8f. Attachment 01 - SEA Employment Center Space Lease
Item no: 8f_attach1
Meeting date: Nov. 16, 2021
TERMINAL LEASE AGREEMENT
Between
PORT OF SEATTLE
And
Table of Contents
SECTION 1 : LEASED PREMISES .............................................................................................. 1
SECTION 2 : TERM ...................................................................................................................... 2
SECTION 3 : RENT ....................................................................................................................... 2
SECTION 4 : SECURITY .............................................................................................................. 4
SECTION 5 : USE OF PREMISES ................................................................................................ 4
SECTION 6 : UTILITIES ............................................................................................................... 6
SECTION 7 : ALTERATIONS; OWNERSHIP OF CERTAIN INSTALLATIONS .................... 8
SECTION 8 : MAINTENANCE AND REPAIR ......................................................................... 10
SECTION 9 : TAXES ................................................................................................................... 11
SECTION 10 : COMMON AREAS ............................................................................................. 11
SECTION 11 : INSURANCE AND INDEMNITY ..................................................................... 12
SECTION 12 : DAMAGE OR DESTRUCTION ......................................................................... 15
SECTION 13 : ASSIGNMENT AND SUBLEASE ..................................................................... 16
SECTION 14 : DEFAULT ........................................................................................................... 18
SECTION 15 : TERMINATION OTHER THAN FOR DEFAULT ........................................... 20
SECTION 16 : ACCESS; EASEMENTS ..................................................................................... 21
SECTION 17 : NONWAIVER; RIGHT TO PERFORM............................................................. 22
SECTION 18 : SURRENDER AND HOLDING OVER ............................................................. 23
SECTION 19 : ENVIRONMENTAL STANDARDS .................................................................. 24
SECTION 20 : MISCELLANEOUS ............................................................................................ 25
SECTION 21 : SIGNATURES ..................................................................................................... 31
SECTION 22 : ACKNOWLEDGMENTS ................................................................................... 32
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TERMINAL LEASE AGREEMENT
THIS TERMINAL LEASE AGREEMENT (the "Lease") is made as of this ____ day of
___________ 20__ by and between the PORT OF SEATTLE, a Washington municipal
corporation ("the Port"), and corporation ("Lessee").
For and in consideration of the mutual promises, covenants and conditions hereinafter set
forth, the parties agree as follows:
SECTION 1: LEASED PREMISES
1.1 Premises. The Port hereby leases to Lessee, and Lessee hereby leases from the
Port that certain two thousand four hundred and forty-five (2,445) square feet of space (the
"Premises") located within the Main Terminal of the Seattle-Tacoma International Airport ("the
Airport"). A legal description of the Main Terminal is attached as Exhibit A. The Premises is
generally depicted on Exhibit B, attached hereto and incorporated herein by this reference. The
Port and Lessee agree that the Premises Notice may be revised by the parties from time to time
during the term to reflect the addition, deletion or relocation of the Premises under this Lease,
and any revised Premises Notice shall automatically be incorporated into this Lease and update
and replace the last issued Premises Notice without the necessity of a formal amendment to the
Lease. Subject to the rights reserved to the Port in this Lease, the Premises: (i) include any
improvements and appurtenances located within the Premises, (ii) extend to the centerline of
party/demising walls and to the exterior faces of any exterior walls, and (iii) extend from the
structural flooring to ceiling, excluding any plenum above a drop/suspended ceiling. The Port
and Lessee agree that the Premises are, and shall be deemed for all purposes to be, the size set
forth in the Premises Notice.
1.2 Acceptance of the Premises. Lessee has examined the Premises, accepts them in
their present "AS IS" condition, and agrees to make any changes in the Premises necessary to
conform to federal, state and local law applicable to Lessee's use of the Premises.
1.3 Relocation. When, in the Port's sole discretion, the Premises are necessary for
security or other operational needs, the Port shall have the right to change the location of the
Premises, including a potential reduction in floor space, on thirty (30) days written notice to
Lessee. In the event of any change in the area of the Premises, Base Rent shall be adjusted
accordingly. The Port, however, shall not otherwise be liable to Lessee for any loss in the use
(including loss of business) and/or any inconvenience or annoyance occasioned by the
relocation.
1.4 Quiet Enjoyment. So long as Lessee is not in default under this Lease and subject
to the specific provisions, covenants and agreements contained in this Lease, the Port covenants
and agrees that the quiet and peaceful possession and enjoyment of the Premises by Lessee shall
not be disturbed or interfered with by the Port or by any other party claiming by or through the
Port.
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SECTION 2: TERM
2.1 Lease Term. This Lease shall be for a term of five (5) years, beginning on
and ending .
2.2 Option to Extend. Subject to the Port's sole consent and if Lessee is in
compliance with the terms and conditions of this Lease, Lessee has the option to request an
extension of the Lease term for two (2) additional one (1) year terms, with Base Rent to be
adjusted as stated in Section 3.3, if the Port has extended Contract No. X-XXXXXXXX for
additional extension terms. In the event the Port extends Contract No. X-XXXXXXX, Lessee
shall provide the Port with written notice of Lessee's request to exercise such lease extension. No
later than thirty (30) days after receipt of Lessee's notice, the Port, in its sole discretion, may
provide Lessee with written confirmation of the Port's consent to the extension.
2.3 Possession. If the Port shall be unable for any reason to deliver possession of the
Premises, or any portion thereof, at the time of the commencement of the term of this Lease, the
Port shall not be liable for any damage caused thereby to Lessee, nor shall this Lease thereby
become void or voidable, nor shall the term specified herein be in any way extended, but in such
event Lessee shall not be liable for any Rent until such time as the Port can deliver possession. If
Lessee shall, in the interim, take possession of any portion of the Premises, Lessee shall pay as
Rent the full rent specified herein reduced pro rata for the portion of the Premises not available
for possession by Lessee. If the Port shall be unable to deliver possession of the Premises at the
commencement of the term of this Lease, Lessee shall have the option to terminate this Lease by
at least thirty (30) days' written notice, unless the Port shall deliver possession of the Premises
prior to the effective date of termination specified in such notice. If Lessee shall, with the Port's
consent, take possession of all or any part of the Premises prior to the commencement of the term
of this Lease, all of the terms and conditions of this Lease shall immediately become applicable,
with the exception that Lessee shall not be obligated to pay any Rent for the period prior to the
commencement of the term of this Lease unless otherwise mutually agreed.
SECTION 3: RENT
3.1 Base Rent. Commencing on the commencement date, Lessee agrees to pay as
rent ("Base Rent") for the Premises at the rate of One Hundred Thirty-Eight and 51/100 Dollars
($138.51) per square foot per year, plus applicable taxes.
Base Rent is generally computed as follows:
2,445 square feet X $138.51 sf = $338,656.95 / 12 = $28,221.41*
*Year 1: 2022 base rent, plus applicable taxes
The Base Rent shall constitute the contract rent for purposes of determining taxable rent
for assessment of leasehold excise tax.
3.2 Payment. The Base Rent shall be paid to the Port in advance on the first day of
each and every month during the term, at such place as the Port may designate, without any prior
demand, and without any abatement, deduction or setoff whatsoever. If the term commences on
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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. The Port reserves the
right to increase such rent upon thirty (30) days prior written notice to Lessee; provided,
however, any such adjustment may be made only in connection with adjustments to other
terminal rental rates applying at the Airport and in a manner reasonably consistent with the
methodologies utilized in such other terminal rental rate adjustments.
3.3 Consumer Price Index. The Base Rent stated in Section Error! Reference source
not found. shall be adjusted on the anniversary of the Commencement Date and every twelfth
(12th) month thereafter through the term of this Lease, including any extension term, if any, by a
percentage equal to the percentage increase for the previous twelve (12) month period in the
Consumer Price Index for All Urban Consumers, U.S. City Average, all items, as published by
the United States Department of Labor, Bureau of Labor Statistics, or at the Port's option for the
Seattle-Tacoma-Bellevue Area (1982-4= 100) (the "CPI"). In no event will the Port adjust the
Base Rent downward as a result of a change in the CPI. If the CPI is not published for any
month pertinent to such calculation, the percentage adjustment shall be calculated with reference
to the most recent month for which the CPI has been published. If the CPI is discontinued or
revised during the Lease term, the Port, at its sole option may use such other government index
or computation with which it is replaced shall be used in order to obtain substantially the same
results as would be obtained if the CPI had not been discontinued or revised.
3.4 Late Charges.
3.4.1 Lessee hereby acknowledges that late payment by Lessee to the Port of
Rent, or any portion thereof, or any other sums due hereunder will cause the Port to incur costs
not otherwise contemplated by this Lease. Accordingly, if any installment of Rent, or any
portion thereof, or any other sum due from Lessee shall not be received by the Port within ten
(10) days after such amount shall be due, then, without any requirement for notice to Lessee,
Lessee shall pay the Port a late charge equal to the greater of five dollars ($5.00) or 5% of such
overdue amount. The parties agree that such late charge represents a fair and reasonable estimate
of the costs the Port will incur by reason of late payment by Lessee. Acceptance of such late
charge by the Port shall in no event constitute a waiver of Lessee's default with respect to such
overdue amount, nor prevent the Port from exercising any of the other rights and remedies
granted hereunder.
3.4.2 In the event that a late charge is payable in this Lease or otherwise,
whether or not collected, for three (3) installments of Rent and/or other remuneration in any 12-
month period, then Rent and/or other remuneration shall automatically become due and payable
quarterly in advance, rather than monthly, notwithstanding Section 3.1 or any other provision of
this Lease to the contrary.
3.4.3 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; provided, however, the minimum charge of interest shall be
five dollars ($5.00).
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3.5 Use of Term Rent. The Port and Lessee agree that the term "Rent" shall mean
and refer collectively to sums denominated as either Base Rent, Percentage Rent (if any),
Additional Rent (if any) or any such other sums or charges otherwise payable by Lessee under
the terms of this Lease. Failure by Lessee to pay any sum denominated as Rent shall entitle the
Port to pursue any or all remedies specified in this Lease as well as remedies specified in RCW
Chapter 59.12 or otherwise allowed by law.
