6f lease
Item # __6f Attach___
Date of Meeting: November 5, 2013___
LEASE AGREEMENT
Between
PORT OF SEATTLE
And
MASTERS, MATES AND PILOTS
MARITIME ADVANCEMENT TRAINING,
EDUCATION, AND SAFETY PROGRAM
DBA PACIFIC MARITIME INSTITUTE
POS Term Lease Agreement, #002448
Pacific Maritime Institute
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TABLE OF CONTENTS
SECTION 1 : LEASED PREMISES .............................................................................................. 1
SECTION 2 : TERM ...................................................................................................................... 2
SECTION 3 : RENT ....................................................................................................................... 2
SECTION 4 : SECURITY .............................................................................................................. 4
SECTION 5 : USE OF PREMISES ................................................................................................ 5
SECTION 6 : UTILITIES ............................................................................................................... 7
SECTION 7 : ALTERATIONS; OWNERSHIP OF CERTAIN INSTALLATIONS .................... 7
SECTION 8 : MAINTENANCE AND REPAIR ........................................................................... 8
SECTION 9 : TAXES ..................................................................................................................... 9
SECTION 10 : COMMON AREAS ............................................................................................... 9
SECTION 11 : INSURANCE AND INDEMNITY ..................................................................... 10
SECTION 12 : DAMAGE OR DESTRUCTION ......................................................................... 13
SECTION 13 : ASSIGNMENT AND SUBLEASE ..................................................................... 14
SECTION 14 : DEFAULT ........................................................................................................... 16
SECTION 15 : TERMINATION OTHER THAN FOR DEFAULT ........................................... 18
SECTION 16 : ACCESS; EASEMENTS ..................................................................................... 19
SECTION 17 : NONWAIVER; RIGHT TO PERFORM............................................................. 20
SECTION 18 : SURRENDER AND HOLDING OVER ............................................................. 21
SECTION 19 : ENVIRONMENTAL STANDARDS .................................................................. 22
SECTION 20 : MISCELLANEOUS ............................................................................................ 24
SECTION 21 : SIGNATURES ..................................................................................................... 28
SECTION 22 : ACKNOWLEDGMENTS ................................................................................... 29
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made as of this ____ day of ___________,
20___, by and between the PORT OF SEATTLE, a Washington municipal corporation ("the
Port"), and MASTERS, MATES AND PILOTS MARITIME ADVANCEMENT, TRAINING,
EDUCATION, AND SAFETY PROGRAM, a Maryland non-profit Trusteeship, DBA PACIFIC
MARITIME INSTITUTE ("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 at the Port property commonly
known as a portion of the Port's Pier 34, a legal description of which is attached hereto as
Exhibit A:
Approximately fifteen thousand five hundred eighty-four (15,084) square feet of
office space, commonly referred to as 1729 Alaskan Way South, Seattle,
Washington, within the Building, all as shown on the attached Exhibit B.
Approximately twenty-nine thousand five hundred forty-five (29,545) square feet of land
space, as shown on the attached Exhibit B.
Together with a non-exclusive right to use the Port-owned roadway on the south side of
the premises for vehicular access to and from the premises at Pier 34 as shown on the
attached Exhibit B.
At such time that the Tenant, at Tenant's discretion, with written notice to the Port,
performs any and all abatement work related to regulated material within the boiler room
space at Tenant's sole cost and expense, and subject to the Port's inspection and written
acceptance of the completed abatement, the square footage for the office space will
increase to 15,584 square feet with the inclusion of the additional 500 square feet of
former boiler room space.
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.
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SECTION 2: TERM
2.1 Lease Term. This Lease shall be for a term of ten (10) years, beginning at 12:01
a.m. on April 1, 2014, and, unless extended pursuant to Section 2.2, ending at 11:59 p.m. on
March 31, 2024.
2.2 Option to Extend. If Lessee is in compliance with the terms and conditions of this
Lease, Lessee has, upon written notice to the Port given not less than 120 days or more than 180
days in advance of expiration of the initial (or extended) Lease term, the option to renew this
Lease for one (1) additional five (5) year term.
2.3 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 rent
("Base Rent") for the Premises computed as follows:
15,084 sf office @ $9.40/sf/yr = $141,789.60/yr 12 = $11,815.80/mo.
