6d Attachment, DNR Lease
Item No. 6d attach 1
Meeting Date: October 27, 2020
When recorded, return to:
Port of Seattle
PO Box 1209
Seattle WA 98111
AQUATIC LANDS LEASE
Lease No. 22-101484
Grantor: STATE OF WASHINGTON
Grantee(s): PORT OF SEATTLE
Legal Description: In front of Govt. Lots Block 430 Seattle Tidelands, Section 12, Township 24
North, Range 3 East, W.M. KING COUNTY.
Complete Legal Description on Page 35
Assessor's Property Tax Parcel or Account Number: NA
Assessor's Property Tax Parcel or Account Number for Upland parcel used in conjunction with
this lease: NA
THIS LEASE is between the STATE OF WASHINGTON, acting through the Department of
Natural Resources ("State"), and PORT OF SEATTLE, a government agency ("Tenant").
BACKGROUND
Tenant desires to lease a portion of the aquatic lands commonly known as Terminal 5 Harbor
Area, which is a harbor area located in King County, Washington, from State, and State desires
to lease the Property to Tenant pursuant to the terms and conditions of this Lease. State has
authority to enter into this Lease under Chapter 43.12, Chapter 43.30 and Title 79 of the Revised
Code of Washington (RCW).
THEREFORE, the Parties agree as follows:
SECTION 1 PROPERTY
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1.1 Property Defined.
(a) State leases to Tenant and Tenant leases from State the real property described in
Exhibit A together with all the rights of State, if any, to improvements on and
easements benefiting the Property, but subject to the exceptions and restrictions
set forth in this Lease (collectively the "Property").
(b) This Lease is subject to all valid interests of third parties noted in the records of
King County, or on file in the Office of the Commissioner of Public Lands,
Olympia, Washington; rights of the public under the Public Trust Doctrine or
federal navigation servitude; and treaty rights of Indian Tribes.
(c) This Lease does not include a right to harvest, collect, or damage natural
resources, including aquatic life or living plants; water rights; mineral rights; or a
right to excavate or withdraw sand, gravel, or other valuable materials.
(d) State reserves the right to grant easements and other land uses on the Property to
others when the easement or other land uses will not interfere unreasonably with
the Permitted Use.
1.2 Survey and Property Descriptions.
(a) Tenant warrants that Exhibit A includes a true and accurate description of the
Property boundaries and the location of the Improvements to be constructed on
the Property. Tenant's obligation to provide a true and accurate description of the
Property boundaries and the location of the Improvements to be constructed on
the Property is a material term of this Lease.
(b) Tenant's use or occupancy of any state-owned aquatic lands outside the Property
boundaries is a material breach of this Lease and State may seek remedies under
Section 14 of this Lease in addition to any other remedies afforded by law or
equity or otherwise.
(c) Tenant shall submit a record of survey for State's acceptance by October 1st,
2021.
(d) Tenant's submission of the record of survey shall constitute a warranty that the
record of survey is a true and accurate description of the Property boundaries and
the as-built location of all Improvements on the Property. Tenant's obligation to
provide a true and accurate description of the Property boundaries and the as-built
location of Improvements on the Property in the record of survey is a material
term of this Lease.
(e) At Tenant's expense, and no later than thirty (30) days after receiving State's
written acceptance of the record of survey, Tenant shall record the record of
survey in the County in which the Property is located. Tenant shall provide State
with recording information, including the date of recordation and the file number,
within fifteen (15) days after recording the record of survey.
(f) Tenant warrants that the Property lies only in front of upland property owned or
otherwise legally controlled by the Tenant.
(g) State may require Tenant to obtain a record of survey that describes the Property
boundaries and the Improvements to be constructed or already existing on the
Property if State determines a record of survey is necessary.
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(h) Tenant shall hold harmless State and will not seek damages from State in the
event a subsequent record of survey reveals an error in the legal description
provided in Exhibit A.
1.3 Inspection. State makes no representation regarding the condition of the Property,
improvements located on the Property, the suitability of the Property for Tenant's Permitted Use,
compliance with governmental laws and regulations, availability of utility rights, access to the
Property, or the existence of hazardous substances on the Property. Tenant inspected the
Property and accepts it "AS IS."
SECTION 2 USE
2.1 Permitted Use. Tenant shall use the Property for: installation and maintenance of four
(4) piling and navigational aids (the "Permitted Use"), and for no other purpose. Exhibit B
includes additional details about the Permitted Use, the Property, and Improvements. The
Permitted Use of this Lease shall not be changed or modified without the written consent of State
which shall be at State's sole discretion.
2.2 Restrictions on Permitted Use and Operations. The following limitations and
requirements apply to the Property and adjacent state-owned aquatic land. Tenant's compliance
with the following does not limit Tenant's liability under any other provision of this Lease.
(a) Tenant shall not cause or permit:
(1) Damage to natural resources,
(2) Waste, or
(3) Deposit of material, unless approved by State in writing. This prohibition
includes deposit of fill, rock, earth, ballast, wood waste, refuse, garbage,
waste matter, pollutants of any type, or other matter.
(b) Nothing in this Lease shall be interpreted as an authorization to dredge the
Property.
2.3 Conformance with Laws. Tenant shall, at all times, keep current and comply with all
conditions and terms of permits, licenses, certificates, regulations, ordinances, statutes, and other
government rules and regulations regarding Tenant's use or occupancy of the Property.
2.4 Liens and Encumbrances. Unless expressly authorized by State in writing, Tenant shall
keep the Property free and clear of liens or encumbrances arising from the Permitted Use or
Tenant's occupancy of the Property.
2.5 Residential Uses Prohibited. Residential uses, as defined by WAC 332-30-106(62), are
not permitted on the Property.
SECTION 3 TERM
3.1 Term Defined. The term of this Lease is Ten (10) years (the "Term"), beginning on the
15th day of November, 2020 (the "Commencement Date"), and ending on the 14th day of
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November, 2030 (the "Termination Date"), unless terminated sooner under the terms of this
Lease. Whenever the phrase "termination of this Lease" or "termination of the Lease" is used in
this Lease, it shall refer to the ending, termination, cancellation, or expiration of the Lease.
3.2 Renewal of the Lease. This Lease does not provide a right of renewal. Tenant may apply
for a new lease, which State has discretion to grant or deny. Tenant must apply for a new lease at
least one (1) year prior to Termination Date.
3.3 End of Term.
(a) Removal of Improvements and Personal Property: Prior to the termination of this
Lease, Tenant shall remove Improvements and Personal Property in accordance
with Section 7, Improvements.
(b) Restoration of Property:
(1) Prior to the termination of this Lease, Tenant shall restore the Property to
its condition before the installation of any Improvements on the Property.
(2) This restoration is to be done at Tenant's expense and to the satisfaction of
State. Restoration of the Property is considered to be Work, as described
in Section 7 of the Lease. Tenant's plans for restoring the Property shall be
submitted to State for prior approval in accordance with Section 7 of this
Lease.
(3) If Tenant fails to restore the condition of the Property as required by this
Paragraph, State may take steps reasonably necessary to remedy Tenant's
failure. Upon demand by State, Tenant shall pay all costs of State's
remedy, including but not limited to the costs of removing and disposing
of material deposited on the Property, lost revenue resulting from the
condition of the Property, and administrative costs associated with State's
remedy.
(c) Vacation of Property: Upon the termination of this Lease, Tenant shall cease all
operations on and use of the Property and surrender the Property to State.
3.4 Holdover.
(a) If Tenant remains in possession of the Property after the Termination Date, and
State has not notified Tenant that Tenant must vacate the Property, in the absence
of a new lease agreement between State and Tenant, the following terms apply:
Tenant's occupancy will be a month-to-month tenancy, on terms identical to the
terms of this Lease, except that either Party may terminate the tenancy on thirty
(30) days' written notice. The month-to-month occupancy will not be an
extension or renewal of the Term.
(1) The monthly rent during the month-to-month tenancy will be the same
rent that would be due if the Lease were still in effect and all adjustments
in rent were made in accordance with its terms.
(2) Payment of more than the monthly rent will not be construed to create a
periodic tenancy longer than month-to-month. If Tenant pays more than
the monthly rent and State provides notice to vacate the property, State
shall refund the amount of excess payment remaining after the Tenant
ceases occupation of the Property.
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(b) If State notifies Tenant to vacate the Property and Tenant fails to do so within the
time set forth in the notice, Tenant will be a trespasser and shall owe State all
amounts due under RCW 79.02.300 or other applicable laws.
SECTION 4 RENT
4.1 Annual Rent.
(a) The Annual Rent is based on the use classification of Tenant's Permitted Use of
the Property and the square footage of each use classification, as set forth in
Exhibit A.
(b) Until adjusted as set forth below, Tenant shall pay to State an annual rent of Five
Hundred-Thirty Six Dollars and Sixty Six cents ($536.66), consisting Five
Hundred-Thirty Six Dollars and Sixty Six cents ($536.66), related to the waterdependent
rent.
(c) The annual rent, as it currently exists or as adjusted or modified (the "Annual
Rent"), is due and payable in full on or before the Commencement Date and on or
before the same date of each year thereafter. Any payment not paid by State's
close of business on the date due is past due.
4.2 Payment Place. Tenant shall make payment to Financial Management Division, 1111
Washington St SE, PO Box 47041, Olympia, WA 98504-7041.
4.3 Adjustment Based on Change in Use Classification. Neither the use classification nor
the square footage of a use classification shall be changed without the prior written consent of
State. If the use classification or the square footage of a use classification is changed, the Annual
Rent shall be adjusted based on the revised use classification or square footage of each use
classification.