SECTION 4: SECURITY
4.1 Security. Lessee shall, upon execution of this Lease, obtain and deliver to the
Port a good and sufficient corporate surety company bond, irrevocable stand-by letter of credit,
cash deposit or other security in an amount equal to six (6) months' rent (hereinafter referred to
as "Security"), to secure Lessee's full performance of this Lease, including the payment of all
fees and other amounts now or hereafter payable to the Port hereunder. The amount, form,
provisions and nature of the Security, and the identity of the surety or other obligor thereunder,
shall at all times be subject to the Port's approval. The Security shall remain in place at all times
throughout the full term of this Lease and throughout any holdover period. If the Security is in a
form that periodically requires renewal, Lessee must renew the Security not less than 45 days
before the Security is scheduled to expire. No interest shall be paid on the Security and the Port
shall not be required to keep the Security separate from its other accounts. No trust relationship
is created with respect to the Security.
4.2 Return of Security. The Security is a part of the consi deration for execution of
this Lease. If Lessee shall have fully performed all terms and conditions of this Lease, any cash
deposit security shall be paid to Lessee within thirty (30) days following the termination (or
expiration) date without interest; otherwise the Port shall, in addition to any and all other rights
and remedies available under this Lease or at law or equity, retain title thereto.
4.3 Application of Security. The Port may apply all or part of the Security to unpaid
Rent or any other unpaid sum due hereunder, or to cure other defaults of Lessee. If the Port uses
any part of the Security, Lessee shall restore the Security to its then-currently required amount
within fifteen (15) days after the receipt of the Port's written request to do so. The retention or
application of such Security by the Port pursuant to this Section does not constitute a limitation
on or waiver of the Port's right to seek further remedy under law or equity.
SECTION 5: USE OF PREMISES
5.1 Use of Premises. Le ssee shall use the Premises for office and classroom use and
shall not use them for any other purpose without the written consent of the Port.
5.2 General Standards Regarding Use.
5.2.1 Lessee shall occupy and use the entire Premises for the purpose set forth
in Section 5.1 in a first-class manner continuously during the entire term of this Lease, with the
exception of temporary closures for such periods as may reasonably be necessary for repairs or
redecorating or for reasons beyond Lessee's reasonable control.
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5.2.2 Lessee shall not use or occupy the Premises, 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) constitute a public or private nuisance, (v) impair or interfere with, in
the Port's reasonable judgment, the character, reputation or appearance of the Port, or (vi)
occasional discomfort, inconvenience or annoyance to the Port, adjoining tenants or the traveling
public. For purposes of this Lease, the term "Legal Requirements" shall mean and refer to all
laws, statutes and ordinances including building codes and zoning regulations and ordinances
and the orders, rules, regulations and requirements of all federal, state, county, city or other local
jurisdiction departments, agencies, bureaus, offices and other subdivisions thereof, or any official
thereof, or of any other governmental, public or quasi-public authority, which may be applicable
to or have jurisdiction over the Premises, or the sidewalks or streets adjacent thereto and all
requirements, obligations and conditions of all instruments of record on the date of this Lease.
5.2.3 Lessee shall take all reasonable measures, using the latest known and
practicable devices and means, to eliminate any unusual, nauseous or objectionable noise, gases,
vapors, odors and vibrations from emanating from the Premises. Lessee shall not conduct or
permit to be conducted without the prior written consent of the Port, any auction, fire,
bankruptcy, "going out of business" or other distress sales of any nature upon or from the
Premises, whether voluntary, involuntary, pursuant to any assignment for the payment of
creditors, or pursuant to any bankruptcy or other insolvency proceeding, unless ordered by a
court of competent jurisdiction.
5.3 Continuing Compliance. Throughout the term of this Lease, Lessee shall, at its
own cost and expense, promptly and diligently observe and comply with: (i) all Legal
Requirements (including, without limitation, those relating to environmental matters) and the
requirements of any fire insurance rating organization and all insurance companies writing
policies covering the Premises or any part or parts thereof; (ii) all applicable rules and
regulations of the Port pertaining to the Airport, and/or to the building or other realty of which
the Premises are a part now in existence or hereafter promulgated for the general safety and
convenience of the Port, its various tenants, invitees, licensees and the general public including,
without limitation, the Airport's Schedule of Rules and Regulations as then in effect, and as from
time to time updated, supplemented or amended (which are available for review on the Port's
website (www.portseattle.org) (search "airport rules and regulations") (Lessee will be provided a
copy upon request);; and (iii) all permits, licenses, franchises and other authorizations required
for Lessee's use of the Premises or any part thereof. Lessee shall comply with each of these
whether or not they are now in force or at any time in the future may be passed, enacted, or
directed. Any fees for any inspection of the Premises during or for the Lease term by any
federal, state or municipal officer and the fees for any so-called "certificate of occupancy" shall
be paid by Lessee.
5.4 Security Requirements. Without limiting the generality of either Section 5.2 or
5.3, Lessee and its employees, agents, and contractors shall comply at all times with (a) all local,
state and federal laws, rules and regulations relating to homeland security ("Security Laws"), (b)
all Sea-Tac Airport badging and security requirements ("Badging Requirements"), and (c) any
government-required security plan ("Security Plan") applying at the Airport. Lessee shall be
solely responsible for all of its costs of complying with any applicable Security Laws, Badging
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Requirements, or Security Plan as well as any fines or penalties incurred (whether by Lessee or
the Port) as result of its failure to comply with such Security Laws, Badging Requirements or
Security Plan.
5.5 No Liens. Lessee will not directly or indirectly create or permit to be created
and/or to remain, a Lien upon the Premises, including any Alterations (as defined below in
Section 7.1), fixtures, improvements or appurtenances thereto, except those Liens expressly
permitted in writing by the Port. In the event any such Lien(s) have been created by or permitted
by Lessee in violation of this provision, Lessee shall immediately discharge as of record, by
bond or as otherwise allowed by law, any such Lien(s). Lessee shall also defend (with counsel
approved by the Port), fully indemnify, and hold entirely free and harmless the Port from any
action, suit or proceeding brought on or for the enforcement of such Lien(s). As used in this
Section, "Lien" shall mean and refer to any mortgage, lien, security interest, encumbrance,
charge on, pledge of, conditional sale or other encumbrance on the Premises, any Alteration,
fixture, improvement or appurtenance thereto, or any larger building and/or property of which
the Premises may be a part.
5.6 Signs. No sign, symbols or other advertising matter shall be attached to or
painted on or within the Premises, including windows and doors thereof, without the prior
written approval of the Port. At the termination or sooner expiration of this Lease, all signs,
symbols, advertising matter or canopies placed on or in the Premises by Lessee shall be removed
by Lessee at its expense, and Lessee shall repair any damage or injury to the Premises and
correct any unsightly condition caused by the maintenance or removal of said signs or other
advertising matter.
SECTION 6: UTILITIES
6.1 Utilities.
6.1.1 HVAC. In the event that the Premises are served by the Airport's heating,
ventilating and air conditioning (HVAC) system, the Port will, at no cost to Lessee, furnish
normal and reasonable quantities of conditioned air from the central HVAC system. In the event
that the Premises are not served by the Airport's HVAC system and Lessee requires HVAC
service, Lessee shall, at its expense, furnish, install and maintain any ductwork and other
connections within or leading into the Premises, and shall connect and complete the HVAC from
the Airport's central system. Subject to conditions beyond its control, the Port will maintain
under normal conditions a temperature adequate for comfortable occupancy according to the
season and the nature of the use; provided, that Lessee properly maintains the ductwork and
other connections within the Premises and complies with the recommendations of the Port
regarding reasonable occupancy and use of the Premises.
6.1.2 Electricity. The Port will, at no cost to Lessee, provide normal and
reasonable quantities of electrical power to the Premises considering the nature of the permitted
use. In the event that Lessee installs any special systems (e.g. supplementary HVAC) or utilizes
a disproportionate amount of power considering the permitted use, the Port may, in its sole
discretion, either: (i) require Lessee, at Lessee's expense, to furnish, install and maintain an
electric meter for the Premises at a location and of a type specified by the Port and to pay all
costs for electricity used within the Premises or (ii) where separate metering is not required,
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require Lessee to pay all costs for electricity used within the Premises where such costs are
calculated by the Port on any reasonable basis.
6.1.3 Water/Sewer/Gas. The Port shall have no obligation to provide water,
sewer or natural gas service to the Premises. To the extent Lessee requires water, sewer or
natural gas service (and such service is permitted by the Port pursuant to Section 7), Lessee shall,
at its expense, furnish, install and maintain a connection to the applicable system (specifically
including a meter, if required) at a location and of a type specified by the Port. Lessee shall
further pay all costs for water or gas used within the Premises and a reasonable sewer use charge.
6.1.4 Communications. Lessee agrees to use the Port's cabling and
communications system for its operations at the Airport when such cabling and communications
system have been installed by the Port, and Lessee shall pay a user fee as will be determined by
the Port. In the event Lessee is allowed to install communication equipment, any such
installation shall be subject to the Port regulation.
6.1.5 Trash, Recycling and Other Common Services. The Port may establish
common use services at the Airport, including but not limited to trash and refuse removal,
deliveries, and recycling. The Port reserves the right to establish charges for common use services
based upon documented actual costs and to require the use of such common use services.
6.1.6 Janitorial. Lessee shall be solely respo nsible for any janitorial or other
custodial services and expenses associated with the Premises.
6.2 Utility Interruptions.
6.2.1 With respect to any utility service provided to the Premises as a part of a
building or any larger premises of which the Premises are a part, the Port shall have the right to
shut down electrical or other utility services to the Premises when necessitated by safety, repairs,
alterations, connections, upgrades, relocations, reconnections, or for any other reason, with
respect to any such utility system (singularly or collectively, "Utility Work"), regardless of
whether the need for such Utility Work arises in respect of the Premises, any other part of the
building or larger premises. Whenever possible, the Port shall give Lessee no less than two (2)
days prior notice for such utility shutdown. The Port shall not be liable to Lessee for any losses,
including loss of income or business interruption, resulting from any interruptions or failure in
the supply of any utility to the Premises, except when such losses result from the Port's gross
negligence.
6.2.2 Lessee acknowledges that interruptions in utility services (including,
without limitation, electrical service) are not uncommon in facilities such as the Airport, and
Lessee acknowledges that it will, at its cost and expense, protect any sensitive electronic
equipment which may be used in the Premises from utility service interruptions through the use
of backup power supplies, surge protectors, and other appropriate safety systems as Lessee
deems reasonable and necessary. Lessee acknowledges that it has taken or will take all
precautions it deems necessary to protect its equipment in, on and around the Airport, including
the acquisition of insurance
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6.3 Energy Conservation. The Port shall hav e the right to institute such reasonable
policies, programs and measures as may be necessary or desirable, in the Port's discretion, for
the conservation and/or preservation of energy or energy related services, or as may be required
to comply with any applicable codes, rules and regulations, whether mandatory or voluntary.