29,545 sf land @ $2.90/sf/yr = $85,680.50/yr 12 = $7,140.04/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.
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3.2 Adjustments to Base Rent.
3.2.1 Annual Increase. The Base rent for the office (15,084 sf) and land
(29,545 sf), including any future increase to Premises, as stated in Section 3 shall be adjusted
annually by 2.5% on the anniversary of the commencement date and every twelfth (12th) month
thereafter through the term of this Lease, including any extension term.
3.2.2 Market Rate. The Base Rent stated in Section 3.1 shall be subject to
renegotiation effective at the end of the sixtieth month following the commencement of this
Lease. The Port will give Lessee written notice for proposed Based Rent applicable to the
forthcoming rent period not less than 180 nor more than 270 days prior to an effective date of the
commencement of the rent period. Promptly following such notice of renegotiation, the parties
shall negotiate in good faith for the renegotiated Base Rent for the forthcoming period. Unless
expressly provided to the contrary in another paragraph of this lease, such renegotiated Base
Rent shall be the fair market rental value of the Premises. The value of any improvements to the
Premises financed by Lessee at no cost to the Port shall be excluded in determining the fair
market rental value of the Premises. In the Port's initial offer during renegotiation of the Base
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 Base Rent prior to sixty (60) days before the effective
date for renegotiated rent, the Base 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 twenty-one (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.
3.2.3 Boiler Room Space. Upon written notice to the Tenant of the Port's
acceptance of the abatement work within the former boiler room space, the rent will increase
subject to the then current rate of the office space.
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
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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.
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 equal to the average of six month's Base Rent over the
term of the lease. For purposes of the calculation for the Security, the Port assumes the Base
Rent will increase at 2.5% each year through year ten, which equates to ONE HUNRED
TWENTY-SEVEN THOUSAND TWENTY-ONE AND 72/100 ($127,421.72) as an average six
month's rent. (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 after the
expiration of any applicable notice and cure periods. 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
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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 a maritime classroom training
facility, for simulation, for basic safety training, technical engineer training and similar uses, and
general offices and shall not use them for any other purpose without the written consent of the
Port which consent will not be unreasonable withheld or delayed.
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 commercially reasonable 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, 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.
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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 5.2 or 5.3, Lessee
shall comply at all times with all local, state and federal laws, rules and regulations relating to
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. Except for signs existing on the date of commencement of this Lease,
which shall be deemed to be approved by the Port, 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, which shall not be unreasonably withheld or
delayed. 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.
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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, ADT or equivalent, gas, water, sewerage, recycling, garbage disposal and
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.
Notwithstanding the forgoing, Lessee may make certain Alterations to the Premises, as set forth
on, and otherwise in conformance with the terms and conditions provided in, the Work
Agreement attached hereto as Exhibit C (the "Work").
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
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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.
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 both
outside and inside, 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 keep the glass of all windows and doors on the Premises clean and
presentable, shall replace all cracked or broken glass in the Premises, shall keep the mechanical
and electrical systems and all drains clean and in a good state of repair, shall protect the sprinkler
system and all pipes and drains so that they will not freeze or become clogged and shall not
permit or suffer any waste, damages, or disfigurement to or upon the Premises or any part
thereof. Lessee shall, at its sole cost and expenses, keep the land being used for parking vehicles
in good repair and condition including the striping.
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.
Lessee shall also specifically remove all snow and ice from the sideway in front of the Premises.
8.2 Maintenance and Repair by Port. Notwithstanding anything to the contrary in
Section 8.1, the Port shall repair and maintain the roof (both structure and covering/membrane),
exterior walls, foundation and building structure of the Premises in good order, condition and
repair. The Port shall perform this work at its sole cost and expense, except to the extent that any
such repairs may be required as a result of damage caused by negligence of Lessee or its agents,
employees, invitees or licensees, in which event the work shall be at the cost or expense of
Lessee. The Port shall be responsible for installation of new asphalt overlay to the parking lot
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with timing for such work at the Port's discretion. The Port shall perform such repair or
maintenance work called to its attention by Lessee within a reasonable period of time after
receipt of such notice by Lessee. There shall be no abatement or reduction of Rent, and the Port
shall not be responsible for any loss or damages to Lessee's business, arising by reason of the
Port making any repairs, alterations or improvements.