4.4 Rent Adjustment Procedures.
(a) Notice of Rent Adjustment. State shall provide notice of adjustments to the
Annual Rent allowed under Paragraph 4.5(b) to Tenant in writing no later than
ninety (90) days after the anniversary date of the Lease.
(b) If State fails to provide the notice required in Paragraph 4.4(a), State shall not
collect the adjustment amount for the year in which State failed to provide notice.
Upon providing notice of adjustment, State may adjust and prospectively bill
Annual Rent as if missed or waived adjustments had been implemented at the
proper interval. This includes the implementation of any inflation adjustment.
4.5 Rent Adjustments for Water-Dependent Uses.
(a) Inflation Adjustment. State shall adjust water-dependent rent annually pursuant to
RCW 79.105.200-.360, except in those years in which State revalues the rent
under Paragraph 4.5(b) below. This adjustment will be effective on the
anniversary of the Commencement Date.
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(b) Revaluation of Rent. At the end of the first four-year period of the Term, and at
the end of each subsequent four-year period, State shall revalue the
water-dependent Annual Rent in accordance with RCW 79.105.200-.360.
(c) Rent Cap. State shall increase rent incrementally in compliance with RCW
79.105.260 as follows: If application of the statutory rent formula for
water-dependent uses would result in an increase in the rent attributable to such
uses of more than fifty percent (50%) in any one year, State shall limit the actual
increase implemented in such year to fifty percent (50%) of the then-existing rent.
In subsequent, successive years, State shall increase the rental amount
incrementally until State implements the full amount of increase as determined by
the statutory rent formula.
SECTION 5 OTHER EXPENSES
5.1 Utilities. Tenant shall pay all fees charged for utilities required or needed by the
Permitted Use.
5.2 Taxes and Assessments. Tenant shall pay all taxes (including leasehold excise taxes),
assessments, and other governmental charges applicable or attributable to the Property, Tenant's
leasehold interest, the Improvements, or Tenant's use and enjoyment of the Property.
5.3 Right to Contest. If in good faith, Tenant may contest any tax or assessment at its sole
cost and expense. At the request of State, Tenant shall furnish reasonable protection in the form
of a bond or other security, satisfactory to State, against loss or liability resulting from such
contest.
5.4 Proof of Payment. If required by State, Tenant shall furnish to State receipts or other
appropriate evidence establishing the payment of amounts this Lease requires Tenant to pay.
5.5 Failure to Pay. If Tenant fails to pay any of the amounts due under this Lease, State may
pay the amount due, and recover its cost in accordance with Section 6.
SECTION 6 LATE PAYMENTS AND OTHER CHARGES
6.1 Failure to Pay Rent. If Tenant fails to pay rent when due under this Lease, State may
seek remedies under Section 14 as well as late charges and interest as provided in this Section 6.
6.2 Late Charge. If State does not receive full rent payment within ten (10) days of the date
due, Tenant shall pay to State a late charge equal to four percent (4%) of the unpaid amount or
Fifty Dollars ($50), whichever is greater, to defray the overhead expenses of State incident to the
delay.
6.3 Interest Penalty for Past Due Rent and Other Sums Owed.
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(a) Tenant shall pay interest on the past due rent at the rate of one percent (1%) per
month until paid, in addition to paying the late charges determined under
Paragraph 6.2. Rent not paid by the close of business on the due date will begin
accruing interest the day after the due date.
(b) If State pays or advances any amounts for or on behalf of Tenant, Tenant shall
reimburse State for the amount paid or advanced and shall pay interest on that
amount at the rate of one percent (1%) per month from the date State notifies
Tenant of the payment or advance. This includes, but is not limited to, State's
payment of taxes, assessments, insurance premiums, costs of removal and
disposal of materials or Improvements under any provision of this Lease, or other
amounts not paid when due.
6.4 Referral to Collection Agency and Collection Agency Fees. If State does not receive
full payment within thirty (30) days of the due date, State may refer the unpaid amount to a
collection agency as provided by RCW 19.16.500 or other applicable law. Upon referral, Tenant
shall pay collection agency fees in addition to the unpaid amount.
6.5 No Accord and Satisfaction. If Tenant pays, or State otherwise receives, an amount less
than the full amount then due, State may apply such payment as it elects. State may accept
payment in any amount without prejudice to State's right to recover the balance or pursue any
other right or remedy. No endorsement or statement on any check, any payment, or any letter
accompanying any check or payment constitutes accord and satisfaction.
6.6 No Counterclaim, Setoff, or Abatement of Rent. Except as expressly set forth
elsewhere in this Lease, Tenant shall pay rent and all other sums payable by Tenant without the
requirement that State provide prior notice or demand. Tenant's payment is not subject to
counterclaim, setoff, deduction, defense or abatement.
SECTION 7 IMPROVEMENTS
7.1 Improvements Defined.
(a) "Improvements," consistent with RCW 79.105 through 79.140, are additions
within, upon, or attached to the land. This includes, but is not limited to, fill,
structures, bulkheads, docks, pilings, and other fixtures.
(b) "Personal Property" means items that can be removed from the Property without
(1) injury to the Property, adjacent state-owned aquatic lands, or Improvements or
(2) diminishing the value or utility of the Property, adjacent state-owned aquatic
lands or Improvements.
(c) "State-Owned Improvements" are Improvements made or owned by the State of
Washington. State-Owned Improvements includes any construction, alteration, or
addition to State-Owned Improvements made by Tenant.
(d) "Tenant-Owned Improvements" are Improvements authorized by State and (1)
made by Tenant, (2) acquired by Tenant from the prior tenant, (3) made by
subtenants on the Property, or (4) acquired by a subtenant from Tenant or a prior
subtenant or tenant.
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(e) "Unauthorized Improvements" are Improvements made on the Property without
State's prior consent or Improvements made by Tenant that do not conform to
plans submitted to and approved by State.
7.2 Existing Improvements. On the Commencement Date, there are no Improvements
located on the Property.
7.3 Construction, Major Repair, Modification, and Other Work.
(a) This Paragraph 7.3 governs construction, alteration, replacement, major repair,
modification, and removal of Improvements ("Work").
(b) Except in an emergency, Tenant shall not conduct Work without State's prior
written consent. Tenant shall obtain State's prior written consent as follows:
(1) Tenant shall submit to State plans and specifications describing the
proposed Work at least sixty (60) days before submitting permit
applications to regulatory authorities unless Tenant and State otherwise
agree to coordinate permit applications. At a minimum, or if no permits
are necessary, Tenant shall submit plans and specifications at least ninety
(90) days before commencement of Work.
(2) State may deny consent if State determines that denial is in the best
interest of the State of Washington or if proposed Work does not comply
with Paragraphs 7.4 and 11.3. State may impose additional conditions
reasonably intended to protect and preserve the Property.
(3) State will not approve plans to construct new Improvements or expand
existing Improvements in or over habitats designated by State as important
habitat, including, but not limited to: native aquatic vegetation,
commercial geoduck tracts, forage fish spawning areas, and salmon
critical habitat. Tenant shall confirm location of important habitat on
Property, if any, with State before submitting plans and specifications in
accordance with Paragraph 7.3.
(c) Tenant shall immediately notify State of emergency Work. Upon State's request,
Tenant shall provide State with plans and specifications or as-builts of emergency
Work.
(d) Tenant shall not commence or authorize Work until Tenant or Tenant's contractor
has:
(1) Obtained a performance and payment bond in an amount equal to one
hundred twenty-five percent (125%) of the estimated cost of construction.
Tenant or Tenant's contractor shall maintain the performance and payment
bond until the costs of the Work, including all laborers and material
persons, are paid in full.
(2) Obtained all required permits.
(e) Before completing Work, Tenant shall remove all debris and restore the Property
to an orderly and safe condition. If Work is for removal of Improvements at End
of Term, Tenant shall restore the Property in accordance with Paragraph 3.3, End
of Term.
(f) Upon completing Work, Tenant shall promptly provide State with as-built plans
and specifications. State may also require Tenant to obtain an updated record
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survey showing the Property boundaries and the as-built location of all
Improvements on the Property.
(g) State shall not charge rent for authorized Improvements installed by Tenant
during this Term of this Lease, but State may charge rent for such Improvements
when and if Tenant or successor obtains a subsequent use authorization for the
Property and State has waived the requirement for Improvements to be removed
as provided in Paragraph 7.5.
7.4 Standards for Work.
(a) Applicability of Standards for Work.
(1) The standards for Work in Paragraph 7.4(b) apply to Work commenced in
the five year period following the Commencement Date. Work
commences when State approves plans and specifications.
(2) If Tenant commences Work five years or more after the Commencement
Date, Tenant shall comply with State's then current standards for Work.
(3) Tenant may ascertain State's current standards for Work as follows:
(i) Before submitting plans and specifications for State's approval as
required by Paragraph 7.3 of the Lease, Tenant shall request State
to provide Tenant with then current standards for Work on Stateowned
Aquatic Lands.
(ii) Within thirty (30) days of receiving Tenant's request, State shall
provide Tenant with current standards for Work, which will be
effective for the purpose of State's approval of Tenant's proposed
Work provided Tenant submits plans and specifications for State's
approval within two (2) years of Tenant's request for standards.
(iii) If State does not timely provide current standards upon Tenant's
request, the standards under Paragraph 7.4(b) apply to Tenant's
Work provided Tenant submits plans and specifications as required
by Paragraph 7.3 within two (2) years of Tenant's request for
standards.
(iv) If Tenant fails to (1) make a request for current standards or (2)
timely submit plans and specifications to State after receiving
current standards, Tenant shall make changes in plans or Work
necessary to conform to current standards for Work upon State's
demand.
