing. Notices shall be deemed delivered (i) when personally delivered; (ii) on
the third day after mailing when sent by certified or registered mail and the postmark affixed by
the United States Postal Service shall be conclusive evidence of the date of mailing; (iii) on the
date transmitted by facsimile, if the facsimile is confirmed received; or (iv) on the first business
day after deposit with a recognized overnight courier if deposited in time to permit overnight
delivery by such courier as determined by its posted cutoff times for receipt of items for
overnight delivery to the recipient.
Payments may be made in the manner provided for notice or may be delivered by regular mail
(postage prepaid); provided, payments made by regular mail (postage prepaid) shall be deemed
delivered when actually received by the Port.
20.2. Brokers. The Port and Lessee each warrant to the other that it has had no
discussions, negotiations and/or other dealings with any real estate broker or agent in connection
with the negotiation of this Lease, and that it knows of no other real estate broker or agent who is
or may be entitled to any commission or finder's fee in connection with this Lease. The Port and
Lessee each agree to indemnify and hold the other harmless from and against any and all claims,
demands, losses, liabilities, lawsuits, judgments, costs and expenses (including without
limitation, attorneys' fees and costs) with respect to any leasing commission or equivalent
compensation alleged to be owing on account of such party's discussions, negotiations and/or
dealings with any real estate broker or agent. This Section is not intended to benefit any third
parties and shall not be deemed to give any rights to brokers or finders. No commission(s) or
finder's fee(s) shall be paid to Lessee, employee(s) of Lessee or any unlicensed representative of
Lessee.
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20.3. Consent. Whenever the Port's prior consent or approval is required by this Lease,
the same shall not be unreasonably delayed but may, unless otherwise specifically provided by
this Lease, be granted or denied in the Port's sole and absolute discretion.
20.4. Wireless Devices. Lessee shall not install any wireless devices and/or
transmitters on or about the Premises without the prior written consent of the Port and subject to
any and all conditions in such consent. Lessee specifically grants to the Port the power to
regulate and control the use of unlicensed frequency bands (including, but not limited to, FCC
Part 15 Subpart C, FCC Part 15 Subpart D (both asynchronous and Isochronous), IEEE 802.11
and BlueTooth (ISM), and FCC UNII 1 and UNII 2 (IEEE 802.11a)) on or about the Premises.
20.5. Relationship to the Port and Lessee. Nothing contained herein shall be deemed or
construed as creating the relationship of principal and agent, partnership, or joint venture
partners, and no provision contained in this Lease nor any acts of Lessee and the Port shall be
deemed to create any relationship other than that of Lessee and the Port.
20.6. Time. Time is of the essence of each and every one of Lessee's obligations,
responsibilities and covenants under this Lease.
20.7. Recording. Lessee shall not record this Lease or any memorandum thereof
without the Port's prior written consent.
20.8. Subordination, Attornment. Unless otherwise designated by the Port, this Lease
shall be subordinate to all existing or future mortgages and deeds of trust on the Premises or any
larger property of which the Premises may be a part, and to all extensions, renewals or
replacements thereof. Within ten (10) days of the Port's request, Lessee shall execute and deliver
all instrument or certificates which may be necessary or appropriate to reflect such
subordination. Notwithstanding the foregoing, Lessee shall not be required to subordinate to
future mortgages or deeds of trust unless the mortgagee or beneficiary under the deed of trust
agrees that if it becomes the owner of the property, it will recognize the Lease as long as Lessee
is not in default. Within ten (10) days of the Port's request, Lessee shall also execute and deliver
to third parties designated by the Port an estoppel certificate or letter in the form requested by the
Port or any lender the correctly recites the facts with respect to the existence, terms and status of
this Lease. Lessee agrees to attorn to any successor to the Port following any foreclosure, sale or
transfer in lieu thereof.
20.9. Promotion of Port Commerce. Lessee agrees that throughout the term of this
Lease it will, insofar as practicable, promote and aid the movement of passengers and freight
through facilities within the territorial limits of the Port. Lessee further agrees that all incoming
shipments of commodities that it may be able to control or direct shall be made through facilities
within the territorial limits of the Port if there will be no resulting cost or time disadvantage to
Lessee.
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20.10. Nondiscrimination.
