HomeMy WebLinkAboutAngelaney's LLC
SUBLEASE
This Sublease ("Sublease") is entered into this 11afday of January, 2003 between
the City of Auburn, a Washington municipal corporation ("Sublessor"), and
Angelaney's, LLC. a Washington Limited Liability Company ("Tenant").
RECITALS:
.A. By that certain Sublease dated June 26, 2002 Sublessor, as Tenant, leased
from Central Puget Sound Regional Transit Authority, a regional transit authority
organized and existing under Chapters 81.104 and 81.113, Revised Code of Washington
("Sound Transit"), certain property located in the City of Auburn. A copy of such
Sublease is attached hereto as Exhibit E. Such Sublease, including any amendments
hereafter made thereto by Sublessor and Sound Transit, is herein called the "Master
Sublease".
B. Tenant desires to sublease from Sublessor, and Sublessor is willing to
sublease to Tenant, a portion of the property leased by Sublessor under the Master
Sublease on the terms and conditions set forth in this Sublease.
C. Accordingly, Sublessor and Tenant agree as follows:
SUBLEASE
1. 1. SUMMARY OF SOME PROVISIONS. The following is a summary of
some of the provisions of this Sublease. If there is any conflict between the information
in this paragraph and any other provision of this Sublease, the other provision controls.
1.1 Sublessor. The "Sublessor" is the City of Auburn, a Washington
municipal corporation, acting in its proprietary capacity.
1.2 Tenant. The "Tenant" is Angelaney's, LLC. a Washington Limited
Liability Company.
1.3 Leased Premises. The subleased premises ("Premises") is that part
of the interior space of the ground floor of the parking garage ("Parking Garage") at the
Auburn Transit Station which part is outlined on the floor plan attached hereto as
Exhibit A. The Parking Garage is located on the land legally described in Exhibit B
attached hereto and the location of the Parking Garage is outlined on the site plan of the
Auburn Transit Station attached hereto as Exhibit C. If so indicated in paragraph 1.4,
the "Premises" also includes the part of the Plaza Tenant Area specified in such
paragraph. The Premises is commonly known as 110 'A' Street S.W.. Suite ,
(suite number and address), Auburn, Washington. The Premises includes all windows
and other glass in the exterior wall(s) of the Parking Garage within the area outlined on
the Exhibit A floor plan and all doors leading into and out of the Premises. The
Premises do not include (a) the exterior walls of the Parking Garage, (b) the area
beneath the upper surface of the concrete slab floor, (c) the area above the lower surface
of the suspended ceiling, (d) the area beneath the surface of the interior perimeter walls
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of the Premises, (e) all pipes and ducts, conduits, wires, fixtures, and equipment located
above the suspended ceiling of, or in structural elements of, the Parking Garage, or (f)
any area within a closet or other enclosure around electrical, mechanical, or plumbing
systems of the Parking Garage even though such closet or other enclosure may not be
excluded or shown on the Exhibit A floor plan.
1.4 Plaza Tenant Area. The Premises (CHECK ONE):
does
X does not
include all or any part of the Plaza Tenant Area. Provided, however, within the
constraints of the Sublessor's Master Lease with Sound Transit as attached in Exhibit E,
Tenant shall be entitled to use those portions of the Plaza Tenant Area, not to include
the public sidewalk, within 25 linear feet adjacent to the leased premises for temporary
tables and chairs for customers of the Tenant. Tables and chairs to be reviewed and
approved by the Landlord for compatibility with the surrounding environment. Such
temporary tables and chairs to be removed at the request of the landlord when deemed
necessary for construction, maintenance and public events. Tenant is to be responsible
for clean-up of the are immediately adjacent tot he are used by Tenant's customers and
patrons when such temporary tables and chairs are in use. If the Premises do include
all or any part of the Plaza Tenant Area, then the part of the Plaza Tenant Area that is
part of the Premises is outlined and labeled "Tenant's Plaza Area" on the Exhibit C site
plan and attached hereto as a part of this Sublease.
1.5 Commencement Date. The Term of this Sublease shall commence on
March 31. 2003, or such earlier or later date as provided in paragraph 3
("Commencement Date").
1.6 Expiration Date. Subject to earlier termination as elsewhere
provided in this Sublease, the Term of this Sublease shall expire at midnight on March
30, 2008 , or such earlier or later date as provided in paragraph 3 ("Expiration Date").
1.7 Right to Extend. Tenant (CHECK ONE):
X does
does not
have a right to extend the Term of this Sublease. If Tenant does have a right to extend,
the terms and conditions of such right are set forth in the Right To Extend Rider
attached hereto.
1.8 Base Monthly Rent. The base monthly rent ("Base Monthly Rent")
is (CHECK ONE):
$ per month.
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X according to the Rent Rider attached hereto.
1.9 Prepaid Rent. Upon execution of this Sublease, Tenant shall
pay to
Sublessor the sum of Two Thousand Three Hundred Thirty-Eight Dollars and 33/100
1$2,338.33) as prepaid rent, to be applied to the Base Monthly Rent due for the first
full calendar month of the Term.
1.10 Late Charge. The late charge is ten percent of each Late Payment
due from Tenant to Sublessor.
1.11 Security Deposit. The amount of the security deposit is Three
Thousand Dollars and No/100 1$3,000.00) .
1.12 Permitted Use. Tenant's principal permitted use of the Leased
Premises is as a retail outlet for the sale of coffee products, coffee specialty drinks and
nutritional supplements. Tenant's use of Leased Premises for these purposes is
protected by the attached Non-Compete Rider. In addition Tenant may sell other items
including but not limited to deli items, gift items, beer, wine and seated massage
services.
No beer may be sold that contains 5.7% alcohol by volume or higher and a cost of
$.06 or less per wholesaler ounce. No wine may be sold with 13% alcohol by volume or
higher and a cost of $.10 or less per wholesaler ounce. Sale of pornographic materials or
any items known to law enforcement that may be used as drug paraphernalia is not
permitted. Violation of these sales restrictions shall constitute an immediate default
and Landlord may cancel the Lease immediately. Tenant shall sign and comply with
public safety initiatives including Good Neighbor Agreements. Landlord may exclude
any goods to be sold on the premises.
1.13 Sublessor's Notice Addresses: Subject to change as provided in
paragraph 32, "Sublessor's Notice Address" is:
City of Auburn
Attention: Director of Planning
25 West Main Street
Auburn, W A 98001-4998
1.14 Tenant's Notice Address: "Tenant's Notice Address" is, subject to
change as provided in paragraph 32, the following:
Angelaney's LLC
Attention: Kevin Laney
P.O. Box 54254
Redondo,WA 98054
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except that after the Commencement Date and before the expiration or earlier
termination of the Term the Premises is also a "Tenant's Notice Address" and Sublessor
may give notices to Tenant at either of such addresses.
1.15 Tenant's Prorata Share. "Tenant's Prorata Share" is 20.8%.
1.16 Adjustments to Base Monthly Rent and Tenant's Share. The Base
Monthly Rent provided in Paragraph 1.8 is calculated at Ten Dollars and No/I00
1$10.00) per year for each rentable square foot (or part thereof) in the Premises as
determined according to the standards last published by the Building Owners And
Managers Association ("BOMAn) when this Sublease is made. Tenant's Prorata Share is
calculated as the percentage, which is the same percentage of the rentable square feet in
the Premises bears to the rentable square feet of the Commercial Tenant Area. For these
purposes, Sublessor and Tenant agree that, at commencement of the Term, the Premises
has 2.806 rentable square feet and the Commercial Tenant Area has 13.490 rentable
square feet. Sublessor may recalculate the Base Monthly Rent and Tenant's Prorata
Share from time to time during the Term if there is a change in configuration of the
Premises or any other space in the Commercial Tenant Area. If Sublessor recalculates
the Base Monthly Rent and Tenant's Prorata Share, Sublessor shall give Tenant written
notice of the new calculations and of the new amounts of the Base Monthly Rent and
Tenant's Prorata Share. The recalculated Base Monthly Rent and Tenant's Prorata Share
shall become effective beginning on the first day of the first calendar month during the
Term that occurs at least fifteen days after Sublessor's notice is given.
1.17 Utilities: In addition to the rental payments provided herein, the
Tenant shall pay all utility billing in the normal course. Unless the parties agree
otherwise, the Tenant shall apply for and subscribe to the various utilities available for
and used by the premises of this sublease in the Tenant's name. The Tenant shall also
be responsible for paying to the sublessor the provision of utilities for common areas
according to the prorata share percentage provided herein above, including water,
electric power, sewer and solid waste.
1.18 lanitorial: The Tenant shall be solely responsible for janitorial costs
for the premises of this sublease. The tenant shall also be responsible for paying the
sublessor for the portion of janitorial services for common areas according to the
prorata share percentage provivided herein above.
2. DEFINITIONS. Wherever used in this Leased the following terms in
quotation marks have the meanings specified below.
2.1 "Additional Rent" is defined in paragraph 7.
2.2 "Base Monthly Rent" is defined in paragraph 1.8.
2.3 "Commercial Tenant Area" is that part of the interior space of the
ground floor of the Parking Garage that is outlined and labeled "Commercial Tenant
Area" on the Exhibit A floor plan.
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2.4 "Common Areas" means those portions, areas and facilities of the
Commercial Tenant Area and those portions of the parking garage common areas as
defined in Section 1.1(d) of the Master Sublease that Sublessor, from time to time and
acting in Sublessor's discretion, makes available for the general, non-exclusive use,
convenience or enjoyment of Tenant and the other tenants of the Commercial Tenant
Area that are not leased or held for the exclusive use of a particular tenant. Common
Areas may, but do not necessarily include, hallways, corridors, docks, loading areas,
restrooms, and trash facilities. Common Areas may also include landscaping, if any,
installed and; or maintained by Sublessor in or about the Commercial Tenant Area and
the Plaza (including within "landscaping" plantings in planter boxes).
2.5 "Late Payment" is defined in paragraph 5.