6.4 Centralized Receiving and Distribution. The Port reserves the right to develop
and manage a Centralized Receiving and Distribution Facility (CRDF) to be used by Lessee and
other parties receiving deliveries for the Airport terminals, which CRDF may be located at a
location off the Airport with regular deliveries to the Airport provided that same is applicable
uniformly to all other tenants and occupants operating similar lounge or concession operations
within the Airport. The Port may also select a single entity to manage receiving and deliver ies
and to handle product distribution within the Airport terminals. If the Port chooses to select a
delivery and distribution management entity, Lessee will be required to use the CRDF and the
services of such manager and pay its respective costs of the program, at the then-current rate set
forth in Seattle-Tacoma International Airport Tariff No. 1, as the same may be revised or
replaced from time-to-time provided that same is applicable uniformly to all other tenants and
occupants tenants operating similar lounge or concession operations within the Airport. Upon
implementation of a CRDF, no direct deliveries will be allowed to Lessee in the Airport
terminals.
SECTION 7: ALTERATIONS; OWNERSHIP OF CERTAIN INSTALLATIONS
7.1 Limitation on Alterations. Lessee shall mak e no changes, alterations, additions,
substitutions or improvements (collectively referred to as "Alterations") to the Premises, unless
Lessee shall first deliver to the Port plans and specifications for, and obtain the Port's prior
written approval of, such Alterations. All such Alterations shall be done at Lessee's sole cost
and expense and at such times and subject to such conditions as the Port may from time to time
designate. Unless otherwise specifically agreed, Lessee shall obtain all necessary permits,
including any discretionary permits, for any Alteration. In the event the Port is required or has
obtained any of the necessary permits, Lessee will reimburse the Port for any permit fees and
associated costs in obtaining said permits.
7.2 Requirements for All Alterations. In addition to, and not in lieu of, conditions
imposed by the Port pursuant to Section 7.1, any alterations or improvements permitted by the
Port shall be constructed and performed: (i) in a good and workmanlike manner; (ii) in
compliance with all Legal Requirements and Port Standards; and (iii) in a manner which will not
unreasonably interfere with or disturb other tenants of the Port. In addition, prior to
commencement of any Alterations, Lessee shall furnish to the Port proof of insurance for any
and all contractors working on behalf of Lessee in the minimum form and limits as set forth in
Section 11.2.1.1 and 11.2.1.2. Any Alterations shall immediately become the property of the
Port without any obligation on its part to pay therefor, and shall not be removed by Lessee unless
directed to do so in connection with any consent issued under Section 7.1 or pursuant to
SECTION 18. As used in this Section, "Port Standards" shall mean the Sea-Tac Rules and
Regulations, the Regulations for Airport Construction, the Tenant Design and Construction
Process Manual (also known as the "Tenant Roadmap"), the CAD Standards Manual, the
Concession Design Standards, the Port's mechanical, electrical, water and waste, and industrial
waste and storm drainage standards and any other, similar document establishing requirements
and/or standards for design and construction at the Airport.
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7.3 As Built Drawings. Within ninety (90) days of the completion of any Alteration,
Lessee shall provide the Port with: (a) a certification that the Alteration has been constructed in
accordance with the approved drawings and specifications and in strict compliance with all Legal
Requirements and the Port Standards; (b) a certified proof in writing demonstrating that no liens
exist on the Alteration; and (c) a reproducible final copy of the plans as-built for the Alteration
along with computer discs as electronic files in a format compatible with the Port's CAD
Standards Manual, to enable the Port to upgrade its existing files to reflect the as-constructed
changes made by Lessee.
7.4 Trade Fixtures. Lessee shall retain ownership of all trade fixtures and business
equipment and furnishings from time to time installed by Lessee at its expense. Lessee may
remove any of such fixtures, equipment or furnishings at any time during the term and shall
remove all thereof prior to the expiration of the term. Any such property not removed at the
expiration of the term shall, at the election of the Port, become the property of the Port without
payment to Lessee, or be deemed abandoned and removed by the Port, at Lessee's expense.
Upon any removal of such property, Lessee shall promptly repair any and all damage to the
Premises caused thereby and reimburse the Port for its costs and expenses in removing any such
property not removed by Lessee and repairing any such damage not repaired by Lessee; this
covenant shall survive the termination of this Lease.
7.5 Project Labor Agreement. Although not required, for Alterations performed under
Lessee-administered construction contracts, 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.
7.6 Prevailing Wage. Lessee shall, in connection with the labor associated with any
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 Alterations shall 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, and/or its contractors,
subcontractors, sub-subcontractors, or any other person who performs a portion of the work on
any Alterations Further, in the event the Port approves and Lessee undertakes any such Tenant
Improvements or Alterations, Lessee shall comply with the following requirements in connection
therewith:
7.6.1 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
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at: http://apps.leg.wa.gov/wac/default.aspx?cite=296-127. In any contracts for Alterations
approved by the Port, Lessee's contract with any general contractor and/or subcontractor shall
require the payment of the local prevailing wage.
7.6.2 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.
7.6.3 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.
7.6.4 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 Error! Reference source not
found.; any failure by Lessee or contractor or subcontractor at any tier to meet the requirements
of this Section Error! Reference source not found. or violation of prevailing wage laws or
regulations shall be a material breach of this Lease.
SECTION 8: MAINTENANCE AND REPAIR
8.1 Maintenance and Repair by Lessee.
8.1.1 Lessee shall, at is sole cost and expense, keep the Premises (specifically
including all Alterations, equipment and installations) in good order, condition and repair at all
times. Lessee shall make all repairs and replacements (ordinary as well as extraordinary,
foreseen and unforeseen) which may be necessary or required so that at all times the Premises
are in good order, condition and repair. With limiting the generality of the foregoing, Lessee
shall keep the glass of all windows (if applicable) and doors on the Premises clean and
presentable, shall replace all cracked or broken glass in the Premises, shall keep the mechanical
and electrical systems and all drains clean and in a good state of repair, shall protect the sprinkler
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system and all pipes and drains so that they will not freeze or become clogged and shall not
permit or suffer any waste, damages, or disfigurement to or upon the Premises or any part
thereof.
8.1.2 Lessee shall also keep the Premises and entryways neat, clean and in
sanitary condition, free from infestation of pests and conditions which might result in harborage
for, or infestation of pests. As used in this Section, the word "pests," shall include without
limitation, rodents, insects, and birds in numbers to the extent that a nuisance is created
8.2 Maintenance and Repair by Port. Notwithstanding anything to the contrary in
Section 8.1, the Port shall repair and maintain the roof (both structure and covering/membrane),
exterior walls, foundation and building structure of the Premises in good order, condition and
repair. The Port shall perform this work at its sole cost and expense, except to the extent that any
such repairs may be required as a result of damage caused by negligence of Lessee or its agents,
employees, invitees or licensees, in which event the work shall be at the cost or expense of
Lessee. The Port shall perform such repair or maintenance work called to its attention by Lessee
within a reasonable period of time after receipt of such notice by Lessee. There shall be no
abatement or reduction of Rent, and the Port shall not be responsible for any loss or damages to
Lessee's business, arising by reason of the Port making any repairs, alterations or improvements.
SECTION 9: TAXES
9.1 Payment of Taxes. Lessee shall be liable for, and shall pay throughout the term of
this Lease, all license fees and all taxes payable for, or on account of, the activities conducted on
the Premises and all taxes on the property of Lessee on the Premises and any taxes on the
Premises and/or on the leasehold interest created by this Lease and/or any taxes levied in lieu of
a tax on said leasehold interest and/or any taxes levied on, or measured by, the rentals payable
hereunder, whether imposed on Lessee or on the Port. With respect to any such taxes payable by
the Port which are on or measured by the Rent payments hereunder, Lessee shall pay to the Port
with each Rent payment an amount equal to the tax on, or measured by, that particular payment.
All other tax amounts for which the Port is or will be entitled to reimbursement from Lessee
shall be payable by Lessee to the Port at least fifteen (15) days prior to the due dates of the
respective tax amounts involved; provided, that Lessee shall be entitled to a minimum of ten (10)
days' written notice of the amounts payable by it.
9.2 Personal Property Taxes. Lessee shall pay or cause to be paid, prior to
delinquency, any and all taxes and assessments levied upon all trade fixtures, inventories and
other real or personal property placed or installed in and upon the Premises by Lessee. If any
such taxes on Lessee's personal property or trade fixtures are levied against the Port or the Port's
property, and if the Port pays the taxes based upon such increased assessment, Lessee shall, upon
demand, repay to the Port the taxes so levied.
SECTION 10: COMMON AREAS
10.1 Control of Common Areas by Port. The Port shall at all time have the exclusive
control and management of the common areas of the Airport and other areas, improvements,
facilities and/or special services provided by the Port for the general use, in common, of the
traveling public and/or tenants of the Airport ("common areas and facilities"). Without limiting
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the Port's right of control and management or creating a duty to do so, the Port specifically
reserves the right to: (i) establish, modify from time to time, and enforce reasonable rules and
regulations governing the use of the common areas and facilities (specifically including, but not
limited to, security requirements in non-public areas of the Airport); (ii) change the area, level,
location and arrangement of common areas and facilities; (iii) provided Lessee is not deprived of
reasonable access to its Premises, close all or any portion of the common areas and facilities; and
(iv) do and perform such other acts in and to the common areas and facilities as, in the use of
good business judgment, the Port shall determine to be advisable with a view to the improvement
of the convenience and use thereof by authorized users.
10.2 Parking. While the Port may provide parking facilities to Lessee and its
employees in common with employees of other tenants and users of the Airport, it retains the
right to impose a reasonable charge for the privilege of utilizing these parking facilities. Nothing
herein contained shall be deemed to require the Port to provide parking facilities to Lessee's
employees.
10.3 License. All common areas and facilities which Lessee is permitted to use and
occupy are used and occupied under a revocable license. If the amount of such areas or facilities
is revised or diminished, such revision or diminution shall not be deemed a constructive or actual
eviction, and the Port shall not be subject to any liability, nor shall Lessee be entitled to any
compensation or reduction or abatement of Rent.