The Port shall perform at its sole cost and expense a one-time repair of the land being used for
parking vehicles. The repair shall consist of fill-in of any potholes, paint and stripping and if the
Port deems it necessary include an overlay of the asphalt. The timing of such repairs shall be at
the Port discretion, but within the term of this lease.
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
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 Roof. The Lessee understands that the Port has a lease with a third party for a
roof-mounted sign. Lessee, throughout the term of this lease with reasonable prior notice, will
allow the Port and/or its tenant to access the roof-mounted sign.
10.2 License. All common areas and facilities which Lessee is permitted to use and
occupy are used and occupied under a revocable license. If the amount of such areas or facilities
is revised or diminished, such revision or diminution shall not be deemed a constructive or actual
eviction, and the Port shall not be subject to any liability, nor shall Lessee be entitled to any
compensation or reduction or abatement of Rent.
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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: (a) 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 (b) 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 (c) any fault or negligence by Lessee
or any sublessee, licensee, invitee or concessionaire of the Lessee or of any officer, agent,
employee, guest or invitee of any such person; and (d) any failure on Lessee's part to comply
with any of the covenants, terms and conditions contained in this Lease; 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.
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.
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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 $1 (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. This limit
shall be identified on the Certificate of Insurance.
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. Lessee shall provide a Waiver of Subrogation on this
policy in favor of the Port. Such insurance shall cover any "Auto" (i.e. owned, hired and nonowned
) 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 intrainsured
exclusions as between insured persons or organizations.
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 Lessee's 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 of 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
the Legal Requirement as the result of the 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 of 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.
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11.2.1.4 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; Per Location 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. If at any time during the term, Lessee
shall have in full force and effect a blanket policy of commercial general liability and umbrella
liability insurance covering the Premises and other premises and/or properties of Lessee, such
insurance shall satisfy the requirements hereof, provided said policy contains a specific
endorsement providing a minimum amount of coverage applicable to the Premises equal to or
greater than the amount required above (i.e. a "per location" endorsement).
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 that the insurance required
herein has been purchased and is compliant with the Lease requirements within ten (10) 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 for the date of the
termination, cancellation or non-renewal. 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, loss payee
endorsements for property insurance, waivers of subrogation and any other documentation or
endorsement that provides evidence of the existence and amounts of such insurance as required
by this Lease. 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.
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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
terminate this Lease under Section 12.2, use reasonable efforts to promptly 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, upon 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
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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 which consent shall not be unreasonably withheld or
delayed; provided the uses of the Premises is not changed from that permitted pursuant to
Section 5.1 of this Lease. 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
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
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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 One Hundred Dollars
($100.00) 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, fifty percent (50%) of the excess of each such payment of
rent or other consideration received by Lessee after its receipt. The provisions of this Section do
not apply to Lessee's sublessee referenced in Section 13.4 of this Lease.
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.
13.4 Approved Sublease. Notwithstanding the foregoing, the Port shall provide its
consent to Lessee subletting portions of the Premises to Pacific Maritime Association
("Sublessee") provided that the sublease is in writing, that the Port approves the written sublease
prior to final execution by the parties, and that the Lessee and Sublessee execute the Port's
standard Conditional Consent to Sublease form. The Port's conditional consent to subletting to
Sublessee applies only to Sublessee and no other potential sublessee or assignee.
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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.
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 actually
incurred ("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:
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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.
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
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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 (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
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.
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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. 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 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 fifteen (15) 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.
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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
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, and if the failure isn't cured in the time frames as set
forth in Section 14.2.1 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.
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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 Removal of Wires. Within ten (10) days following the expiration or earlier
termination of this Lease, the Port may elect by written notice to Lessee to either:
18.2.1 Retain, without necessity of payment, any or all wiring, cables,
conduit, risers and similar installations installed by Lessee ("Wiring") in either the Premises or
any larger property (including buildings or structures) of which the Premises are a part. In the
event that the Port elects to retain the wiring, Lessee covenants that: (i) it is the sole owner of the
assets transferred or passing to the Port, (ii) it shall have right to surrender the assets transferred
or passing to the Port, (iii) the Wiring transferred or passing to the Port are free from all liens and
encumbrances, (iv) the Wiring transferred or passing to the Port is in good condition, working
order, in safe condition and comply with the requirements of this Agreement, and (v) that all
wiring or cables included within the Wiring transferred or passing to the Port is properly labeled
at each end, in each telecommunications/electrical closet and junction box, and otherwise as may
be required by Port regulations. OR
18.2.2 Remove, or required Lessee to remove, all such Wiring and restore
the Premises and any larger property of which the Premises are a part to their condition existing
prior to the installation of the Wiring, all at Lessee's sole cost and expense.
