6b attach reduced
Item No. 6b_attach
Date of Meeting September 12, 2017
WORLD TRADE CENTER WEST BUILDING
LEASE AGREEMENT
BETWEEN
PORT OF SEATTLE
Landlord
and
WASHINGTON TECHNOLOGY INDUSTRY
ASSOCIATION
Tenant
TABLE OF CONTENTS
SECTION 1: DEFINITIONS.......................................................................................................... 1
SECTION 2: TERM ....................................................................................................................... 3
SECTION 3: RENT ........................................................................................................................ 3
SECTION 4: SECURITY ............................................................................................................... 5
SECTION 5: USES......................................................................................................................... 6
SECTION 6: SERVICES AND UTILITIES .................................................................................. 7
SECTION 7: COSTS OF OPERATIONS AND TAXES............................................................... 9
SECTION 8: CARE AND IMPROVEMENT OF PREMISES.................................................... 11
SECTION 9: TELECOMMUNICATIONS LINES AND EQUIPMENT.................................... 13
SECTION 10: COMMON AREAS.............................................................................................. 15
SECTION 11: INDEMNIFICATION........................................................................................... 16
SECTION 12: INSURANCE........................................................................................................ 16
SECTION 13: DAMAGE OR DESTRUCTION.......................................................................... 18
SECTION 14: ASSIGNMENT AND SUBLETTING ................................................................. 19
SECTION 15: DEFAULTS AND REMEDIES ........................................................................... 21
SECTION 16: TERMINATION OTHER THAN FOR DEFAULT ............................................ 23
SECTION 17: PRIORITY ............................................................................................................ 24
SECTION 18: ACCESS AND EASEMENTS. ............................................................................ 25
SECTION 19: NON-WAIVER; RIGHT TO PERFORM ............................................................ 26
SECTION 20: SURRENDER AND HOLDING OVER.............................................................. 27
SECTION 21: ENVIRONMENTAL STANDARDS................................................................... 27
SECTION 22: MISCELLANEOUS ............................................................................................. 28
SECTION 23: ACKNOWLEDGMENTS .................................................................................... 32
POS Term Lease Agreement #003035
World Trade Center West Building
Washington Technology Industry Association
LEASE AGREEMENT
WORLD TRADE CENTER WEST BUILDING
THIS LEASE made this ________ day of _________________, 20____ ("Effective
Date") between the PORT OF SEATTLE, a Washington municipal corporation ("Landlord"),
and WASHINGTON TECHNOLOGY INDUSTRY ASSOCIATION, a Washington non-profit
corporation ("Tenant").
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Landlord and Tenant agree as follows:
SECTION 1: DEFINITIONS.
The following terms as used in this Lease shall have the meanings provided in this Section,
unless otherwise specifically modified by provisions of this Lease. Other terms may be defined
elsewhere in the Lease.
1.1. Building and Premises.
1.1.1. Building. "Building" shall mean The World Trade Center West
Building, or such other name as Landlord may designate from time to time, situated on a portion
of the real property located in the City of Seattle, legally described in its entirety on Exhibit A
attached hereto and incorporated herein, and with an address of 2200 Alaskan Way, Seattle,
Washington 98121 in King County. Unless the context clearly requires otherwise, the Building
specifically includes the land upon which the Building is located.
1.1.2. Premises. "Premises" shall mean 9,155 rentable square feet within
Suite 390 on the third floor of the Building, as outlined on the floor plan attached hereto and
incorporated herein as Exhibit B.
1.1.3. Expansion Space. "Expansion Space" shall mean the additional 2,516
rentable square feet that is a component of the Premises.
1.2. Rent and SecurityDefined.
1.2.1. Rent. "Rent" shall mean and refer collectively to sums denominated
as either Base Rent as set forth in Section 3.1, Additional Rent as set forth in Section 7, or any
such other sums or charges otherwise payable by Tenant under the terms of this Lease. Landlord
will adjust Rent and Additional Rent from time-to-time as set forth in Sections 3 and 7. Failure
by Tenant to pay any sum denominated as Rent shall entitle Landlord 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.
1.2.2. Security. "Security" or "Security Deposit" shall mean FIFTY
THOUSAND THREE HUNDRED SIXTY AND 00/100 ($50,360.00) which is equal to an
POS Term Lease Agreement #003035 - 1 -
World Trade Center West Building
Washington Technology Industry Association
average of three months' rent over the term of the lease, which is due not later than ten (10)
business days before the Possession Date of the Lease pursuant to Section 4.1.
1.2.3. Tenant's Pro Rata Share. It is agreed by the parties that, as of the date
of this lease, the total square footage of the Building is 69,507 rentable square feet, and therefore
Tenant's pro rata share of Operating Costs is, as of the date of this Lease, 13.17%, therefore,
Tenant's "Pro Rata Share" shall mean 13.17%. In the event that a portion of the Building is
damaged or condemned or any other event occurs which alters the rentable area of the Premises
or the rentable area of the Building, Landlord may adjust Tenant's Pro Rata Share of the
Building to properly reflect the proportion of the rentable area of the Building (as altered by such
event) which is attributable to the rentable area of the Premises (as altered by such event).
1.3. Term.
1.3.1. Possession Date. "Possession Date" shall mean October 1, 2017.
1.3.2. Rent Commencement Date. "Rent Commencement Date" shall mean:
1.3.2.1. October 1, 2017 for the Premises excluding the Expansion
Space.
1.3.2.2. The earlier of November 15, 2017 or substantial
completion of tenant improvements for the Expansion Space. "Substantial Completion" shall be
established by the certificate of substantial completion provided by either the architect or
contractor.
1.3.3. Expiration Date. "Expiration Date" shall mean September 30, 2024.
1.4. Addresses for Notice. The initial addresses for purposes of giving any notices
required by this lease shall be:
For Landlord:
Port of Seattle
Attn: Lease Administration
2711 Alaskan Way
Seattle, WA 98121
For payments only, the following mailing address should be used:
Port of Seattle
P.O. Box 24507
Seattle, WA 98124-0507
For Tenant:
Washington Technology Industry Association
Attn: Michael Schutzler
POS Term Lease Agreement #003035 - 2 -
World Trade Center West Building
Washington Technology Industry Association
2200 Alaskan Way, Suite 390
Seattle, Washington 98121
1.5. Premises. The Landlord leases to Tenant and Tenant leases from Landlord, upon
the terms and conditions herein set forth, the Premises, together with rights of ingress and egress
over Common Areas. Subject to the rights reserved to Landlord in this Lease, the Premises
extend to the centerline of party/demising walls and to the exterior faces of any exterior walls
and from the structural flooring to ceiling, specifically including any plenum above a
drop/suspended ceiling.
1.6. Acceptance of the Premises. Tenant has examined the Premises, accepts them in
their condition as of the Possession Date, and agrees to make any changes in the Premises
necessary to conform to federal, state and local law applicable to Tenant's use of the Premises.
Landlord represents and warrants that as of the Effective Date, to the best of Landlord's
knowledge the Building is free from hazardous waste or materials as defined in Section 21.1 of
this Lease and the Building is in compliance with all state and local building codes, including the
Americans with Disabilities Act.
1.7. Quiet Enjoyment. So long as Tenant is not in default under this Lease and subject
to the specific provisions, covenants and agreements contained in this Lease, Landlord covenants
and agrees that the quiet and peaceful possession and enjoyment of the Premises by Tenant shall
not be disturbed or interfered with by Landlord or by any other party claiming by or through
Landlord.
SECTION 2: TERM
2.1. Term. The initial term of this Lease is approximately seven years ("Term"),
commencing on the Possession Date and, unless earlier terminated pursuant to any provision
hereof, ending on the Expiration Date.
2.2. Termination of Current Lease. To enable the execution of this Lease, that certain
lease between the Landlord and Tenant dated September 3, 2014 (the "Terminating Lease") shall
terminate at midnight September 30, 2017.
SECTION 3: RENT
3.1. Rent. Commencing on the Rent Commencement Date, Tenant agrees to pay as
rent ("Base Rent") for the Premises as follows:
Effective on the Rent Commencement Date through September 30, 2018:
9,155 rsf Office Space @ $19.00/rsf/yr = $14,495.42/mo.
Effective October 1, 2018 through September 30, 2019:
9,155 rsf Office Space @ $20.00/rsf/yr = $15,258.33/mo.
POS Term Lease Agreement #003035 - 3 -
World Trade Center West Building
Washington Technology Industry Association
Effective October 1, 2019 through September 30, 2020:
9,155 rsf Office Space @ $21.00/rsf/yr = $16,021.25/mo.
Effective October 1, 2020 through September 30, 2021:
9,155 rsf Office Space @ $22.00/rsf/yr = $16,784.17/mo.
Effective October 1, 2021 through September 30, 2022:
9,155 rsf Office Space @ $23.00/rsf/yr = $17,547.08/mo.
The Base Rent shall constitute the contract rent for purposes of determining taxable rent for
assessment of leasehold excise tax.
3.2. Payment of Base Rent. The Base Rent shall be paid to Landlord in advance on the
first day of each and every month during the term, at such place as Landlord may designate,
without any prior demand, and without any abatement, deduction or setoff whatsoever. The
initial address for payment is set forth in Section 1.4. If the term commences on any day other
than the first day of a calendar month, Base Rent for any fractional month shall be prorated based
upon the actual number of days in such fractional month.
3.3. Adjustment to Base Rent. As inducement to enter into this lease and as long as
Lessee is not in default, Lessee's obligation to pay Base Rent on the Expansion Space shall be
abated until the sooner of substantial completion of Tenant Improvements or November 15,
2017.
3.4. Additional Rent. In addition to the Base Rent as set forth in Section 3.1 Tenant
shall pay, as Additional Rent, its pro rata share as follows of the Operating Costs (defined in
Section 7.1):
3.4.1. Tenant's pro rata share of the Operating Costs shall be that proportion
that the rentable square footage of the Premises bears to the total rentable square footage of the
Building; provided, however, if any space in the Building is leased to a tenant who is separately
responsible for paying the cost of a service that would otherwise be included in Operating Costs,
the rentable area of such tenant's space shall be excluded from the rentable area of the Building
for the purpose of determining Tenant's pro rata share of the balance of the cost of such services
and if any space in the building is leased to a tenant who creates an exemption from real property
taxes or any other category of Operating Costs so as to reduce the Building's total cost of the
same in proportion to that tenant's rentable area, then the rentable area of such tenant's space
shall be excluded from the rentable area of the Building for the purpose of determining Tenant's
percentage share of the real property tax or other category of Operating Costs.
3.5. Late Charges.
3.5.1. Tenant hereby acknowledges that late payment by Tenant to Landlord
of Rent, or any portion thereof, or any other sums due hereunder will cause Landlord to incur
POS Term Lease Agreement #003035 - 4 -
World Trade Center West Building
Washington Technology Industry Association
costs not otherwise contemplated by this Lease. Accordingly, if any installment of Rent, or any
portion thereof, or any other sum due from Tenant shall not be received by Landlord within ten
(10) days after such amount shall be due, then, without any requirement for notice to Tenant,
Tenant shall pay Landlord a late charge equal to 5% of such overdue amount. The parties agree
that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted hereunder.