10.4 Inconvenience. Lessee recognizes that f rom time to time during the term of this
Lease, it may be necessary for the Port to commence or complete extensive programs of
construction, expansion, relocation, maintenance and repair in order that the Airport and its
facilities may be completed and operated in accordance with any present or future master layout
plan, and that such construction, expansion, relocation, maintenance, repair or other management
of the common areas and facilities may inconvenience the Lessee in its operation at the Airport.
Lessee agrees that no liability shall attach to the Port, its officers, agents, employees, contractors,
subcontractors and representatives by way of such inconveniences, and Lessee waives any right
to claim damages or other consideration therefrom.
SECTION 11: INSURANCE AND INDEMNITY
11.1 Indemnity.
11.1.1 The Port, its officers, employees and agents shall not be liable for any
injury (including death) to any persons or for damage to any property regardless of how such
injury or damage be caused, sustained or alleged to have been sustained by Lessee or by others,
including but not limited to all persons directly or indirectly employed by Lessee, or any agents,
contractors, subcontractors, licensees or invitees of Lessee, as a result of any condition
(including existing or future defects in the Premises) or occurrence (including failure or
interruption of utility service) whatsoever related in any way to Lessee's use or occupancy of the
Premises and of areas adjacent thereto.
11.1.2 To the maximum extent permitted by law, Lessee shall defend (with
counsel approved by the Port), fully indemnify, and hold entirely free and harmless the Port and
its Commissioners, officers, agents and employees from any and all loss, damages, expenses,
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attorneys' fees, consultants' fees, court costs and other costs for or from: (a) anything and
everything whatsoever arising from the condition of the Premises or out of the occupancy by the
Lessee or subtenant, licensee, invitee or concessionaire of Lessee; and (b) any accident, injury,
death or damage to any party however caused in or about the Premises or upon the sidewalks
adjacent to the Premises, whether or not caused by the negligence of Lessee or any third party;
and (c) any fault or negligence by Lessee or any sublessee, licensee, invitee or concessionaire of
the Lessee or of any officer, agent, employee, guest or invitee of any such person; and (d) any
failure on Lessee's part to comply with any of the covenants, terms and conditions contained in
this Lease; provided, however, nothing herein shall require Lessee to indemnify the Port from
any accident, injury, death or damage arising out of the sole negligence of the Port or its
Commissioners, officers, agents and employees. Lessee agrees that the foregoing indemnity
specifically covers actions brought by its own employees, and thus Lessee expressly waives its
immunity under industrial insurance, Title 51, as necessary to effectuate this indemnity.
11.1.3 Notwithstanding anything to the contrary in Section 11.1.2, in the event of
the concurrent negligence of Lessee, its subtenants, licensees, assignees, concessionaires, agents,
employees, or contractors on the one hand and the negligence of the Port, its agents, employees
or contractors on the other hand, which concurrent negligence results in injury or damage to
persons or property of any nature and howsoever caused, and relates to the construction,
alteration, repair, addition to, subtraction from, improvement to or maintenance of the Premises
such that RCW 4.24.115 is applicable, Lessee's obligation to indemnify the Port as set forth in
this Section shall be limited to the extent of Lessee's negligence and that of Lessee's officers,
sublessees, assignees, agents, employees, contractors or licensees, including Lessee's
proportional share of costs, court costs, attorneys' fees, consultants' fees and expenses incurred
in connection with any claim, action or proceeding brought with respect to such injury or
damage.
11.1.4 TENANT AND PORT AGREE AND ACKNOWLEDGE THAT THIS
PROVISION IS THE PRODUCT OF MUTUAL NEGOTIATION. Lessee's obligations under
this Section shall survive the expiration or earlier termination of this Lease.
11.2 Insurance.
11.2.1 Required Policies. Lessee shall obtain and keep in force, at its sole cost
and expense the following types of insurance, in the amounts specified and in the form
hereinafter provided for:
11.2.1.1 General Liability Insurance. Lessee shall obtain and keep
in force a commercial general liability policy of insurance, written on ISO Form CG 00 01 10 01
(or equivalent), that protects Lessee and the Port, as an additional insured using ISO Form 20 26
(either 11 85 or 07 04 revision) or equivalent, against claims for bodily injury, personal injury
and property damage based upon, involving or arising out of the tenancy, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto, and specifically including the
action/inaction of any subtenant, licensee or concessionaire. Such insurance shall be on
occurrence basis providing single limit coverage in an amount not less than two million dollars
($2,000,000) per occurrence. The policy shall not contain any intra-insured exclusions as
between insured persons or organizations. The policy shall contain a minimum $100,000 sublimit
that covers damage to premises rented or leased to Lessee, including fire damage. This
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limit shall be identified on the Certificate of Insurance. The Port shall be submitted upon Lease
inception, a copy of the additional insured endorsement, that validates the Port has been added as
an additional insured.
11.2.1.2 Automobile Liability Insurance. Lessee shall obtain and
keep in force a commercial automobile liability policy of insurance, written on ISO Form CA 00
01 07 97 (or equivalent), that protects Lessee and the Port against claims for bodily injury and
property damage based upon, involving or arising out of motor vehicle operations on or about the
Premises and all areas appurtenant thereto. Lessee shall provide a Waiver of Subrogation on this
policy in favor of the Port. Such insurance shall cover any "Auto" (i.e. owned, hired and non-
owned) and shall be on an occurrence basis providing single limit coverage in an amount not less
than one million dollars ($1,000,000) per occurrence. The policy shall not contain any intrainsured
exclusions as between insured persons or organizations.
11.2.1.3 Property Insurance. Lessee shall obtain and keep in force
property insurance using an ISO CP 10 20 Cause of Loss Broad Form (or an equivalent
manuscript form) insuring Lessees personal property and Alterations (specifically including
"betterments and improvements") made by or for Lessee against physical damage, including loss
of use of the Premises . The Port of Seattle shall be included as an Additional Insured and Loss
Payee on Lessee's property insurance policy with respect to the Port's interest in Alterations.
11.2.2 Insurance Policies.
11.2.2.1 Insurance Companies. Insurance required hereunder shall
be in companies duly licensed to transact business in the State of Washington, and maintaining
during the policy term a General Policyholders Rating of 'A-' or better and a financial rating of
'IX' or better, as set forth in the most current issue of "Best's Insurance Guide."
11.2.2.2 Policies Primary; Deductibles; Per Location Endorsement.
All insurance to be carried by Lessee shall be primary to and not contributory with any similar
insurance carried by the Port, whose insurance shall be considered excess insurance only. No
insurance required herein shall contain a deductible or self-insured retention in excess of $10,000
without the prior written consent of the Port. If at any time during the term, Lessee shall have in
full force and effect a blanket policy of commercial general liability and umbrella liability
insurance covering the Premises and other premises and/or properties of Lessee, such insurance
shall satisfy the requirements hereof, provided said policy contains a specific endorsement
providing a minimum amount of coverage applicable to the Premises equal to or greater than the
amount required above (i.e. a "per location" endorsement).
11.2.2.3 Termination; Renewal. Insurance is to remain current
throughout the term of the Lease. The Port shall receive documentation annually to include a
certificate of insurance and any applicable endorsements to validate the insurance required herein
has been purchased and is compliant with the Lease requirements within 10 (ten) days of each
insurance renewal. Should any insurance required herein be terminated, cancelled, or not
renewed, the Lessee will have five (5) days to obtain replacement insurance from the date of the
termination, cancellation or non-renewal notice Lessee receives from their insurer(s). In the
event the insurance is not replaced within the five (5) days, the Lease will be considered under
Default in accordance with Section 14.
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11.2.2.4 Evidence of Insurance. Lessee shall deliver, or cause to be
delivered, to the Port, certificates of insurance, additional insured endorsements, loss payee
endorsements for property insurance, waivers of subrogation and any other documentation or
endorsement that provides evidence of the existence and amounts of such insurance, the
inclusion of the Port as an insured as required by this Lease, and the amounts of all deductibles
and/or self-insured retentions. Upon request by the Port, Lessee shall deliver or cause to be
delivered to the Port, certified copies of the policies of insurance that Lessee has purchased in
order for the Port to verify insurance coverage, limits, and endorsements or view any exclusions
to the Lessee's insurance policies.
11.2.2.5 No Limitation of Liability. The limits of insurance requi red
by this Lease or as carried by Lessee shall not limit the liability of Lessee nor relieve Lessee of
any obligation hereunder.
11.3 Waiver of Subrogation. Without affecting any other rights or remedies, Lessee
(for itself and on behalf of anyone claiming through or under it by way of subrogation or
otherwise) hereby waives any rights it may have against the Port, its officers, agents and
employees (whether in contract or in tort) on account of any loss or damage occasioned to Lessee
arising out of or incident to the perils required to be insured against under this Lease.
Accordingly, Lessee shall cause each insurance policy required by this Section 11.2 to further
contain a waiver of subrogation clause. The effect of such release and waiver of the right to
recover damages shall not be limited by the amount of insurance carried or required, or by any
deductibles applicable thereto.
11.4 Increase in Port's Cost of Insurance. Lessee shall not use the Premises in such a
manner as to increase the existing rates of insurance applicable to the buildings or structures of
which the Premises are a part. If it nevertheless does so, then, at the option of the Port, the full
amount of any resulting increase in premiums paid by the Port with respect to the buildings or
structures of which the Premises are a part, and to the extent allocable to the term of this Lease,
may be added to the amount of Rent and shall be paid by Lessee to the Port upon the monthly
rental day next thereafter occurring.
SECTION 12: DAMAGE OR DESTRUCTION
12.1 Duty to Repair. If the Premises or any buildings or structures of which the
Premises are a part are damaged by fire, the elements, earthquake, accident or other casualty
(collectively, "Casualty"), the Port shall, except to the extent either party has the right to
terminate this Lease under Section 12.2, use reasonable efforts to repair and restore the Premises
and/or the buildings or structures of which the Premises are a part to substantially their former
condition to the extent permitted by then-applicable Legal Requirements; provided, however, the
Port's obligation to repair and restore shall not extend to any Alterations or any of Lessee's
personal property, specifically including that which Lessee retains ownership of under Section
7.4.