(b) Standards for Work.
(1) Tenant shall only conduct in-water Work during time periods authorized
for such work under WAC 220-660-110, Authorized Work Times in
freshwater Areas, or as otherwise directed by the Washington Department
of Fish and Wildlife (WDFW), United States Fish and Wildlife Service
(USFWS), National Marine Fisheries Service (NMFS).
7.5 Tenant-Owned Improvements.
(a) Removal of Tenant-Owned Improvements upon termination.
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(1) Tenant shall remove Tenant-Owned Improvements in accordance with
Paragraph 7.3 upon the termination of the Lease unless State waives the
requirement for removal.
(2) Tenant-Owned Improvements remaining on the Property after the
termination of the Lease shall become State-Owned Improvements
without payment by State, unless State elects otherwise. State may refuse
or waive ownership.
(3) If Tenant-Owned Improvements remain on the Property after the
termination of the Lease without State's consent, State may remove all
Improvements and Tenant shall pay State's costs.
(b) Conditions Under Which State May Waive Removal of Tenant-Owned
Improvements.
(1) State may waive removal of any Tenant-Owned Improvements whenever
State determines that it is in the best interests of the State and regardless of
whether Tenant enters into a new Lease for the Property.
(2) If Tenant enters into a new Lease for the Property, State may waive
requirement to remove Tenant-Owned Improvements. State also may
consent to Tenant's continued ownership of Tenant-Owned
Improvements.
(3) If Tenant does not enter into a new Lease for the Property, State may
waive requirement to remove Tenant-Owned Improvements upon
consideration of a timely request from Tenant, as follows:
(i) Tenant must notify State at least one (1) year before the
Termination Date of its request to leave Tenant-Owned
Improvements.
(ii) State, within ninety (90) days of receiving Tenant's notification,
will notify Tenant whether State consents to any Tenant-Owned
Improvements remaining. State has no obligation to grant consent.
(iii) State's failure to respond to Tenant's request to leave
Improvements within ninety (90) days is a denial of the request.
(c) Tenant's Obligations if State Waives Removal.
(1) Tenant shall not remove Tenant-Owned Improvements if State waives the
requirement for removal of any Tenant-Owned Improvements.
(2) Tenant shall maintain such Tenant-Owned Improvements in accordance
with this Lease until the termination of the Lease. Tenant is liable to State
for cost of repair if Tenant causes or allows damage to Tenant-Owned
Improvements State has designated to remain.
7.6 Unauthorized Improvements.
(a) Unauthorized Improvements belong to State, unless State elects otherwise.
(b) The placement of Unauthorized Improvements on the Property is a default of the
Lease. State may require removal of any or all Unauthorized Improvements. If
State requires removal of Unauthorized Improvements and Tenant fails to remove
Unauthorized Improvements, State may remove Unauthorized Improvements and
Tenant shall pay for the cost of removal and disposal.
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(c) In addition to requiring removal of Unauthorized Improvements, State may
charge Tenant a use fee that is sixty percent (60%) higher than the full market
value of the use of the land for the Unauthorized Improvements from the time of
installation or construction until the time the Unauthorized Improvements are
removed.
(d) If State consents to Unauthorized Improvements remaining on the Property, upon
State's consent, the Unauthorized Improvements will be treated as Tenant-Owned
Improvements and the removal and ownership of such Improvements shall be
governed by Paragraph 7.5. If State consents to the Unauthorized Improvements
remaining on the Property, State may charge a use fee that is sixty percent (60%)
higher than the full market value of the use of the land for the Unauthorized
Improvements from the time of installation or construction until State consents.
7.7 Personal Property.
(a) Tenant retains ownership of Personal Property unless Tenant and State agree
otherwise in writing.
(b) Tenant shall remove Personal Property from the Property by the termination of
the Lease. Tenant is liable for damage to the Property and Improvements resulting
from removal of Personal Property.
(c) State may sell or dispose of all Personal Property left on the Property after the
termination of the Lease.
(1) If State conducts a sale of Personal Property, State shall first apply
proceeds to State's costs of removing the Personal Property, State's costs
in conducting the sale, and any other payment due from Tenant to State.
State shall pay the remainder, if any, to the Tenant. Tenant shall be liable
for any costs of removing the Personal Property and any costs of
conducting the sale that exceed the proceeds received by State.
(2) If State disposes of Personal Property, Tenant shall pay for the cost of
removal and disposal.
SECTION 8 ENVIRONMENTAL LIABILITY/RISK ALLOCATION
8.1 Definitions.
(a) "Hazardous Substance" means any substance that now or in the future becomes
regulated or defined under any federal, state, or local statute, ordinance, rule,
regulation, or other law relating to human health, environmental protection,
contamination, pollution, or cleanup.
(b) "Release or threatened release of Hazardous Substance" means a release or
threatened release as defined under any law described in Paragraph 8.1(a).
(c) "Utmost care" means such a degree of care as would be exercised by a very
careful, prudent, and competent person under the same or similar circumstances;
the standard of care applicable under the Washington State Model Toxics Control
Act ("MTCA"), Chapter 70.105D RCW.
(d) "Tenant and affiliates" when used in this Section 8 means Tenant or Tenant's
subtenants, contractors, agents, employees, guests, invitees, licensees, affiliates,
or any person on the Property with the Tenant's permission.
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(e) "Liabilities" as used in this Section 8 means any claims, demands, proceedings,
lawsuits, damages, costs, expenses, fees (including attorneys' fees and
disbursements), penalties, or judgments.
8.2 General Conditions.
(a) Tenant's obligations under this Section 8 extend to the area in, on, under, or
above:
(1) The Property; and
(2) Adjacent state-owned aquatic lands if affected by a release of Hazardous
Substances that occurs as a result of the Permitted Use.
(b) Standard of Care.
(1) Tenant shall exercise the utmost care with respect to Hazardous
Substances.
(2) Tenant shall exercise utmost care for the foreseeable acts or omissions of
third parties with respect to Hazardous Substances, and the foreseeable
consequences of those acts or omissions, to the extent required to establish
a viable, third-party defense under the law.
8.3 Current Conditions and Duty to Investigate.
(a) State makes no representation about the condition of the Property or adjacent
state-owned aquatic lands. Hazardous Substances may exist in, on, under, or
above the Property.
(b) This Lease does not impose a duty on State to conduct investigations or supply
information to Tenant about Hazardous Substances.
(c) Tenant is responsible for conducting all appropriate inquiry and gathering
sufficient information about the existence, scope, and location of Hazardous
Substances on or near the Property necessary for Tenant to meet Tenant's
obligations under this Lease and utilize the Property for the Permitted Use.
8.4 Use of Hazardous Substances.
(a) Tenant and affiliates shall not use, store, generate, process, transport, handle,
release, or dispose of Hazardous Substances, except in accordance with all
applicable laws.
(b) Tenant shall not undertake, or allow others to undertake by Tenant's permission,
acquiescence, or failure to act, activities that result in a release or threatened
release of Hazardous Substances.
(c) If use of Hazardous Substances related to Tenant's use or occupancy of the
Property results in violation of law:
(1) Tenant shall submit to State any plans for remedying the violations, and
(2) Tenant shall implement any remedial measures to restore the Property or
natural resources that State may require in addition to remedial measures
required by regulatory authorities.
8.5 Management of Contamination, if any.
(a) Tenant and affiliates shall not undertake activities that:
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(1) Damage or interfere with the operation of remedial or restoration
activities, if any;
(2) Result in human or environmental exposure to contaminated sediments, if
any;
(3) Result in the mechanical or chemical disturbance of on-site habitat
mitigation, if any.
(b) If requested, Tenant shall allow reasonable access to:
(1) Employees and authorized agents of the United States Environmental
Protection Agency (EPA), the Washington State Department of Ecology,
health department, or other similar environmental agencies; and
(2) Potentially liable or responsible parties who are the subject of an order or
consent decree that requires access to the Property. Tenant may negotiate
an access agreement with such parties, but Tenant may not unreasonably
withhold such agreement.
8.6 Notification and Reporting.
(a) Tenant shall immediately notify State if Tenant becomes aware of any of the
following:
(1) A release or threatened release of Hazardous Substances;
(2) Any new discovery of or new information about a problem or liability
related to, or derived from, the presence of Hazardous Substances;
(3) Any lien or action arising from Hazardous Substances;
(4) Any actual or alleged violation of any federal, state, or local statute,
ordinance, rule, regulation, or other law pertaining to Hazardous
Substances;
(5) Any notification from the EPA or the Washington State Department of
Ecology that remediation or removal of Hazardous Substances is or may
be required at the Property.
(b) Tenant's duty to report under Paragraph 8.6(a) extends to lands described in
Paragraph 8.2(a) and to any other property used by Tenant in conjunction with the
Property if a release of Hazardous Substances on the other property could affect
the Property.
(c) Tenant shall provide State with copies of all documents Tenant submits to any
federal, state or local authorities concerning environmental impacts or proposals
relative to the Property. Documents subject to this requirement include, but are
not limited to, applications, reports, studies, or audits for National Pollutant
Discharge Elimination System permits; U.S. Army Corps of Engineers permits;
State Hydraulic Project Approvals (HPA); State Water Quality Certifications;
Shoreline Substantial Development permits; and any reporting necessary for the
existence, location, and storage of Hazardous Substances on the Property.
8.7 Indemnification.
(a) Tenant shall fully indemnify, defend, and hold harmless State from and against
Liabilities that arise out of, or relate to:
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(1) The use, storage, generation, processing, transportation, handling, or
disposal of any Hazardous Substance by Tenant and affiliates occurring
whenever Tenant occupies or has occupied the Property;
(2) The release or threatened release of any Hazardous Substance resulting
from any act or omission of Tenant and affiliates occurring whenever
Tenant occupies or has occupied the Property.