2.6 "Law" means any and all applicable (i) common law, (ii) federal,
state, municipal (including that of the City of Auburn in its governmental capacity) or
other local law, statute, ordinance, code, regulation, and rule, and (iii) decrees and
orders of any court, governmental unit, or governmental agency with jurisdiction
(including the City of Auburn and any of its agencies in its or their governmental
capacity).
2.7 "Maintain" and "maintenance", in the context of "maintaining" all or
any part of the Premises, the Parking Garage, the Commercial Tenant Area, and; or the
Plaza or any part thereof includes service, repair, and replacement.
2.8 "Operating Costs" is defined in paragraph 8.
2.9 "Master Sublease" is defined in Recital A.
2.10 "Parking Garage" is defined in paragraph 1.3 and includes the
Premises (except, if applicable, that part of the Premises that is all or part of the Plaza
Tenant Area).
2.11 "Plaza" means those parts of the Auburn Transit Center that are
outlined and labeled "Plaza" and "Plaza Tenant Area" on the Exhibit C site plan.
2.12 "Plaza Tenant Area" means that part of the Plaza that is outlined
and labeled "Plaza Tenant Area" on the Exhibit C site plan.
2.13 "Premises" is defined in paragraph 1.3 and, if applicable, paragraph
1.4.
2.14 "Property" means the Commercial Tenant Area, the Plaza and the
common areas, and includes the Premises.
2.15 "Rent" is defined in paragraph 7.
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2.16 "Sound Transit" is defined in Recital A and except that such term
also includes any successor or assign of Sound Transit.
2.17 "Station" is the Auburn Transit Station that is depicted on the site
plan attached hereto as Exhibit C and includes the Parking Garage, the Property.
2.18 "Sublessor" is defined in the paragraph 1.1.
2.19 "Sublessor's Notice Address" is defined in paragraph 1.13.
2.20 "Tenant" is defined in the paragraph 1.2.
2.21 "Tenant Alteration" is defined in paragraph 16.
2.22 "Tenant Cable" is defined in paragraph 13.
2.23 "Tenant Improvements" is defined in paragraph 33.
2.24 "Tenant's Notice Address" is defined in paragraph 1.14.
2.25 "Tenant's Prorata Share" is defined in paragraph 1.15.
2.26 "Term" is defined in paragraph 4.
The list of definitions in this paragraph is not all-inclusive. Other terms are defined
elsewhere in this Sublease.
3. SUBLEASE. On the terms and conditions specified in this Sublease,
Sublessor leases the Premises to Tenant and Tenant leases the Premises from Sublessor.
4. TERM. Subject to (a) earlier termination as herein provided, (b) extension
as herein provided, if applicable, and (c) the other provisions of this paragraph, the
term of this Sublease (the "Term") shall commence on the date specified in paragraph
l(b) (the "Commencement Date") and shall expire at midnight on March 30. 2008 (the
"Expiration Date").
4.1 Possession To Make Tenant Improvements. If Tenant elects to
make, and Sublessor consents to Tenant making Tenant Improvements, Tenant may
have possession of the Premises for the sole purpose of making Tenant Improvements
from the date Sublessor specifies by written notice to Tenant advising Tenant that the
Premises are ready for such possession by Tenant, which date shall not be less than
sixty (60) days after this Sublease is mutually executed and delivered. If Sublessor's
notice of readiness is not given within such time, then the Commencement Date shall be
delayed by a period equal to the delay in Sublessor's notice. Even if the Tenant
Improvements are not completed before such time, the Term shall nevertheless
commence on the Commencement Date. The terms and conditions of Tenant's
possession of the Premises under this paragraph are all those specified in this Sublease
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except that Tenant shall not be liable for any Rent during the period of such possession
until the Commencement Date.
4.2 Early Occupancy. Without Sublessor's prior written consent
Tenant shall not occupy the Premises before the Commencement Date for any purpose
other than permitted according to paragraph 4.1. If Tenant does occupy the Premises
before the Commencement Date for any other purpose, then the Commencement Date
shall be the date of occupancy but the expiration date shall not be changed.
4.3 Delay In Tender of Possession. If for any reason whatsoever
Sublessor is unable to tender possession of the Premises to Tenant by March 31. 2003
(if paragraph 4.1 is applicable) or by the Commencement Date (if paragraph 4.1 is not
applicable), neither Sublessor nor its agents, employees or officers (including without
limitation its Mayor and its the members of its council) shall be liable for any damage or
loss caused thereby, nor shall this Sublease thereby become void or voidable. However,
as Tenant's sole and exclusive right and remedy on account thereof: (a) Tenant shall not
be liable for any Rent or other obligation under this Sublease until such time as
Sublessor does tender possession (and, if paragraph 4.1 is applicable, the
Commencement Date shall be extended as provided in such paragraph); and (b) Tenant
may terminate this Sublease by not less than thirty days' prior written notice to
Sublessor unless Sublessor tenders possession before the end of such time. If for any
reason whatsoever Sublessor is unable to tender possession of the Premises to Tenant
by six months after the date specified in this paragraph (if paragraph 4.1 is applicable)
or after the Commencement Date (if paragraph 4.1 is not applicable), and if Tenant has
not terminated this Sublease, then Sublessor may by written notice to Tenant terminate
this Sublease. If this Sublease is terminated under this paragraph all prepaid rent and
security deposits shall be refunded to Tenant, and neither Sublessor nor Tenant shall
have any further obligations to the other. If the Commencement Date is delayed under
the provisions of this paragraph, then the Expiration Date shall be extended so that the
Term shall have five (5) full years plus any additional time necessary so that the Term
will end on the last day of a calendar month.
4.4 Confirmation Of Term. Promptly after the request of either
Sublessor or Tenant made at any time after the Commencement Date is known,
Sublessor and Tenant shall execute and deliver to each other duplicate originals of a
written agreement specifying the Commencement Date and the Expiration Date of this
Sublease.
5. LATE CHARGE. If any payment of money due from Tenant to Sublessor
under this Sublease is not received by Sublessor in full on or before five days after the
due date the entire payment shall be considered late ("Late Payment") and Tenant shall
also pay to Sublessor, as part of the Rent, a late charge of five percent of the full amount
of each Late Payment to compensate Sublessor for the additional administrative costs
that will be incurred by Sublessor on account of such Late Payment. Neither this
provision for a late charge nor the tender or payment of a late charge by Tenant shall
impose any obligation on Sublessor to accept any payment (including but not limited to
a payment of Rent) that is not paid when due. Sublessor may condition its acceptance
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of any Late Payment on concurrent payment of the applicable late charge. Sublessor's
right to require a late charge is in addition to and cumulative with all other rights and
remedies Sublessor may have on account of such late payment. "Late Payment"
includes without limitation a payment that is not made at all.
6. SECURITY DEPOSIT.
6.1 Generally. Tenant has paid the amount specified in paragraph 1.11
as the Security Deposit which shall be security for Tenant's full and faithful
performance when due of all Tenant's obligations under this Sublease. Sublessor may
commingle the Security Deposit with Sublessor's other funds, no trust relationship is
created with respect to the Security Deposit, and no interest shall be paid or accrued for
Tenant's benefit on the Security Deposit. If Tenant fully and faithfully performs during
the Term all of its obligations under this Sublease, then as an obligation surviving
expiration or earlier termination of the Term, Sublessor shall return to Tenant (or at
Sublessor's option, to the last assignee, if any, of Tenant's interest under this Sublease)
the Security Deposit (or so much of it as has not been applied by Sublessor), without
interest, within a reasonable time after the expiration or earlier termination of this
Sublease; provided that Sublessor may hold back all or any portion of the Security
Deposit until final determination and payment of Tenant's Share of Operating Costs. If
Sublessor transfers its interest under this Sublease, the Security Deposit will be
transferred to the transferee and, in such event, Tenant shall look solely to such
transferee for proper application and; or return of the Security Deposit.
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6.2 Sublessor's Right To Apply. If Tenant fails to pay any sum of
money due to Sublessor from Tenant under this Sublease within five days after it is due
or if Tenant fails to perform any of its other obligations under this Sublease, Sublessor
may, but is not obligated to, apply all or any part of the Security Deposit in payment of
such sums or in payment of Sublessor's costs of performing such obligation or in
compensation for the damages caused to Sublessor on account of such failure of
performance. If Sublessor so applies all or any part of the Security Deposit, then within
ten (10) days after Sublessor's written demand specifying the amount so applied and
the amount, if any, remaining in the Security Deposit, Tenant shall pay to Sublessor
such amounts as is necessary to fully restore the Security Deposit.
6.3 Increases in Security Deposit. If twice within any period of twelve
consecutive months, late charges are incurred by Tenant, Sublessor may, by written
notice to Tenant, increase the amount of the Security Deposit by fifty percent of its then
current amount and Tenant shall pay to Sublessor, within ten (10) days after Sublessor's
notice of increase, the amount of the increase. If Sublessor applies all or any part of the
Security Deposit as permitted in paragraph 6.2, then the amount of the Security Deposit
shall be increased by fifty percent of the then current amount thereof and on Sublessor's
demand, Tenant shall pay to Sublessor the amount of money required to restore the
amount so applied and to pay the increased amount.
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6.4 Rights Cumulative. Sublessor's rights to apply and to increase the
Security Deposit are in addition to and cumulative with all other rights and remedies
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Sublessor may have on account of Tenant's failure to perform when due each of its
obligations under this Sublease.
7. BASE MONTHLY RENT. Tenant shall pay to Sublessor the amount of
the Base Monthly Rent for the Premises on or before the first day of each calendar
month during the Term. In this Sublease the term "Additional Rent" means all other
sums to be paid to Sublessor under any other provision of this Sublease. The Base
Monthly Rent shall be paid in addition to any Additional Rent. In this Sublease, the
term "Rent" means the Base Monthly Rent and all Additional Rent. Tenant shall pay to
Sublessor when due all Rent without offset or deduction and, except as expressly
provided otherwise in this Sublease with respect to a particular type of Additional Rent,
without prior notice or demand. The Base Monthly Rent shall be apportioned for any
partial calendar month at the commencement and at the expiration or termination of the
Term in the proportion that the number of days in the month during the Term bears to
the number of days in that month. All payments Tenant is required to pay to Sublessor
under, arising from, or in connection with this Sublease shall be made to Sublessor at
such place as Sublessor may designate from time to time. In the absence of, or in the
case of lapse of, any such designation, such payments shall be made to Sublessor's
Notice Address.