12.2 Right to Terminate. The Port may elect to terminate this Lease in the event that
the Port, in its sole judgment, concludes that the damage to the Premises or any buildings or
structures of which the Premises are a part cannot be repaired within thirty (30) days of the
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Casualty (with the repair work and the preparations therefor to be done during regular working
hours on regular work days). In the event that the Port elects to terminate this Lease, the Port
shall advise Lessee of that fact within thirty (30) days of the date of the Casualty and notify
Lessee of the date, not more than ninety (90) days after the Casualty, on which the Lease will
terminate.
12.3 Lessee's Fault. Notwithstanding anything herein to the contrary, if the damages
by Casualty to the Premises or any buildings or structures of which the Premises are a part
results from Lessee's fault, negligence, or breach of the terms of this Lease, Lessee shall be
liable to the Port for the cost and expense of any repair and restoration of the Premises or any
buildings or structures of which the Premises are a part, including, without limitation, any
Alterations.
12.4 Abatement of Rent. Unless the casualty results from Lessee's negligence or
breach of the terms of this Lease, the Base Rent and Additional Rent, if any, shall be abated for
any portion of the Premises that is rendered untenantable or inaccessible from the period from
the date of the Casualty through the date of substantial completion of the repairs to the Premises
(or to the date of termination of the Lease if either party shall elect to terminate the Lease). The
Port shall not otherwise be liable to Lessee for any loss in the use in the whole or any part of the
Premises (including loss of business) and/or any inconvenience or annoyance occasioned by the
Casualty, by any damage resulting from the Casualty, or by any repair, reconstruction or
restoration.
12.5 Waiver. Except as specifically set forth in this Lease, Lessee hereby waives any
right that Lessee may have, under any applicable existing or future law, to terminate this Lease in
the event of any damage to, or destruction of, the Premises or any buildings or structures of
which the Premises are a part.
SECTION 13: ASSIGNMENT AND SUBLEASE
13.1 Prohibition. Lessee shall not, in whole or in part, assign, sublet, licens e or permit
occupancy by any party other than Lessee of all or any part of the Premises, without the prior
written consent of the Port in each instance. Lessee shall at the time the Lessee requests the
consent of the Port, deliver to the Port such information in writing as the Port may reasonably
require respecting the proposed assignee, subtenant or licensee including, without limitation, the
name, address, nature of business, ownership, financial responsibility and standing of such
proposed assignee, subtenant or licensee. Within twenty (20) business days after receipt of all
required information, the Port shall, in its sole discretion, elect one of the following: (a) to
consent to such proposed assignment, sublease or license or (b) to refuse such consent.
13.1.1 As a condition for the Port's consent to any assignment, encumbrance or
sublease, the Port may require that the assignee, sublessee or licensee remit directly to the Port
on a monthly basis, all monies due to Lessee by said assignee, sublessee or licensee (except with
respect to excess rentals otherwise due Lessee pursuant to Section 13.2). In addition, a condition
to the Port's consent to any assignment, sublease or license of this Lease or the Premises shall be
the delivery to the Port of a true copy of the fully executed instrument of assignment, sublease or
license and an agreement executed by the assignee, sublessee or licensee in form and substance
satisfactory to the Port and expressly enforceable by the Port, whereby the assignee, sublessee or
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licensee assumes and agrees to be bound by the terms and provisions of this Lease and perform
all the obligations of Lessee hereunder.
13.1.2 In the event of any assignment, Lessee and each respective assignor,
waives notice of default by the tenant in possession in the payment and performance of the Rent,
covenants and conditions of this Lease and consents that the Port may in each and every instance
deal with the tenant in possession, grant extensions of time, waive performance of any of the
terms, covenants and conditions of this Lease and modify the same, and in general deal with the
tenant then in possession without notice to or consent of any assignor, including Lessee; and any
and all extensions of time, indulgences, dealings, modifications or waivers shall be deemed to be
made with the consent of Lessee and of each respective assignor.
13.1.3 Lessee agrees that any sublease or license will contain a provision in
substance that if there be any termination whatsoever of this Lease then the subtenant or licensee,
at the request of the Port, will attorn to the Port and the sublessee or licensee, if the Port so
requests, shall continue in effect with the Port, but the Port shall be bound to the subtenant or
licensee in such circumstances only by privity of estate. Nothing herein shall be deemed to
require the Port to accept such attornment.
13.1.4 No assignment, subletting or license by Lessee shall relieve Lessee of any
obligation under this Lease, including Lessee's obligation to pay Rent or any other sum
hereunder. Any purported assignment, subletting or license contrary to the provisions hereof
without consent shall be void. The consent by the Port to any assignment or subletting shall not
constitute a waiver of the necessity for such consent to any subsequent assignment or subletting.
13.1.5 Lessee shall reimburse the Port in the sum of Five Hundred Dollars
($500.00) plus any reasonable professionals' fees and expenses incurred by the Port in
connection with any request by Lessee for consent to an assignment, subletting or license.
13.2 Excess Rental. If in connection with any assignment, sublease or license, Lessee
receives rent or other monetary consideration, either initially or over the term of the assignment
or sublease, in excess of the Rent called for hereunder, or in case of the sublease of a portion of
the Premises, in excess of such Rent fairly allocable to such portion, after appropriate
adjustments to assure that all other payments called for hereunder and out-of-pocket
expenditures, operating costs or concessions incurred by Lessee in connection with such
assignment, sublease or license, are appropriately taken into account, Lessee shall pay to the
Port, as Additional Rent hereunder, seventy-five percent (75%) of the excess of each such
payment of rent or other consideration received by Lessee after its receipt.
13.3 Scope. The prohibition against assigning or subletting contained in this Article
shall be construed to include a prohibition against any assignment or subletting by operation of
law. Furthermore, for purposes of this Article, any sale, transfer or other disposition in the
aggregate of fifty percent (50%) or more of the equity ownership in Lessee (i.e. stock with
respect to tenant corporation, partnership interests with respect to a tenant partnership, etc.) shall
be deemed an assignment. If this Lease be assigned, or if the underlying beneficial interest of
Lessee is transferred, or if the Premises or any part thereof be sublet or occupied by anybody
other than Lessee, the Port may collect Rent from the assignee, subtenant or occupant and apply
the net amount collected to the Rent herein reserved and apportion any excess Rent so collected
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in accordance with the terms of Section 13.2, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the assignee, subtenant
or occupant as tenant, or a release of Lessee from the further performance by Lessee of
covenants on the part of Lessee herein contained. No assignment or subletting shall affect the
continuing primary liability of Lessee (which, following assignment, shall be joint and several
with the assignee), and Lessee shall not be released from performing any of the terms, covenants
and conditions of this Lease.
SECTION 14: DEFAULT
14.1 Defaults. Time is of the essence of this Lease. The occurrence of any one or
more of the following events shall constitute a material default of this Lease by Lessee with or
without notice from the Port:
14.1.1 The vacating or abandonment of the Premises by Lessee.
14.1.2 The failure by Lessee to make any payment of Rent, or any other payment
required by this Lease, as and when due.
14.1.3 The failure by Lessee to observe or perform any covenant, condition, or
agreement to be observed or performed by Lessee in this Lease.
14.1.4 The discovery by the Port that any required report, financial statement or
background statement provided to the Port by Lessee, any successor, grantee, or assign was
materially false.
14.1.5 The filing by Lessee of a petition in bankruptcy, Lessee being adjudged
bankrupt or insolvent by any court, a receiver of the property of Lessee being appointed in any
proceeding brought by or against Lessee, Lessee making an assignment for the benefit of
creditors, or any proceeding being commenced to foreclose any mortgage or other lien on
Lessee's interest in the Premises or on any personal property kept or maintained on the Premises
by Lessee.
14.1.6 A default under any other lease and/or agreement under which Lessee uses
or occupies any other premises at the Airport.
14.2 Remedies.
14.2.1 Whenever any default (other than a default under Section 14.1.5 above,
upon which termination of this Lease shall, at the Port's option, be effective immediately without
further notice) continues unremedied in whole or in part for (i) thirty (30) days after written
notice thereof to Lessee or (ii) for ten (10) days after written notice in the case of default for
failure to pay any Rent, or other required payment when due, this Lease and all of Lessee's rights
under it will automatically terminate if the written notice of default so provides. Upon
termination, the Port may reenter the Premises in accordance with law and remove all persons
and property from the Premises and, the Port will be entitled to recover from Lessee all unpaid
Rent or other payments and damages incurred because of Lessee's default including, but not
limited to, the costs of re-letting, including tenant improvements, necessary renovations or
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repairs, advertising, leasing commissions, and reasonable attorney's fees and costs ("Termination
Damages"), together with interest on all Termination Damages at the Default Rate from the date
such Termination Damages are incurred by the Port until paid.
14.2.2 In addition to Termination Damages, and notwithstanding termination and
reentry, Lessee's liability for all Rent or other charges which, but for termination of the Lease,
would have become due over the remainder of the Lease term ("Future Charges") will not be
extinguished and Lessee agrees that the Port will be entitled, upon termination for default, to
collect as additional damages, a Rental Deficiency. "Rental Deficiency" means, at the Port's
election, either:
14.2.2.1 An amount or amounts equal to Future Charges less the
amount or amounts of rental, if any, which the Port shall receive during the remainder of the
Lease term from others to whom the Premises may be rented, in which case such Rental
Deficiency shall be computed and payable at the Port's option either:
(i) in an accelerated lump-sum payment; or
(ii) In monthly installments, in advance, on the first day of each
calendar month following termination of the Lease and continuing until
the date on which the Lease term would have expired but for such
termination, and any suit or action brought to collect any portion of Rental
Deficiency attributable to any particular month or months, shall not in any
manner prejudice the Port's right to collect any portion of Rental
Deficiency by a similar proceeding; or
14.2.2.2 An amount equal to Future Charges less the aggregate fair
rental value of the Premises over the remaining Lease term, reduced to present worth. In this
case, the Rental Deficiency shall be payable to the Port in one lump sum, on demand, and shall
bear interest at the Default Rate, or the maximum rate permitted by applicable law, whichever is
less, until paid. For purposes of this Section 14.2.2.2, "present worth" shall be computed by
applying a discount rate equal to one percentage point above the discount rate then in effect at
the Federal Reserve Bank in, or closest to, Seattle, Washington.