(b) Tenant shall fully indemnify, defend, and hold harmless State for Liabilities that
arise out of or relate to Tenant's breach of obligations under Paragraph 8.5.
(c) If Tenant fails to exercise care as described in Paragraph 8.2(b)(2), to the extent
permitted by law, Tenant shall fully indemnify, defend, and hold harmless State
from and against Liabilities arising from the acts or omissions of third parties in
relation to the release or threatened release of Hazardous Substances.
8.8 Reservation of Rights.
(a) For Liabilities not covered by the indemnification provisions of Paragraph 8.7, the
Parties expressly reserve and do not waive any rights, claims, immunities, causes
of action, or defenses relating to Hazardous Substances that either Party may have
against the other under law.
(b) The Parties expressly reserve all rights, claims, immunities, and defenses that
either Party may have against third parties. Nothing in this Section 8 benefits or
creates rights for third parties.
(c) The allocations of risks, Liabilities, and responsibilities set forth in this Section 8
do not release either Party from or affect the liability of either Party for Hazardous
Substances claims or actions by regulatory agencies.
8.9 Cleanup.
(a) If Tenant's act, omission, or breach of obligation under Paragraph 8.4 results in a
release of Hazardous Substances that exceeds the threshold limits of any
applicable regulatory standard, Tenant shall, at Tenant's sole expense, promptly
take all actions necessary or advisable to clean up the Hazardous Substances in
accordance with applicable law.
(b) Tenant may undertake a cleanup of the Property pursuant to the Washington State
Department of Ecology's Voluntary Cleanup Program, provided that Tenant
cooperates with the Department of Natural Resources in development of cleanup
plans. Tenant shall not proceed with Voluntary Cleanup without the Department
of Natural Resources approval of final plans. Nothing in the operation of this
provision is an agreement by the Department of Natural Resources that the
Voluntary Cleanup complies with any laws or with the provisions of this Lease.
Tenant's completion of a Voluntary Cleanup is not a release from or waiver of
any obligation for Hazardous Substances under this Lease.
8.10 Sampling by State, Reimbursement, and Split Samples.
(a) State may enter the Property and conduct sampling, tests, audits, surveys, or
investigations ("Tests") of the Property at any time to determine the existence,
scope, or effects of Hazardous Substances.
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(b) If such Tests, along with any other information, demonstrate a breach of Tenant's
obligations regarding Hazardous Substances under this Lease, Tenant shall
promptly reimburse State for all costs associated with the Tests, provided State
gave Tenant thirty (30) calendar days advance notice in nonemergencies and
reasonably practical notice in emergencies.
(c) In nonemergencies, Tenant is entitled to obtain split samples of Test samples,
provided Tenant gives State written notice requesting split samples at least ten
(10) calendar days before State conducts Tests. Upon demand, Tenant shall
promptly reimburse State for additional cost, if any, of split samples.
(d) If either Party conducts Tests on the Property, the conducting Party shall provide
the other Party with validated final data and quality assurance/quality
control/chain of custody information about the Tests within sixty (60) calendar
days of a written request by the other party, unless Tests are part of a submittal
under Paragraph 8.6(c) in which case Tenant shall submit data and information to
State without written request by State. Neither party is obligated to provide any
analytical summaries or the work product of experts.
8.11 Closeout Assessment.
(a) State may require Tenant to conduct a Closeout Environmental Assessment
("Closeout Assessment") prior to Termination Date or after a valid notice of
early termination according to the procedures set forth in (b)-(j) below.
(b) The purpose of the Closeout Assessment is to determine the existence, scope, or
effects of Hazardous Substances on the Property and associated natural resources.
The Closeout Assessment may include sediment sampling as well as additional
testing State may require.
(c) No later than one hundred eighty (180) calendar days prior to the Termination
Date, or within ninety (90) days of a valid notice of early termination, State may
provide Tenant with written notice that State requires a Closeout Assessment.
(d) Within sixty (60) days of State's notice that Closeout Assessment is required and
before commencing assessment activities, Tenant shall submit a proposed plan for
conducting the Closeout Assessment in writing for State's approval.
(e) If State fails to approve or disapprove of the plan in writing within sixty (60) days
of its receipt, State waives requirement for approval.
(f) Tenant shall be responsible for all costs required to complete planning, sampling,
analyzing, and reporting associated with the Closeout Assessment.
(g) If the Lease has terminated, State may require Tenant to enter into a right of entry
or other use authorization prior to the Tenant entering the Property for any
Closeout Assessment work required by this Paragraph 8.11.
(h) Tenant shall submit Closeout Assessment to State upon completion.
(i) As required by law, Tenant shall report to the appropriate regulatory authorities if
the Closeout Assessment discloses a release or threatened release of Hazardous
Substances.
(j) If the initial results of the Closeout Assessment disclose that Hazardous
Substances may have migrated to other property, State may require Tenant to
conduct additional assessment work to determine the existence, scope, and effect
of Hazardous Substances on adjacent property, any other property subject to use
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by Tenant in conjunction with its use of the Property, or on associated natural
resources. Tenant shall submit additional assessment work to State upon
completion. As required by law, Tenant shall report to the appropriate regulatory
authorities if the additional assessment discloses a release or threatened release of
Hazardous Substances.
SECTION 9 ASSIGNMENT AND SUBLETTING
9.1 State Consent Required. Tenant shall not sell, convey, mortgage, assign, pledge,
sublease, or otherwise transfer or encumber any part of Tenant's interest in this Lease or the
Property without State's prior written consent, which shall be at State's sole discretion.
(a) In determining whether to consent, State may consider, among other items, the
proposed transferee's financial condition, business reputation, and experience, the
nature of the proposed transferee's business, the then-current value of the
Property, and such other factors as may reasonably bear upon the suitability of
the transferee as a tenant of the Property.. Tenant shall submit information
regarding any proposed transferee to State at least thirty (30) days prior to the date
of the proposed transfer.
(b) State reserves the right to condition its consent upon:
(1) Changes in the terms and conditions of this Lease, including, but not
limited to, the Annual Rent; and/or
(2) The agreement of Tenant or transferee to conduct Tests for Hazardous
Substances on the Property or on other property owned or occupied by
Tenant or the transferee.
(c) Each permitted transferee shall assume all obligations under this Lease, including
the payment of rent. No assignment, sublet, or transfer shall release, discharge, or
otherwise affect the liability of Tenant. Tenant shall remain liable for the full and
complete performance, satisfaction, and compliance with the terms of this Lease.
(d) State's consent under this Paragraph 9.1 does not constitute a waiver of any
claims against Tenant for the violation of any term of this Lease.
9.2 Rent Payments Following Assignment. The acceptance by State of the payment of rent
following an assignment or other transfer does not constitute consent to any assignment or
transfer.
9.3 Terms of Subleases.
(a) Tenant shall submit the terms of all subleases to State for prior approval.
(b) Tenant shall incorporate the following requirements in all subleases:
(1) The sublease must be consistent with and subject to all the terms and
conditions of this Lease;
(2) The sublease must provide that this Lease controls if the terms of the
sublease conflict with the terms of this Lease;
(3) The term of the sublease (including any period of time covered by a
renewal option) must end before the Termination Date of the initial Term
or any renewal term;
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(4) The sublease must terminate if this Lease terminates for any reason;
(5) The subtenant must receive and acknowledge receipt of a copy of this
Lease;
(6) The sublease must prohibit the prepayment to Tenant by the subtenant of
more than the annual rent.
(7) The sublease must identify the rental amount subtenant is to pay to
Tenant;
(8) The sublease must provide that there is no privity of contract between the
subtenant and State;
(9) The sublease must require removal of the subtenant's Improvements and
Personal Property upon termination of the sublease;
(10) The subtenant's permitted use must be within the scope of the Permitted
Use;
(11) The sublease must require the subtenant to meet the Indemnification
requirements under Paragraph10;
(12) The sublease must require the subtenant to meet the Insurance
requirements under Paragraph10 unless State agrees in writing to exempt a
subtenant from this requirement;
(13) The sublease must require the subtenant to comply with the Financial
Security requirements under Paragraph10, unless State agrees in writing to
exempt a subtenant from this requirement;
(14) If the sublease includes moorage of a vessel, the sublease must require the
subtenant to procure marine insurance as set forth in Paragraph 10.2(c)(4)
of this Lease.
9.4 Short-Term Subleases of Moorage Slips. Short-term subleasing of moorage slips for a
term of one year or less does not require State's prior approval pursuant to Paragraphs 9.1 or 9.3.
Tenant shall conform moorage sublease agreements to the sublease requirements in Paragraph
9.3.
9.5 Event of Assignment. If Tenant is a corporation, dissolution of the corporation or a
transfer (by one or more transactions) of a majority of the voting stock of Tenant is an
assignment of this Lease. If Tenant is a partnership, dissolution of the partnership or a transfer
(by one or more transactions) of the controlling interest in Tenant is an assignment of this Lease.
If Tenant is a limited liability company, conveyance of an economic interest of greater than fifty
percent (50%) is an assignment of this Lease. Assignments defined in this Paragraph 9.5 require
State's consent under Paragraph 9.1.