8. ADDITIONAL RENT -- OPERATING COSTS.
8.1 Definitions. The following terms in quotation marks have the
meanings specified below:
8.1.1 "Tax Costs" means: (a) the amount of all taxes and
assessments, if any, levied on Sublessor's interest in the Property; (b) the amount of all
taxes and assessments, if any, on the personal property owned or leased by Sublessor
and used in connection with the maintenance, ownership, and operation of the
Property; (c) all assessments in lieu of taxes (excluding, however, the leasehold excise
tax that is described in paragraph 9); and (d) any expenses, including the costs and fees
of attorneys, experts, consultants, witnesses and appraisers, reasonably incurred by
Sublessor in seeking a reduction in or return of any Tax Cost attributable to a period of
time during the Term or any assessment or valuation which is part of the basis of any
Tax Cost that is attributable to a period of time during the Term, including any appeals.
If a Tax Cost is payable in periodic installments, then "Tax Costs" shall include the
installments (including interest). Tax Costs shall not include any net income, franchise,
capital stock, estate, or inheritance taxes, and shall be reduced by any refunds or
recoveries of Tax Costs to or by Sublessor from any taxing authority to the extent
attributable to any period of time within the Term.
8.1.2 "Maintenance Costs" means the amount of all costs (other
than Tax Costs) incurred by Sublessor in leasing, maintaining and operating the
Property.
(i) Without limiting the generality of the foregoing,
Maintenance Costs include those of: (a) premiums and deductibles for insurance; (b)
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refuse removal from the Property; (c) electrical, water, gas, sewer, drainage, and other
utility and services to the Property (excluding any separately metered to and paid by
one or more tenants of the Property); (d) refuse and trash removal provided to the
Property; (e) maintenance of heating, ventilating, and air-conditioning equipment, of
plumbing and electrical systems, and of all other parts and systems of the Property; (f)
repainting and refurbishing, including replacement of carpet or other floor covering
and drapes or other window treatment; (g) pest control; (h) fire detection and security
systems or services; (i) independent contractors and Sublessor's employees, if
applicable, providing services in connection with the ownership, maintenance, or
operation of the Property (including without limitation janitorial, landscape, security,
accounting, legal, management, and other services); (j) parts, tools, equipment, and
supplies (including without limitation cleaning and restroom supplies, light bulbs,
ballasts, fuses, other electrical supplies, and paper goods); (k) amortized amounts of any
capital expenditures made by Sublessor in good faith with a reasonable expectation of
reducing other operating costs or to otherwise improve the operating efficiency of the
Property or to comply with any Law first effective after the initial construction of the
Property was substantially completed (the amortization to be based on the useful life of
such improvements as reasonably determined by Sublessor); (I) costs of leasing or
acquiring personal property used in the ownership, maintenance, or operation of the
Property; and (m) maintenance of all other parts of the Property, including without
limitation foundations, exterior walls and glass, roofs, utility facilities, and common
areas. In the case of Sublessor's employees, if any, costs of such employees include
wages, salaries, social security taxes, Medicare taxes, employment taxes, medical and
other types of insurance, other benefits, training, and uniforms. In the case of
independent contractors, the costs of such independent contractors include the same
costs as those for Sublessor's employees if separately paid or reimbursed to the
independent contractor by Sublessor. If Sublessor incurs one or more Maintenance
Costs in connection with the Property and one or more other properties owned or
leased by Sublessor, the total cost thereof shall be equitably allocated by Sublessor
between the properties involved and that portion allocated to the Property shall be
included in Maintenance Costs.
(ii) However, "Maintenance Costs" do not include: (a)
the costs of items furnished for the exclusive use of any particular tenant which such
tenant has agreed to reimburse or pay; (b) the costs of improvements Sublessor has
agreed to make at Sublessor's expense for the exclusive use of any particular tenant; (c)
leasing commissions; (d) debt service; (e) depreciation; (f) costs of capital improvements
except as provided in paragraphs 8.1.2(i) and 8.1.2(ii); and (g) costs which are paid or
reimbursed by insurance.
8.1.3 "Operating Costs" means the total of Tax Costs and
Maintenance Costs. Any Operating Cost incurred for a period of time part of which is
in a calendar year and part of which is not in the same calendar year, shall be prorated
between the calendar years in the proportion of the number of days in each such year
during the period for which the Operating Cost was incurred. In the year the Term
commences and in, as applicable, the year the Term expires or terminates, that part of
the Operating Costs for the year on which the Additional Rent provided in this
paragraph shall be calculated shall be that prorated in the proportion that the part of the
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year during the Term bears to that part of the year which is not within the Term. Any
reasonable method of calculating and allocating all or any part of Operating Costs or
other amounts in order to determine the amount of all or any part of Operating Costs
consistent with Sublessor's accounting methods used by Sublessor in good faith shall be
binding and conclusive on Tenant.
8.2 Additional Rent. In addition to the Base Monthly Rent provided in
paragraph 7, Tenant shall pay as Additional Rent for the Premises Tenant's Prorata
Share of the Operating Costs for each calendar year during the Term. To the extent the
Term does not include all of any particular calendar year, Sublessor shall allocate the
Operating Costs for which Tenant is responsible in any manner consistent with
Sublessor's accounting methods so as to fairly apportion the Operating Costs for that
year between those for which Tenant is obligated and those which are not. All
payments on account of Tenant's Prorata Share of Operating Costs shall be made when
due as, and without further notice than as, provided in this Paragraph 8 and shall be
made without offset or deduction.
8.3 Sublessor's Estimates and Statements.
8.3.1 At Commencement. Before or as soon as practical after
commencement of the Term, Sublessor shall furnish Tenant a statement in reasonable
detail estimating the amount of Operating Costs Sublessor expects to incur during the
year in which the Term commences and Tenant's Share thereof. Beginning with the
first day of the first calendar month during the Term which is at least fifteen days after
Sublessor's statement is furnished and continuing on the first day of each subsequent
month, Tenant shall pay an amount on account of the Additional Rent provided in this
Paragraph 8 which is computed by dividing the Tenant's estimated share thereof by the
number of full calendar months during the Term in the first year. Such payments shall
be made together with and in addition to the Base Monthly Rent provided in Paragraph
7. In addition, with the first such payment on account of such Additional Rent, Tenant
shall pay any deficiency in estimated payments on account of such Additional Rent.
This "deficiency" shall be the amounts which would have been due from Tenant on
account of that part of the Term preceding the day on which the first payment on
account of Additional Rent is due as provided in this Paragraph 8.3.1 as if the Term
commenced on the first day of a calendar month and Sublessor's statement had been
furnished at least fifteen days before the first day of the Term.
8.3.2 Subsequent Calendar Years. As soon as practical after the
end of each calendar year during the Term, Sublessor shall furnish Tenant a statement
in reasonable detail (a) estimating the amount of Operating Costs Sublessor expects to
incur during the current calendar year and Tenant's Share thereof; (b) the amount of
Operating Costs actually incurred for the preceding calendar year and Tenants Share
thereof, and (c) to the extent applicable, the amount overpaid or underpaid by Tenant
on account of Tenant's Share of the Operating Costs actually incurred for the preceding
year. Within fifteen days after Sublessor's statement is furnished, Tenant shall pay (d)
the amount remaining due, if any, from Tenant on account of Tenant's Share of the
Operating Costs actually incurred for the preceding year and (e) the deficiency (if any
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and after any credit due under Paragraph 8.3.3) in estimated payments on account of
Tenant's Share of Operating Costs for each calendar month in the current calendar year
through the month before the month in which the first of Tenant's payments on account
of estimated payments for the current year is due. In addition, beginning on the first
day of the first calendar month which is at least fifteen days after Sublessor's statement
is furnished and continuing on the first day of each subsequent calendar month, Tenant
shall pay (f) an amount on account of the estimated Tenant's Share of Operating Costs
for the current year calculated by dividing the estimated Tenant's Share of Operating
Costs for the current year by the number of full calendar months during the Term in
that year. Deficiencies in prior payments during the current year before the sums
described in part (f) become payable shall be calculated on the basis of there being due
on the first day of each calendar month during the current year the amount specified in
part (f). Until Sublessor's statement under this paragraph is furnished, Tenant shall pay
together with and when the Base Monthly Rent is due for the current year the amount
which is equal to that amount payable by Tenant in the last month of the preceding year
for estimated Operating Costs for the preceding year.
8.3.3 Overpayments for Preceding Year. If Sublessor's statement
furnished according to paragraph 8.3.2 shows estimated payments made by Tenant on
account of Operating Costs in the preceding year were more than Tenant's Share of the
Operating Costs for the preceding year, then Sublessor shall apply the excess to sums
then due for the current year and to the extent of any remaining balance of such excess,
at Sublessor's election, either refund the balance to Tenant or apply the balance to the
sums next due from Tenant for the current year. The obligations with respect to
Operating Costs for the calendar year in which the Term expires or is terminated
survive such expiration or other termination of this Sublease.
8.3.4 Miscellaneous Provisions Concerning Sublessor's
Statements. Sublessor's delay in furnishing any statement under this paragraph 8 does
not waive or otherwise relieve Tenant from its obligations under this paragraph 8 but if
Sublessor's statement under paragraph 8.3.2 is not furnished by 90 days after the end of
the preceding year, the time for Tenant's payment of any deficiencies on account of such
year shall be extended by the lesser of (a) a period of five days for each thirty days after
the 90th day that Sublessor does not furnish such statement or (b) thirty days. By
written statement containing similar information as required for the original statement
of estimated Operating Costs for the current calendar year, Sublessor may from time to
time in the current year increase its estimate of Operating Costs and, consequently the
estimated amount that Tenant shall pay on account thereof. After Sublessor's revised
statement is furnished Tenant shall pay the deficiency in prior estimated amounts and
pay the revised monthly estimates for the remainder of the current calendar year, all as
provided in paragraph 8.3.2 as if the estimated statement was the first such made for
that year.