20.10.1. USDOT Acts and Regulations. Lessee for itself, its heirs, personal
representatives, successors in interest and assigns, as part of the consideration hereof, does herby
covenant an agree that in the event facilities are constructed, maintained or otherwise operated
on the Premises for a purpose for which a United States Department of Transportation program
or activity is extended or for another purpose involving the provision of similar services or
benefits, Lessee shall maintain and operate such facilities and services in compliance with all
requirements imposed by the "Acts and Regulations" (as may be amended) such that no person
on the grounds of race, color or national origin, will be excluded from participation in, denied the
benefits of, or be otherwise subjected to discrimination in the use of said facilities. The "Acts and
Regulations" referenced in this Section mean Title 49, Code of Federal Regulations, U.S.
Department of Transportation, Subtitle A, Office of the Secretary, part 21, Non-discrimination in
Federally-assisted programs of the U..S. Department of Transportation of Title VI of the Civil
Rights Act of 1964 and as said Regulations and Acts may be amended.
Lessee for itself, its personal representatives, successors in interest, and assigns,
as a part of the consideration hereof, does hereby covenant and agree that: (i) no person on the
grounds of race, color, or national origin shall be excluded from participation in, denied the
benefits of, or be otherwise subjected to discrimination in the use of said facilities, (ii) in the
construction of any improvements on, over, or under such land and the furnishing of services
thereon, no person on the grounds of race, color, or national origin shall be excluded from
participation in, denied benefits of, or otherwise be subjected to discrimination, and (iii) Lessee
shall use the premises in compliance with all other requirements imposed by or pursuant to the
Acts and Regulations, as amended, set forth in this Assurance.
Lessee will, at the timely request of the Port, (a) provide access to records,
facilities and staff as necessary to comply with DOT compliance reviews and/or complaint
investigations conducted by the DOT; and (b) provide information needed for preparation of
necessary reports or to meet evaluation requirements of the DOT.
Lessee hereby assures that it will include the above clauses in any subcontract(s)
approved by the Port and cause subcontractor(s) to similarly include clauses in further
subcontracts.
20.10.2. Non-discrimination services. In addition, Lessee agrees that, whether
or not this Lease is conducted with, or benefits from, Federal assistance, it shall in all matters
pertaining to the performance of this Lease conduct its business in a manner which assures fair,
equal and nondiscriminatory treatment of all persons without respect to race, sex, age, color,
creed, sexual preference, marital status, national origin, or the presence of any sensory, mental or
physical handicap.
20.10.3. Non- discrimination employment. Lessee will maintain open hiring
and employment practices and will welcome applications for employment in all positions from
all qualified individuals.
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20.10.4. Non-discrimination City of Seattle laws. Without limitation, in all
matters pertaining to the Facility, Lessee shall comply with the City of Seattle's laws prohibiting
discrimination in employment and contracting including Seattle's Fair Employment Practices
Ordinance, Chapter 14.04 and Fair Contracting Practices Code, Chapter 14.10 (or successor
provisions).
20.11. Labor Unrest. Lessee agrees to join with the Port and use its best efforts in
avoiding labor unrest, or in the event of a wildcat strike or other labor difficulty, to use its good
offices in negotiating and bringing to a swift and satisfactory conclusion any kind of labor
dispute that may affect the interests of the Port.
20.12. Federal Maritime Commission Regulations. This Lease may be subject to the
Shipping Act of 1984, the Shipping Act of 1916, the Ocean Shipping Reform Act of 1998, and
their respective implementing regulations. No future amendment or modification to this
instrument will be effective until the appropriate procedures, if any, have been completed in
accordance with the procedures of the appropriate federal agency which has jurisdiction over the
Shipping Acts.
20.13. Joint and Several Liability. Each and every party who signs this Lease, other
than in a representative capacity, as Lessee, shall be jointly and severally liable hereunder. It is
understood and agreed that for convenience the word "Lessee" and verbs and pronouns in the
singular number and neuter gender are uniformly used throughout this Lease, regardless of the
number, gender or fact of incorporation of the party who is, or of the parties who are, the actual
lessee or lessees under this agreement.
20.14. Captions. The captions in this Lease are for convenience only and do not in any
way limit or amplify the provisions of this Lease.
20.15. Governing Law; Venue. This Lease shall be construed under the laws of
Washington. Exclusive jurisdiction and venue for any action relating hereto shall be in the state
or federal courts located in King County, Washington.