SECTION 10 INDEMNITY, FINANCIAL SECURITY, INSURANCE
10.1 Indemnity.
(a) Tenant shall indemnify, defend, and hold harmless State, its employees, officials,
officers, and agents from any Claim arising out of the Permitted Use, any Claim
arising out of activities related to the Permitted Use, and any Claim arising out of
the use, occupation, or control of the Property by Tenant, its subtenants,
contractors, agents, invitees, guests, employees, affiliates, licensees, or permittees
Aquatic Lands Lease (Rev. 6/30/2020) Page 17 of 35 Lease No.22-101484
to the fullest extent permitted by law and subject to the limitations provided
below.
(b) "Claim" as used in this Paragraph 10.1 means any financial loss, claim, suit,
action, damages, expenses, costs, fees (including attorneys' fees), fines, penalties,
or judgments attributable to bodily injury, sickness, disease, death, and damages
to tangible property, including, but not limited to, land, aquatic life, and other
natural resources. "Damages to tangible property" includes, but is not limited to,
physical injury to the Property, diminution in value, and/or damages resulting
from loss of use of the Property.
(c) State shall not require Tenant to indemnify, defend, and hold harmless State, its
employees, officials, officers, and agents for a Claim caused solely by or resulting
solely from the negligence or willful act of State, its employees, officials, officers,
or agents.
(d) Tenant specifically and expressly waives any immunity that may be granted under
the Washington State Industrial Insurance Act, Title 51 RCW in connection with
its obligation to indemnify, defend, and hold harmless State and its employees,
officials, officers, and agents. Further, Tenant's obligation under this Lease to
indemnify, defend, and hold harmless State and its employees, officials, officers,
and agents shall not be limited in any way by any limitation on amount or type of
damages, compensation, or benefits payable to or for any third party under the
worker's compensation acts.
(e) Only to the extent RCW 4.24.115 applies and requires such a limitation, if a
Claim is caused by or results from the concurrent negligence of (a) State or
State's employees, officials, officers, or agents, and (b) the Tenant or Tenant's
subtenants, agents, or employees, these indemnity provisions shall be valid and
enforceable only to the extent of the negligence of the Tenant and those acting on
its behalf.
(f) Section 8, Environmental Liability/Risk Allocation, exclusively shall govern
Tenant's liability to State for Hazardous Substances and its obligation to
indemnify, defend, and hold harmless State for Hazardous Substances.
10.2 Insurance Terms.
(a) Insurance Required.
(1) Tenant certifies that on the Commencement Date of this Lease it is selfinsured
for all the liability exposures, its self-insurance plan satisfies all
State requirements, and its self-insurance plan provides coverage equal to
that required in this Paragraph 10.2 and by Paragraph 10.3, Insurance
Types and Limits. Tenant shall provide to State evidence of its status as a
self-insured entity. Upon request by State, Tenant shall provide a written
description of its financial condition and/or the self-insured funding
mechanism. Tenant shall provide State with at least thirty (30) days'
written notice prior to any material changes to Tenant's self-insured
funding mechanism. If during the term of this Lease Tenant's selfinsurance
plan fails to provide coverage equal to that required in
Paragraph 10.2 and Paragraph 10.3 of this Lease, Tenant shall procure
additional commercial insurance coverage to meet the requirements of this
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Lease. The requirements in Paragraph 10.2(a)(3) and (4) only apply where
the Tenant procures additional commercial insurance to meet the
requirements of this Lease.
(2) Unless State agrees to an exception, Tenant shall provide insurance issued
by an insurance company or companies admitted to do business in the
State of Washington and have a rating of A- or better by the most recently
published edition of A.M. Best's Insurance Reports. Tenant may submit a
request to the risk manager for the Department of Natural Resources to
approve an exception to this requirement. If an insurer is not admitted, the
insurance policies and procedures for issuing the insurance policies shall
comply with Chapter 48.15 RCW and 284-15 WAC.
(3) All general liability, excess, umbrella and pollution legal liability
insurance policies must name the State of Washington, the Department of
Natural Resources, its elected and appointed officials, officers, agents, and
employees as an additional insured by way of endorsement.
(4) All property insurance, builder's risk insurance, and equipment breakdown
insurance must name the State of Washington, the Department of Natural
Resources, its elected and appointed officials, officers, agents, and
employees as a loss payee.
(5) All insurance provided in compliance with this Lease must be primary as
to any other insurance or self-insurance programs afforded to or
maintained by State.
(b) Waiver.
(1) Tenant waives all rights against State for recovery of damages to the
extent insurance maintained pursuant to this Lease covers these damages.
(2) Except as prohibited by law, Tenant waives all rights of subrogation
against State for recovery of damages to the extent that they are covered
by insurance maintained pursuant to this lease.
(c) Proof of Insurance.
(1) Tenant shall provide State with a certificate(s) and endorsement(s) of
insurance executed by a duly authorized representative of each insurer,
showing compliance with insurance requirements specified in this Lease;
and, if requested, copies of policies to State.
(2) The certificate(s) of insurance must reference the Lease number.
(3) Receipt of such certificates, endorsements or policies by State does not
constitute approval by State of the terms of such policies.
(4) For all moorage agreements issued by the Tenant that are entered into or
renewed after June 12, 2014, Tenant shall require all vessels except
transient vessels to provide proof of marine insurance that provides
coverage at liability limits of at least three hundred thousand dollars
($300,000) per occurrence and includes, at a minimum, general liability,
legal liability, and pollution liability coverage. To the extent not already
included in the general, legal, and pollution liability coverage of a vessel
owner, Tenant shall also require the vessel owner to provide proof of
coverage for fuel spills, hull damage, wreck removal, salvage, and injuries
to passengers and crew of the vessel. Failure to comply with the insurance
Aquatic Lands Lease (Rev. 6/30/2020) Page 19 of 35 Lease No.22-101484
requirements as outlined in RCW 88.26.030 shall cause Tenant to assume
secondary liability under RCW 79.100.060 for any derelict or abandoned
vessel as defined in RCW 79.100.010 located on the Property.
(d) State must receive written notice before cancellation or non-renewal of any
insurance required by this Lease, as follows:
(1) Insurers subject to RCW 48.18 (admitted and regulated by the Insurance
Commissioner): If cancellation is due to non-payment of premium,
provide State ten (10) days' advance notice of cancellation; otherwise,
provide State forty-five (45) days' advance notice of cancellation or nonrenewal.
(2) Insurers subject to RCW 48.15 (surplus lines): If cancellation is due to
non-payment of premium, provide State ten (10) days' advance notice of
cancellation; otherwise, provide State twenty (20) days' advance notice of
cancellation or non-renewal.
(e) Adjustments in Insurance Coverage.
(1) State may impose changes in the limits of liability for all types of
insurance as State deems necessary.
(2) Tenant shall secure new or modified insurance coverage within thirty (30)
days after State requires changes in the limits of liability.
(f) If Tenant fails to procure and maintain the insurance described above within
fifteen (15) days after Tenant receives a notice to comply from State, State may
either:
(1) Deem the failure an Event of Default under Section 14 and terminate the
Lease without giving Tenant any further opportunity to cure, or
(2) Procure and maintain comparable substitute insurance and pay the
premiums. Upon demand, Tenant shall pay to State the full amount paid
by State, together with interest at the rate provided in Paragraph 6.3 from
the date of State's notice of the expenditure until Tenant's repayment.
(g) General Terms.
(1) State does not represent that coverage and limits required under this Lease
are adequate to protect Tenant.
(2) Coverage and limits do not limit Tenant's liability for indemnification and
reimbursements granted to State under this Lease.
(3) The Parties shall use any insurance proceeds payable by reason of damage
or destruction to property first to restore the real property covered by this
Lease, then to pay the cost of the reconstruction, then to pay State any
sums in arrears, and then to Tenant.
10.3 Insurance Types and Limits.
(a) General Liability Insurance.
(1) Tenant shall maintain commercial general liability insurance (CGL) or
marine general liability (MGL) covering claims for bodily injury, personal
injury, or property damage arising on the Property and/or arising out of
Tenant's use, occupation, or control of the Property and, if necessary,
commercial umbrella insurance with a limit of not less than One Million
Dollars ($1,000,000) per each occurrence. If such CGL or MGL insurance
Aquatic Lands Lease (Rev. 6/30/2020) Page 20 of 35 Lease No.22-101484
contains aggregate limits, the general aggregate limit must be at least
twice the "each occurrence" limit. CGL or MGL insurance must have
products-completed operations aggregate limit of at least two times the
"each occurrence" limit.
(2) CGL insurance must be written on Insurance Services Office (ISO)
Occurrence Form CG 00 01 (or a substitute form providing equivalent
coverage). All insurance must cover liability arising out of premises,
operations, independent contractors, products completed operations,
personal injury and advertising injury, and liability assumed under an
insured contract (including the tort liability of another party assumed in a
business contract) and contain separation of insured (cross-liability)
condition.
(3) MGL insurance must have no exclusions for non-owned watercraft.
(b) Workers' Compensation.
(1) State of Washington Workers' Compensation.
(i) Tenant shall comply with all State of Washington workers'
compensation statutes and regulations. Tenant shall provide
workers' compensation coverage for all employees of Tenant.
Coverage must include bodily injury (including death) by accident
or disease, which arises out of or in connection with Tenant's use,
occupation, and control of the Property.
(ii) If Tenant fails to comply with all State of Washington workers'
compensation statutes and regulations and State incurs fines or is
required by law to provide benefits to or obtain coverage for such
employees, Tenant shall indemnify State. Indemnity shall include
all fines; payment of benefits to Tenant, employees, or their heirs
or legal representatives; and the cost of effecting coverage on
behalf of such employees.