8.4 Tenant's Right of Review. As provided in and subject to the
conditions of this paragraph 8.4, Tenant shall have the right to examine Sublessor's
books and records for the purpose of reviewing the accuracy of Sublessor's statements
of actual Operating Costs ("Cost Statement"). Within thirty days after Tenant's receipt
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of a Cost Statement, Tenant shall by written notice ("Review Notice") to Sublessor make
its election to examine Sublessor's books and records for the purpose of reviewing the
accuracy of Cost Statement. Promptly after receipt of the Review Notice, Sublessor
shaH by written notice ("Records Notice") describe the location or locations at which
Sublessor shall make its books and records available for such examination. Within
forty-five days after receipt of the Records Notice, Tenant shaH complete its
examination and give Sublessor a written report thereof ("Objection Notice") in
reasonable detail stating the amount of Operating Costs for the preceding year
according to such examination and the reasons and amounts for any variation from the
Cost Statement. Sublessor will make its books and records available for Tenant's
examination and copying at reasonable times on reasonable prior notice at such place or
places where such books and records are kept in ordinary course. Tenant's examination
shaH be made by an independent certified public accountant selected by Tenant and the
costs and fees thereof shaH be paid by Tenant except as provided otherwise in the next
sentence. If as a result of Tenant's examination, it is adjudicated or Tenant and
Sublessor agree the Cost Statement overstated the amount of Operating Costs actually
incurred for the year in question by an amount exceeding five percent of the Operating
Costs claimed by the Cost Statement, then Sublessor shall reimburse Tenant's
reasonable costs and fees of its examination. To the extent that as a result of Tenant's
review it is adjudicated or Sublessor and Tenant agree that there was such an
overpayment, then notwithstanding anything else to the contrary in this Sublease, there
shaH be credited to aH sums then due from Tenant to Sublessor (and to the extent of any
balance, aH sums next becoming due from Tenant to Sublessor) the amount of such
overpayment. If Tenant does not timely give a Review Notice with respect to a Cost
Statement or if Tenant does not timely give its Objection Notice with respect to a Cost
Statement, then Tenant is and shaH be barred from (and waives, releases, and
discharges any claim of right) to challenge the accuracy of that Cost Statement. Even if
Tenant exercises its right to examine Sublessor's books and records concerning actual
Operating Costs incurred for the previous year, Tenant shaH nevertheless pay when due
aH sums indicated by that statement and any subsequent statements as being due from
Tenant for the preceding and current years, all when and as provided in paragraphs
8.3.2 through 8.3.4, and shaH not delay or make any deductions from such amounts.
9. LEASEHOLD EXCISE TAX. In addition to the Base Monthly Rent,
Tenant shall pay to Sublessor in advance on the first day of each month during the
Term the leasehold excise tax required by Chapter 82.29A of the Revised Code of
Washington and regulations adopted pursuant thereto, as such law and/or regulations
may hereafter be amended or replaced, on account of the taxable rent payable by
Tenant under this Sublease on such date.
10. PERMITTED USE. The Premises shall be used only for the use specified
in paragraph 1.12 (the "Permitted Use"), and for no other business or purpose without
the prior written consent of Sublessor, which Sublessor may refuse or condition in its
discretion.
11. REOUlREMENTS CONCERNING TENANT'S USE.
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11.1 General Matters. Tenant shall not do or suffer anything to be done
in the Premises or the Parking Garage or on or about the Auburn Transit Station that
will increase the insurance rates for or cause any insurer to cancel or to impose
exclusions on any of Sublessor's policies of insurance on or relating to the Property or
any part thereof or the Sublessor's contents therein or Sublessor's liability insurance
related to the Property or any part thereof. For the purposes of the preceding sentence,
to the extent that Sublessor self-insures any risks jointly with other governmental units
and pays assessments relating to such self-insurance, then in the preceding sentence the
term "premiums" includes such assessments. Tenant shall not in any way exceed the
design load limits of the floor of the Premises. Tenant shall not commit or permit waste
of any part of the Property. Tenant shall not commit or permit any public or private
nuisance or any other act or thing that obstructs, interferes with, or otherwise disturbs
(in Sublessor's good faith opinion) any of the other tenants of the Commercial Tenant
Area and/or Plaza Tenant Area or any of their licensees, permittees or invitees in their
use, occupancy, or enjoyment of their respective premises, the Common Areas or which
(in Sublessor's good faith opinion) interferes with Sublessor's ownership or operation of
the Building. Tenant shall not commit or permit any act or thing that obstructs,
interferes with, or otherwise disturbs (in Sublessor's good faith opinion) Sound Transit
or any of its tenants, licensees, permittees or invitees (including members of the general
public) in their respective use, occupancy, or enjoyment of the Parking Garage or any
other part of the Auburn Transit Center Station (except as permitted in Section 1.4 of
this document). Tenant shall not use or place any apparatus, machinery, or device
which causes any substantial noise or vibration in or about the Property without
Sublessor's prior written consent, which Sublessor may refuse or condition in its
discretion. Tenant shall at all times keep access to enclosures within the Premises for
any Parking Garage systems that are excluded from the Premises, if any, free from
obstruction or hindrance, and Tenant shall not keep, place, or storc anything in such
enclosures. Tenant shall comply with and shall cause its employees, agents, visitors,
and contractors to comply with such reasonable rules as Sublessor from time to time
may deem necessary or desirable for the protection of the Leased Premises, the
Common Areas, other parts of the Parking Garage and/or the Plaza Tenant Area, its
safety, care, and cleanliness, and good order therein. A copy of Sublessor's rules
presently in effect is attached hereto as Exhibit D.
11.2 Compliance With Law. Without limiting the generality of any
provision of paragraph 11.1, in its use and occupancy of the Premises, the making of
any Tenant Alteration, and Tenant's performance of its obligations under this Sublease,
Tenant shall conform to and comply with every applicable Law, including but not
limited to state and federal occupational and health safety acts and the Americans With
Disabilities Act. Tenant recognizes that the Americans With Disabilities Act may
require modifications be made to the Premises because of Tenant's use thereof and, in
such case, Tenant shall at its expense make such modifications (subject, however, to the
requirements of paragraph 16). If the enactment or enforcement of any Law requires
any changes to the Premises during the Term, then, subject to the requirements of
paragraph 16, Tenant shall make all such changes at its expense if the changes are
required due to the nature of Tenant's activities at the Premises, or to Tcnant Alterations
that were made by Tenant or that Tenant seeks to make.
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11.3 Environmental Matters. Without limiting the generality of any
provision of paragraph 11.1 or 11.2, Tenant shall comply, and shall cause all its
employees, contractors and agents to comply, with all requirements of every applicable
Law concerning use, handling, storage, disposal, removal, and encapsulation of any
hazardous, toxic, or dangerous substance or waste brought onto, released onto, used in
or about, or generated in or about the Parking Garage or the Auburn Transit Center by
Tenant or by any of its employees, agents, visitors, or contractors, or by any other
person with Tenant's consent or permission, express or implied. Tenant shall
indemnify, defend, and hold harmless Sublessor, Sublessor Related Parties, and the
Property from and against all demands, claims, liabilities, damages, awards, judgments,
costs, and expcnses incurred by or asserted against Sublessor, Sublessor Related Parties,
and/ or the Property arising from or in any way related to any failure by Tenant or any
of its contractors or agents to perform as required by the preceding sentence or arising
from or in any way related to the assertion of any such failure. In the preceding
sentence: (a) "costs" include, but are not limited to, fines, penalties, costs of any
investigation, costs of any remedial action, costs of restoration or replacement of any
part of the Auburn Transit Station or any improvements thereon (including but not
limited to the Parking Garage), and the costs of settlement; and (b) "expenses" include,
but are not limited to, the costs and fees of attorneys, consultants, experts, and
witnesses. Tenant's obligations under this paragraph survive the expiration or
termination of this Sublease.
12. COMMON AREAS. Tenant shall have the right to nonexclusive use of
the corridor portions of the Common Areas for ingress and egress to the Premises;
provided that such use shall not interfere with the reasonable use of such areas by other
tenants of the Building. Tenant shall also have the right to nonexclusive use of the other
Common Areas for the uses for which they are intended and provided by Sublessor
from time to time. Sublessor reserves the right from time to time to change the size,
location, nature, use, configuration, or otherwise alter the Common Areas and may
change the Common Areas available to tenants of the Commercial Tenant Area and
may eliminate or reduce parts of the Common Areas, erect improvements on the
Common Areas or convert any portion of the Common Areas to thc exclusive use of
Sublessor or one or more tenants of the Commercial Tenant Area. However, Sublessor
shall not make any changes to the Common Areas that unreasonably interferes with
Tenant's access to the Premises or other rights under this Sublease. Sublessor reserves
the use of exterior walls, the interior of the demising walls, and the right to install,
maintain, use, repair and replace pipes, ducts, conduits, and wires leading through the
Premises in areas which will not materially interfere with Tenant's use thereof.
13. REPAIRS AND CARE OF PREMISES. Tenant shall at its expense
maintain, take good care of and keep in good condition, good state of repair and good
working order the Premises and the fixtures and appurtenances therein or related
thereto, including but not limited to: (a) floor coverings; (b) window coverings; (c)
interior walls and partitioning; (d) doors; (e) relights and other glass (including exterior
windows); (f) the interior side of demising walls; (g) electronic, phone, and data cabling
and related equipment installed by or for the exclusive benefit of Tenant, wherever
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located in the Parking Garage (collectively "Tenant Cable"); (h) any supplemental
heating or air-conditioning equipment, private showers and kitchens, including hot
water heaters, plumbing, and similar facilities serving Tenant exclusively; (i) all Tenant
Alterations, whether made with or without Sublessor's consent, including any related
balancing of the heating and air-conditioning systems serving the Premises and! or any
other part of the Parking Garage, (j) any ventilation equipment installed by or for the
exclusive benefit of Tenant, wherever located in the Parking Garage, and (k) wires,
cables, conduits, pipes, valves, faucets, and other components of the systems providing
utilities. Tenant shall not make holes in or fasten hardware, bulletin boards, shelving,
cupboards, blackboards, decorator items, or any other object to the walls, doors,
woodwork, or ceilings or hang things from ceiling support frames without Sublessor's
prior written consent, which Sublessor may refuse or condition in its discretion.