3.5.2. 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.
SECTION 4: SECURITY
4.1. Security. Tenant shall, not later than ten (10) business days before the Possession
Date of this Lease, obtain and deliver to the Landlord a good and sufficient corporate surety
company bond, irrevocable stand-by letter of credit, cash deposit or other security in an amount
as set forth in Section 1.2.2, to secure Tenant's full performance of this Lease, including the
payment of all fees and other amounts now or hereafter payable to the Landlord 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 Landlord's approval. The Security shall
remain in place at all times throughout the full term of this Lease and throughout any holdover
period. No interest shall be paid on the Security and the Landlord 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. Transfer of Security. Notwithstanding the foregoing, the Landlord currently holds
THIRTY FOUR THOUSAND NINE HUNDRED SIXTY-ONE AND 03/100 DOLLARS
($34,961.03) in cash deposit provided by Lessee in connection with the Terminating Lease.
Except to the extent required to remedy any failure to comply with the terms of the Terminating
Lease, the Landlord and Tenant agree that this amount will be transferred and applied to the
Security required for this Lease upon termination of the Terminating Lease.
4.3. Return of Security. The Security is a part of the consideration for execution of this
Lease. If Tenant shall have fully performed all terms and conditions of this Lease, any cash
deposit security shall be paid to Tenant within thirty (30) days following the termination (or
expiration) date without interest; otherwise the Landlord shall, in addition to any and all other
rights and remedies available under this Lease or at law or equity, retain title thereto.
4.4. Application of Security. The Landlord may apply all or part of the Security to
unpaid rent or any other unpaid sum due hereunder, or to cure other defaults of Tenant. If the
Landlord uses any part of the Security, Tenant shall restore the Security to its then-currently
required amount within fifteen (15) days after the receipt of the Landlord's written request to do
so. The retention or application of such Security by the Landlord pursuant to this subparagraph
POS Term Lease Agreement #003035 - 5 -
World Trade Center West Building
Washington Technology Industry Association
does not constitute a limitation on or waiver of the Landlord's right to seek further remedy under
law or equity.
SECTION 5: USES
5.1. General Office Purposes. The Premises are to be used only for general office
purposes and for no other business or purpose without the prior written consent of Landlord,
which consent may be withheld by Landlord, in its sole discretion, if it determines that any
proposed use is inconsistent with other uses within the Building, is the sort of use that is
inappropriate for a building owned by a municipal corporation, is detrimental to the maintenance
and operation of the Building as a first-class office building or is inconsistent with any restriction
on use of the Building contained in any lease, mortgage, or other instrument or agreement by
which the Landlord is bound or to which the Building is subject.
5.2. General Standards Regarding Use.
5.2.1. Tenant 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 or interfere
with, in Landlord's reasonable judgment, the character, reputation or appearance of the Building
or Landlord, or (vi) occasion discomfort, inconvenience or annoyance to either the Landlord or
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.
5.2.2. Tenant shall not commit any act that will increase the then existing
cost of insurance on the Building without Landlord's prior written consent. Tenant shall promptly
pay upon demand the amount of any increase in insurance costs caused by any act or acts of
Tenant.
5.2.3. Tenant shall not, without the prior written consent of Landlord, use
any apparatus, machinery or device in or about the Premises which will cause any substantial
noise, vibration or fumes. Tenant shall not permit smoking in the Premises. Landlord has
designated all internal portions of the Building as a smoke-free zone. If any of Tenant's office
machines or equipment should disturb the quiet enjoyment of any other tenant in the Building,
then Tenant shall provide adequate insulation, or take any other action determined by Landlord
as may be necessary to eliminate the disturbance.
5.2.4. Tenant shall not place upon or install in windows or other openings or
exterior sides of doors or walls of the Premises or any part of the Premises visible from the
POS Term Lease Agreement #003035 - 6 -
World Trade Center West Building
Washington Technology Industry Association
exterior of the Premises any signs, symbols, drapes or other materials, without the prior written
consent of Landlord.
5.2.5. Tenant shall observe all reasonable rules and regulations (not
inconsistent with the terms of this Lease) as may be adopted and made available to Tenant by
Landlord from time to time for the safety, care and cleanliness of the Premises or the Building,
and for the preservation of good order therein. A copy of the current Contractor's Rules and
Regulations and current Building Specific Rules and Regulations are attached hereto as
Exhibit C.
5.3. No Liens. Tenant will not directly or indirectly create or permit to be created
and/or to remain, a Lien upon this Lease, the Building or Premises, including any Tenant
Improvements or Alterations (as defined below in Sections 8.2 and 8.3, respectively), fixtures,
improvements or appurtenances thereto, except those Liens expressly permitted by in writing by
Landlord. In the event any such Lien(s) have been created by or permitted by Tenant in violation
of this provision, Tenant shall immediately discharge as of record, by bond or as otherwise
allowed by law, any such Lien(s). Tenant shall also defend (with counsel approved by Landlord),
fully indemnify, and hold entirely free and harmless Landlord 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.
5.4. Signs. Tenant shall not place or in any manner display any sign, graphics, or other
advertising matter anywhere in or about the Premises or the Building at places visible (either
directly or indirectly) from anywhere outside the Premises without first obtaining Landlord's
written consent thereto. Any such consent by Landlord shall be upon the understanding and
condition that Tenant shall remove the same at the expiration or sooner termination of this Lease
and Tenant shall repair any damage to the Premises or the Building caused thereby. Landlord
shall not unreasonably withhold its consent to normal Tenant signage within the Premises which
is consistent in Landlord's opinion with the Building's image and signage and graphics program.
Signage approved by Landlord, other than the standard Building directory or elevator lobby
directory signage, is at Tenant's sole expense. Tenant shall provide Landlord the design and
plans for its signage prior to Possession Date. Landlord shall display Tenant's name and location
in the main Building lobby and Building directory.
SECTION 6: SERVICES AND UTILITIES
6.1. Standard Services. Landlord shall maintain the Premises and the public and
common areas of the Building in good order and condition consistent with the operation and
maintenance of a first-class office building in downtown Seattle, Washington. Landlord shall
also maintain, repair and replace all structural components of the Building, including, without
limitation, the foundations, bearing and exterior walls, subflooring, roof, unexposed electrical,
plumbing and sewage systems, and heating ventilation and air conditioning systems. Landlord
shall also maintain in good condition and repair, elevators, alarm monitoring, building systems,
including without limitation parking areas, lobbies, stairwells, restrooms and outdoor
POS Term Lease Agreement #003035 - 7 -
World Trade Center West Building
Washington Technology Industry Association
landscaping. Landlord shall furnish the Premises with utilities and services for normal office use,
including the following: electricity; lighting and operation of low power usage office machines;
natural gas; water; passenger and freight elevator service; hot and cold water for drinking,
restroom and office cleaning purposes; sanitary sewer service; sprinkler riser monitoring;
heating, ventilation and air conditioning; local telephone service; and all other utility services
used in the Premises at all times during the Term of the Lease or any extension thereof. Landlord
shall also provide lamp replacement service for the Building's standard light fixtures, toilet room
supplies, window washing at reasonable intervals, and customary building janitorial service. No
janitorial service shall be provided for Saturdays, Sundays or legal holidays. The costs of any
janitorial or other service provided by Landlord to Tenant which are in addition to the services
ordinarily provided Building tenants shall be paid by Tenant as Additional Rent upon receipt of
billings. Landlord shall not be obligated to repair or replace any fixtures or equipment installed
by or for Tenant and Landlord shall not be obligated to make any repair or replacement
occasioned by any act or omission of Tenant or of Tenant's employees, agents, invitees, or
licensees.
6.2. Normal Business Hours. From 7:00 a.m. to 6:00 p.m. Monday through Friday
excluding legal holidays ("Normal Business Hours"), Landlord shall furnish to the Premises heat
and air conditioning. If requested by Tenant, Landlord shall furnish heat and air conditioning at
times other than Normal Business Hours and the cost of such services as reasonably estimated by
Landlord in advance and agreed by Tenant shall be paid by Tenant as Additional Rent. During
other than Normal Business Hours, Landlord may restrict access to the Building in accordance
with the Building's security system, provided that Tenant shall have at all times during the Term
of this Lease and during any extension thereof (24 hours of all days) reasonable access to the
Premises.
6.3. Interruption of Services. Landlord will not be liable for any loss, injury or damage
to person or property caused by or resulting from any variation, interruption, or failure of any
services or facilities provided by Landlord pursuant to this Lease due to any cause whatsoever.
No temporary interruption or failure of such services or facilities incident to the making of
repairs, alterations, or improvements, or due to accident, strike or conditions or events beyond
Landlord's reasonable control will be deemed an eviction of Tenant or relieve Tenant from any
of Tenant's obligations. Landlord shall use all reasonable efforts in good faith to minimize any
disruption of Tenant's use of the Premises arising from any interruption or failure of such
services or facilities.
6.4. Additional Services. The Building mechanical system is designed to
accommodate heating loads generated by lights and equipment using up to 2.5 watts per square
foot. Before installing lights and equipment in the Premises which in the aggregate exceed such
amount, Tenant shall obtain the written permission of Landlord. Landlord may refuse to grant
such permission unless Tenant agrees to pay the Landlord's costs for installation of
supplementary air conditioning capacity or electrical systems as necessitated by such equipment
or lights.
6.5. Costs of Additional Services. Tenant shall in advance, on the first day of each
month during the Lease, pay Landlord as Additional Rent the reasonable amount estimated by
Landlord as the cost of furnishing electricity for the operation of such supplemental equipment or
POS Term Lease Agreement #003035 - 8 -
World Trade Center West Building
Washington Technology Industry Association
lights and the reasonable amount estimated by Landlord as the costs of operation and
maintenance of supplementary air conditioning units necessitated by Tenant's use of such
equipment or lights. Landlord shall be entitled to install and operate at Tenant's cost a
monitoring/metering system in the Premises to measure the added demands on electricity,
heating, ventilation, and air conditioning systems resulting from such equipment or lights and
from Tenant's after-hours heating, ventilation and air conditioning service requirements. Tenant
shall comply with Landlord's reasonable instructions for the use of drapes, blinds and
thermostats in the Building.