This Section shall survive the expiration or earlier termination of this Lease.
18.3 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
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.
18.4 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.
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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 Lessee acknowledges that the Premises are subject to the requirements of the City
of Seattle ("City") ordinance regarding stormwater drainage, source control, and other applicable
City requirements as well as Washington State Department of Ecology ("Ecology") stormwater
regulations and permits. Lessee will comply with all requirements of the City ordinance and
Ecology regulations and permits, including the preparation of and compliance with state
Industrial General Stormwater Permits or the Phase I Municipal Permits. If the state or the City
cites the Port for violations of the ordinance, Lessee will fully defend and indemnify the Port for
any damages, penalties, or other assessments made against the Port for the violations. Lessee will
pay the Port's attorneys' fees in connection with any enforcement actions carried out against the
Port for such violations.
19.4 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 unless such violation is a result of Hazardous Substances that Lessee
can demonstrate existed prior to the date hereof. 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.
19.5 Inspection; Test Results. The Port shall have access to the Premises to conduct an
annual environmental inspection at the Port's expense. In addition, Lessee shall permit the Port
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access to the Premises at any time upon reasonable notice for the purpose of conducting
environmental testing at the 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.
19.6 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.
19.7 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).
19.8 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 reasonable 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. Provided, however, Lessee's obligations under this Section 19, including
the duty to indemnify the Port pursuant to this Section 19.8.g., shall not apply with respect to any
Hazardous Substance either (a) first existing on the Premises, (b) first released in, on or under the
Premises, or (c) first migrating from the Premises to other areas of the surrounding environment,
prior to the commencement of this Agreement (collectively, the "Preexisting Hazardous
Substances"). In the event Lessee is required to remediate Preexisting Hazardous Substances by
a government agency with jurisdiction, or named as a defendant in a suit alleging injury,
damages or loss from Preexisting Hazardous Substances, the Port shall indemnify, defend and
hold the Lessee harmless from liabilities, losses and expenses resulting from such action to the
extent such liabilities, losses and expenses arise from Preexisting Hazardous Substances.
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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
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:
Bill Anderson
Pacific Maritime Institute
1729 Alaskan Way South
Seattle, Washington 98134-1711
Glen Paine
Executive Director
MM&P MATES Program
5700 Hammonds Derry Road
Linthicum Heights, Maryland 21090-1996
Barry Reese
Controller
MTAGS-PMI
692 Maritime Boulevard
Linthicum Heights, Maryland 21090-1996
With a copy to:
William C. Carrier, III, Esquire
Tydings & Rosenberg LLP
100 East Pratt Street, 26th Floor
Baltimore, Maryland 21202
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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; or (iii) 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 other than
Edwin Mirsky Real Estate Services as broker representing the Tenant 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 other than Edwin Mirsky Real Estate Services. 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.
20.3 Commission. The Port shall pay Edwin Mirsky Real Estate Services a
commission equal to five percent (5%) of the Base Rent revenue for years one through five and
two and one-half (2.5%) for years six through ten for a total commission of $93,602.30; one half,
$46,801.15, shall be due and payable upon execution of this lease by the Port and Lessee. Onehalf
the commission, equal to the amount of $46,801.15 shall be due and payable upon the
Commencement Date for Rent as set forth in this Lease.
20.4 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.
20.5 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.
Notwithstanding anything in this Section 20.5 to the contrary, the Port specifically consents to
Lessees continued use of existing and previously authorized GMDSS transceivers, VHF/HF
radios, and internet/phone access system (Microwave to Seattle access point).
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20.6 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.
20.7 Time. Time is of the essence of each and every one of Lessee's obligations,
responsibilities and covenants under this Lease.
20.8 Recording. Lessee shall not record this Lease or any memorandum thereof
without the Port's prior written consent.
20.9 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.
20.10 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.