(2) Longshore and Harbor Workers' and Jones Acts. Longshore and Harbor
Workers' Act (33 U.S.C. Section 901 et seq.) and/or the Jones Act (46
U.S.C. Section 688) may require Tenant to provide insurance coverage in
some circumstances. Tenant shall ascertain if such insurance is required
and, if required, shall maintain insurance in compliance with law. Tenant
is responsible for all civil and criminal liability arising from failure to
maintain such coverage.
(c) Employers' Liability Insurance. Tenant shall procure employers' liability
insurance, and, if necessary, commercial umbrella liability insurance with limits
not less than One Million Dollars ($1,000,000) each accident for bodily injury by
accident and One Million Dollars ($1,000,000) each employee for bodily injury
by disease.
10.4 Financial Security.
(a) On the Commencement Date of this Lease, Tenant is not required to procure and
maintain a corporate security bond or other financial security ("Security"). During
the Term of this Lease, State may require Tenant to procure and maintain Security
Aquatic Lands Lease (Rev. 6/30/2020) Page 21 of 35 Lease No.22-101484
upon any of the events listed in Paragraph 10.4(c)(1). Tenant's failure to maintain
the Security in the required amount during the Term constitutes a breach of this
Lease.
(b) All Security must be in a form acceptable to State.
(1) Bonds must be issued by companies admitted to do business within the
State of Washington and have a rating of A-, Class VII or better, in the
most recently published edition of A.M. Best's Insurance Reports, unless
State approves an exception in writing. Tenant may submit a request to the
Risk Manager for the Department of Natural Resources for an exception to
this requirement.
(2) Letters of credit, if approved by State, must be irrevocable, allow State to
draw funds at will, provide for automatic renewal, and comply with RCW
62A.5-101, et. seq.
(3) Savings account assignments, if approved by State, must allow State to
draw funds at will.
(c) Adjustment in Amount of Security.
(1) State may require an adjustment in the Security amount:
(i) At the same time as revaluation of the Annual Rent,
(ii) As a condition of approval of assignment or sublease of this Lease,
(iii) Upon a material change in the condition or disposition of any
Improvements, or
(iv) Upon a change in the Permitted Use.
(2) Tenant shall deliver a new or modified form of Security to State within
thirty (30) days after State has required adjustment of the amount of the
Security.
(d) Upon any default by Tenant in its obligations under this Lease, State may collect
on the Security to offset the liability of Tenant to State. Collection on the Security
does not (1) relieve Tenant of liability, (2) limit any of State's other remedies, (3)
reinstate the Lease or cure the default or (4) prevent termination of the Lease
because of the default.
SECTION 11 MAINTENANCE AND REPAIR
11.1 State's Repairs. State shall not be required to make any alterations, maintenance,
replacements, or repairs in, on, or about the Property, or any part thereof, during the Term.
11.2 Tenant's Repairs, Alteration, Maintenance and Replacement.
(a) Tenant shall, at its sole cost and expense, keep and maintain the Property and
all Improvements in good order and repair, in a clean, attractive, and safe
condition.
(b) Tenant shall, at its sole cost and expense, make any and all additions,
repairs, alterations, maintenance, replacements, or changes to the Property
or to any Improvements on the Property that may be required by any
public authority having jurisdiction over the Property and requiring it for
public health, safety and welfare purposes.
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(c) Except as provided in Paragraph 11.2(d), all additions, repairs, alterations,
replacements or changes to the Property and to any Improvements on the
Property shall be made in accordance with, and ownership shall be
governed by, Section 7, above.
(d) Routine maintenance and repair are acts intended to prevent a decline, lapse, or
cessation of the Permitted Use and associated Improvements. Routine
maintenance or repair that does not require regulatory permits does not require
authorization from State pursuant to Section 7.
11.3 Limitations. The following limitations apply whenever Tenant conducts maintenance,
repair, or replacement. The following limitations also apply whenever Tenant conducts
Work on the Property.
(a) Tenant shall not use or install treated wood on decking, docks, rafts, floats,
wharves, piers, fixed docks, gangways, pilings, or any other structure at any
location above or below water, except that Tenant may use Ammoniacal Copper
Zinc Arsenate (ACZA) treated wood for above water structural framing. Tenant
shall never use Chromated Copper Arsenate (CCA), Alkaline Copper Quaternary
(ACQ), or creosote-treated wood at any location.
(b) Tenant shall not use or install tires (for example, floatation or fenders) at any
location above or below water.
(c) Tenant shall install only floatation material encapsulated in a shell resistant to
ultraviolet radiation and abrasion. The shell must be capable of preventing
breakup and loss of floatation material into the water.
SECTION 12 DAMAGE OR DESTRUCTION
12.1 Notice and Repair.
(a) In the event of any damage to or destruction of the Property or any Improvements,
Tenant shall immediately notify State, with subsequent written notice within five
(5) days.
(b) Unless otherwise agreed in writing, Tenant shall promptly reconstruct, repair, or
replace the Property and Improvements in accordance with Paragraph 7.3,
Construction, Major Repair, Modification, and Other Work and Tenant's
additional obligations in Exhibit B, if any.
12.2 State's Waiver of Claim. State does not waive any claims for damage or destruction of
the Property unless State provides written notice to Tenant of each specific claim waived.
12.3 Insurance Proceeds. Tenant's duty to reconstruct, repair, or replace any damage or
destruction of the Property or any Improvements on the Property is not conditioned upon the
availability of any insurance proceeds to Tenant from which the cost of repairs may be paid. The
Parties shall use insurance proceeds in accordance with Paragraph 10.2(g)(3).
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12.4 Rent in the Event of Damage or Destruction. Unless the Parties agree to terminate this
Lease, there is no abatement or reduction in rent during such reconstruction, repair, and
replacement.
12.5 Default at the Time of Damage or Destruction. If Tenant is in default under the terms
of this Lease at the time damage or destruction occurs, State may elect to terminate the Lease and
State then shall have the right to retain any insurance proceeds payable as a result of the damage
or destruction.
SECTION 13 CONDEMNATION
13.1 Definitions.
(a) "Taking" means that an entity authorized by law exercises the power of eminent
domain, either by judgment, settlement in lieu of judgment, or voluntary
conveyance in lieu of formal court proceedings, over all or any portion of the
Property and Improvements. This includes any exercise of eminent domain on any
portion of the Property and Improvements that, in the judgment of State, prevents
or renders impractical the Permitted Use.
(b) "Date of Taking" means the date upon which title to the Property or a portion of
the Property passes to and vests in the condemner or the effective date of any
order for possession if issued prior to the date title vests in the condemner.
13.2 Effect of Taking. If there is a taking, the Lease terminates proportionate to the extent of
the taking. If this Lease terminates in whole or in part, Tenant shall make all payments due and
attributable to the taken Property up to the date of taking. If Tenant has pre-paid rent and Tenant
is not in default of the Lease, State shall refund Tenant the pro rata share of the pre-paid rent
attributable to the period after the date of taking.
13.3 Allocation of Award.
(a) The Parties shall allocate the condemnation award based upon the ratio of the fair
market value of (1) Tenant's leasehold estate and Tenant-Owned Improvements
and (2) State's interest in the Property; the reversionary interest in Tenant-Owned
Improvements, if any; and State-Owned Improvements, if any.
(b) If Tenant and State are unable to agree on the allocation, the Parties shall submit
the dispute to binding arbitration in accordance with the rules of the American
Arbitration Association.
SECTION 14 DEFAULT AND REMEDIES
14.1 Default Defined. Tenant is in default of this Lease on the occurrence of any of the
following:
(a) Failure to pay rent or other expenses when due;
(b) Failure to comply with any law, regulation, policy, or order of any lawful
governmental authority;
Aquatic Lands Lease (Rev. 6/30/2020) Page 24 of 35 Lease No.22-101484
(c) Failure to comply with any other provision of this Lease;
(d) Commencement of bankruptcy proceedings by or against Tenant or the
appointment of a trustee or receiver of Tenant's property.
14.2 Tenant's Right to Cure.
(a) A default becomes an "Event of Default" if Tenant fails to cure the default within
the applicable cure period following State's written notice of default. Upon an
Event of Default, State may seek remedies under Paragraph 14.3.
(b) Unless expressly provided elsewhere in this Lease, the cure period is sixty (60)
days.
(c) For nonmonetary defaults not capable of cure within sixty (60) days, Tenant may
submit a reasonable alternative cure schedule for State's approval, which State
has discretion to grant or deny. The default is not an Event of Default if State
approves the alternative cure schedule and Tenant cures the default in accordance
with the approved alternative cure schedule.
(d) State may elect to deem a default by Tenant as an Event of Default if the default
occurs within six (6) months after a default by Tenant for which State has
provided notice and opportunity to cure and regardless of whether the first and
subsequent defaults are of the same nature.
14.3 Remedies.
(a) Upon an Event of Default, State may terminate this Lease and remove Tenant by
summary proceedings or otherwise.
(b) State's Rights to Cure Tenant's Defaults.
(1) If an Event of Default occurs, State may, without terminating this Lease,
remedy the default (in whole or in part) on behalf of Tenant at Tenant's
expense. Tenant shall pay State all costs, expenses, fees, and damages
incurred by State in connection therewith.
(2) If Tenant is in default under the terms of the Lease, and State determines
that such default poses an imminent threat of injury or damage to persons
or property, State may enter the Property and take actions to eliminate,
mitigate, or remedy the imminent threat at Tenant's expense. On demand
by State, Tenant shall pay State the amount of all costs, expenses, and fees
incurred by State in connection therewith.
(3) The rights given to State under Paragraph 14.3(b)(1)-(2) shall neither
impose a duty on State nor excuse any failure on Tenant's part to comply
with any term, covenant, or condition of this Lease.