SECTION 7: COSTS OF OPERATIONS AND TAXES
7.1. As used in this Lease, "Operating Costs" or "Costs" mean all expenses of
Landlord for maintaining, operating and repairing the Building and the personal property used in
connection therewith, including without limitation, insurance premiums and deductibles; taxes
and assessments such as real property taxes and taxes arising from inclusion of the Premises in
improvement districts as well as assessments by governments such as impact fees attributable to
the Premises; water, sewer and all other utility charges (other than utilities separately metered
and paid directly by Tenant or other tenants); janitorial and other cleaning services; refuse,
recycling and trash removal; pest control; lighting systems, fire detection and security services;
roof repairs and maintenance; landscape maintenance; patching, resurfacing and maintenance of
parking, sidewalks and driveway serving the Building; customary management fees; and other
expenses which in accordance with generally accepted accounting and management practices
would be considered an expense of maintaining, operating or repairing the Building ("Operating
Costs" or "Costs"). Operating Costs, or Costs shall exclude: (i) Leasehold excise tax or any
other tax based on leasehold interest or contract rent for the Premises, or based on activities
conducted on the Premises or on Tenant's personal property; (ii) Payments of principal and
interest charges incurred on debt, or depreciation expenses; (iii) Costs of any items for which
Landlord is entitled to receive a reimbursement from insurance proceeds, from a tenant or from
any other third party; (iv) Legal fees and costs, settlements, judgments and awards arising out of
costs incurred in connection with the negotiation or disputes with other tenants or potential
tenant of the Building; (v) Costs of any tenant improvements or special services rendered to
individual tenants for which a separate charge is made; (vi) Leasing commissions, and other
leasing expenses; and (vii) Costs of improvements required to be capitalized in accordance with
generally accepted accounting principles, except Operating Costs shall include amortization of
capital improvements (A) made subsequent to initial development of the Building which are
designed with a reasonable probability of improving the operating efficiency of the Building, or
providing savings in the cost of operating the Building; or, (B) which are reasonably responsive
to requirements imposed with respect to the Building under any amendment to any applicable
building, health, safety, fire, nondiscrimination, or similar law or regulation ("law"), or any new
law, or any new interpretation of an existing law ("new interpretation"), which amendment, law
or new interpretation is adopted or arose after the Possession Date of this Lease. For purposes of
this Lease, a new interpretation shall mean any interpretation, enforcement or application of a
law enacted prior to the Possession Date that imposes requirements with respect to the Building
that Landlord in the exercise of sound business judgment and good faith at the time of Landlord's
execution of this Lease would not have deemed applicable to the Building. If less than ninety
five percent (95%) of the rentable area of the Building is actually occupied during any year,
Operating Costs for that year shall be the amount that Operating Costs would been for such
POS Term Lease Agreement #003035 - 9 -
World Trade Center West Building
Washington Technology Industry Association
period had ninety five percent (95%) of the rentable area of Building been occupied during all
such year, as determined by the Port. Operating Costs are not intended to be part of contract rent;
different categories of operating costs charged to Tenant shall be separately stated on the invoice
billed to the Tenant.
7.2. As used in this Section, "Year" means the calendar year.
7.3. Prior to the commencement date of this Lease, and by each January 31st
thereafter, and at any other time the Port deems adjustment necessary, the Port shall submit to
Tenant a statement of the Tenant's anticipated pro rata share of Operating Costs through the
following December, and Tenant shall pay one-twelfth (1/12) thereof monthly, concurrent with
the payment of Rent. Within ninety (90) days after the end of each calendar year, the Port shall
give Tenant a statement showing the total actual costs for the prior calendar year and Tenant's
Pro Rata Share thereof. In the event that the total of the monthly payments which Tenant has
made for such calendar year is less than Tenant's actual pro rata share, Tenant shall pay the
difference within fifteen (15) days after receipt of such statement from the Port. Any
overpayment by Tenant shall be credited toward the Additional Rent next becoming due or, in
the event that the Lease has expired (and there is no outstanding default), refunded to Tenant.
Notwithstanding the above, any delay or failure of the Port in computing or billing Additional
Rent shall not constitute a waiver of or in any way impair Tenant's obligation to pay the Base
Rent, Additional Rent or any other sum hereunder. In the event of any such delay or failure,
Tenant shall continue paying the Additional Rent currently being paid until notified by the Port
of the adjustment.
7.4. Audit Rights; Records and Adjustments. Tenant, at its cost, shall have the right to
inspect during usual business hours, in the Port's offices or a local location designated by the
Port, the Port's records regarding the Operating Costs referred to in the annual statement. This
right to inspect shall extend for a period of sixty (60) days following delivery of the statement. If
within such sixty-day period neither party delivers notice to the other a notice referring in
reasonable detail to one or more errors in such statement or calculation, the information and
calculation in such statement shall conclusively be deemed correct.
7.5. Payment of Taxes. Tenant is liable for, and shall pay throughout the Term of this
Lease and any extension thereof, all license fees and all taxes payable for, or on account of, the
activities conducted on the Premises; all taxes on the property of Tenant on the Premises; any
taxes on the Premises and/or on the leasehold interest created by this Lease; and any tax levied
on contract rent under this Lease. With respect to any such taxes payable by the Port which are
on or measured by the Rent payments hereunder, Tenant 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 Tenant shall be payable
by Tenant to the Port at least fifteen (15) days prior to the due dates of the respective tax
amounts involved; provided, that Tenant shall be entitled to a minimum of ten (10) days' written
notice of the amounts payable by it.
7.6. Personal Property Taxes. Tenant 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 Tenant. If any
POS Term Lease Agreement #003035 - 10 -
World Trade Center West Building
Washington Technology Industry Association
such taxes on Tenant'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, Tenant shall, upon
demand, repay to the Port the taxes so levied.
SECTION 8: CARE AND IMPROVEMENT OF PREMISES
8.1. General Obligations. Landlord shall perform all normal maintenance and repairs
reasonably determined by Landlord as necessary to maintain the Premises and the Building as a
first-class office building; provided that Landlord shall not be required to maintain or repair any
property of Tenant or any appliances (such as refrigerators, water heaters, microwave ovens and
the like), which are part of the Premises. Tenant shall take good care of the Premises and at all
times keep the Premises neat, clean, in a safe and sanitary condition and free from pests.
8.2. Tenant Improvements. As of the Possession Date, Tenant accepts the Premises in
an as-is condition and may enter the Premises to make certain tenant improvements (the "Tenant
Improvements") as provided on Exhibit D.
8.3. Alterations. After the completion of the initial Tenant Improvements described in
Exhibit D, Tenant shall not make any alterations, additions, substitutions or improvements
("Alterations") in or to the Premises, or make changes to locks on doors, or add, disturb or in any
way change any plumbing or wiring ("Changes") without first obtaining the written consent of
Landlord, and, where applicable, in accordance with plans and specifications reasonably
approved by Landlord. As a condition to its approval, Landlord in its sole discretion may require
Tenant to remove such Alterations or Changes upon the expiration or earlier termination of the
Term and any extension period thereof, and to restore the Premises to the condition they were in
prior to such Alterations or Changes, including restoring any damage resulting from such
removal, all at Tenant's expense, but excepting reasonable use and wear and tear. Any
Alterations or Changes, but excluding Tenant Improvements, approved by Landlord and not
required to be removed upon the expiration or earlier termination of the Lease shall become a
part of the realty and become property of the Landlord upon the expiration or earlier termination
of this Lease. Any Alterations or Changes required to be made to Tenant's Premises by any
amendment to any applicable building, health, safety, fire, nondiscrimination, or similar law or
regulation ("law"), or any new law shall be made at Tenant's sole expense and shall be subject to
the prior written consent of Landlord. Except with respect to the initial Tenant Improvements,
Tenant shall reimburse Landlord for any reasonable sums expended for examination and
approval of the architectural and mechanical plans and specifications of the Alterations and
Changes and direct costs reasonably incurred during any inspection or supervision of the
Alterations or Changes. All damage or injury done to the Premises or Building by Tenant or by
any persons who may be in or upon the Premises or Building with the express or implied consent
of Tenant, including but not limited to the cracking or breaking of any glass of windows and
doors, shall be paid for by Tenant.
8.4. Prevailing Wage. Lessee shall, in connection with the labor associated with any
Tenant Improvements or Alterations under this Lease, comply with all prevailing wage laws in
the State of Washington, as set forth in RCW 39.12 as amended, and the rules and regulations of
the Department of Labor and Industries. The wage rates to be paid all laborers, workers and
mechanics that perform any part of the work on any Tenant Improvements or Alterations shall
POS Term Lease Agreement #003035 - 11 -
World Trade Center West Building
Washington Technology Industry Association
meet or exceed the prevailing wage rates as required by Chapter 39.12 of the Revised Code of
Washington, as amended. This requirement applies to laborers, workers and mechanics whether
they are employed by Lessee, Contractors, Subcontractors, Sub-subcontractors, or any other
person who performs a portion of the work on any Tenant Improvements or Alterations.
8.4.1. The rules and regulations of the Department of Labor and Industries
and the schedule of prevailing wage rates for the locality or localities where any work under this
Lease will be performed as determined by the Industrial Statistician of the Department of Labor
and Industries, are by this reference made a part of this Lease as though fully set forth herein.
The Washington Administrative Code Chapter 296-127 relating to prevailing wage can be found
at: http://apps.leg.wa.gov/wac/default.aspx?cite=296-127. In any contracts for Tenant
Improvements or Alterations approved by the Port, Lessee's contract with any general contractor
and/or sub-contractor shall require the payment of the local prevailing wage.
8.4.2. In connection with this Lease, Lessee will be required to submit to the
Port "Statements of Intent to Pay Prevailing Wages" for its employees, contractors and
subcontractors at all tiers prior to commencing work. The Statements of Intent require the
approval of the industrial statistician of the Department of Labor and Industries which shall
include the contractor's registration certificate number; the prevailing rate of wage for each
classification of workers entitled to prevailing wages under RCW 39.12.020; and the estimated
number of workers in each classification. Lessee shall ensure that each Statement of Intent to Pay
Prevailing Wages that is submitted to the Port has been approved by the industrial statistician of
the Department of Labor and Industries before said statement is submitted to the Port. Such
Statements of Intent shall be filed in accordance with the practices and procedures required by
the Department of Labor and Industries.
8.4.3. Lessee will further be required to submit to the Port "Affidavits of
Wages Paid" for its employees, contractors and subcontractors at all tiers. The Affidavits of
Wages Paid require the certification of the industrial statistician of the Department of Labor and
Industries which shall include the contractor's registration certificate number; the prevailing
rate of wage for each classification of workers entitled to prevailing wages under RCW
39.12.020; and the estimated number of workers in each classification. Lessee shall ensure that
each Affidavit of Wages Paid that is submitted to the Port has been certified by the industrial
statistician of the Department of Labor and Industries before said Affidavit is submitted to the
Port. Such Affidavits of Wages Paid shall be filed in accordance with the practices and
procedures required by the Department of Labor and Industries. No reimbursement for Tenant
Improvements or Alterations may be made until proper and approved Statements of Intent to Pay
Prevailing Wages and Affidavits of Wages Paid have been provided and approved by the Port.