20.16. Attorneys' Fees. In the event that either party shall be required to bring any
action to enforce any of the provisions of this Lease, or shall be required to defend any action
brought by the other party with respect to this Lease, and in the further event that one party shall
substantially prevail in such action, the losing party shall, in addition to all other payments
required therein, pay all of the prevailing party's actual costs in connection with such action,
including such sums as the court or courts may adjudge reasonable as attorneys' fees in the trial
court and in any appellate courts.
20.17. Invalidity of Particular Provisions. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be invalid or enforceable,
the remainder of this Lease or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable shall not be
affected thereby and shall continue in full force and effect.
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20.18. Survival of Indemnities. All indemnities provided in this Lease shall survive the
expiration or any earlier termination of this Lease. In any litigation or proceeding within the
scope of any indemnity provided in this Lease, Lessee shall, at the Port's option, defend the Port
at Lessee's expense by counsel satisfactory to the Port.
20.19. Entire Agreement; Amendments. This Lease, together with any and all exhibits
attached hereto, shall constitute the whole agreement between the parties. There are no terms,
obligations, covenants or conditions other than those contained herein. No modification or
amendment of this agreement shall be valid or effective unless evidenced by an agreement in
writing signed by both parties.
20.20. Exhibits. Exhibits A, and B, are attached to this Lease after the signatures and
by this reference incorporated herein.
SECTION 21: SIGNATURES
IN WITNESS WHEREOF the parties hereto have signed this Lease as of the day and
year first above written.
PORT OF SEATTLE CLIPPER NAVIGATION, INC.
By: _________________________________ By: _________________________________
Its: ______________________________ Its: ______________________________
POS Term Lease Agreement, #002534 - 30 -
Clipper Navigation, Inc.
XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
SECTION 22: ACKNOWLEDGMENTS
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
On this ___ day of ___________________, 20_______ before me personally appeared
____________________________, to me known to be the _________________________________ of the PORT
OF SEATTLE, the municipal corporation that executed the within and foregoing instrument, and acknowledged said
instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein
mentioned, and on oath stated that s/he was authorized to execute said instrument.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above
written.
_____________________________________________
(Signature)
_____________________________________________
(Print Name)
Notary Public, in and for the State of Washington,
residing at _____________________________________
My Commission expires: _________________________
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
On this ___ day of ___________________, 20_______ before me personally appeared
____________________________, to me known to be the _________________________________ of the
___________________________________, the individual/entity that executed the within and foregoing instrument
as Lessee, and acknowledged said instrument to be the free and voluntary act and deed of said individual/entity, for
the uses and purposes therein mentioned, and on oath stated that s/he was authorized to execute said instrument.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above
written.
_____________________________________________
(Signature)
_____________________________________________
(Print Name)
Notary Public, in and for the State of Washington,
residing at _____________________________________
My Commission expires: _________________________
POS Term Lease Agreement, #002534 - 31 -
Clipper Navigation, Inc.
XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
EXHIBIT A
LEGAL DESCRIPTION
VINE STREET, WEST OF ALASKAN WAY, ADJACENT TO PIER 69
PARCEL A: LOTS 5, 6, 7, 8, 9, 10, 11, AND 12, BLOCK 169, THE SUPPLEMENTAL PLAT
OF SEATTLE TIDE LANDS IN KING COUNTY, WASHINGTON.
PARCEL B: TOGETHER WITH ALL OF THE HARBOR AREA LYING IN FRONT OF
LOTS 5, 6, 7, 8, 9, 10, 11, AND 12, BLOCK 169, SEATTLE TIDE LANDS AND BOUNDED
BY THE INNER AND THE OUTER HARBOR LINES AND THE NORTH LINE OF SAID
LOT 5 AND THE SOUTH LINE OF SAID LOT 12, BOTH EXTENDED TO SAID OUTER
HARBOR LINE, AS SHOWN ON THE OFFICIAL MAPS OF SEATTLE TIDE LANDS ON
FILE IN THE OFFICE OF THE COMMISSIONER OF PUBLIC LANDS AT OLYMPIA,
WASHINGTON.
POS Term Lease Agreement, #002534 A-1
Clipper Navigation, Inc.
XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
EXHIBIT B
PREMISES
POS Term Lease Agreement, #002534 B-1
Clipper Navigation, Inc.
XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
POS Term Lease Agreement, #002534 B-2
Clipper Navigation, Inc.
XX/XX/201X
Item No. 6a Attach 2
Date of Meeting April 22, 2014
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