20.11 Nondiscrimination Services.
20.11.1 Lessee agrees that it will not discriminate by segregation or otherwise
against any person or persons because of race, sex, age, creed, color or national origin in
furnishing, or by refusing to furnish to such person or persons, the use of the facility herein
provided, including any and all services, privileges, accommodations, and activities provided
thereby.
20.11.2 It is agreed that Lessee's noncompliance with the provisions of this
clause shall constitute a material breach of this Lease. In the event of such noncompliance, the
Port may take appropriate action to enforce compliance, may terminate this Lease, or may pursue
such other remedies as may be provided by law.
20.11.3 Nondiscrimination Employment. Lessee covenants and agrees that
in all matters pertaining to the performance of this Lease, Lessee shall at all times conduct its
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1.1to race, sex, age, color, creed or national origin and, in particular: business in a
manner which
assures fair,
equal and nondiscriminatory treatment of all persons without respect Lessee will maintain
open hiring and employment practices and will welcome applications for employment in all
positions from qualified individuals who are member of racial or other minorities, and
20.11.4 Lessee will comply strictly with all requirements of applicable
federal, state and local laws or regulations issued pursuant thereto relating to the establishment of
nondiscriminatory requirements in hiring and employment practices and assuring the service of
all patrons or customers without discrimination as to any person's race, sex, age, creed, color or
national origin.
20.12 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.
20.13 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.
20.14 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.
20.15 Captions. The captions in this Lease are for convenience only and do not in any
way limit or amplify the provisions of this Lease.
20.16 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.
20.17 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.
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20.18 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.
20.19 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.
20.20 License. Lessee's right of access to the Premises shall be by License, attached as
Exhibit D (which shall allow ingress/egress over the existing roadway lying within the
northeasterly 75 feet, as measured at right angles to the lot line, of the easterly 311.60 feet, as
measured along the north line, of Lot 6, Block 370, Plat of Seattle Tide Lands in the City of
Seattle, King County, Washington). Provided however, Lessee shall effect the removal of the
existing Ingress/Egress Easement recorded as 2003081002368 by the Commencement Date of
this Lease.
20.21 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.
20.22 Exhibits. Exhibits A, B, C and D 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 MASTERS, MATES AND PILOTS MARITIME
ADVANCEMENT TRAINING, EDUCATION,
AND SAFETY PROGRAM DBA PACIFIC
MARITIME INSTITUTE
By: _________________________________ By: ____________________________________
Its: ______________________________ Its: __________________________________
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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: _________________________
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EXHIBIT A
LEGAL DESCRIPTION
Those portions of Lots 3, 4 and 5 in Block 370 of Seattle Tide
Lands, according to plat thereof filed in the Office of the
Commissioner of Public Lands at Olympia, Washington, described
as follows:
Beginning at the Southeast corner of said Lot 5;
thence Westerly along the Southerly line thereof 311.595 feet to
a point;
thence Northerly at right angles 128.5 feet to a point;
thence Easterly along a line parallel with said Southerly line
to the Easterly line of said block;
thence Southerly along said Easterly line to the Point of
Beginning;
Situate in the City of Seattle, County of King, State of
Washington.
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EXHIBIT B
PREMISES
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EXHIBIT C
WORK AGREEMENT
1. The Tenant Work. Under the Lease, Tenant has agreed to accept the Premises in their
current condition without any obligations for the performance of additional improvements or
other work by Landlord. Notwithstanding the foregoing, Landlord has agreed that Tenant may
perform certain Tenant Improvements, which shall be limited to new carpet and one new HVAC
unit. The Tenant Improvements shall be in accordance with the provisions of this Work
Agreement and, to the extent not inconsistent herewith, the provisions of the Lease. Performance
of the Tenant Improvements shall not serve to abate the payment of Rent or otherwise extend the
Rent Commencement Date under the Lease.
2. Cost of the Work. Except as provided hereinafter, Tenant shall pay all costs (the "Costs
of the Work") associated with the Tenant Improvements whatsoever, including without
limitation, all permits, inspection fees, fees of architects, engineers, and contractors, utility
connections, the cost of all labor and materials, bonds, insurance, and any structural or
mechanical work, additional HVAC equipment or sprinkler heads, or modifications to any
building mechanical, electrical, plumbing or other systems and equipment or relocation of any
existing sprinkler heads, either within or outside the Premises required as a result of the layout,
design, or construction of the Tenant Improvements.