8.4.4. Pursuant to WAC 296-127-040 and WAC 296-127-045, Lessee shall
be responsible for payment to the Department of Labor and Industries the applicable processing
fee(s) set forth in RCW 39.12.070 due with the submittal of each "Statement of Intent to Pay
Prevailing Wages" and "Affidavit of Wages Paid." Lessee shall monitor contractors' and
subcontractors' compliance with the requirements of this Section 8.4; any failure by Lessee or
contractor or subcontractor at any tier to meet the requirements of this Section 8.4 or violation of
prevailing wage laws or regulations shall be a material breach of this Lease.
POS Term Lease Agreement #003035 - 12 -
World Trade Center West Building
Washington Technology Industry Association
8.4.5. Although not required, the Port encourages Lessee to examine the
applicability of a Project Labor Agreement ("PLA") in light of any (i) project needs for labor
continuity and stability, including analysis of labor needs by trade; (ii) project complexity,
including cost and duration; (iii) value of having uniform working conditions; (iv) potential
impact of PLA on small business opportunities; (v) past labor disputes or issues indicating risk of
delay; (vi) potential PLA impact on project cost; (vii) project presents specific safety concerns to
the public; (viii) value of an established PLA grievance process to resolve labor-management or
jurisdictional disputes; and (ix) any other considerations particular to the project.
SECTION 9: TELECOMMUNICATIONS LINES AND EQUIPMENT
9.1. Location of Tenant's Equipment and Landlord Consent.
9.1.1. Tenant may install, maintain, replace, remove and use
communications or computer wires, cables and related devices (collectively, the "Lines") at the
Building in or serving the Premises, only with Landlord's prior written consent, which consent
may be withheld in Landlord's sole and absolute discretion. In no event shall Landlord prohibit
Tenant from installing in the Building computer network cabling; however, Landlord may limit
the location and amount of such computer network cabling through the approval of Tenant's
Preliminary Plans and Working Drawings (if any) pursuant to Section 8.28.2 and Exhibit D and
any subsequent Alterations or Changes, pursuant to Section 8.3. Tenant shall locate all electronic
telecommunications equipment within the Premises and shall relocate all Tenant's equipment
which is located within the Building telephone closets or riser spaces, at Tenant's cost, to the
Tenant's Premises. Any request for Landlord's consent shall contain detailed plans, drawings
and specifications identifying all work to be performed, the time schedule for completion of the
work, the identity of the entity that will provide service to the Lines and the identity of the entity
that will perform the proposed work (which entity shall be subject to Landlord's approval).
Landlord shall have a reasonable period of time in which to evaluate the request after it is
submitted by Tenant, except that Lines proposed as part of the initial Tenant's Preliminary Plans
and Working Drawings described in Section 8.2 and Exhibit D of this Lease shall be subject to
the review procedure set forth in Section 8.2 and Exhibit D.
9.1.2. Landlord's approval of, or requirements concerning, the Lines or any
equipment related thereto, the plans, specifications or designs related thereto, the contractor or
subcontractor, or the work performed hereunder, shall not be deemed a warranty as to the
adequacy thereof, and Landlord hereby disclaims any responsibility or liability for the same.
Landlord disclaims all responsibility for the condition or utility of the intra-building network
cabling ("INC") and makes no representation regarding the suitability of the INC for Tenant's
intended use.
9.1.3. If Landlord consents to Tenant's proposal, Tenant shall (a) pay all
costs in connection therewith (including all costs related to new Lines); (b) comply with all
requirements and conditions of this Section; and (c) use, maintain and operate the Lines and
related equipment in accordance with and subject to all laws governing the Lines and equipment.
Tenant shall further insure that (i) Tenant's contractor complies with the provisions of this
Section and Landlord's reasonable requirements governing any work performed; (ii) Tenant's
contractor provides all insurance required by Landlord; (iii) any work performed shall comply
POS Term Lease Agreement #003035 - 13 -
World Trade Center West Building
Washington Technology Industry Association
with all federal, state and local laws and regulations; and (iv) as soon as the work in completed,
Tenant shall submit "as-built" drawings to Landlord.
9.1.4. Landlord reserves the right to require that Tenant remove any Lines
located in or serving the Premises which are installed in violation of these provisions, or which
are at any time in violation of any laws or present a dangerous or potentially dangerous condition
(whether such Lines were installed by Tenant or any other party), within three (3) days after
written notice. Tenant shall remove any Lines located in or serving the Premises promptly upon
expiration or sooner termination of this Lease.
9.1.5. Notwithstanding anything in this Section 9 to the contrary, Lines shall
not include basic telephone wiring and cabling.
9.2. Landlord's Rights. Landlord may (but shall not have the obligation to):
9.2.1. Install new Lines at the Building;
9.2.2. Create additional space for Lines at the Building; and
9.2.3. Direct, monitor and/or supervise the installation, maintenance,
replacement and removal of, the allocation and periodic re-allocation of available space (if any)
for, and the allocation of excess capacity (if any) on, any Lines now or hereafter installed at the
Building by Landlord, Tenant or any other party (but Landlord shall have no right to monitor or
control the information transmitted through such Lines).
9.3. Indemnification. In addition to any other indemnification obligations under this
Lease, Tenant shall indemnify and hold harmless Landlord and its employees, agents, officers,
and contractors from and against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs or expenses (including reasonable attorneys' fees) arising out of or in
any way related to the acts and omissions of Tenant, Tenant's officers, directors, employees,
agents, contractors, subcontractors, subtenants, and invitees with respect to: (i) any Lines
serving Tenant or equipment related thereto serving Tenant in the Building; (ii) any personal
injury (including wrongful death) or property damage arising out of or related to any Lines
serving Tenant or equipment related thereto serving Tenant in the Building to the extent arising
from the negligence or willful misconduct of the Tenant or Tenant's officers, directors,
employees, agents, contractors, subcontractors, subtenants, and invitees; and (iii) any violations
of federal, state or local laws and regulations or demands of governmental authorities, or any
reasonable written policies or requirement of Landlord, which are based upon or in any way
related to Tenant's installation, maintenance, use or removal of any Lines or equipment. This
indemnification and hold harmless agreement shall survive the termination of this Lease.
9.4. Limitation of Liability. Landlord shall have no liability for damages arising from,
and Landlord does not warrant that the Tenant's use of any Lines will be free from the following
(collectively called "Line Problems"): (i) any shortages, failures, variations, interruptions,
disconnections, loss or damage caused by the installation, maintenance, or replacement, use or
removal of Lines by or for other tenants or occupants at the Building, by any failure of the
environmental conditions or the power supply for the Building to conform to any requirement of
POS Term Lease Agreement #003035 - 14 -
World Trade Center West Building
Washington Technology Industry Association
the Lines or any associated equipment, or any other problems associated with any Lines by any
other cause; (ii) any failure of any Lines to satisfy Tenant's requirements; or (iii) any
eavesdropping or wire-tapping by unauthorized parties. Landlord in no event shall be liable for
damages by reason of loss of profits, business interruption or other consequential damage arising
from any Line Problems. Under no circumstances shall any Line Problems be deemed an actual
or constructive eviction of Tenant, render Landlord liable to Tenant for abatement of Rent, or
relieve Tenant from performance of Tenant's obligations under this Lease.
9.5. Electromagnetic Fields. If Tenant at any time uses any equipment that may create
an electromagnetic field exceeding the normal insulation ratings of ordinary twisted pair riser
cable or cause radiation higher than normal background radiation, Landlord reserves the right to
require Tenant to appropriately insulate the Lines therefore (including riser cables) to prevent
such excessive electromagnetic fields or radiation.
SECTION 10: COMMON AREAS
10.1. Common Areas. "Common Areas" means those parts of the Building and the land
upon which it is located outside the Premises that are provided and designated by Landlord from
time to time for the general use and convenience of Tenant and of other tenants of the Building
and their respective authorized representatives, guests and invitees. Common Areas may include,
without limitation, designated pedestrian walkways, plazas and sky bridges, landscaped areas,
public lobbies, elevators, sidewalks, loading areas, parking areas, service corridors, central
business systems, restrooms, stairways, and arcades.
10.2. Control of Common Areas by Port. Landlord shall at all time have the exclusive
control and management of the Common Areas. Without limiting Landlord's right of control and
management, Landlord specifically reserves the right to: (i) establish, modify from time to time,
and enforce reasonable rules and regulations governing the use of the Common Areas; (ii) police
the Common Areas; (iii) change the area, level, location and arrangement of areas or facilities
within the Common Areas; (iv) provided Tenant is not deprived of reasonable access to its
Premises, close all or any portion of the Common Areas; and (v) do and perform such other acts
in and to the Common Areas as, in the use of good business judgment, Landlord shall determine
to be advisable with a view to the improvement of the convenience and use thereof by Landlord
and tenants of any larger property of which the Premises are a part.
10.3. Parking. Parking is available at the Bell Street Pier Garage at prevailing monthly
rates on an unassigned, self-park basis. Nine (9) parking spaces (one [1] per 1,000 square feet of
rentable space) will be available to Tenant in the Bell Street Pier Garage, however Tenant shall
be responsible for arranging the terms and conditions for such for parking directly with the thirdparty
operator of the Bell Street Pier Garage. Additional parking spaces will be available to
Tenant on a space-available basis and pursuant to the terms and conditions established by the
third-party operator of the Bell Street Pier Garage. Tenant's use of parking in the Bell Street
Parking Garage is subject to all rules and regulations of Landlord or of the parking garage
operator, and the ordinances, rules, regulations and permit conditions of the City of Seattle,
Washington, which may be published from time to time. Short-term hourly parking will be
available on a space-available basis during Normal Business Hours (as defined in Section 6.2)
except Saturdays, and except Sundays or legal holidays, for Tenant's clients and customers.
POS Term Lease Agreement #003035 - 15 -
World Trade Center West Building
Washington Technology Industry Association
10.4. Outside Areas and Roof. The use of the outside area of the walls (other than the
front of the Premises) and the roof of the building in which the Premises are located is reserved
to Landlord, which shall have the right to utilize the same for any purpose, including the
maintenance of signs.
10.5. License. All Common Areas which Tenant 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 Landlord shall not be subject to any liability, nor shall Tenant be entitled to any
compensation or reduction or abatement of Rent.
SECTION 11: INDEMNIFICATION
11.1. Landlord Not Liable Unless Negligent. The Landlord, its 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 Tenant or by others, including but not limited to all persons directly or indirectly employed by
the Tenant, its employees, agents, contractors, subcontractors, licensees, or invitees 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 the Premises and the
areas adjacent thereto, or related in any way to Tenant's use or occupancy of the Premises and of
areas adjacent thereto, except to the extent caused by the negligence or willful misconduct of
Landlord, its employees, agents and contractors. Tenant agrees to defend (with counsel approved
by Landlord) and to hold and save the Landlord harmless from all liability or expenses incurred
by Landlord (including attorneys' fees, costs, and all expenses of litigation) in connection with
any such items of actual or alleged injury or damage, except when such injury or damage is
caused by the negligence or willful misconduct of the Landlord, its employees, agents and
contractors.