Sublessor hereby consents to the hanging from walls of the Premises pictures and other
decorator items weighing less than 25 pounds each using picture hooks fastened to the
walls with nails. All damage or injury to any part of the Premises or the Parking
Garage caused by any such holes or fastenings (including any consented to by
Sublessor), or by installation of Tenant Cable or other of Tenant's equipment and
fixtures, or by moving Tenant's furniture, equipment, supplies or inventory into or
about the Parking Garage or the Premises, or by the act or omission of Tenant or any of
its employees, agents, visitors, contractors, or customers shall be repaired at Tenant's
expense. Work of repair or replacement shall be performed by firms and workmen
selected, engaged, and supervised by Sublessor. Sublessor has no obligation during the
Term to: (i) clean, repair or replace carpets, other floor-coverings, drapes, other
window coverings or treatments in the Premises even if furnished by Sublessor; (ii) to
make any improvements to the Premises, or (iii) repaint walls or refinish woodwork in
the Premises. Subject to all the preceding parts of this paragraph, Sublessor shall
maintain the Property in good order and repair. Tenant shall promptly notify Sublessor
of any matters in or about the Property in need of maintenance for which Sublessor is
responsible and of which Tenant learns or has notice. Notwithstanding the preceding
provisions of this paragraph, to the extent maintenance of any part of the Property or
the Parking Garage that is under the provisions of this paragraph the responsibility of
one party is required because of the act or neglect of the other party (or the other party's
agents, contractors, invitees or licensees), then the other party shall pay the costs
thereof. At the election of the party otherwise responsible for such maintenance, the
other party's payment of the costs shall be made (a) within ten days after demand
which demand is made after completion of the work and final determination of the
costs thereof or (b) in installments as and when due as the work progresses.
14. SERVICES AND UTILITIES.
14.1 General Provisions. Sublessor has the exclusive right to determine
who shall provide electricity or any other utility service to the Property or any part
thereof and who shall provide facilities at the Property or any part thereof for
broadband access to the Internet (excluding any such access which is available through
ordinary telephone lines or television cable) and to negotiate and enter into contracts or
other agreements or arrangements therefor. Sublessor shall provide facilities to furnish
to the Premises and the Common Areas (a) electricity for lighting and customary
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equipment, computers, machines and other devises usual and ordinary to retail and; or
general office use of space in buildings in the general area of downtown Auburn and (b)
water. Sublessor shall provide (c) lamp replacement service for light fixtures in the
Common Areas, (d) cleaning and supplying the restrooms that are part of the Common
Areas, and (e) air-conditioning and heat to the Premises and the interior Common
Areas. Tenant shall provide facilities for furnishing all other utilities to the Premises,
including but not limited to telephone and, if available, television cable service and any
other services that Tenant requires or desires with respect to the Premises (including
but not limited to janitorial and window-cleaning services). Tenant shall make
arrangements with those providing the utilities and other services to the Premises for
the provision of such utilities and other services and shall pay when due all fees and
charges for utilities consumed in or services provided to the Premises, including but not
limited to any utilities provided by the City of Auburn.
14.2 Energy Conservation. After _ p.m. (or later) until a.m.
(or earlier) during weekdays and Saturdays and all day on Sundays and holidays,
Sublessor may reduce heating and air-conditioning service and may reduce or turn off
lighting in the Common Areas. From time to time Sublessor may institute and change
other measures to conserve energy, water, or other utilities and Tenant shall comply
therewith.
14.3 Excess Requirements. Except as provided in subpart (a) of the first
sentence of this paragraph, Sublessor is not required to provide air-conditioning or
facilities for electricity for other computers or equipment installed by Tenant. If Tenant
installs any such other computers or equipment or other heat generating equipment,
machinery, or other devices which materially increases the load on Sublessor's present
air-conditioning equipment or if Tenant installs any devices which require greater
electric service than that described above, Sublessor has the election to do anyone or
more of (a) require that Tenant remove such computers, equipment, machinery, or
devices, (b) make at Tenant's expense necessary improvements or replacements to the
air-conditioning equipment serving or electric service to the Premises, and (c) charge
Tenant for such extra load which charge shall be conclusive on Tenant if established by
Sublessor in good faith with the objective of reasonable reimbursement of Sublessor's
additional expenses (including but not limited to extra expenses of additional
maintenance) . If Sublessor makes this last election, Tenant shall pay the charge
monthly in advance as Additional Rent on the first day of each calendar month during
the Term.
14.4 Failure or Interruption of Utilities or Services. Sublessor shall not
be liable for and Rent shall not abate, in whole or in part, because of any loss, injury, or
damage regardless of the nature thereof caused by or resulting from, in whole or in
part, any variation in, interruption of, or failure of any utility service or services
described in this paragraph 14 to be provided by Sublessor incident to making of
repairs, alterations, or improvements, or because of accident, strike, or any other event
or circumstance beyond Sublessor's reasonable control.
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15. LIMITATION ON SUBLESSOR LIABILITY. Rent shall not abate, in
whole or in part, nor shall there be any allowance to Tenant for diminution of rental
value, nor shall Sublessor be otherwise liable to Tenant by reason of inconvenience,
annoyance, loss of use of the Premises, or interference with Tenant's business arising
from the making (whether by Sublessor, Sound Transit or any other person) of any
repairs, alterations, additions, or improvements to any part of the Station. Sublessor
and Sublessor Related Parties shall not be liable to Tenant for and Rent shall not abate,
in whole or in part, because of any damage to any part of the Station or loss of use of
any part of the Property or the Premises or for any loss, damage, or injury to Tenant or
any of its property or its business occasioned by: (a) bursting, rupture, leakage,
overflow, or other failure of any plumbing or other pipes or appurtenances, including
without limitation, water, sewer, refrigerant, and fire-sprinkler systems, water tanks,
and dishwashers; (b) backing up of any sewer line, drain, drainpipe, downspout, or
gutter; (c) water, snow or ice upon or coming through the roof, skylights, stairs,
doorways, windows, walks, or any other place on the Property; or (d) any act or
omission of any party other than Sublessor or Sublessor Related Parties. Sublessor and
Sublessor Related Parties shall not be liable for and Rent shall not abate, in whole or in
part, because of any loss or damage to person or property sustained by Tenant or by
any other person which may be caused in whole or in part by any part of the Station,
the Parking Garage, or the Premises being out of repair, by burglary, theft or vandalism,
or by any act or neglect of the any tenant or other occupant of the Station or the Parking
Garage or any part of either, or of any other person, including but not limited to Sound
Transit and its agents, employees, and contractors. Tenant shall insure itself against the
risk of all such losses described in this paragraph.
16. TENANT ALTERATIONS. After completion of any Tenant
Improvements provided in the attached Tenant Improvement Rider, if any, Tenant
shall make no changes, additions, alterations, or improvements in or to the Premises or
any other part of the Property (including but not limited to the installation of any
Tenant Cable) ("Tenant Alteration") without Sublessor's prior written consent (which
Sublessor may refuse or condition in its discretion) as to the nature, extent, quality,
plans and specifications of the proposed work, the materials to be used, and whether
any or all of such matters shall be removed and the affected parts of the Property
restored at Tenant's expense at the expiration or termination of the Term. "Tenant
Alteration" does not include installation of shelves, movable partitions, Tenant's
equipment and trade fixtures that may be, and are, installed without damaging the
Property or the existing improvements therein or the structural integrity of any part of
the Parking Garage or the Station and Sublessor's consent is not required for installation
of such items. Tenant Alterations consented to by Sublessor shall be made and installed
at Tenant's expense but under the direction and supervision of Sublessor by firms and
workmen selected or approved by Sublessor. All Tenant Alterations shall become
Sublessor's property at the expiration or termination of the Term, subject to any
obligation of Tenant to remove all or any part thereof and restore the Property. Unless
otherwise specified by Sublessor in its consent to a Tenant Alteration, the Tenant
Alteration shall belong to Tenant and, at the expiration or earlier termination of the
Term, Tenant shall at its expense remove the Tenant Alteration and restore the Property
to its condition before the Tenant Alteration. Sublessor has no obligation to consider or
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otherwise act upon a proposal for a Tenant Alteration unless and until Tenant submits
its proposal for any Tenant Alteration. In addition and whether or not Sublessor
approves all or any part of the proposal, Tenant shall reimburse Sublessor's costs and
fees of third parties engaged by Sublessor to assist and advise Sublessor in its
consideration of the proposal. Such reimbursement shall be paid within fifteen days
after Sublessor's demand therefor which shall be accompanied by reasonable evidence
of the amount and purpose of such costs and fees and the identity of the persons
rendering the services. If Sublessor consents to any Tenant Alteration, then Tenant shall
perform the Tenant Alterations in accordance with all applicable Law and in a manner
so as not to unreasonably disturb or interfere with other tenants or occupants of the
Parking Garage or any part thereof (including Sound Transit and its licensees), and pay
the costs thereof as and when due. Promptly after completion of each Tenant Alteration
made by Tenant, Tenant shall furnish to Sublessor as-built plans, drawings, and
specifications thereof. The requirements of this paragraph are in addition to any
requirement of Law that Tenant obtain a permit from the City of Auburn acting in its
governmental capacity for the proposed work. Without limiting the generality of the
preceding sentence, Sublessor's consent to such proposal (with or without conditions) is
not the equivalent of a permit or approval for such proposal in its governmental
capacity and does not obligate the City of Auburn to approve the proposal in its
governmental capacity under any such applicable Law and does not otherwise limit or
prejudice the City of Auburn's discretion or freedom of decision-making acting in its
governmental capacity pursuant to any such applicable Law.