3. Review and Approval.
3.1. Preliminary Plan and Specifications.
3.1.1. Submission. No later than thirty (30) days after the mutual execution of
the Lease, Tenant shall submit two (2) sets of a "Preliminary Plan" (as described in Section 12
herein) to Landlord for approval.
3.1.2. Review. Landlord shall, within ten (10) working days after receipt thereof,
either approve said Preliminary Plan, or disapprove the same advising Tenant of the reasons for
such disapproval. If necessary, Landlord shall also endeavor to obtain Landlord's insurers
approval of any sprinkler drawings. In the event Landlord disapproves said Preliminary Plan,
Tenant shall modify the same, taking into account the reasons given by Landlord for said
disapproval, and shall submit two sets of the revised Plan to Landlord within five (5) days after
receipt of Landlord's initial disapproval.
3.2. Working Drawings and Engineering Report.
3.2.1. Submission. No later than sixty (60) days after mutual execution of this
lease, Tenant shall submit to Landlord for approval two (2) sets of "Working Drawings" (as
defined in Section 12 herein), and a report (the "Engineering Report") from Tenant's
mechanical, structural and electrical engineers indicating any special heating, cooling,
ventilation, electrical, heavy load or other special or unusual requirements of Tenant.
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3.2.2. Review. Landlord shall, within ten (10) working days after receipt thereof,
either approve the Working Drawings and Engineering Report, or disapprove the same advising
Tenant of the reasons for disapproval. If necessary, Landlord shall also endeavor to obtain
Landlord's insurers approval of any sprinkler drawings. If Landlord disapproves of the Working
Drawings or Engineering Report, Tenant shall modify and submit revised Working Drawings,
and a revised Engineering Report, taking into account the reasons given by Landlord for
disapproval, within five (5) days after receipt of Landlord's initial disapproval.
3.3. Change Orders. No changes, modifications, alterations or additions to the
approved Preliminary Plan or Working Drawings may be made without the prior written consent
of Landlord after written request therefore by Tenant. In the event that the Premises are not
constructed in accordance with said approved Preliminary Plan and Working Drawings, then
Tenant shall not be permitted to occupy and/or conduct business from the Premises until the
Premises reasonably comply in all respects with said approved Preliminary Plan and Working
Drawings; in such case, the Rent shall nevertheless commence to accrue and be playable as
otherwise provided in the Lease.
3.4. Final Inspection. Landlord's acceptance of the Tenant Improvements as being
complete in accordance with the approved Preliminary Plan and Working Drawings shall be
subject to Landlord's inspection and written approval. Tenant shall give Landlord five (5) days
prior written notification of the anticipated completion date of the Tenant Improvements.
3.5. Landlord's Approval.
3.5.1. Landlord shall not unreasonably withhold approval of any Preliminary
Plan, Working Drawings, Engineering Report, or Change Order submitted hereunder if they
provide for a customary layout, are compatible with the Building's shell and core construction,
and will not require any structural modifications to the Building, whether required by heavy
loads or otherwise.
3.5.2. Landlord's approval of Tenant's Preliminary Plans, Working Drawings,
Engineering Report or Change Order, and Landlord's recommendations or approvals concerning
contractors, subcontractors, engineers or architects (if any) shall not be deemed a warranty as to
the quality or adequacy of the Tenant Improvements, or the design thereof, or of its compliance
with Laws, codes and other legal requirements.
4. Compliance. The Tenant Improvements shall comply in all respects with the
following: (a) the Building Code of the City and State in which the Building is located and
State, County, City or other laws, codes, ordinances and regulations, as each may apply
according to the rulings of the controlling public official, agent or other such person, (b)
applicable standards of the National Board of Fire Underwriters and National Electrical Code,
and (c) building material manufacturer's specifications. If necessary, the Tenant Improvements
shall also comply with the requirements of Landlord's insurer.
5. Architects, Engineers, and Contractors.
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5.1. Qualified Professionals. The Preliminary Plan, Working Drawings, Engineering
Report and the Tenant Improvements, shall be prepared and performed by licensed, reputable
and qualified architects, engineers and contractors.
5.2. Insurance Requirements.
5.2.1. Professional Liability. All architects and engineers shall carry professional
liability insurance with limits not less than one million dollars per claim ($1,000,000).