11.2. Industrial Immunity. In consideration of the execution of this Lease, Landlord and
Tenant hereby waive any immunity the waiving party may have under applicable workers'
compensation benefit or disability laws, (including but not limited to Title 51 RCW) in
connection with the foregoing indemnity. Such waiver shall not prevent Landlord or Tenant from
asserting such immunity against any other persons or entities. Tenant and Landlord agree and
acknowledge that this provision is the product of mutual negotiation.
SECTION 12: INSURANCE
12.1. Required Policies. Tenant shall obtain and keep in force throughout the Term of
the Lease, at its sole cost and expense the following types of insurance, in the amounts specified
and in the form hereinafter provided for:
12.1.1. General Liability Insurance. Tenant shall obtain and keep in force a
commercial general liability policy of insurance, written on ISO Form CG 00 01 10 01 (or
equivalent). Landlord shall be added to the policy as an additional insured for ongoing and
completed operations 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
POS Term Lease Agreement #003035 - 16 -
World Trade Center West Building
Washington Technology Industry Association
arising out of the tenancy, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto, and specifically including the action/inaction of any subtenant, licensee or
concessionaire. Such insurance shall be on an occurrence basis providing single limit coverage in
an amount not less than one million dollars ($1,000,000) per occurrence. The policy shall not
contain any intra-insured exclusions as between insured persons or organizations. The policy
shall contain a minimum $250,000 sub-limit that covers damage to premises rented or leased to
Tenant, including fire damage. This limit shall be identified on the Certificate of Insurance.
12.1.2. Property Insurance. Tenant shall obtain and keep in force "Special
Extended" or "all risk" property insurance insuring loss or damage to Tenant's personal property
on or about the Premises and any Tenant Improvements and Alterations (specifically including
"betterments" and "improvements") made by or for Tenant to the Premises. The policy shall
include coverage for any additional costs resulting from debris removal and reasonable amounts
of coverage for the enforcement of any ordinance or law regulating the reconstruction or
replacement of the Premises including any undamaged sections of the Premises required to be
demolished or removed by reason of the enforcement of any Legal Requirement as the result of a
covered cause of loss. The amount of such insurance shall be equal to the estimated replacement
cost of the personal property and any Tenant Improvements and Alterations (or the commercially
reasonable and available insurable value thereof if, by reason of the unique nature or age of the
improvements involved, such latter amount is less than full replacement cost). Tenant shall
release the Landlord and others working on behalf of the Landlord from any and all liability to
Tenant or anyone claiming through Tenant by way of subrogation or otherwise, for any loss or
damage to such property caused by fire or other casualty, even if such fire or other casualty shall
have been caused by the fault or negligence of Landlord, or others working on behalf of
Landlord. This provision shall be applicable and in full force and effect only with respect to loss
or damage occurring during this Lease and the Tenant's occupancy and use of the Premises
during the Lease.
12.1.3. Other Insurance. Tenant shall further obtain and keep in force such
other and further insurance as Landlord may from time to time reasonably request for the
protection by insurance of its interest in the premises.
12.1.4. Limits. 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.
12.2. Insurance Policies.
12.2.1. 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."
12.2.2. Deductibles. Tenant is fully responsible for all insurance deductibles
and self-insured retentions on Tenant's insurance. All insurance to be carried by Tenant shall be
primary to and not contributory with any similar insurance carried by Landlord, whose insurance
shall be considered excess insurance only. No insurance required herein shall contain a
POS Term Lease Agreement #003035 - 17 -
World Trade Center West Building
Washington Technology Industry Association
deductible or self-insured retention in excess of $100,000 without the prior written consent of
Landlord.
12.2.3. Termination; Renewal. Tenant shall at least forty-five (45) days prior
to the expiration of such policies, furnish Landlord with evidence of renewals including
additional insured endorsements and certificates of insurance evidencing renewal.
12.2.4. Evidence of Insurance. Tenant shall deliver, or cause to be delivered,
to Landlord, certificates of insurance, additional insured endorsements, and any other
documentation or endorsement that provides evidence of the existence and amounts of such
insurance, the inclusion of Landlord as an insured as required by this Lease, and the amounts of
all deductibles and/or self insured retentions.
12.2.5. No Limitation of Liability. The limits of insurance required by this
Lease or as carried by Tenant shall not limit the liability of Tenant nor relieve Tenant of any
obligation hereunder.
12.3. Waiver of Subrogation. Without affecting any other rights or remedies, each party
(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 other, its officers, agents and
employees (whether in contract or in tort) on account of any loss or damage to property arising
out of or incident to the perils required to be insured against under this Lease. Accordingly, each
party shall cause each insurance policy required by this Lease 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.
12.4. Increase in Port's Cost of Insurance. Tenant 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 Landlord, the full
amount of any resulting increase in premiums paid by Landlord 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 Tenant to Landlord upon the monthly
rental day next thereafter occurring.
SECTION 13: DAMAGE OR DESTRUCTION
13.1. Damage and Repair. If the Building is damaged by fire or any other cause to such
extent that the cost of restoration, as reasonably estimated by Landlord, will equal or exceed
thirty percent (30%) of the replacement value of the Building (exclusive of foundations) just
prior to the occurrence of the damage, or if insurance proceeds sufficient for restoration are for
any reason unavailable, or if the Building cannot be fully restored within 365 days of the
casualty event, then Landlord may no later than sixty (60) days following the damage, give
Tenant a notice of election to terminate this Lease. In the event of such election, this Lease shall
be deemed to terminate on the third day after the giving of said notice, and Tenant shall
surrender possession of the Premises within a reasonable time thereafter, and the Rent and
Additional Rent shall be apportioned as of the date of said surrender and any Rent and
POS Term Lease Agreement #003035 - 18 -
World Trade Center West Building
Washington Technology Industry Association
Additional Rent paid for any period beyond such date shall be repaid to Tenant. If the cost of
restoration as estimated by Landlord shall amount to less than thirty percent (30%) of said
replacement value of the Building, the Building can be fully restored within 365 days of the date
of the casualty event, and insurance proceeds plus Landlord's deductibles and retention are
sufficient for restoration, Landlord shall restore the Building and the Premises to the extent of the
improvements to the Premises originally provided by Landlord or if Landlord does not elect to
terminate this Lease with reasonable promptness, subject to delays beyond Landlord's control
and delays in the making of insurance adjustments by Landlord, and Tenant shall have no right
to terminate this Lease except as herein provided. To the extent that the Premises are rendered
untenantable, the Rent and Additional Rent shall proportionately abate, except to the extent that
such damage resulted from or was contributed to, directly or indirectly, by the act, fault or
negligence of Tenant, Tenant's officers, contractors, agents, employees, clients, customers, or
licensees, in which event Rent and Additional Rent shall abate only to the extent Landlord
receives proceeds from any rental income insurance policy to compensate Landlord for such loss.
No damages, compensation or claim shall be payable by Landlord for inconvenience, loss of
business or annoyance arising from any repair or restoration of any portion of the Premises or of
the Building. Landlord shall use all reasonable efforts to affect such repairs promptly.
13.2. Destruction During Last Year of Term. In case the Building is substantially
destroyed by fire or other cause at any time during the last twelve months of the Term of this
Lease or during the last twelve months of any extension thereof, either Landlord or Tenant may
terminate this Lease upon written notice to the other party given within sixty (60) days of the
date of such destruction.
13.3. Tenant Improvements. Landlord will not carry insurance of any kind on any
Tenant Improvements, Alterations or Changes paid for by Tenant or on Tenant's furniture or
furnishings or on any fixtures, equipment, improvements or appurtenances of Tenant under this
Lease and Landlord shall not be obligated to repair any damage thereto or replace the same.
SECTION 14: ASSIGNMENT AND SUBLETTING
14.1. Prohibition. Tenant shall not, in whole or in part, assign, sublet, license or permit
occupancy by any party other than Tenant of all or any part of the Premises, without the prior
written consent of Landlord in each instance. Tenant shall at the time the Tenant requests the
consent of Landlord, deliver to Landlord such information in writing as Landlord 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, Landlord may, in its sole discretion, consent to such proposed
assignment, sublease or license. The Port's failure to provide Tenant with such written consent
within the stated twenty (20) day period shall constitute Landlord's refusal to consent to the
proposed assignment, sublease or license.
14.1.1. As a condition for Landlord's consent to any assignment,
encumbrance or sublease, Landlord may require that the assignee, sublessee or licensee remit
directly to Landlord on a monthly basis, all monies due to Tenant by said assignee, sublessee or
licensee (except with respect to excess rentals otherwise due Tenant pursuant to Section 14.2). In
POS Term Lease Agreement #003035 - 19 -
World Trade Center West Building
Washington Technology Industry Association
addition, a condition to Landlord's consent to any assignment, sublease or license of this Lease
or the Premises shall be the delivery to Landlord 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 Landlord and expressly enforceable by Landlord,
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 Tenant hereunder.
14.1.2. In the event of any assignment, Tenant 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 Landlord 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 Tenant;
and any and all extensions of time, indulgences, dealings, modifications or waivers shall be
deemed to be made with the consent of Tenant and of each respective assignor.
14.1.3. Tenant 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 Landlord, will attorn to Landlord and the sublessee or licensee, if Landlord so
requests, shall continue in effect with Landlord, but Landlord shall be bound to the subtenant or
licensee in such circumstances only by privity of estate. Nothing herein shall be deemed to
require Landlord to accept such attornment.
14.1.4. No assignment, subletting or license by Tenant shall relieve Tenant of
any obligation under this Lease, including Tenant'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 Landlord to any assignment or subletting shall not
constitute a waiver of the necessity for such consent to any subsequent assignment or subletting.
14.1.5. Tenant shall reimburse Landlord in the sum of FIVE HUNDRED
DOLLARS ($500.00) plus any reasonable professionals' fees and expenses incurred by Landlord
in connection with any request by Tenant for consent to an assignment, subletting or license.
14.2. Excess Rental. If in connection with any assignment, sublease or license, Tenant
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 Tenant in connection with such
assignment, sublease or license, are appropriately taken into account, Tenant shall pay to
Landlord, as Additional Rent hereunder, seventy-five percent (75%) of the excess of each such
payment of rent or other consideration received by Tenant after its receipt.
14.3. Scope. The prohibition against assigning or subletting contained in this Section 14
shall be construed to include a prohibition against any assignment or subletting by operation of
law. Furthermore, for purposes of this Section 14, any sale, transfer or other disposition in the
aggregate of fifty percent (50%) or more of the equity ownership in Tenant (i.e. stock with
POS Term Lease Agreement #003035 - 20 -
World Trade Center West Building
Washington Technology Industry Association
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
Tenant is transferred, or if the Premises or any part thereof be sublet or occupied by anybody
other than Tenant, Landlord 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 14.2, 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 Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. No assignment or subletting shall affect the
continuing primary liability of Tenant (which, following assignment, shall be joint and several
with the assignee), and Tenant shall not be released from performing any of the terms, covenants
and conditions of this Lease.