17. LIENS. Without Sublessor's prior written consent thereto, Tenant shall
not permit any lien, encumbrance, security interest or claim thereof (collectively in this
paragraph "lien") to attach to the Property or any part thereof or to any fixture thereof
or to all or any part of Tenant's rights to the Premises or under this Sublease because of
any work done by Tenant or at Tenant's request or because of any goods sold to or
leased by Tenant or because of any services rendered to or at the request of Tenant or
because of any loan made to or other debt incurred by Tenant. Sublessor may refuse or
condition any consent requested of it under this paragraph in Sublessor's discretion.
Promptly after Sublessor's demand, Tenant shall either (a) cause any claim of such lien
which has been recorded in the real property records or filed in the personal property
or Uniform Commercial Code records of the county, the state, or any other public
authority to be released of record even if that cannot be done without paying the
claimant or, (b) to provide a bond against any claim of such lien if a law or an
agreement with the claimant provides the effect of posting the bond has the effect of
releasing the claim of lien from the property or rights against which the lien was filed or
otherwise created.
18. ASSIGNMENT AND SUBLETTING.
18.1 General Provisions. None of Tenant's rights or obligations under
this Sublease are assignable without Sublessor's prior written consent, which Sublessor
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may refuse or condition in Sublessor's reasonable discretion. Any assignment made
without Sublessor's consent or without the occurrence of all conditions to such consent
shall be void and of no force or effect whatsoever, except Sublessor may at Sublessor's
election treat such attempted assignment as a breach as provided in paragraph 29. Any
consent given by Sublessor to an assignment shall apply only to the specific transaction
then consented to and shall not be a consent to any other or further assignment.
Despite any assignment, with or without Sublessor's consent, Tenant shall remain fully
and primarily liable to Sublessor for all obligations of the Tenant under this Sublease
jointly and severally with the assignee and its successors, if any, even if such obligations
were assigned to and assumed by the assignee. Sublessor has no obligation to consider
or act upon any request for consent to an assignment unless and until Tenant pays
Sublessor a nonrefundable fee of $500 to compensate Sublessor for the administrative
burden of processing the request and provides or causes to be provided to Sublessor all
information requested by Sublessor for the purpose of considering the request. In
addition, and regardless of whether Sublessor consents to the request, Tenant shall
reimburse Sublessor's costs and fees of third parties engaged by Sublessor to assist
Sublessor in its consideration of the request. Such reimbursement shall be paid within
fifteen days after Sublessor's demand therefor which shall be accompanied by
reasonable evidence of the amount and purpose of such costs and fees and the identity
of the persons rendering the services.
18.2 Definitions. For the purposes of this Sublease, "assignee" includes
an assignee of an assignee as well as an assignee directly of Tenant and "assignment"
includes without limitation any of the following: (a) creation of any mortgage, deed of
trust, or other security interest in all or any part of Tenant's rights under this Sublease;
(b) a subletting of all or any part of the Premises; (c) the use or possession with Tenant's
permission, consent, or acquiescence of all or any part of the Premises by any person or
entity other than Tenant; (d) if Tenant is a corporation, limited liability company, or
limited partnership any change in Tenant's identity by merger, consolidation, or
dissolution; (e) if Tenant is a corporation, any change after the date of this Sublease of
ownership of 25% or more of the corporation's shares of stock, whether such change
occurs by transfer of existing shares or issuance of new shares or a combination thereof
or in one or more transactions or at one time or over any period of time; (f) if Tenant is a
limited liability company any change after the date of this Sublease of ownership of 25%
or more of the company's membership interests, whether such change occurs by
transfer of existing interests or issuance of new interests or a combination thereof or in
one or more transactions or at one time or over any period of time; (g) if Tenant is a
partnership (general or limited) or a joint venture, any change after the date of this
Sublease in its general partners or joint venturers; and (h) any transfer by operation of
law. For the purposes of part (g), if a general partner or a joint venturer is a corporation
or a limited liability company, a change in identity and a transfer of ownership interests
as described in parts (d), (e), and (f) shall each be considered a change in the general
partner or joint venturer.
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19. SURRENDER. On expiration or earlier termination of the Term, Tenant
shall:
19.1 quit and surrender the Premises broom clean and otherwise in the
same condition and in as good order and repair as at the commencement of the Term
or, if applicable, as at the completion of any repairs or restoration after damage under
paragraph 21 or condemnation under paragraph 22, excepting only ordinary wear and
tear, damage from fire or elements, and alterations or other changes which are to
remain under paragraph 15;
19.2 deliver to Sublessor all keys and other items or devices opening or
operating any door, lock, or other security device pertaining to the Premises or the
Parking Garage; and
19.3 remove all its property from the Property and the Parking Garage.
Any maintenance or restoration of the Premises required to conform to the
requirements of the preceding or to repair any damage to any part of the Property
caused by Tenant or any of its employees, agents, invitees, licensees, or contractors or to
bring the Premises and all components and systems thereof to the condition they would
have been if Tenant had fully and faithfully performed its obligations under paragraphs
14 and 16 shall be performed by firms and workmen selected, engaged, and supervised
by Sublessor but at Tenant's expense. If Tenant fails to remove its property, then Tenant
shall be deemed to have abandoned the same and Sublessor may remove and store the
same at Tenant's risk and expense or sell the same or discard the same. All of the
foregoing obligations and all obligations to make or pay for repairs under paragraph 14,
to restore the Premises under paragraph 16 survive expiration or termination of this
Sublease and to indemnify Sublessor under paragraph 24.
20. SUBLESSOR'S ACCESS. After not less than two days' prior notice
(except in the case of emergency in which case no prior notice is required) Sublessor
and its employees, agents and contractors shall have the right of access to the Premises
and Tenant shall permit Sublessor and its employees, agents and contractors to enter
the Premises at all reasonable times for the purpose of inspecting, maintaining, altering,
or improving the Premises, the Property, equipment or fixtures, or showing the
Premises to prospective purchasers, lenders or any other person having a legitimate
interest therein, or exercising any of Sublessor's rights herein or under Law. After not
less than two days' prior notice, Sublessor and its employees and agents shall have the
right of access and Tenant shall permit such access to the Premises for the purpose of
showing them at any time to prospective purchasers, lenders or any other person
having a legitimate interest therein or showing them at any time within the six months
before expiration or sooner termination of the Term. Tenant shall not alter or make any
other changes in any locks or other security devices or install additional locks or other
security devices in any door anywhere in the Premises or the Parking Garage. Nothing
in this paragraph imposes any obligation on Sublessor to perform any maintenance or
to make any alteration or improvement that Sublessor is not otherwise obligated to
perform under some other provision of this Sublease or by Law.
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21. DAMAGE AND DESTRUCTION. If any part of thc Premises or of the
Property or of the Parking Garage is damaged or destroyed by fire or any other casualty
during the Term, Sublessor shall have the election whether to repair or rebuild or to
terminate this Sublease and the Term effective as of the date of the casualty. Sublessor
shall give Tenant notice in writing of its election within ninety days after the date of the
casualty. If Sublessor does not give its notice within such period, as Tenant's sole and
exclusive right and remedy on account of such casualty, Tenant shall have the right to
declare this Sublease and the Term terminated as of the date of the casualty by giving
notice of termination to Sublessor but only if Tenant's notice is given before Sublessor
gives Tenant Sublessor's notice of election. In case of termination under this paragraph
by Sublessor or by Tenant, Tenant shall pay Rent and otherwise perform all of its
obligations under this Sublease up to the effective date of termination (and those that
survive such termination) and Sublessor shall refund any Rent previously paid which is
applicable to the period after such date. In addition, if all or a part of the Premises are
tenantable despite the casualty and Tenant uses all or any part of the Premises despite
the casualty, Tenant shall also pay Rent and perform its other obligations under this
Sublease through the date Tenant surrenders the Premises after termination under this
paragraph. In such cases, Rent shall abate in the proportion, if any, that the
untenantable part of the Premises bears to the whole thereof unless the damage or
destruction results from, or is contributed to directly or indircctly by the act, fault or
neglect of Tenant or any of its employees, agents, invitees, customers, licensees,
permittees or contractors (in which case there shall not be any abatement of Rent). If
Sublessor elects to repair or rebuild, that work will be accomplished with reasonable
promptness and during the period from the date of the casualty to the date the work or
repair or rebuilding is substantially completed, Base Monthly Rent for the Premises
shall abate in the same proportion as the untenantable portion of the Premises, if any,
bears to the whole thereof, and this Sublease shall remain in full force and effect. If
Sublessor elects to repair or rebuild, such repairs or rebuilding shall include the Tenant
Improvements (if any and to the extent damaged or destroyed) but otherwise Sublessor
has no obligation to repair, rebuild, restore, or replace any fixtures or other property of
Tenant or any improvements or alterations to any part of the Property made by Tenant
or at Tenant's request or at Tenant's expense. Sublessor shall not be liable for any
damages or compensation for annoyance or inconvenience, loss of use of all or part of
the Premises or Common Areas, or loss of business of Tenant by reason of or arising
from the casualty or of the repairs or rebuilding.
22. EMINENT DOMAIN. If all of the Premises are taken by any person or
public authority under the power of eminent domain, then the Term and this Sublease
shall terminate as of the date the taking person or authority is entitled to possession
under such power. If any part of the Premises, the Property, the Parking Garage or any
of Sublessor's interest therein shall be taken by any person or public authority under the
power of eminent domain, Sublessor may elect to terminate this Sublease and the Term
as of the day such person or authority is entitled to possession under such power. A
"taking" under this paragraph includes but is not limited to a conveyance made by
Sublessor to a grantee under threat of the exercise of the power of eminent domain.