14.2.2.3 If this Lease is terminated for default as provided in this
Lease, the Port shall use reasonable efforts to re-let the Premises in whole or in part, alone or
together with other premises, for such term or terms (which may be greater or less than the
period which otherwise would have constituted the balance of the Lease term), for such use or
uses and, otherwise on such terms and conditions as the Port, in its sole discretion, may
determine, but the Port will not be liable for, nor will Lessee's obligations under this Lease be
diminished by reason for any failure by the Port to re-let the Premises or any failures by the Port
to collect any rent due upon such re-letting.
14.2.3 In addition to the rights granted by Section 7.4, if upon any reentry
permitted under this Lease, there remains any personal property upon the Premises, the Port, in
its sole discretion, may remove and store the personal property for the account and at the expense
of Lessee. In the event the Port chooses to remove and store such property, it shall take
reasonable steps to notify Lessee of the Port's action. All risks associated with removal and
storage shall be on Lessee. Lessee shall reimburse the Port for all expenses incurred in
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connection with removal and storage as a condition to regaining possession of the personal
property. The Port has the right to sell any property which has been stored for a period of 30
days or more, unless Lessee has tendered reimbursement to the Port for all expenses incurred in
removal and storage. The proceeds of sale will be applied first to the costs of sale (including
reasonable 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 Lessee to the Port. The balance of
sale proceeds, if any, will then be paid to Lessee.
14.3 Remedies Cumulative. All rights, options and remedies of the Port contained in
this Lease shall be construed and held to be distinct, separate and cumulative, and no one of them
shall be exclusive of the other, and the Port shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law or in equity, whether or
not stated in this Lease.
SECTION 15: TERMINATION OTHER THAN FOR DEFAULT
15.1 Major Capital Improvement. In the event that the Port, at its sole discretion, shall
require the use of the Premises for a major capital improvement for public or private use in
connection with the operation of the business of the Airport, then this Lease may be terminated
by the Port by written notice delivered or mailed by the Port to Lessee not less than one hundred
eighty 180) days before the termination date specified in the notice. If Lessee is not in default
under any of the provisions of this Lease on the effective date of such termination, any Rent
prepaid by Lessee shall, to the extent allocable to any period subsequent to the effective date of
the termination, be promptly refunded to Lessee. Lessee shall not be entitled to any
compensation at termination for the bargain value of the leasehold.
15.2 Condemnation.
15.2.1 Total Taking. In the case of a taking by eminent domain of either all of
the Premises or such portion of either the Premises or any buildings or structures of which the
Premises are a part as shall, in the Port's sole judgment, be required for reasonable use of the
Premises, this Lease shall terminate as of the date of such taking. If Lessee is not in default
under any of the provisions of this Lease on said date, any Rent prepaid by Lessee shall, to the
extent allocable to any period subsequent to the effective date of the termination, be promptly
refunded to Lessee.
15.2.2 Partial Taking. In the case of a taking of portion of the Premises or any
buildings or structures of which the Premises are a part as shall not, in the Port's sole judgment,
be required for reasonable use of the Premises, this Lease shall continue in full force and effect,
and the Base Rent shall, as of the date of such taking, be equitably reduced based on the
proportion by which the Premises (but not the buildings or structures of which the Premises are a
part) is reduced.
15.2.3 Damages. The Port reserves all right to the entire damage award or
payment for taking by eminent domain, and Lessee waives all claim whatsoever against the Port
and/or the authority exercising eminent domain for damages for termination of its leasehold or
for interference with its business. The Port and Lessee further agree that all decisions regarding
how the eminent domain proceeding should be handled shall be made in the sole discretion of the
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Port (specifically including any response to a motion for order adjudicating public use and
necessity or any request for immediate possession), and Lessee shall take no actions or steps
which interfere with the Port's ability to control the handling of the eminent domain proceeding.
Notwithstanding the foregoing, nothing in this Section shall be considered to be a waiver or
assignment by Lessee of any right to relocation assistance payments or relocation advisory
services which may be available in connection with the eminent domain proceeding.
15.2.4 Eminent Domain. The term "eminent domain" as used in this Section 15.2
shall including taking or damaging of property by, through or under any governmental or quasigovernmental
authority and the purchase or acquisition in lieu thereof.
15.3 Court Decree. In the event that any court having jurisdiction in the matter shall
render a decision which has become final and which will prevent the performance by the Port of
any of its obligations under this Lease, then either party hereto may terminate this Lease by
written notice, and all rights and obligations hereunder (with the exception of any undischarged
rights and obligations that accrued prior to the effective date of termination) shall thereupon
terminate. If Lessee is not in default under any of the provisions of this Lease on the effective
date of such termination, any Rent prepaid by Lessee shall, to the extent allocable to any period
subsequent to the effective date of the termination, be promptly refunded to Lessee. Lessee is
not entitled to any compensation at termination for the bargain value of the leasehold.
SECTION 16: ACCESS; EASEMENTS
16.1 Access to Premises. The Port shall have the right to show the Premises at all
reasonable times during business hours of Lessee to any prospective purchasers, tenants or
mortgagees of the same, and may at any time enter upon the Premises, or any part thereof, for the
purpose of ascertaining the condition of the Premises or whether Lessee is observing and
performing the obligations assumed by it under this Lease, all without hindrance or molestation
from the Lessee. The Port shall also have the right to enter upon the Premises for the purpose of
making any necessary repairs and performing any work that may be necessary by reason of
Lessee's failure to make any such repairs or perform any such work. The above-mentioned
rights of entry shall be exercisable upon request made on reasonable advance notice to Lessee
(except that no notice shall be required in the event of an emergency) or an authorized employee
of Lessee at the Premises, which notice may be given orally.
16.2 Easements.
16.2.1 The Parties recognize that the Port facilities are continuously being
modified to improve the utilities, services and premises used and provided by the Port. The Port
and its authorized utility service providers are hereby granted a continuous easement or
easements that the Port believes is necessary within the Premises of Lessee, without any
additional cost to the Port for the purposes expressed hereinabove. The Port, its authorized
utility service providers, and their respective agents, shall have the right to enter the Premises of
Lessee, and to cross over, construct, move, reconstruct, rearrange, alter, maintain, repair and
operate the sewer, water, and drainage lines, and the electrical service, and all other services and
facilities required by the Port for its own use. Provided, however, that the Port, by virtue of such
use, does not substantially deprive Lessee from its beneficial use or occupancy of its leased area
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for an unreasonable period of time, not to exceed thirty (30) working days, without consent of
Lessee.
16.2.2 In the event that the Port permanently deprives Lessee from such
beneficial use or occupancy, then an equitable adjustment in Rent, or in the cost required to
modify its Premises to allow the Lessee to operate its business, will be negotiated and paid by the
Port to Lessee. In the event that such entry by the Port is temporary in nature, then the Port shall
reimburse Lessee for the cost required to modify its Premises for the temporary period that
Lessee is inconvenienced by such Port entry. The Port will not be responsible to Lessee for any
reduced efficiency or loss of business occasioned by such entry.
SECTION 17: NONWAIVER; RIGHT TO PERFORM
17.1 Receipt of Monies Following Termination. No receipt of monies by the Port from
Lessee after the termination or cancellation of this Lease in any lawful manner shall (i) reinstate,
continue or extend the term of this Lease; (ii) affect any notice theretofore given to Lessee;
(iii) operate as a waiver of the rights of the Port to enforce the payment of any Rent and fees then
due or thereafter falling due; or (iv) operate as a waiver of the right of the Port to recover
possession of the Premises by proper suit, action, proceeding or remedy; it being agreed that
after the service of notice to terminate or cancel this Lease, or after the commencement of suit,
action or summary proceedings, or any other remedy, or after a final order or judgment for the
possession of the Premises, the Port may demand, receive and collect any monies due, or
thereafter falling due, without in any manner affecting such notice, proceeding, suit, action or
judgment; and any and all such monies collected shall be deemed to be payments on account of
the use and occupation and/or Lessee's liability hereunder.
17.2 No Waiver of Breach. The failure of the Port to insist in any one or more
instances, upon a strict performance of any of the covenants of this Lease, or to exercise any
option herein contained, shall not be construed as a waiver of or relinquishment for the future of
the performance of such covenant, or the right to exercise such option, but the same shall
continue and remain in full force and effect. The receipt by the Port of the Rent or fees, with
knowledge of the breach of any covenant hereof, shall not be deemed a waiver of such breach,
and no waiver by the Port of any provision hereof shall be deemed to have been made unless
expressed in writing and signed by the Port. The consent or approval of the Port to or of any act
by Lessee requiring the Port's consent or approval shall not be deemed to waive or render
unnecessary the Port's consent or approval to or of any subsequent similar acts by Lessee.
17.3 No Waiver of Rent. The receipt by the Port of any installment of Rent or of any
amount shall not be a waiver of any Rent or other amount then due.
17.4 Application of Payments. The Port shall have the right to apply any payments
made by Lessee to the satisfaction of any debt or obligation of Lessee to the Port, in the Port's
sole discretion and regardless of the instructions of Lessee as to application of any such sum,
whether such instructions be endorsed upon Lessee's check or otherwise, unless otherwise
agreed upon by both parties in writing. The acceptance by the Port of a check or checks drawn
by others than Lessee shall in no way affect Lessee's liability hereunder nor shall it be deemed
an approval of any assignment of this Lease or subletting by Lessee.
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17.5 Port's Right to Perform. Upon Lessee's failure to perform any obligation or make
any payment required of Lessee hereunder, the Port shall have the right (but not the obligation)
to perform such obligation of Lessee on behalf of Lessee and/or to make payment on behalf of
Lessee to such parties. Lessee shall reimburse the Port the reasonable cost of the Port's
performing such obligation on Lessee's behalf, including reimbursement of any amounts that
may be expended by the Port, plus interest at the Default Rate.
SECTION 18: SURRENDER AND HOLDING OVER
18.1 Surrender. At the expiration or sooner termination of this Lease, Lessee shall
promptly: (i) surrender possession of the Premises to the Port in the same condition in which
received (or, if altered, then the Premises shall be returned in such altered condition unless
otherwise directed), reasonable wear and tear excepted, and (ii) deliver to the Port all keys that it
may have to any and all parts of the Premises. If the Premises are not surrendered as provided in
this Section, Lessee shall indemnify and hold the Port harmless against loss or liability resulting
from the delay by Lessee in so surrendering the Premises, including, without limitation, any
claims made by any succeeding occupant founded on such delay.