(c) Without terminating this Lease, State may relet the Property on any terms and
conditions as State may decide are appropriate.
(1) State shall apply rent received by reletting: (1) to the payment of any
indebtedness other than rent due from Tenant to State; (2) to the payment
of any cost of such reletting; (3) to the payment of the cost of any
alterations and repairs to the Property; and (4) to the payment of rent and
leasehold excise tax due and unpaid under this Lease. State shall hold and
apply any balance to Tenant's future rent as it becomes due.
Aquatic Lands Lease (Rev. 6/30/2020) Page 25 of 35 Lease No.22-101484
(2) Tenant is responsible for any deficiency created by the reletting during
any month and shall pay the deficiency monthly.
(3) At any time after reletting, State may elect to terminate this Lease for the
previous Event of Default.
(d) State's reentry or repossession of the Property under Paragraph 14.3 is not an
election to terminate this Lease or cause a forfeiture of rents or other charges
Tenant is obligated to pay during the balance of the Term, unless (1) State gives
Tenant written notice of termination or (2) a legal proceeding decrees termination.
(e) The remedies specified under this Paragraph 14.3 are not exclusive of any other
remedies or means of redress to which State is lawfully entitled for Tenant's
default or threatened default of any provision of this Lease.
SECTION 15 ENTRY BY STATE
15.1 Right to Enter The Property
(a) State and persons authorized by State may, without notice to Tenant, enter the
Property and any Improvements on the Property at any reasonable hour to inspect
the Property and Improvements, to inspect for compliance with the terms of this
Lease, to monitor impacts to habitat, to survey habitat and species, enforce the
terms of the Lease, or to exercise any right of State under the Lease or the law.
(b) State and persons authorized by State, may enter the Property and any
Improvements at any time without notice in the case of an imminent threat of
injury or damage to persons or property or to prevent waste on the Property.
15.2 Disclaimer. State's failure to inspect the Property does not constitute a waiver of any
rights or remedies under this Lease. The rights given to State under this Section 15 do not
impose, nor does State assume by reason thereof, any responsibility for the care,
maintenance, or supervision of the Property or any part thereof.
SECTION 16 DISCLAIMER OF QUIET ENJOYMENT
16.1 No Guaranty or Warranty.
(a) State believes that this Lease is consistent with the Public Trust Doctrine and that
none of the third-party interests identified in Paragraph 1.1(b) will materially or
adversely affect Tenant's right of possession and use of the Property, but State
makes no guaranty or warranty to that effect.
(b) State disclaims and Tenant releases State from any claim for breach of any
implied covenant of quiet enjoyment. This disclaimer and release includes, but is
not limited to, interference arising from exercise of rights under the Public Trust
Doctrine; Treaty rights held by Indian Tribes; and the general power and authority
of State and the United States with respect to aquatic lands and navigable waters.
(c) Tenant is responsible for determining the extent of Tenant's right to possession
and for defending Tenant's leasehold interest.
Aquatic Lands Lease (Rev. 6/30/2020) Page 26 of 35 Lease No.22-101484
16.2 Eviction by Third-Party. If a third-party evicts Tenant, this Lease terminates as of the
date of the eviction. In the event of a partial eviction, Tenant's rent obligations abate as of the
date of the partial eviction, in direct proportion to the extent of the eviction; this Lease shall
remain in full force and effect in all other respects.
SECTION 17 NOTICE AND SUBMITTALS
Following are the locations for delivery of notice and submittals required or permitted under this
Lease. Any Party may change the place of delivery upon ten (10) days' written notice to the
other.
State: DEPARTMENT OF NATURAL RESOURCES
Aquatic Resources Division
1111 Washington St. SE; MS: 47027
Olympia WA 98504-47027
Tenant: PORT OF SEATTLE
Maritime Divison
PO Box 1209
Seattle WA 98111
The Parties may deliver any notice in person, by facsimile machine, or by certified mail.
Depending on the method of delivery, notice is effective upon personal delivery, upon receipt of
a confirmation report if delivered by facsimile machine, or three (3) days after mailing. All
notices must identify the Lease number. On notices transmitted by facsimile machine, the Parties
shall state the number of pages contained in the notice, including the transmittal page, if any.
SECTION 18 MISCELLANEOUS
18.1 Authority. Tenant and the person or persons executing this Lease on behalf of Tenant
represent that Tenant is qualified to do business in the State of Washington, that Tenant has full
right and authority to enter into this Lease, and that each and every person signing on behalf of
Tenant is authorized to do so. Upon State's request, Tenant shall provide evidence satisfactory to
State confirming these representations.
18.2 Successors and Assigns. Subject to the limitations set forth in Section 9, this Lease binds
and inures to the benefit of the Parties, their successors, and assigns.
18.3 Headings. The headings used in this Lease are for convenience only and in no way
define, limit, or extend the scope of this Lease or the intent of any provision.
18.4 Entire Agreement. This Lease, including the exhibits, attachments, and addenda, if any,
contains the entire agreement of the Parties. This Lease merges all prior and contemporaneous
agreements, promises, representations, and statements relating to this transaction or to the
Property.
Aquatic Lands Lease (Rev. 6/30/2020) Page 27 of 35 Lease No.22-101484
18.5 Waiver.
(a) The waiver of any breach or default of any term, covenant, or condition of this
Lease is not a waiver of such term, covenant, or condition; of any subsequent
breach or default of the same; or of any other term, covenant, or condition of this
Lease. State's acceptance of a payment is not a waiver of any preceding or
existing breach other than the failure to pay the particular payment that was
accepted.
(b) The renewal of the Lease, extension of the Lease, or the issuance of a new lease to
Tenant, does not waive State's ability to pursue any rights or remedies under the
Lease.
18.6 Cumulative Remedies. The rights and remedies of State under this Lease are cumulative
and in addition to all other rights and remedies afforded by law or equity or otherwise.
18.7 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of
this Lease.
18.8 Language. The word "Tenant" as used in this Lease applies to one or more persons and
regardless of gender, as the case may be. If there is more than one Tenant, their obligations are
joint and several. The word "persons," whenever used, shall include individuals, firms,
associations, and corporations. The word "Parties" means State and Tenant in the collective. The
word "Party" means either or both State and Tenant, depending on the context.
18.9 Invalidity. The invalidity, voidness, or illegality of any provision of this Lease does not
affect, impair, or invalidate any other provision of this Lease.
18.10 Applicable Law and Venue. This Lease is to be interpreted and construed in accordance
with the laws of the State of Washington. Venue for any action arising out of or in connection
with this Lease is in the Superior Court for Thurston County, Washington.
18.11 Statutory Reference. Any reference to a statute or rule means that statute or rule as
presently enacted or hereafter amended or superseded.
18.12 Recordation. At Tenant's expense and no later than thirty (30) days after receiving the
fully-executed Lease, Tenant shall record this Lease in the county in which the Property is
located. Tenant shall include the parcel number of the upland property used in conjunction with
the Property, if any. Tenant shall provide State with recording information, including the date of
recordation and file number. If Tenant fails to record this Lease, State may record it and Tenant
shall pay the costs of recording upon State's demand.
18.13 Modification. No modification of this Lease is effective unless in writing and signed by
both Parties. Oral representations or statements do not bind either Party.
18.14 Survival. Any obligations of Tenant not fully performed upon termination of this Lease
do not cease, but continue as obligations of the Tenant until fully performed.
Aquatic Lands Lease (Rev. 6/30/2020) Page 28 of 35 Lease No.22-101484
18.15 Exhibits and Attachments. All referenced exhibits and attachments are incorporated in
the Lease unless expressly identified as unincorporated.
THIS AGREEMENT requires the signature of all Parties and is effective on the date of the last
signature below.
PORT OF SEATTLE
Dated: _____________________, 20__ __________________________________
By: STEPHANIE JONES-STEBBINS
Title: Managing Director, Maritime
Address: PO Box 1209
Seattle WA 98111
Phone: (206) 787-3000
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
Dated: _____________________, 20__ __________________________________
By: KATRINA LASSITER
Title: Interim Deputy Supervisor for Aquatic
Resources
Address: 1111 Washington St. SE, MS: 47027
Olympia WA 98504-7027
Master approved as to form this
30th day of June 2020
Jennifer Clements, Assistant Attorney General
Aquatic Lands Lease (Rev. 6/30/2020) Page 29 of 35 Lease No.22-101484
REPRESENTATIVE ACKNOWLEDGMENT
STATE OF )
) ss.
County of )
I certify that I know or have satisfactory evidence that STEPHANIE JONES-STEBBINS is the
person who appeared before me, and said person acknowledged that she signed this instrument,
on oath stated that she was authorized to execute the instrument and acknowledged it as the
Managing Director, Maritime of Port of Seattle to be the free and voluntary act of such party for
the uses and purposes mentioned in the instrument.
Dated: _____________________, 20__ ___________________________________
(Signature)
(Seal or stamp)
___________________________________
(Print Name)
Notary Public in and for the State of
Washington, residing at
___________________________________
My appointment expires _______________
Aquatic Lands Lease (Rev. 6/30/2020) Page 30 of 35 Lease No.22-101484
STATE ACKNOWLEDGMENT
STATE OF WASHINGTON)
) ss.