5.2.2. Worker's Compensation. All contractors and subcontractors shall carry
Worker's Compensation Insurance covering all of their respective employees in the statutorily
required amounts.
5.2.3. General Liability. All contractors and subcontractors shall each separately
obtain and keep in force a policy of general liability insurance consistent with the requirements
of Sections 11.2.1.1 and 11.2.1.2 of the Lease; provided, however, (i) the limit for such insurance
shall be at least three million dollars ($3,000,000) notwithstanding any other amount set forth in
the Lease, and (ii) the policies therefore shall cover both Landlord and Tenant, as additional
insureds. Evidence of such insurance shall be delivered to Landlord before the construction is
commenced or contractor's equipment is moved onto the building.
6. Performance.
6.1. The Tenant Improvements shall be commenced promptly following the
Possession Date, and shall thereafter be diligently prosecuted to completion, subject only to
delays for reasons beyond Tenant's control (except financial matters). All Tenant Improvements
shall conform with the Working Drawings approved by Landlord in writing, and Landlord may
periodically inspect the Tenant Improvements for such compliance. The Tenant Improvements
shall be coordinated under Landlord's direction with other work being done or to be performed
for or by other tenants in the building so that the Tenant Improvements will not interfere with or
delay the completion of any other construction work in the building.
6.2. Tenant shall perform the Tenant Improvements in a thoroughly safe, first-class
and workmanlike manner in conformity with the approved Preliminary Plan and Working
Drawings, and shall be in good and usable condition at the date of completion.
6.3. Tenant shall be required to obtain and pay for all necessary permits and/or fees
with respect to the Tenant Improvements, copies of which shall be provided to Landlord prior to
commencement of the Tenant Improvements.
6.4. Each contractor and subcontractor shall be required to obtain prior written
approval from Landlord for any space outside the Premises within the building, which such
contractor or subcontractor desires to use for storage, handling, and moving of his materials and
equipment, as well as for the location of any facilities or personnel. Nothing in the paragraph
shall, however, give rise to any obligation on Landlord to provide such space.
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6.5. The contractors and subcontractors shall be required to remove from the Premises
and dispose of, at least once a week and more frequently as Landlord may direct, all debris and
rubbish caused by or resulting from the construction. Upon completion of the Tenant
Improvements, the contractors and subcontractors shall remove all surplus materials, debris and
rubbish of whatever kind remaining within the building which has been brought in or created by
the contractors and subcontractors in the performance of the Tenant Improvements. If any
contractor or subcontractor shall neglect, refuse or fail to remove any such debris, rubbish,
surplus material or temporary structures within two (2) days after notice to Tenant from Landlord
with respect thereto, Landlord may cause the same to be removed by contract or otherwise as
Landlord may determine expedient, and charge the cost thereof to Tenant as additional Rent
under the Lease.
6.6. Tenant shall obtain utility service, including meter, from the utility company
supplying service, unless Landlord elects to supply service and/or meters. Tenant shall obtain
and furnish Landlord copies of all approvals with respect to electrical, water and telephone work
as may be required by the respective company supplying the service.
6.7. Tenant shall, at its cost and expense construct, purchase, install and perform any
and all work included within the Tenant Improvements so as to obtain any governmentally
required certificate of occupancy and to occupy the Premises as soon as possible.
6.8. Copies of "as built" drawings shall be provided to Landlord no later than thirty
(30) days after completion of the Tenant Improvements.
7. Liens. Tenant shall keep the Premises, the building and surrounding areas free from any
mechanic's, materialman's or similar liens or other such encumbrances in connection with the
Tenant Improvements, and shall indemnify and hold Landlord harmless from an against any
claims, liabilities, judgments, or costs (including attorneys' fees) arising in connection therewith.
Tenant shall remove any such lien or encumbrance by bond or otherwise within thirty (30) days
after written notice by Landlord, and if Tenant shall fail to do so, Landlord may pay the amount
necessary to remove such lien or encumbrance , without being responsible for investigating the
validity thereof. The amount paid shall be deemed additional rent under the Lease payable upon
demand, without limitation as to other remedies available to Landlord under the Lease. Nothing
contained herein shall authorize Tenant to do any act which shall subject Landlord's title to the
building or Premises to any liens or encumbrances whether claimed by operation of law or
express or implied contract. Any claim to a lien or encumbrance upon the building or Premises
arising in connection with the Tenant Improvements shall be null and void, or at Landlord's
option shall attach only against Tenant's interest in the Premises and shall in all respects be
subordinate to Landlord's title to the building and Premises.