18.2 Removal of Wires. Within ten (10) days following the expiration or earlier
termination of this Lease, the Port may elect by written notice to Lessee to either:
18.2.1 Retain, without necessity of payment, any or all wiring, cables, conduit,
risers and similar installations installed by Lessee ("Wiring") in either the Premises or any larger
property (including buildings or structures) of which the Premises are a part. In the event that
the Port elects to retain the wiring, Lessee covenants that: (i) it is the sole owner of the assets
transferred or passing to the Port, (ii) it shall have right to surrender the assets transferred or
passing to the Port, (iii) the Wiring transferred or passing to the Port are free from all liens and
encumbrances, (iv) the Wiring transferred or passing to the Port is in good condition, working
order, in safe condition and comply with the requirements of this Lease, and (v) that all wiring or
cables included within the Wiring transferred or passing to the Port is properly labeled at each
end, in each telecommunications/electrical closet and junction box, and otherwise as may be
required by Port regulations. OR
18.2.2 Remove, or required Lessee to remove, all such Wiring and restore the
Premises and any larger property of which the Premises are a part to their condition existing
prior to the installation of the Wiring, all at Lessee's sole cost and expense.
This Section shall survive the expiration or earlier termination of this Lease.
18.3 Holding Over. If Lessee, with the consent of the Port, holds over after the
expiration or sooner termination of this Lease, the resulting tenancy will, unless otherwise
mutually agreed, be for an indefinite period of time on a month-to-month basis. During such
month-to-month tenancy, Lessee shall pay to the Port, at the Port's sole discretion, the same
rental rate that was in effect immediately prior to the month-to-month tenancy times 150%.
Lessee will continue to be bound by all of the additional provisions of this Lease insofar as they
may be pertinent.
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18.4 For Rent Signs. The Port shall have the right to place and maintain "For Rent"
signs in conspicuous places on the Premises for ninety (90) days prior to the expiration or sooner
termination of this Lease.
SECTION 19: ENVIRONMENTAL STANDARDS
19.1 Definitions. "Law or Regulation" as used herein shall mean any environmentally
related local, state or federal law, regulation, ordinance or order (including without limitation any
final order of any court of competent jurisdiction), now or hereafter in effect. "Hazardous
Substance" as used herein shall mean any substance or material defined or designated as a
hazardous waste, toxic substance, or other pollutant or contaminant, by any Law or Regulation.
19.2 Hazardous Substances. Lessee shall not allow the presence in or about the
Premises of any Hazardous Substance in any manner that could be a detriment to the Premises or
in violation of any Law or Regulation. Lessee shall not allow any Hazardous Substance to
migrate off the Premises, or the release of any Hazardous Substance into adjacent surface waters,
soils, underground waters or air. Lessee shall provide the Port with Lessee's USEPA Waste
Generator Number, and with copies of all Material Safety Data Sheets (MSDS), Generator
Annual Dangerous Waste Reports, environmentally related regulatory permits or approvals
(including revisions or renewals) and any correspondence Lessee receives from, or provides to,
any governmental unit or agency in connection with Lessee's handling of Hazardous Substance
or the presence, or possible presence, of any Hazardous Substance on the Premises.
19.3 Violation of Environmental Law. If Lessee, or the Premises, is in violation of any
Law or Regulation concerning the presence or use of any Hazardous Substance or the handling
or storing of hazardous wastes, Lessee shall promptly take such action as is necessary to mitigate
and correct the violation. If Lessee does not act in a prudent and prompt manner, the Port
reserves the right, but not the obligation, to come onto the Premises, to act in place of the Lessee
(Lessee hereby appoints the Port as its agent for such purposes) and to take such action as the
Port deems necessary to ensure compliance or to mitigate the violation. If the Port has a
reasonable belief that Lessee is in violation of any Law or Regulation, or that Lessee's actions or
inactions present a threat of violation or a threat of damage to the Premises, the Port reserves the
right to enter onto the Premises and take such corrective or mitigating action as the Port deems
necessary. All costs and expenses incurred by the Port in connection with any such actions shall
become immediately due and payable by Lessee upon presentation of an invoice therefor.
19.4 Inspection; Test Results. The Port shall have access to the Premises to conduct an
annual environmental inspection. In addition, Lessee shall permit the Port access to the Premises
at any time upon reasonable notice for the purpose of conducting environmental testing at the
Port's expense. Lessee shall not conduct or permit others to conduct environmental testing on
the Premises without first obtaining the Port's written consent. Lessee shall promptly inform the
Port of the existence of any environmental study, evaluation, investigation or results of any
environmental testing conducted on the Premises whenever the same becomes known to Lessee,
and Lessee shall provide copies to the Port.
19.5 Removal of Hazardous Substances. Prior to vacation of the Premises, in addition
to all other requirements under this Lease, Lessee shall remove any Hazardous Substance placed
on the Premises during the term of this Lease or Lessee's possession of the Premises, and shall
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demonstrate such removal to the Port's satisfaction. This removal and demonstration shall be a
condition precedent to the Port's payment of any Security to Lessee upon termination or
expiration of this Lease.
19.6 Remedies Not Exclusive. No remedy provided herein shall be deemed exclusive.
In addition to any remedy provided above, the Port shall be entitled to full reimbursement from
Lessee whenever the Port incurs any costs resulting from Lessee's use or management of any
Hazardous Substance on the Premises, including but not limited to, costs of clean-up or other
remedial activities, fines or penalties assessed directly against the Port, injuries to third persons
or other properties, and loss of revenues resulting from an inability to re-lease or market the
property due to its environmental condition (even if such loss of revenue occurs after the
expiration or earlier termination of this Lease).
19.7 Environmental Indemnity. In addition to all other indemnities provided in this
Lease, Lessee agrees to defend, indemnify and hold the Port free and harmless from any and all
claims, causes of action, regulatory demands, liabilities, fines, penalties, losses, and expenses,
including without limitation cleanup or other remedial costs (and including attorneys' fees, costs
and all other reasonable litigation expenses when incurred and whether incurred in defense of
actual litigation or in reasonable anticipation of litigation), arising from the existence or
discovery of any Hazardous Substance on the Premises, or the migration of any Hazardous
Substance from the Premises to other properties or into the surrounding environment, whether (i)
made, commenced or incurred during the term of this Lease, or (ii) made, commenced or
incurred after the expiration or termination of this Lease if arising out of events occurring during
the term of this Lease.
SECTION 20: MISCELLANEOUS
20.1 Notice. All notices hereunder shall be in writing and shall be delivered
personally, by certified or registered mail, by facsimile or by recognized overnight courier
addressed as follows:
To Lessor:
Street Address:
Seattle-Tacoma International Airport
Attention: Aviation Business & Properties
17801 Pacific Highway South
Main Terminal Building
Mezzanine Level, Room A6012M
Seattle, WA 98158
Mailing Address:
Seattle-Tacoma International Airport
Attention: Aviation Business & Properties
P.O. Box 68727
Seattle, WA 98168
Facsimile: (206) 787-4985
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For payments only, the following mailing address should be used:
Port of Seattle
P. O. Box 24507
Seattle, WA 98124-0507
To Lessee:
Facsimile: (206) ____________________
or to such other respective addresses as either party hereto may hereafter from time to time
designate in writing. Notices shall be deemed delivered (i) when personally delivered; (ii) on the
third day after mailing when sent by certified or registered mail and the postmark affixed by the
United States Postal Service shall be conclusive evidence of the date of mailing; (iii) on the date
transmitted by facsimile, if the facsimile is confirmed received; or (iv) on the first business day
after deposit with a recognized overnight courier if deposited in time to permit overnight delivery
by such courier as determined by its posted cutoff times for receipt of items for overnight
delivery to the recipient.
Payments may be made in the manner provided for notice or may be delivered by regular mail
(postage prepaid); provided, payments made by regular mail (postage prepaid) shall be deemed
delivered when actually received by the Port.
20.2 Automatic Payment.
20.2.1 Instead of requiring Lessee to pay Rent or other charges in a manner
pursuant to Section 3.1, the Port may, at its sole option, upon not less than sixty (60) days prior
notice to Lessee, require Lessee to promptly execute and deliver to the Port any documents,
instruments, authorizations, or certificates required by the Port to give effect to an automated
debiting system, whereby any or all payments by Lessee of whatsoever nature required or
contemplated by this Lease shall be debited monthly or from time to time, as provided in this
Lease, from Lessee's account in a bank or financial institution designated by Lessee and credited
to the Port's bank account as the Port shall designate from time to time.
20.2.2 Lessee shall promptly pay all service fees and other charges connected
with its use of an automated debiting system, including, without limitation, any charges resulting
from insufficient funds in Lessee's bank account or any charges imposed on the Port.
20.2.3 In the event that Lessee elects to designate a different bank or financial
institution from which any fees or other charges under the Lease are automatically debited,
notification of such change and the required documents, instruments, authorizations, and
certificates specified in Section 20.2.1 must be received by the Port no later than thirty (30) days
prior to the date such change is to become effective.
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20.2.4 Lessee agrees that it shall remain responsible to the Port for all payments
of Rent and other charges pursuant to the Lease, even if Lessee's bank account is incorrectly
debited in any given month. Such fees and other charges shall be immediately payable to the
Port upon written demand.
20.2.5 Lessee's failure to properly designate a bank or financial institution or to
promptly provide appropriate information in accordance with this paragraph shall constitute a
default of this Lease.
20.3 Brokers. The Port and Lessee each warrant to the other that it has had no
discussions, negotiations and/or other dealings with any real estate broker or agent in connection
with the negotiation of this Lease, and that it knows of no other real estate broker or agent who is
or may be entitled to any commission or finder's fee in connection with this Lease. The Port and
Lessee each agree to indemnify and hold the other harmless from and against any and all claims,
demands, losses, liabilities, lawsuits, judgments, costs and expenses (including without
limitation, attorneys' fees and costs) with respect to any leasing commission or equivalent
compensation alleged to be owing on account of such party's discussions, negotiations and/or
dealings with any real estate broker or agent other than Broker(s).
20.4 Consent. Whenever the Port's prior consent or approval is required by this Lease,
the same shall not be unreasonably delayed but may, unless otherwise specifically provided by
this Lease, be granted or denied in the Port's sole and absolute discretion in writing.