Sublessor shall give Tenant written notice of its election within sixty days after the
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condemning person or authority gives Sublessor written notice of the final extent of the
taking or sixty days before the date such person or authority shall be entitled to
possession, whichever is later. If Sublessor does not give Tenant Sublessor's notice of
election within such period, then as Tenant's sole and exclusive right and remedy on
account of such taking, Tenant shall have the right to declare this Sublease and the
Term terminated as of the date the taking authority is entitled to possession by giving
notice of termination to Sublessor but only if Tenant's notice is given before Sublessor
gives Tenant Sublessor's notice of election. Notwithstanding the preceding provisions,
Tenant shall have the right to terminate this Sublease and the Term terminated as of the
date the taking authority is entitled to possession thereof by giving notice of
termination to Sublessor (but only if Tenant's notice is given within thirty (30) days after
Tenant is given written notice of the final extent of the taking or sixty (60) days before
the date the taking authority is entitled to possession, whichever is later) in the event of
a taking which includes (a) part of the Premises and (b) (i) more than twenty percent
(20%) of the floor area of the Premises is included in the taking or (ii) the taking person
or authority is entitled to possession of any part of the Premises on a date that is within
six months of the expiration date of the then existing Term. In addition, and
notwithstanding any of the preceding provisions of this paragraph, Tenant may
terminate the Term and this Sublease if not previously terminated the taking includes a
part of the Premises and Sublessor has not completed any restoration of the remaining
part of the Premises within six months after the date the taking person or authority was
entitled to possession of the part of the Premises that were taken. Tenant's election
under the preceding sentence may be made only by written notice of termination
specifying an effective date of termination which is at least two weeks after such notice
which notice is given to Sublessor after the date the such six month period has elapsed
without restoration having been accomplished but not more than thirty days after such
date. In addition, Tenant's notice of terminate shall be void and of no force or effect if
Sublessor completes the restoration before the effective date specified in Tenant's notice.
Sublessor shall be entitled to all compensation or damages awarded for any taking,
except that Tenant is entitled to any award which is both (a) separately made in
addition to the value of the property taken (and, if applicable, damage to the remainder
of Sublessor's Property) and (b) identified as (i) compensation for Tenant's relocation
expenses or (ii) compensation for the taking of Tenant's fixtures. If the Term and the
Sublease is terminated as provided in this paragraph, then Tenant shall pay Rent and
otherwise perform all of its obligations under this Sublease up to the effective date of
such termination (and those that survive such termination) and Sublessor shall refund
any Rent previously paid which is applicable to the period after such date. If the taking
includes a partial taking of the Premises and the Term and this Sublease is not
terminated under the provisions of this paragraph, then the Base Monthly Rent shall be
reduced in proportion to the amount of the Premises taken, Sublessor shall make
appropriate restoration of and alterations to the Property and the part of the Premises
remaining, so that the remaining parts of the Property and the Premises are a functional
whole for the purposes of the Permitted Use, and this Sublease and the Term shall
otherwise continue with respect thereto.
23. INSURANCE.
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23.1 Liability Insurance. At all times during the Term, at its expense
Tenant shall obtain and maintain in full force and effect a policy of general commercial
liability insurance insuring the activities of Tenant, its employees, agents, visitors, and
contractors in, about, upon, and with respect to the Premises, the Property and the
Station against liability for personal injury and death and loss or damage to property,
including liability for operation of owned and nonowned motor vehicles and coverage
for contractually assumed liabilities. Such policy shall name Sublessor and Sound
Transit as additional insureds. Such policy shall also provide the insurer's obligation to
pay all defense costs in addition to limits of coverage for liability. Such policy shall
have limits of coverage of not less than $2,000,000 for personal injury or death and
$3,000,000 for loss or damage to property for a single occurrence and shall have only
those deductibles of kinds and amounts reasonably satisfactory to Sublessor.
23.2 Property Insurance. At all times during the Term, at its expense
Tenant shall obtain and maintain in full force and effect a policy of property insurance
insuring all Tenant's property located in or about the Premises, the Property and the
Station against loss by fire or other casualty, theft, vandalism, and other hazards
covered by an "all risk" form of such policy with limits of liability equal to the full
replacement value of such property without deduction for depreciation and with such
other deductibles of kinds and amounts reasonably satisfactory to Sublessor. Such
policy shall include coverage for losses due to business interruption.
23.3 Other Tenant Insurance. Sublessor has the right to require Tenant
to obtain and maintain such other insurance and bonds (such as but not limited to
professional liability insurance and/or fidelity bonds) as Sublessor in good faith
determines reasonable and appropriate to the particular type of business in which
Tenant is engaged. Such other insurance and bonds shall have such limits, deductibles,
and other provisions as are usual and ordinary to such matters but consistent with the
nature, size, and scope of Tenant's business, all as determined by Sublessor in good
faith. In this paragraph, "policy" includes any such bonds.
23.4 Proof of Insurance. Tenant shall deliver to Sublessor before the
Term commences and before Tenant occupies or uses any part of the Premises for any
purpose copies of the policies required of Tenant under this paragraphs 23 and the
respective insurer's written certification to Sublessor that the policy is in full force and
effect with premiums fully paid. At the same time, Tenant shall also deliver to
Sublessor proof reasonably satisfactory to Sublessor that Tenant did not borrow money
to pay the premiums for such polices or that any such borrowing has been fully repaid
or otherwise satisfied. Not later than thirty days before expiration or any earlier
cancellation of each policy, Tenant shall deliver similar copies, certifications, and proof
of and concerning a renewal of or replacement for each insurance policy required by
this paragraph. From time to time, Sublessor may request a copy of one or more of
Tenant's policies of insurance required under this paragraph 23 certified by the insurer
to be a true and correct copy of the policy and all endorsements and amendments
thereto and Tenant shall promptly comply with such request.
23.5 Requirements Concerning Tenant's Insurance Policies.
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23.5.1 General Requirements. Each policy of insurance Tenant is
required to maintain under this Sublease shall: (a) be issued by an insurance carrier
reasonably satisfactory to Sublessor; (c) provide that the policy is primary and not
excess to or contributing with any of Sublessor's insurance policies or Tenant's other
insurance policies; and (c) include a provision that requires the insurance carrier to give
Sublessor not less than thirty (30) days' written notice before the effective date of any
cancellation (including but not limited to cancellation for nonpayment of premium) or
of any modification of such coverage (including but not limited to a change in
deductible amounts).
23.5.2 Optional Remedy For Breach. If Tenant fails to obtain and
continuously maintain any policy of insurance required of it, Sublessor may obtain such
insurance, in which case the Tenant shall reimburse Sublessor for the cost of such
insurance within fifteen (15) days after receipt of an invoice therefor accompanied by a
copy of the premium statement or other evidence of the cost of such insurance.
23.5.3 Naming Governmental Unit As Additional Insured. Each
policy required of Tenant under this Sublease that is to name either or both of Sublessor
or Sound Transit as additional insured shall expressly name as additional insured
Sublessor and/or Sound Transit, as applicable, and all members of their respective
council or other legislative body and all of their respective officers, directors, employees
and agents.
23.5.4 Waiver of Subrogation. Unless prohibited under the
applicable insurance policy, Sublessor and Tenant each hereby releases and waives any
and all rights of recovery against the other (and their respective officials, officers,
employees, agents and representatives), for loss of or damage to its property or the
property of others under its control, if such loss or damage is covered by any insurance
policy in force (whether or not described in this Sublease) at the time of such loss or
damage or would have been covered if the party had obtained the insurance it was
required to obtain under this Section 3.3. Upon obtaining the policies of insurance
required or permitted in this Section 3.3, the parties shall give notice to their respective
insurance carriers of this mutual release and waiver of subrogation and use reasonable
efforts, including payment of any additional premium, to cause their respective
insurance carriers to consent to the provisions of this subpart. Notwithstanding the
preceding, the release and waiver in this subpart shall not be effective if the effect
would be to void coverage under the policy. In addition, the release and waiver in this
subparagraph do not apply to the extent of the deductible amounts to any such policies
or to the extent of liabilities exceeding the limits of such policies. For the purpose of this
provision, self-insurance by Sublessor is not the equivalent of having an insurance
policy.
24. INDEMNIFICATION.
24.1 General. Tenant shall defend, indemnify, and save harmless
Sublessor and Sublessor Related Parties from and against: (a) any and all demands,
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claims, liabilities, damages, and judgments, including without limitation for injury to
person or property, arising from or related to (or alleged to have arisen from or be
related to) any act or omission of Tenant or any of Tenant's employees, agents, visitors,
invitees, licensees, permittees or contractors; (b) any and all losses, damages, and costs
arising from or related to any breach of or default in any of Tenant's obligations under
this Sublease; and (c) any and all expenses incurred by Sublessor arising from or related
to any such demand, claim, liability, damages, judgment, loss, or cost or arising from or
related to any such breach or default. In the preceding sentence, "expenses" include,
without being limited to, the fees and costs of attorneys, consultants, experts, and
witnesses. Tenant's obligations under this paragraph survive the expiration or other
termination of this Sublease. In the case of concurrent fault of Sublessor and Tenant
(and their respective employees, agents, visitors, invitees, licensees, permittees and
contractors), Tenant's obligations under part (a) of this paragraph do not extend to any
demand, claim, liability, or judgment for which Sublessor is or would be severally liable
only for Sublessor's proportionate share of the total damages under the provisions of
Chapter 4.22 Revised Code of Washington. However, Tenant's obligations under this
paragraph extend to that part of Sublessor's several liability which is in excess of what it
what have been if determined by taking into account Tenant's proportionate share
despite any immunity of Tenant to the claimant under Title 51 Revised Code of
Washington. Tenant's obligations under this paragraph are not limited in any way by
the requirements of or by Tenant's compliance with the requirements of paragraph 23.
24.2 Waiver of Immunity. Tenant's obligations under paragraph 24.1
extend to, without limitation, injuries to Tenant's employees (as such employees are
defined in the Industrial Insurance Act (Title 51 Revised Code of Washington) and, to
that extent and for the benefit of Sublessor and Sublessor's employees, agents, and
contractors, Tenant hereby waives the immunity otherwise afforded Tenant under that
Act or any other applicable workmen's compensation laws.
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25. TENANT TAXES AND OTHER GOVERNMENTAL CHARGES.
Tenant shall pay when due all taxes, assessments, license fees and other governmental
charges (including any imposed by the City of Auburn in its governmental capacity) on
or with respect to Tenant, any of Tenant's property, Tenants income, gross receipts, or
other revenues, Tenant's use of the Premises, and Tenant's business.