SECTION 15: DEFAULTS AND REMEDIES
15.1. Defaults. The occurrence of any one or more of the following events constitutes a
default of this Lease by Tenant with or without notice from the Landlord:
15.1.1. The vacating or abandonment of the Premises by Tenant.
15.1.2. The failure by Tenant to make any payment of Rent, or any other
payment required by this Lease, when due.
15.1.3. The failure by Tenant to observe or perform any covenant, condition,
or agreement to be observed or performed by Tenant in this Lease.
15.1.4. The discovery by the Landlord that any financial or background
statement provided to the Landlord by Tenant, Guarantor, or any successor, grantee, or assign of
Tenant or Guarantor, was materially false.
15.1.5. The filing by Tenant of a petition in bankruptcy, Tenant being
adjudged bankrupt or insolvent by any court, a receiver of the property of Tenant being
appointed in any proceeding brought by or against Tenant, Tenant making an assignment for the
benefit of creditors, or any proceeding being commenced to foreclose any mortgage or other lien
on Tenant's interest in the Premises or on any personal property kept or maintained on the
Premises by Tenant, which proceeding is not dismissed within ten (10) days of its having been
filed.
15.2. Remedies.
15.2.1. Whenever any default (other than a default under subsection 15.1.5)
above, upon which termination of this Lease shall, at the Landlord'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 Landlord to Tenant (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) and
Tenant has failed to diligently work to remedy or cure the default during such time, this Lease
and all of Tenant's rights under it will automatically terminate if the written notice of default so
POS Term Lease Agreement #003035 - 21 -
World Trade Center West Building
Washington Technology Industry Association
provides. Upon termination, the Landlord may reenter the Premises using such force as may be
necessary and remove all persons and property from the Premises. The Landlord will be entitled
to recover from Tenant all unpaid Rent or other payments and damages incurred because of
Tenant's default including, but not limited to, the costs of re-letting, including tenant
improvements, necessary renovations or repairs, advertising, leasing commissions, and
attorney's fees and costs ("Termination Damages"), together with interest on all Termination
Damages at the rate of 18% per annum, or the maximum rate permitted by applicable law,
whichever is less, from the date such Termination Damages are incurred by the Landlord until
paid.
15.2.2. In addition to Termination Damages, and notwithstanding termination
and reentry, Tenant'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 or any extension thereof
("Future Charges") will not be extinguished and Tenant agrees that the Landlord will be entitled,
upon termination for default, to collect as additional damages, a Rental Deficiency. "Rental
Deficiency" means, at the Landlord's election, either:
15.2.2.1. An amount equal to Future Charges, less the amount of
actual rent, if any, which the Landlord 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 Landlord's option either:
15.2.2.1.1 In an accelerated lump-sum payment if the Premises
have been relet for the entire remaining Term of this Lease; or
15.2.2.1.2 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 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 Landlord's right to collect any portion of Rental Deficiency by a similar
proceeding; or
15.2.2.2. An amount equal to Future Charges less the aggregate fair
rental value of the Premises over the remaining term of the Lease, reduced to present worth. In
this case, the Rental Deficiency must be paid to the Landlord in one lump sum, on demand, and
will bear interest at a rate of 18% per annum, or the maximum rate permitted by applicable law,
whichever is less, until paid. For purposes of this subsection, "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.
15.2.3. If this Lease is terminated for default as provided in this Lease, the
Landlord 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 term of the Lease), for such use or uses and,
otherwise on such terms and conditions as the Landlord, in its sole discretion, may determine,
but the Landlord will not be liable for, nor will Tenant's obligations under this Lease be
diminished by reason for any failure by the Landlord to re-let the Premises (unless due to failure
POS Term Lease Agreement #003035 - 22 -
World Trade Center West Building
Washington Technology Industry Association
to use reasonable efforts to do so) or any failures by the Landlord to collect any rent due upon
such re-letting.
15.2.4. If upon any reentry permitted under this Lease, there remains any
personal property upon the Premises, the Landlord, in its sole discretion, may remove and store
the personal property for the account and at the expense of Tenant. In the event the Landlord
chooses to remove and store such property, it shall take reasonable steps to notify Tenant of the
Landlord's action. All risks associated with removal and storage shall be Tenant's responsibility.
Tenant shall reimburse the Landlord for all expenses incurred in connection with removal and
storage as a condition to regaining possession of the personal property. The Landlord has the
right to sell any property which has been stored for a period of 30 days or more, unless Tenant
has tendered reimbursement to the Landlord for all expenses incurred in removal and storage.
The proceeds of sale will be applied first to the costs of sale (including reasonable attorneys'
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 Tenant to the Landlord. The balance of sale proceeds, if
any, will then be paid to Tenant.
15.2.5. The Landlord's action pursuant to this remedies section shall not be
construed to limit the Landlord in the exercise of any other additional right or remedy which may
be available to the Landlord, at law or in equity, by reason of Tenant's default.
SECTION 16: TERMINATION OTHER THAN FOR DEFAULT
16.1. Condemnation.
16.1.1. 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 the Building as shall, in Landlord's sole
judgment, be required for reasonable use of the Premises, this Lease shall terminate as of the date
of such taking. If Tenant is not in default under any of the provisions of this Lease on said date,
any Rent prepaid by Tenant shall, to the extent allocable to any period subsequent to the
effective date of the termination, be promptly refunded to Tenant.
16.1.2. 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 Landlord'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.
16.1.3. Damages. Landlord reserves all right to the entire damage award or
payment for taking by eminent domain, and Tenant waives all claim whatsoever against
Landlord and/or the authority exercising eminent domain for damages for termination of its
leasehold or for interference with its business. Landlord and Tenant further agree that all
decisions regarding how the eminent domain proceeding should be handled shall be made in the
sole discretion of Landlord (specifically including any response to a motion for order
adjudicating public use and necessity or and request for immediate possession), and Tenant shall
take no actions or steps which interfere with Landlord's ability to control the handling of the
POS Term Lease Agreement #003035 - 23 -
World Trade Center West Building
Washington Technology Industry Association
eminent domain proceeding. Notwithstanding the foregoing, nothing in this Section shall be
considered to be a waiver or assignment by Tenant of any right to relocation assistance payments
or relocation advisory services which may be available in connection with the eminent domain
proceeding.
16.1.4. Eminent Domain. The term "eminent domain" as used in this
Section 16.1 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.
16.2. 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 Landlord
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 Tenant is not in default under any of the provisions of this Lease on the effective
date of such termination, any Rent prepaid by Tenant shall, to the extent allocable to any period
subsequent to the effective date of the termination, be promptly refunded to Tenant. Tenant is not
entitled to any compensation at termination for the bargain value of the leasehold.
SECTION 17: PRIORITY
17.1. Subordination. Tenant agrees that this Lease shall be subordinate to any first
mortgage or deed of trust now existing or hereafter placed upon the Premises or the Building
created by or at the instance of Landlord and to any and all advances to be made thereunder and
to interest thereon and all renewals, replacements, or extensions thereof ("Landlord's
Mortgage"). Upon demand by Landlord or the holder of any Landlord's Mortgage ("Holder"),
Tenant shall execute and deliver subordination and attornment agreements in form and substance
satisfactory to such Holder. Tenant shall not be obligated to execute any agreement in favor of
Holder to confirm the subordination of this Lease unless such agreement contains nondisturbance
provisions reasonably acceptable to Tenant. Notwithstanding the foregoing, upon
demand of such Holder, such Landlord's Mortgage shall be subordinate to this Lease; provided,
however, that in such event, notwithstanding such subordination, such Landlord's Mortgage shall
be superior to this Lease with respect to (i) the right, claim and lien of the Landlord's Mortgage
in, to and upon any award or other compensation for any taking by eminent domain of any part
of the Premises or the Building and the right of disposition thereof in accordance with the
provisions of the Landlord's Mortgage; and upon any proceeds payable under any policies of fire
and rental insurance upon the Premises or the Building and to the right of disposition thereof in
accordance with the terms of the Landlord's Mortgage; (ii) any lien, right or judgment which
may have arisen at any time under the terms of the Lease; and (iii) such other matters as may be
specifically reserved by the Holder of such Landlord's Mortgage in writing in connection with
such subordination.
17.2. Attornment. Upon Holders' request Tenant shall attorn to the Holder of any
Landlord's Mortgage or any person or persons purchasing or otherwise acquiring the Building or
Premises at any sale or other proceeding under any Landlord's Mortgage. Tenant shall properly
execute, acknowledge and deliver instruments which the Holder of any Landlord's Mortgage
may reasonably require to effectuate the provisions of this Section.
POS Term Lease Agreement #003035 - 24 -
World Trade Center West Building
Washington Technology Industry Association
17.3. Estoppel Certificates. Tenant shall, from time to time, upon written request of
Landlord, execute, acknowledge and deliver to Landlord or its designee a written statement
prepared by Landlord stating: the date this Lease was executed and the date it expires; the date
the term commenced and the date Tenant accepted the Premises; the amount of the current
minimum monthly Rent and the date to which such Rent has been paid; and certifying to the
extent true: that this Lease is in full force and effect and has not been assigned, modified,
supplemented or amended in any way (or specifying the date and terms of agreement so affecting
this Lease); that this Lease represents the entire agreement between the parties as to this leasing;
that all conditions under this Lease to be performed by Landlord have been satisfied; that all
required contributions by Landlord to Tenant on account of Tenant's improvements have been
received; that on this date there are, to Tenant's knowledge, no existing claims, defenses or
offsets which Tenant has against the enforcement of this Lease by Landlord; that the security
deposit is as stated in the Lease; and such other matters concerning the status of the Lease as
Landlord may reasonably request. It is intended that any such statement delivered pursuant to
this Section may be relied upon by a prospective purchaser of Landlord's interest or the holder of
any mortgage upon Landlord's interest in the Building. If Tenant shall fail to respond within
fourteen (14) days of receipt by Tenant of a written request by Landlord as herein provided,
Tenant shall be deemed to have given such certificate as above provided without modification
and shall be deemed to have admitted the accuracy of any information supplied by Landlord to
Tenant for execution and that this Lease is in full force and effect, that there are no uncured
defaults in Landlord's performance, that the security deposit is as stated in the Lease, and that
not more than one month's Rent has been paid in advance.
SECTION 18: ACCESS AND EASEMENTS.
18.1. Access to Premises. Landlord may at any time enter upon the Premises, or any
part thereof, for the purpose of ascertaining the condition of the Premises or whether Tenant is
observing and performing the obligations assumed by it under this Lease, all without hindrance
or molestation from the Tenant. Landlord shall also have the right to enter upon the Premises for
the purpose of cleaning, repairing, altering or improving the Premises or the Building. The
above-mentioned rights of entry shall be exercisable upon request made on reasonable advance
notice to Tenant (except that no notice shall be required in the event of an emergency) or an
authorized employee of Tenant at the Premises, which notice may be given orally. Landlord shall
have the right to show the Premises at all reasonable times during business hours of Tenant to
any prospective purchasers, tenants or mortgagees of the same.