20.5 Wireless Devices. Lessee shall not install any wireless devices and/or
transmitters on or about the Premises without the prior written consent of the Port and subject to
any and all conditions in such consent. Lessee specifically grants to the Port the power to
regulate and control the use of unlicensed frequency bands (including, but not limited to, FCC
Part 15 Subpart C, FCC Part 15 Subpart D (both asynchronous and Isochronous), IEEE 802.11
and Bluetooth (ISM), and FCC UNII 1 and UNII 2 (IEEE 802.11a)) on or about the Premises.
20.6 Relationship to the Port and Lessee. Nothing contained herein shall be deemed or
construed as creating the relationship of principal and agent, partnership, or joint venture
partners, and no provision contained in this Lease nor any acts of Lessee and the Port shall be
deemed to create any relationship other than that of Lessee and the Port.
20.7 Time. Time is of the essence of each and every one of Lessee's obligations,
responsibilities and covenants under this Lease.
20.8 Recording. Lessee shall not record this Lease or any memorandum thereof
without the Port's prior written consent.
20.9 Promotion of Port Commerce. Lessee agrees that throughout the term of this
Lease it will, insofar as practicable, promote and aid the movement of passengers and freight
through facilities within the territorial limits of the Port. Lessee further agrees that all incoming
shipments of commodities that it may be able to control or direct shall be made through facilities
within the territorial limits of the Port if there will be no resulting cost or time disadvantage to
Lessee.
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20.10 Nondiscrimination.
20.10.1 Lessee for itself, its heirs, personal representatives, successors in
interest, and assigns, as part of the consideration hereof, does hereby covenant and agree that in
the event facilities are constructed, maintained, or otherwise operated on the Airport for a
purpose for which a United States Department of Transportation program or activity is extended
or for another purpose involving the provision of similar services or benefits, Lessee shall
maintain and operate such facilities and services in compliance with all other requirements
imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the
Department of Transportation, and as said Regulation may be amended.
20.10.2 Lessee for itself, its personal representatives, successors in interest,
and assigns, as a part of the consideration hereof, does hereby covenant and agree that: ( i) no
person on the grounds of race, color, or national origin shall be excluded from participation in,
denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities,
(ii) in the construction of any improvements on, over, or under such land and the furnishing of
services thereon, no person on the grounds of race, color, or national origin shall be excluded
from participation in, denied benefits of, or otherwise be subjected to discrimination, and (iii)
Lessee shall use the Premises in compliance with all other requirements imposed by or pursuant
to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the Department of
Transportation, and as said Regulations may be amended.
20.10.3 Lessee assures that it will comply with pertinent statutes,
Executive Orders and such rules as are promulgated to assure that no person shall, on the
grounds of race, creed, color, national origin, sex, age, or handicap be excluded from
participating in any activity conducted with or benefiting from Federal assistance. This
Provision obligates Lessee or its transferee for the period during which Federal assistance is
extended to the airport program, except where Federal assistance is to provide, or is in the form
of personal property or real property or interest therein or structures or improvements thereon. In
these cases, the Provision obligates Lessee or any transferee for the longer of the following
periods: (i) the period during which the property is used by the Port or any transferee for a
purpose for which Federal assistance is extended, or for another purpose involving the provision
of similar services or benefits; or (ii) the period during which the Port or any transferee retains
ownership or possession of the property. In the case of contractors, this Provision binds the
contractors from the bid solicitation period through the completion of the contract.
20.10.4 In addition, Lessee agrees that, whether or not this Lease is
conducted with, or benefits from, Federal assistance, it shall in all matters pertaining to the
performance of this Lease conduct its business in a manner which assures fair, equal and
nondiscriminatory treatment of all persons without respect to race, sex, age, color, creed, sexual
preference, marital status, national origin, or the presence of any sensory, mental or physical
handicap.
20.10.5 Lessee will maintain open hiring and employment practices and
will welcome applications for employment in all positions from all qualified individuals.
20.10.6 It is the policy of the Department of Transportation that
disadvantaged business enterprises as defined in the Airport and Airway Improvement Act, as
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amended, and as implemented by Federal regulations shall have the maximum opportunity to
participate in the performance of services as defined in 49 CFR 23.5. Consequently, this Lease
is subject to 49 CFR Part 23 as applicable.
20.10.7 Lessee will, at the timely request of the Port, provide any
information needed in preparation of necessary reports, forms, documents, and other data relative
to equal employment.
20.10.8 Lessee hereby assures that it will include the above clauses in any
subcontract(s) approved by the Port and cause subcontractor(s) to similarly include clauses in
further subcontracts.
20.11 Labor Disputes. Lessee agrees to use commercially reasonable efforts to avoid
disruption to the Port, its tenants or members of the public, arising from labor disputes involving
Lessee, and in the event of a strike, picketing, demonstration or other labor difficulty involving
Lessee, to use its good offices, including the utilization of available legal remedies, to minimize
and/or eliminate any disruption to the Port, its tenants or members of the public, arising from
such strike, picketing, demonstration or other labor difficulty..
20.12 Joint and Several Liability. Each and every party who signs this Leas e, other than
in a representative capacity, as Lessee, shall be jointly and severally liable hereunder. It is
understood and agreed that for convenience the word "Lessee" and verbs and pronouns in the
singular number and neuter gender are uniformly used throughout this Lease, regardless of the
number, gender or fact of incorporation of the party who is, or of the parties who are, the actual
lessee or lessees under this agreement.
20.13 Captions. The captions in this Lease are for convenience only and do not i n any
way limit or amplify the provisions of this Lease.
20.14 Governing Law; Venue. This Lease shall be construed under the laws of the state
of Washington. Exclusive jurisdiction and venue for any action relating hereto shall be in the
state or federal courts located in King County, Washington.
20.15 Attorneys' Fees. In the event that either party shall be required to bring any
action to enforce any of the provisions of this Lease, or shall be required to defend any action
brought by the other party with respect to this Lease, and in the further event that one party shall
substantially prevail in such action, the losing party shall, in addition to all other payments
required therein, pay all of the prevailing party's actual costs in connection with such action,
including such sums as the court or courts may adjudge reasonable as attorneys' fees in the trial
court and in any appellate courts.
20.16 Invalidity of Particular Provisions. If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be invalid or enforceable,
the remainder of this Lease or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable shall not be
affected thereby and shall continue in full force and effect.
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20.17 Agreements with the United States. This Lease is subject and subordinate to the
terms, reservations, restrictions and conditions of any existing or future agreements between the
Port and the United States (including, without limitation, grant assurances), the execution and/or
imposition of which has been or may be required as a condition precedent to the transfer of
federal rights or property to the Port for Airport purposes and the expenditure of federal funds for
the extension, expansion or development of the Airport or airport system.
20.18 Survival of Indemnities. All indemnities provided in this Lease shall survive the
expiration or any earlier termination of this Lease. In any litigation or proceeding within the
scope of any indemnity provided in this Lease, Lessee shall, at the Port's option, defend the Port
at Lessee's expense by counsel satisfactory to the Port.
20.19 Entire Agreement; Amendments. This Lease, together with any and all exhibits
attached hereto, shall constitute the whole agreement between the parties. There are no terms,
obligations, covenants or conditions other than those contained herein. No modification or
amendment of this Lease shall be valid or effective unless evidenced by an agreement in writing
signed by both parties.
20.20 Exhibits. Exhibits A and B are attached to this Lease after the signatures and by
this reference incorporated herein.
- 30 -
SECTION 21: SIGNATURES
IN WITNESS WHEREOF the parties hereto have signed this Lease as of the day and
year first above written.
The Port: Lessee:
PORT OF SEATTLE, a Washington
municipal corporation
____________________________________ ____________________________________
By: ______________________________ By: ______________________________
Its: ______________________________ Its: ______________________________
- 31 -
SECTION 22: ACKNOWLEDGMENTS
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
On this ___ day of ___________, 202_ before me personally appeared ____________________________,
to me known to be the _________________________________ of the PORT OF SEATTLE, the municipal
corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and
voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that s/he
was authorized to execute said instrument.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above
written.
___________________________________________
(Signature)
___________________________________________
(Print Name)
Notary Public, in and for the State of Washington,
residing at __________________________________
My Commission expires: _______________________
STATE OF )
) ss
COUNTY OF )
On this ___ day of ___________, 202__ before me personally appeared
____________________________, to me known to be the _________________________________ of
the_______________________, the individual/entity that executed the within and foregoing instrument at Lessee,
and acknowledged said instrument to be the free and voluntary act and deed of said individual/entity, for the uses
and purposes therein mentioned, and on oath stated that s/he was authorized to execute said instrument.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above
written.
___________________________________________
(Signature)
___________________________________________
(Print Name)
Notary Public, in and for the State of _____________,
residing at __________________________________
My Commission expires: _______________________
- 32 -
EXHIBIT A
-- Legal Description --
MAIN TERMINAL
THE WEST 2125 FEET OF THE EAST 3300 FEET OF THE NORTH 1850 FEET ALONG
WITH THE NORTH 700 FEET OF THE WEST 600 FEET OF THE EAST 1775 FEET OF
SECTION 33 AND THE WEST 2125 FEET OF THE EAST 3300 FEET OF THE SOUTH 675
FEET OF SECTION 28, ALL IN TOWNSHIP 23 NORTH, RANGE 4 EAST W.M., KING
COUNTY, WASHINGTON.
NORTH SATELLITE
THE NORTH 900 FEET OF THE SOUTH 1500 FEET OF THE EAST 400 FEET OF THE
SOUTHWEST QUARTER AND THE NORTH 1550 FEET OF THE WEST 600 FEET OF
THE SOUTHEAST QUARTER, ALL IN SECTION 28, TOWNSHIP 23 NORTH, RANGE 4
EAST W.M., KING COUNTY, WASHINGTON.
SOUTH SATELLITE
THE NORTH 200 FEET OF THE WEST 900 FEET OF THE SOUTHEAST QUARTER;
THE NORTH 200 FEET OF THE EAST 250 FEET OF THE SOUTWEST QUARTER;
THE SOUTH 800 FEET OF THE WEST 900 FEET OF THE NORTHEAST QUARTER
AND THE SOUTH 800 FEET OF THE EAST 250 FEET OF THE NORTHWEST QUARTER,
ALL IN SECTION 33, TOWNSHIP 23 NORTH, RANGE 4 EAST W.M., KING COUNTY,
WASHINGTON.
B-1
EXHIBIT B
-- Premises --
B-1
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