8. Certain Definitions. As used in this Work Agreement, the following terms shall have the
meanings provided in this Section.
8.1. Preliminary Plan. "Preliminary Plan" shall mean and refer to a plan, drawn to
scale, showing: (1) demising walls, corridor doors, interior partition walls and interior doors (if
any), (2) any restrooms, kitchens, computer rooms, file rooms and other special purpose rooms,
and any sinks or other pluming facilities, or other special facilities or equipment, (3) all utility
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connections, (4) any communications system, indicating telephone and computer outlet location,
(5) and other Lines (as defined in the Lease), and (6) any other details or features required to
reasonably delineate the Work to be performed.
8.2. Working Drawings. "Working Drawings" shall mean and refer to fully
dimensioned architectural construction drawings and specifications, and any required
engineering drawings (including mechanical, electrical, plumbing, air-conditioning, ventilation
and heating), and shall include any applicable items described above for the Preliminary Plan,
and if applicable: (1) electrical outlet locations, circuits and anticipated usage therefore, (2)
reflected ceiling plan, including lighting, switching, and any special ceiling specifications, (3)
duct locations for heating, ventilating and air-conditioning equipment, (4) dimensions of all
equipment and cabinets to be built in, (5) location of all Lines (as defined in the Lease), (6)
location of any equipment or systems (with brand names wherever possible) which require
special consideration relative to air-conditioning, ventilation, electrical, plumbing, structural, fire
protection, life-fire-safety system, or mechanical systems, (7) weight and location of heavy
equipment, and anticipated loads for special usage rooms, and (8) any other details or features
required to completely delineate the Work to be performed.
9. Incorporation into Lease; Defaults.
9.1. Incorporation. The Parties agree that the provisions of this Work Agreement are
hereby incorporated by this reference into the Lease fully as though set forth therein. In the event
of any express inconsistencies between the Lease and this Work Agreement, the latter shall
govern and control.
9.2. Defaults. If Tenant shall default under this Work Agreement, Landlord may order
that all Tenant Improvements being performed in the Premises be stopped immediately, and that
no further deliveries to the Premises be made, until such default is cured, without limitation as to
Landlord's other remedies. Any amounts payable by Tenant to Landlord hereunder shall be paid
as additional rent under the Lease. Any default by the other party hereunder shall constitute a
default under the Lease and shall be subject to the remedies and other provisions applicable
thereto under the Lease. If Tenant shall default under the Lease or this Work Agreement and fail
to cure the same within the time permitted for cure under the Lease, at Landlord's option, all
amounts paid or incurred by Landlord towards the Improvement Allowance shall become
immediately due and payable as additional Rent under the Lease.
Tenant Reimbursement. Landlord shall contribute a Tenant Improvement Allowance of up to
EIGHTY-FIVE THOUSAND AND NO/100 DOLLARS ($85,000) (the "Tenant Improvement
Allowance") towards Tenant's hard and soft costs and expenses incurred by Tenant in designing,
permitting, and constructing the Tenant Improvements. Landlord shall reimburse Tenant within
ten (10) business days after Tenant has submitted to Landlord: (i) an invoice for the Tenant
Improvement Allowance, (ii) the required "as-built" drawings, including mechanical, plumbing
and electrical details, and (iii) a certificate from Tenant's architect or contractor setting forth the
description of the work performed, materials furnished, and costs thereof incurred by or on
behalf of Tenant. Tenant must request reimbursement within thirty (30) days of the substantial
completion of the Tenant Improvements provided by the Tenant, but not later than July 31, 2014.
Landlord's obligation to pay the Tenant Improvement Allowance is expressly conditioned upon
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the Tenant's timely request for such Tenant Improvement Allowance and submission of all
documentation required to make such request for the Tenant Improvement Allowance. Any
unused/unclaimed portion of the Tenant Improvement Allowance shall be forfeited and not
otherwise payable to Tenant.
# # #
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EXHIBIT D
LICENSE
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