18.2. Easements. The Parties recognize that Landlord facilities are continuously being
modified to improve the utilities, services and premises used and provided by Landlord.
Landlord and its authorized utility service providers are hereby granted a continuous easement or
easements that Landlord believes is necessary within the Premises of Tenant, without any
additional cost to Landlord for the purposes expressed hereinabove. Landlord, its authorized
utility service provider, and their respective agents, shall have the right to enter the Premises of
Tenant, and to cross over, construct, move, reconstruct, rearrange, alter, maintain, repair and
operate the water lines, drainage lines, the electrical service, and all other services and facilities
required by Landlord for its use or that of its other tenants. Provided, however, that Landlord by
virtue of such use, does not substantially deprive Tenant from its beneficial use or occupancy of
POS Term Lease Agreement #003035 - 25 -
World Trade Center West Building
Washington Technology Industry Association
its leased area for an unreasonable period of time, not to exceed thirty (30) working days,
without consent of Tenant.
SECTION 19: NON-WAIVER; RIGHT TO PERFORM
19.1. Receipt of Monies Following Termination. No receipt of monies by Landlord
from Tenant 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
Tenant; (iii) operate as a waiver of the rights of Landlord 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 Landlord 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, Landlord 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 Tenant's liability hereunder.
19.2. No Waiver of Breach. The failure of Landlord 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 Landlord 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 Landlord of any provision hereof shall be deemed to have been made unless
expressed in writing and signed by Landlord. The consent or approval of Landlord to or of any
act by Tenant requiring Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent or approval to or of any subsequent similar acts by Tenant.
19.3. No Waiver of Rent. The receipt by Landlord of any installment of Rent or of any
amount shall not be a waiver of any Rent or other amount then due.
19.4. Application of Payments. Landlord shall have the right to apply any payments
made by Tenant to the satisfaction of any debt or obligation of Tenant to Landlord, in Landlord's
sole discretion and regardless of the instructions of Tenant as to application of any such sum,
whether such instructions be endorsed upon Tenant's check or otherwise, unless otherwise
agreed upon by both parties in writing. The acceptance by Landlord of a check or checks drawn
by others than Tenant shall in no way affect Tenant's liability hereunder nor shall it be deemed
an approval of any assignment of this Lease or subletting by Tenant.
19.5. Port's Right to Perform. Upon Tenant's failure to perform any obligation or make
any payment required of Tenant hereunder, Landlord shall have the right (but not the obligation)
to perform such obligation of Tenant on behalf of Tenant and/or to make payment on behalf of
Tenant to such parties. Tenant shall reimburse Landlord the reasonable cost of Landlord's
performing such obligation on Tenant's behalf, including reimbursement of any amounts that
may be expended by Landlord, plus interest at the Default Rate.
POS Term Lease Agreement #003035 - 26 -
World Trade Center West Building
Washington Technology Industry Association
SECTION 20: SURRENDER AND HOLDING OVER
20.1. Surrender. At the expiration or sooner termination of this Lease, Tenant shall
promptly: (i) surrender possession of the Premises to Landlord 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 Landlord 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, Tenant shall indemnify and hold Landlord harmless against loss or liability
resulting from the delay by Tenant in so surrendering the Premises, including, without limitation,
any claims made by any succeeding occupant founded on such delay.
20.2. Holding Over. If Tenant, with the consent of Landlord, 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, Tenant shall pay to Landlord the greater of (a) the then quoted rates for
similar space in the Building or (b) one hundred fifty percent (150%) of the Rent in effect upon
the date of such expiration as stated herein. Tenant will continue to be bound by all of the
additional provisions of this Lease insofar as they may be pertinent.
20.3. For Rent Signs. Landlord shall have the right to place and maintain "For Rent"
signs in conspicuous places on the Premises for one hundred eighty (180) days prior to the
expiration or sooner termination of this Lease.
SECTION 21: ENVIRONMENTAL STANDARDS.
21.1. Release of Hazardous Materials. Tenant shall not use, store, or dispose of or
otherwise allow the release of any hazardous waste or materials in, on or under the Premises, the
Building, or any adjacent property, or in any improvements placed on the Premises, except in
small amounts as ordinarily and customarily used for general office purposes, and then only
strictly in accordance with all applicable laws, rules, regulations and ordinances. Tenant
represents and warrants to Landlord that Tenant's intended use of the Premises does not involve
the use, production, disposal or bringing on to the Premises of any hazardous waste or materials,
except in small amounts as ordinarily and customarily used for general office purposes, and then
only strictly in accordance with all applicable laws, rules, regulations and ordinances. As used in
this Section, the term "hazardous waste or materials" includes any substance, waste or material
defined or designated as hazardous, toxic or dangerous (or any similar term) pursuant to any
statute, regulation, rule or ordinance now or hereafter in effect. Tenant shall promptly comply
with all such statutes, regulations, rules and ordinances, and if Tenant fails to so comply
Landlord may, after reasonable prior notice to Tenant (except in case of emergency) effect such
compliance on behalf of Tenant. Tenant shall immediately reimburse Landlord for all costs
incurred in effecting such compliance.
21.2. Indemnity. Tenant agrees to indemnify and hold harmless Landlord against any
and all losses, liabilities, suits, obligations, fines, damages, judgments, penalties, claims, charges,
cleanup costs, remedial actions, costs and expenses (including, without limitation, consultant
fees, attorneys' fees and disbursements) which may be imposed on, incurred or paid by
Landlord, or asserted in connection with (i) any misrepresentation, breach of warranty or other
POS Term Lease Agreement #003035 - 27 -
World Trade Center West Building
Washington Technology Industry Association
default by Tenant under this Lease, or (ii) the acts or omissions of Tenant, or any subtenant or
other person for whom Tenant would otherwise be liable, resulting in the release of any
hazardous waste or materials.
SECTION 22: MISCELLANEOUS
22.1. 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
provided in Section 1.4 or to such other respective addresses as either party hereto may hereafter
from time to time designate in writing. Notices shall be deemed delivered (i) when personally
delivered; (ii) on the third day after mailing when sent by certified or registered mail and the
postmark affixed by the United States Postal Service shall be conclusive evidence of the date of
mailing; (iii) on the date transmitted by facsimile, if the facsimile is confirmed received; or
(iv) on the first business day after deposit with a recognized overnight courier if deposited in
time to permit overnight delivery by such courier as determined by its posted cutoff times for
receipt of items for overnight delivery to the recipient. Payments may be made in the manner
provided for notice or may be delivered by regular mail (postage prepaid); provided, payments
made by regular mail (postage prepaid) shall be deemed delivered when actually received by
Landlord.
22.2. Brokers. Landlord and Tenant 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
Mark Fox and Pat Pendergast with Jones Lang LaSalle representing the Tenant and Tim Jones
with Jones Lang LaSalle representing the Landlord 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. Landlord and Tenant 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 Broker(s). 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 finders fee(s)
shall be paid to Tenant, employee(s) of Tenant or any unlicensed representative of Tenant.
Landlord shall be solely responsible for the payment of $64,085.00 to Tenant's broker and
$3,774.00 to Landlord's broker in connection with the negotiation and/or execution of this lease.
One half of the fee is payable upon a fully executed Lease and one-half is payable on the Rent
Commencement date.
22.3. Building Directory. Landlord shall maintain in the lobby of Building a directory
which shall include the name of Tenant and any other names reasonably requested by Tenant in
proportion to the number of listings given to comparable tenants of the Building.
22.4. Building Name. The Building shall be known by such name as Landlord may
designate from time to time.
POS Term Lease Agreement #003035 - 28 -
World Trade Center West Building
Washington Technology Industry Association
22.5. Consent. Whenever Landlord'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 Landlord's sole and absolute discretion.
22.6. Wireless Devices. Tenant shall not install any wireless devices and/or transmitters
on or about the Premises without the prior written consent of Landlord and subject to any and all
conditions in such consent. Tenant specifically grants to Landlord 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.
22.7. Relationship to Landlord and Tenant. 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 Tenant and Landlord shall be
deemed to create any relationship other than that of Tenant and Landlord.
22.8. Authority. If Tenant is a corporation, limited liability company, limited liability
partnership or limited or general partnership, each individual executing this Lease on behalf of
Tenant represents and warrants that he or she is duly authorized to execute and deliver this Lease
on behalf of Tenant, in accordance with a duly adopted resolution or consents of all appropriate
persons or entities required therefore and in accordance with the formation documents of Tenant,
and that this Lease is binding upon Tenant in accordance with its terms. At Landlord's request,
Tenant shall, prior to execution of this Lease, deliver to Landlord a copy of a resolution or
consent, certified by an appropriate officer, partner or manager of Tenant authorizing or ratifying
the execution of this Lease.
22.9. Landlord's Liability. Anything in this Lease to the contrary notwithstanding,
covenants, undertakings and agreements herein made on the part of Landlord are made and
intended not as personal covenants, undertakings and agreements for the purpose of binding
Landlord's representatives and agents personally, but are made and intended for the purpose of
binding only the Landlord and the Landlord's interest in the Premises and Building, as the same
may from time to time be encumbered. No personal liability or personal responsibility is
assumed by, nor shall at any time be asserted or enforceable against Landlord, or its legal
representatives, successors, and assigns on account of the Lease or on account of any covenant,
undertaking or agreement of Landlord in this Lease contained.
22.10. Transfer of Landlord's Interest. In the event of any transfers of Landlord's interest
in the Premises or in the Building, other than a transfer for security purposes only, Landlord or
any transferor of Landlord's interest ("Transferor") shall be automatically relieved of any and all
obligations and liabilities on the part of Landlord accruing from and after the date of such
transfer and such transferee shall have no obligation or liability with respect to any matter
occurring or arising prior to the date of such transfer. Tenant agrees to promptly attorn to the
transferee. In the event of any transfer, Landlord shall transfer the Security Deposit to the
transferee, if applicable.
22.11. Time. Time is of the essence of each and every one of Tenant's obligations,
responsibilities and covenants under this Lease.
POS Term Lease Agreement #003035 - 29 -
World Trade Center West Building
Washington Technology Industry Association
22.12. Recording. Tenant shall not record this Lease or any memorandum thereof
without Landlord's prior written consent.
22.13. Nondiscrimination Services.
22.13.1. Tenant agrees that it will not discriminate by segregation or otherwise
against any person or persons because of race, gender, age, creed, color, national origin or sexual
orientation 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.
22.13.2. It is agreed that Tenant's noncompliance with the provisions of this
clause shall constitute a material breach of this Lease. In the event of such noncompliance,
Landlord may take appropriate action to enforce compliance, may terminate this Lease, or may
pursue such other remedies as may be provided by law.