County of )
I certify that I know or have satisfactory evidence that KATRINA LASSITER is the person who
appeared before me, and said person acknowledged that she signed this instrument, on oath
stated that she was authorized to execute the instrument and acknowledged it as the Interim
Deputy Supervisor for Aquatic Resources of the Department of Natural Resources, to be the free
and voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated: _____________________, 20__ _________________________________
(Signature)
(Seal or stamp)
___________________________________
(Print Name)
Notary Public in and for the State of
Washington, residing at
___________________________________
My appointment expires _______________
Aquatic Lands Lease (Rev. 6/30/2020) Page 31 of 35 Lease No.22-101484
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY & USE CLASSIFICATIONS
Agreement Number 22-101484
1. LEGAL DESCRIPTION OF THE PROPERTY:
PARCEL A
A 20 FOOT DIAMETER PARCEL OF LAND IN THAT PORTION OF THE HARBOR
AREA IN VOLUME 2 OF THE PLAT OF SEATTLE TIDELANDS ACCORDING TO
THE OFFICIAL MAPS ON FILE IN THE OFFICE OF THE COMMISSIONER OF
PUBLIC LANDS, OLYMPIA, WASHINGTON; SITUATED IN A PORTION OF THE
SOUTHWEST QUARTER OF THE NORTHEAST QUARTER, SECTION 12,
TOWNSHIP 24 NORTH, RANGE 03 EAST, W.M., KING COUNTY, WASHINGTON,
THE CENTER OF SAID PARCEL DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 12;
THENCE NORTH 0031'57" EAST ALONG THE WEST LINE OF SAID SECTION,
2700.51 FEET TO THE WEST QUARTER CORNER OF SAID SECTION;
THENCE NORTH 7509'19" EAST, 2709.61 FEET TO THE NORTHEAST CORNER OF
BLOCK 431 OF SAID PLAT, SAID CORNER BEING THE INTERSECTION OF THE
WESTERLY RIGHT-OF-WAY MARGIN OF VACATED 26TH AVENUE SOUTHWEST
AND THE INNER HARBOR LINE; SAID CORNER ALSO BEING REFERRED TO
HEREON AS POINT "A"; THENCE NORTH 3134'17" EAST, 646.15 FEET TO THE
POINT OF SAID CENTER AND ALSO BEING THE CENTER OF A PROPOSED PILE
HAVING THE COORDINATES NORTH: 17427.0, EAST: 25173.0 IN PLAT OF SEATTLE
TIDELANDS DATUM. CONTAINING 315 SQUARE FEET (0.01 ACRES MORE OR LESS)
PARCEL B
A 20 FOOT DIAMETER PARCEL OF LAND IN THAT PORTION OF THE HARBOR
AREA IN VOLUME 2 OF THE PLAT OF SEATTLE TIDELANDS ACCORDING TO
THE OFFICIAL MAPS ON FILE IN THE OFFICE OF THE COMMISSIONER OF
PUBLIC LANDS, OLYMPIA, WASHINGTON; SITUATED IN A PORTION OF THE
SOUTHWEST QUARTER OF THE NORTHEAST QUARTER, SECTION 12,
TOWNSHIP 24 NORTH, RANGE 03 EAST, W.M., KING COUNTY, WASHINGTON,
THE CENTER OF SAID PARCEL DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 12;
THENCE NORTH 0031'57" EAST ALONG THE WEST LINE OF SAID SECTION,
2700.51 FEET TO THE WEST QUARTER CORNER OF SAID SECTION;
THENCE NORTH 7509'19" EAST, 2709.61 FEET TO THE NORTHEAST CORNER OF
BLOCK 431 OF SAID PLAT, SAID CORNER BEING THE INTERSECTION OF THE
WESTERLY RIGHT-OF-WAY MARGIN OF VACATED 26TH AVENUE SOUTHWEST
AND THE INNER HARBOR LINE; SAID CORNER ALSO BEING REFERRED TO
HEREON AS POINT "A"; THENCE NORTH 4406'56" EAST, 485.56 FEET TO THE
Aquatic Lands Lease (Rev. 6/30/2020) Page 32 of 35 Lease No.22-101484
POINT OF SAID CENTER AND ALSO BEING THE CENTER OF A PROPOSED PILE
HAVING THE COORDINATES NORTH: 17226.0, EAST: 25173.0, IN PLAT OF SEATTLE
TIDELANDS DATUM. CONTAINING 315 SQUARE FEET (0.01 ACRES MORE OR LESS)
PARCEL C
A 20 FOOT DIAMETER PARCEL OF LAND IN THAT PORTION OF THE HARBOR
AREA IN VOLUME 2 OF THE PLAT OF SEATTLE TIDELANDS ACCORDING TO
THE OFFICIAL MAPS ON FILE IN THE OFFICE OF THE COMMISSIONER OF
PUBLIC LANDS, OLYMPIA, WASHINGTON; SITUATED IN A PORTION OF THE
SOUTHWEST QUARTER OF THE NORTHEAST QUARTER, SECTION 12,
TOWNSHIP 24 NORTH, RANGE 03 EAST, W.M., KING COUNTY, WASHINGTON,
THE CENTER OF SAID PARCEL DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 12;
THENCE NORTH 0031'57" EAST ALONG THE WEST LINE OF SAID SECTION,
2700.51 FEET TO THE WEST QUARTER CORNER OF SAID SECTION;
THENCE NORTH 7509'19" EAST, 2709.61 FEET TO THE NORTHEAST CORNER OF
BLOCK 431 OF SAID PLAT, SAID CORNER BEING THE INTERSECTION OF THE
WESTERLY RIGHT-OF-WAY MARGIN OF VACATED 26TH AVENUE SOUTHWEST
AND THE INNER HARBOR LINE; SAID CORNER ALSO BEING REFERRED TO
HEREON AS POINT "A"; THENCE NORTH 1354'40" EAST, 343.58 FEET TO THE
POINT OF SAID CENTERAND ALSO BEING THE CENTER OF A PROPOSED PILE
HAVING THE COORDINATES NORTH: 17211.0, EAST: 24918.0, IN PLAT OF SEATTLE
TIDELANDS DATUM. CONTAINING 315 SQUARE FEET (0.01 ACRES MORE OR LESS)
PARCEL D
A 20 FOOT DIAMETER PARCEL OF LAND IN THAT PORTION OF THE HARBOR
AREA IN VOLUME 2 OF THE PLAT OF SEATTLE TIDELANDS ACCORDING TO
THE OFFICIAL MAPS ON FILE IN THE OFFICE OF THE COMMISSIONER OF
PUBLIC LANDS, OLYMPIA, WASHINGTON; SITUATED IN A PORTION OF THE
SOUTHEAST QUARTER OF THE NORTHWEST QUARTER, SECTION 12,
TOWNSHIP 24 NORTH, RANGE 03 EAST, W.M., KING COUNTY, WASHINGTON,
THE CENTER OF SAID PARCEL DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 12;
THENCE NORTH 0031'57" EAST ALONG THE WEST LINE OF SAID SECTION,
2700.51 FEET TO THE WEST QUARTER CORNER OF SAID SECTION;
THENCE NORTH 7509'19" EAST, 2709.61 FEET TO THE NORTHEAST CORNER OF
BLOCK 431 OF SAID PLAT, SAID CORNER BEING THE INTERSECTION OF THE
WESTERLY RIGHT-OF-WAY MARGIN OF VACATED 26TH AVENUE SOUTHWEST
AND THE INNER HARBOR LINE; SAID CORNER ALSO BEING REFERRED TO
HEREON AS POINT "A"; THENCE NORTH 6051'21" WEST, 94.14 FEET TO THE POINT
OF SAID CENTER AND ALSO BEING THE CENTER OF A PROPOSED PILE HAVING
THE COORDINATES NORTH: 16924.0, EAST: 24753.0, IN PLAT OF SEATTLE
TIDELANDS DATUM. CONTAINING 315 SQUARE FEET (0.01 ACRES MORE OR LESS)
2. SQUARE FOOTAGE OF EACH USE CLASSIFICATION:
Aquatic Lands Lease (Rev. 6/30/2020) Page 33 of 35 Lease No.22-101484
Water-dependent 1260
Water-dependent 0
that is public use and access
Nonwater-dependent 0
Water-oriented subject to water-dependent 0
rental rates
Water-oriented subject to nonwater- 0
dependent rental rates
Total Square Feet 1260
Aquatic Lands Lease (Rev. 6/30/2020) Page 34 of 35 Lease No.22-101484
EXHIBIT B
1. DESCRIPTION OF PERMITTED USE
A. Existing Facilities. The Property lies adjacent to the Port of Seattle Terminal 5. Since
2011, the Port has been replacing creosote pilings in Elliott Bay. Four of the pilings
are on state-owned aquatic land. The four pilings that were scheduled to be replaced
were removed in 2018-2019 during a CERCLA cleanup by Lockheed Martin that was
completed in 2020.
B. Proposed Work.
State authorizes Tenant to conduct the following Proposed Work on the Property:
Installation of four (4) steel pilings. Tenant's Proposed Work is considered Work and
subject to the terms and conditions of this Lease. If the Proposed Work is not
commenced within five years of the Commencement Date of the Lease, or if Tenant
is required to renew, extend, modify, or obtain a new regulatory permit for the
Proposed Work, Tenant shall obtain State's prior written consent before conducting
the Proposed Work pursuant to Section 7.3 of the Lease.
C. Permits for Proposed Work. Tenant has secured the following permits for the
Proposed Work:
USACE Permit NWS-2011-00467-WRD
WDFW HPA Permit Number: 2017-4-765+01
2. ADDITIONAL OBLIGATIONS
Except for the Proposed Work authorized in Section 1.B. of this Exhibit B, State has not
authorized Tenant to conduct any Work on the Property. Tenant shall obtain State's prior written
consent in accordance with Section 7.3 of this Lease and obtain all necessary regulatory permits
prior to commencing such Work.
Aquatic Lands Lease (Rev. 6/30/2020) Page 35 of 35 Lease No.22-101484
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