22.14. Nondiscrimination Employment. Tenant covenants and agrees that in all matters
pertaining to the performance of this Lease, Tenant shall at all times conduct its business in a
manner which assures fair, equal and nondiscriminatory treatment of all persons without respect
to race, gender, age, color, creed, national origin or sexual orientation and, in particular:
22.14.1. Tenant 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
22.14.2. Tenant 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.
22.15. Labor Unrest. Tenant agrees to join with Landlord 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 Landlord.
22.16. Joint and Several Liability. Each and every party who signs this Lease, other than
in a representative capacity, as Tenant, shall be jointly and severally liable hereunder. It is
understood and agreed that for convenience the word "Tenant" 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.
22.17. Captions. The captions in this Lease are for convenience only and do not in any
way limit or amplify the provisions of this Lease.
POS Term Lease Agreement #003035 - 30 -
World Trade Center West Building
Washington Technology Industry Association
22.18. 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.
22.19. 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.
22.20. 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.
22.21. 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, Tenant shall, at Landlord's option, defend
Landlord at Tenant's expense by counsel satisfactory to Landlord.
22.22. 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.
22.23. Exhibits. Exhibits A, B, C and D are attached to this Lease after the signatures
and by this reference incorporated herein.
IN WITNESS WHEREOF this Lease has been executed the day and year first above set
forth.
PORT OF SEATTLE WASHINGTON TECHNOLOGY
INDUSTRY ASSOCIATION
By:_________________________________ By:_________________________________
Its: ______________________________ Its: ______________________________
POS Term Lease Agreement #003035 - 31 -
World Trade Center West Building
Washington Technology Industry Association
SECTION 23: ACKNOWLEDGMENTS
LANDLORD
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: _________________________
TENANT
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 Tenant, 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: _________________________
EXHIBIT A
POS Term Lease Agreement #003035 - 32 -
World Trade Center West Building
Washington Technology Industry Association
LEGAL DESCRIPTION
LEGAL DESCRIPTION OF LAND ON WHICH BUILDING IS LOCATED
All that portion of Block 171B, Seattle Tide Lands, according to the official maps thereof on file
in the Office of the Commissioner of Public Lands in Olympia, Washington, and of Block 32,
Addition to the Town of Seattle as laid out by A. A. Denny (commonly known as A. A. Denny's
Sixth Addition to the City of Seattle), according to the plat thereof recorded in Volume 1 of
Plats, page 99, in King County, Washington, described as follows:
Beginning at the most southerly corner of Lot 6, said Block 171B; thence north 4741 '27" west
along the southwesterly line of said block, 262.21 feet to an intersection with a line concentric
with and 15.0 feet southwesterly from the centerline of Burlington Northern Railroad Company's
(formerly Great Northern Railway Company) most southerly track which passes through said
blocks, as said track was located on May 16, 1989, said concentric line being on a curve of
1,560.60 foot radius, the origin of which bears north 2512'42" east 1,560.60 feet from said
intersection; thence southeasterly along said curve and concentric line an arc distance of 122.16
feet through a central angle of 429'06" to a point of tangency therein; thence south 6916'24"
east along aforesaid line parallel with and 15.0 feet southwesterly from track centerline a
distance of 69.24 feet to the beginning of a curve to the right of 1,451.11 foot radius; thence
along said curve concentric with and 15.0 feet southwesterly from said track centerline an arc
distance of 85.35 feet through a central angle of 322' 12" to the beginning of a curve to the right
of 659.64 foot radius; thence along said curve concentric with and 15.0 feet southwesterly from
said track centerline an arc distance of 2.47 feet through a central angle of 012' 13" to the
southeasterly line of aforesaid Lot 11, Block 32; thence south 4218'55" west along said
southeasterly line and along the southeasterly line of said Lot 6, Block 171B, 95.73 feet to the
point of beginning: TOGETHER WITH that portion of vacated Blanchard Street, as vacated by
City of Seattle Ordinance Number 117279, which attached to said Blocks 32 and 171B by
operation of law, and that portion of the vacated northeasterly 31 feet of Alaskan Way, as
vacated by City of Seattle Ordinance Number 117279 which lies northwesterly of the
southwesterly extension of the centerline of said vacated Blanchard Street; all lying
southwesterly of a line concentric and/or parallel with and 15.0 feet southwesterly from the
centerline of Burlington Northern Railroad Company's (formerly Great Northern Railway
Company's) most southwesterly track which passes through said Avenue and Street.
POS Term Lease Agreement #003035 A-2
World Trade Center West Building
Washington Technology Industry Association
EXHIBIT B
PREMISES
POS Term Lease Agreement #003035 B-2
World Trade Center West Building
Washington Technology Industry Association
EXHIBIT C
BUILDING SPECIFIC RULES AND REGULATIONS
POS Term Lease Agreement #003035 C-1
World Trade Center West Building
Washington Technology Industry Association
POS Term Lease Agreement #003035 C-2
World Trade Center West Building
Washington Technology Industry Association
POS Term Lease Agreement #003035 C-3
World Trade Center West Building
Washington Technology Industry Association
POS Term Lease Agreement #003035 C-4
World Trade Center West Building
Washington Technology Industry Association
POS Term Lease Agreement #003035 C-5
World Trade Center West Building
Washington Technology Industry Association
POS Term Lease Agreement #003035 C-6
World Trade Center West Building
Washington Technology Industry Association
POS Term Lease Agreement #003035 C-7
World Trade Center West Building
Washington Technology Industry Association
POS Term Lease Agreement #003035 C-8
World Trade Center West Building
Washington Technology Industry Association
POS Term Lease Agreement #003035 C-9
World Trade Center West Building
Washington Technology Industry Association
POS Term Lease Agreement #003035 C-10
World Trade Center West Building
Washington Technology Industry Association
POS Term Lease Agreement #003035 C-11
World Trade Center West Building
Washington Technology Industry Association
EXHIBIT D
TENANT IMPROVEMENTS WORK LETTER
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 architectural fees for design and
construction drawings, permit fees, demolition of existing demising wall, installation of cabling
and telephone lines, new carpet and new paint. The Tenant Improvements shall be in accordance
with the provisions of this Work Letter 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 (2) sets of
the revised Preliminary 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 8 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.
POS Term Lease Agreement #003035 D-1
World Trade Center West Building
Washington Technology Industry Association
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 two (2) sets of revised Working Drawings, and a revised
Engineering Report, taking into account the reasons given by Landlord for
disapproval, within ten (10) 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, (c) building material
manufacturer's specifications, and (d) all prevailing wage laws in the State of Washington, as set
forth in RCW 39.12 as amended, and the rules and regulations of the Department of Labor and
Industries. If necessary, the Tenant Improvements shall also comply with the requirements of
Landlord's insurer.
POS Term Lease Agreement #003035 D-2
World Trade Center West Building
Washington Technology Industry Association
5. Architects, Engineers, and Contractors.
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 Section 12.1.1 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 commence promptly following the Possession Date,
and shall thereafter be diligently executed 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
professional 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
POS Term Lease Agreement #003035 D-3
World Trade Center West Building
Washington Technology Industry Association
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.
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. Landlord will not disburse Tenant
Improvement reimbursement until "as built" drawings have been provided.
6.9. Landlord shall not be responsible for any disturbance or deficiency created in the air
conditioning or other mechanical, electrical or structural facilities within the building or
Premises as a result of the Tenant Improvements. If such disturbances or deficiencies result,
Tenant shall correct the same and restore the services to Landlord's reasonable satisfaction,
within a reasonable time. Tenant shall use Landlord's approved HVAC Service provider for
any and all installations and adjustments required to the Premises in the course of the Tenant
Improvements. Tenant's mechanical system (heating, ventilating, and air conditioning) shall
tie into the central EMCS (emergency management control system) and the type of keys to
such system shall match those specified in the Building plans.
6.10. If performance of the Tenant Improvements shall require that additional services or
facilities (e.g., common area cleaning services) be provided, Tenant shall pay Landlord's
reasonable charges therefore.
6.11. Tenant's contractors shall comply with the rules of the building and Landlord's
requirements respecting allowable construction hours and manner of handling materials,
equipment and debris. Construction activities, delivery of materials, equipment and removal
of debris must be arranged to avoid any inconvenience or annoyance to other occupants.
The Tenant Improvements and all cleaning in the Premises must be controlled to prevent
dirt, dust or other matter from infiltrating into adjacent Tenant or mechanical areas.
POS Term Lease Agreement #003035 D-4
World Trade Center West Building
Washington Technology Industry Association
6.12. Landlord may impose reasonable additional requirements from time to time in order
to ensure that the Tenant Improvements, and the construction thereof does not disturb or
interfere with any other Tenants of the building, or their visitors, contractors or agents, nor
interfere with the efficient, safe and secure operation of the building. Tenant's Contractor
shall obtain a copy of, and comply at all times with, the then current contractor's rules and
regulations for the Building.
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 and 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 Letter, 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: (i) demising walls, corridor doors, interior partition walls and interior doors (if
any); (ii) any restrooms, kitchens, computer rooms, file rooms and other special purpose
rooms, and any sinks or other plumbing facilities, or other special facilities or equipment;
(iii) all utility connections; (iv) any communications system, indicating telephone and
computer outlet location; (v) and other Lines (as defined in the Lease); and (vi) 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: (i) electrical outlet locations, circuits and anticipated usage therefore; (ii)
reflected ceiling plan, including lighting, switching, and any special ceiling specifications;
(iii) duct locations for heating, ventilating and air-conditioning equipment; (iv) dimensions
of all equipment and cabinets to be built in; (v) location of all Lines (as defined in the
Lease); (vi) 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; (vii)
weight and location of heavy equipment, and anticipated loads for special usage rooms; and
POS Term Lease Agreement #003035 D-5
World Trade Center West Building
Washington Technology Industry Association
(viii) 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 Letter 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 Letter, the latter shall govern
and control.
9.2. Defaults. If Tenant shall default under this Work Letter, 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
Letter 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 Tenant
Improvement Allowance shall become immediately due and payable as additional Rent
under the Lease.
10. Tenant Reimbursement. Landlord shall contribute a Tenant Improvement Allowance of up
to ONE HUNDRED THIRTY-SEVEN THOUSAND THREE HUNDRED TWENTY-FIVE
AND 00/100 DOLLARS ($137,325.00) (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; (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; and
(iv) proper and approved Statements of Intent to Pay Prevailing Wages and Affidavits of Wages
Paid have been provided and approved by the Port in accordance with Section 8.4 of the Lease.
Tenant must request reimbursement within thirty (30) days of the substantial completion of the
Tenant Improvements provided by the Tenant, but not later than December 15, 2018. Landlord's
obligation to pay the Tenant Improvement Allowance is expressly conditioned upon 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.
POS Term Lease Agreement #003035 D-6
World Trade Center West Building
Washington Technology Industry Association
Limitations of Translatable Documents
PDF files are created with text and images are placed at an exact position on a page of a fixed size.
Web pages are fluid in nature, and the exact positioning of PDF text creates presentation problems.
PDFs that are full page graphics, or scanned pages are generally unable to be made accessible, In these cases, viewing whatever plain text could be extracted is the only alternative.