26. SIGNS.
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26.1 General Requirements. Except as provided in this paragraph 26,
Tenant shall not erect, install, or display any signs at the Premises or on the Property or
Station without Sublessor's prior written consent which Sublessor may refuse or
condition in its discretion. All of Tenant's signs must comply with all requirements of
Law. Approval by Sublessor in or under this Sublease of any proposed sign does not
bind Sublessor, acting in its governmental capacity, under any applicable Law of the
City of Auburn with respect to that or any other sign. In addition, all Tenant's signs
must comply with the applicable requirements of Section 4.4(a) and Exhibit 4.4(d) of the
Master Sublease. In this regard, Exhibit 4.4(d) of the Master Sublease is mistakenly
referred to as Exhibit 4.4(a) in Section 4.4(a) of the Master Sublease. At the expiration or
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earlier termination of the Term, Tenant shall remove all signs from the Station and shall
restore the Premises, the awning of the Parking Garage adjacent to the Premises, and
the Parking Garage to as nearly as practical the condition before installation of the sign.
26.2 Permanent Signs. Tenant shall not erect, install, or display any
permanent signs at the Premises or on the Property or the Station without Sublessor's
prior written consent. All permanent signs placed on the exterior of the Parking Garage
shall comply with the provisions of the Exhibit 4.4(d) of the Master Sublease
(mistakenly referred to as Exhibit 4.4(a) in Section 4.4(a) of the Master Sublease) and
shall also be first approved by Sublessor as to size, design, materials, colors, and
method of affixation to, as applicable, the awning or the exterior wall of the Parking
Garage. Sublessor hereby consents to painted or decal signs on the exterior window of
and exterior entrance door to the Premises provided such signs comply with the
requirements of Exhibit 4.4(d) of the Master Sublease.
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26.3 Temporary Signs. Tenant may display temporary window sings
on are in front of the exterior window of the Premises of size, style, content and design
that are usual and ordinary for occupants of premises in the City of Auburn,
Washington for uses that are the same or substantially the same as the Permitted Use to
identify and promote such use provided that no such temporary sign shall be displayed
for longer than two weeks and otherwise comply with the requirements of Exhibit
4.4(d) of the Master Sublease.
27. SUBORDINATION. This Sublease shall be subordinate to any sublease
hereafter made by Sublessor to one person or entity of all of the Commercial Tenant
Area (a "Master Subtenant") provided that the Master Subtenant shall not disturb
Tenant's occupancy and other rights under this Sublease so long as no uncured Event of
Default under this Sublease exists. Tenant shall attorn to any such Master Subtenant
provided such the Master Subtenant assumes Sublessor's obligations to Tenant under
this Sublease. This subordination is automatic and requires no further action or
agreement of Tenant. Nevertheless, Tenant shall promptly and in no event later than
fifteen (15) days execute, acknowledge and deliver such documents and agreements
that Sublessor or the Master Subtenant may reasonably require as further evidence of
this subordination and attornment, which agreement may also contain additional
provisions that are consistent with the provisions of this paragraph and reasonably
requested by Sublessor and! or the Master Subtenant.
28. ESTOPPEL CERTIFICATES. From time to time during the Term, any
then existing or prospective Master Subtenant or then existing or prospective purchaser
or other transferee of all or any part of the Property or any interest therein may request
that Tenant execute and deliver specific written statements ("estoppel certificate")
concerning the status and provisions of this Sublease, including any amendments or
modifications thereof, Rent and other payments made or payable thereunder, the Term,
the existence of any defaults in the obligations of Sublessor or Tenant, and such other
matters as to which the requesting person ("Requester") may reasonably inquire. After
each such request, whether made by the Requester or by Sublessor, Tenant shall
promptly and in no event later than seven (7) days comply therewith and such writing
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shall be reasonably satisfactory in form and substance to the Requester. However,
nothing in the preceding sentence obligates Tenant to make any untruthful statement or
a positive or negative statement on a matter as to which Tenant has no knowledge;
provided, however, Tenant shall be required to represent such matters as to which or to
the extent that Tenant does have knowledge and state that it has no knowledge, if such
be the case, of other matters. If Tenant does not sign and deliver an estoppel certificate
within seven days after it is delivered to Tenant with a request from the Requestor or
from Sublessor then if the Requestor does become a transferee or Master Subtenant,
Tenant shall be deemed to have, and shall be bound to the Requester (a) as if Tenant
had given such certificate as above provided without modification and, in addition, (b)
as if Tenant admitted to the Requester the accuracy of any information supplied to it by
Sublessor in any way concerning Tenant or this Sublease.
29. BREACH.
29.1 General Provisions. Time is of the essence hereof. Tenant shall be
in "default" of its obligations under this Sublease if Tenant does not payor perform an
obligation imposed by it by this Sublease or by Law arising from and on account of this
Sublease when and as such obligation is due. Tenant shall be in "breach" of its
obligations under this Sublease:
29.1.1 if Tenant or any Guarantor of this Sublease makes a transfer
in fraud of creditors or makes any assignment for the benefit of creditors or admits in
writing its inability to pay its debts when due; or
29.1.2 if Tenant attempts to assign any of its rights under this
Sublease without Sublessor's prior written consent or without occurrence of all
conditions to such consent, or if Tenant vacates or abandons the Premises, with or
without removal of personalty or fixtures.
29.1.3 if Tenant fails to pay when due any payment of money
required of it under this Sublease and such failure continues for a period of three days;
or
29.1.4 if Tenant fails to perform when due any of its other
obligations under this Sublease and such failure is not cured within twenty days after
notice from Sublessor to Tenant thereof; or
29.1.5 if Tenant creates, permits, or suffers any lien, encumbrance,
or security interest to attach to or be claimed through Tenant against the Property or
any part thereof or any fixtures located therein or to all or any part of Tenant's rights to
the Premises or under this Sublease and any such lien, encumbrance, or security interest
is not released within twenty days after Sublessor's notice to Tenant; or if any
liquidation, reorganization, or arrangement proceeding is filed by or against Tenant
under any federal or state bankruptcy or insolvency laws and any such proceeding is
not vacated or dismissed within sixty days after Sublessor's notice to Tenant; or if any
receivership, conservatorship, or any other proceeding to take away from Tenant
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control over all or any substantial part of its assets is filed by or against Tenant under
any federal or state law and any such proceeding is not vacated or dismissed within
sixty days after Sublessor's notice to Tenant; or if Tenant causes or acquiesces in any
plan of arrangement, assignment, composition, or liquidation with or for the benefit of
creditors and any such plan or condition is not rescinded, released, or removed within a
period of twenty days after notice from Sublessor to Tenant.
If Tenant is in breach of its obligations under this Sublease, then or at any time
thereafter Sublessor may enter into and upon the Premises and repossess the same with
or without terminating this Sublease and without prejudice to any of its other remedies
for Rent or breach of covenant. At Sublessor's election, Sublessor may terminate this
Sublease at any time after Tenant's breach (even if Sublessor had previously elected not
to do so) by giving notice of its election to do so or, without terminating this Sublease,
Sublessor may let the Premises or any part thereof on such terms and conditions as
Sublessor determines in its absolute discretion. Such terms and conditions may include
concessions of rent and improvement of or alteration to the Premises and may be for a
rental term or terms greater or less than the balance of the Term and may be for all or
any part of the Premises and may be of space which includes all or any part of the
Premises and any other part of the Building. Whether Sublessor elects to terminate this
Sublease or elects not to do so, Sublessor has no duty to and is not required to relet or
attempt to relet the Premises or any part thereof either for Tenant's benefit or in
mitigation of Sublessor's damages for Tenant's breach. If Sublessor elects to relet with
or without terminating this Sublease, "Sublessor's costs of reletting" include without
limitation the costs of repairs, restoration, renovation, alteration, and improvement
which shall be prorated to the extent, if any, the term of the reletting exceeds what
would have been the balance of the Term, and the portion of any leasing commission
paid on account of the reletting attributable to the balance (or what would have been
the balance) of the Term and the part of the Premises relet. Tenant shall pay all of
Sublessor's costs and expenses arising in any way from or in any way related to Tenant
being in default of or in breach of any of its obligations under this Sublease, including
without limitation any related to giving of notices, to recovering possession and reentry,
to reletting, and to performing an obligation of which Tenant is in default or breach. In
the preceding sentence, "expenses" include, but are not limited to, the costs and fees of
attorneys, consultants, experts, and witnesses.
29.2 Sublessor's Election To Terminate. If Sublessor elects to terminate
this Sublease and relet, as an obligation surviving such termination Tenant shall pay on
demand to Sublessor any unpaid Rent and other amounts which have become payable
under the terms of this Sublease for the period before termination, the amount of Rent
and other sums payable under the terms of this Sublease for the period after
termination reasonably required to accomplish a reletting, the amount by which, if any,
the present value of the amount of Rent and other sums payable under the terms of this
Sublease for the balance of what the Term would have been after the reletting exceeds
the present value of the amount that Sublessor is entitled to receive under the reletting
(prorated if the reletting includes any other portion of the Building), and any other
damages suffered by Sublessor on account of Tenant's breach. Such other damages
include without limitation Sublessor's costs of recovering possession and reentry, the
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prorata portion of any leasing commission paid by Sublessor on account of this
Sublease applicable to what would have been the balance of the Term after Tenant's
breach, and Sublessor's costs of reletting. Present value shall be determined assuming
investment of funds at a rate of return equal to the interest rate on long term United
States federal government Treasury notes established at the auction thereof held
immediately before Sublessor's election to terminate.
29.3 Sublessor Does Not Elect To Terminate. If Sublessor does not
elect to terminate this Sublease, Tenant's liability to Sublessor shall include the total
Rent and other sums payable hereunder for the full Term, plus all of Sublessor's costs of
repossession and reentry and, if any, reletting, less the net proceeds of any reletting
actually paid to and received by Sublessor during the Term, prorated if the reletting
includes any other portion of the Building.
29.4 Sublessor's Right To Perform. In addition to any other rights and
remedies which Sublessor may have, if Tenant is in default or breach of any of its
obligations under this Sublease, Sublessor may, at Sublessor's election, take such action
as may be required to cure such default or breach and all costs and expenses incurred
by Sublessor on account of or arising from such failure or incident to such action shall
be reimbursed by Tenant on demand. In the preceding sentence, "expenses" has the
meaning specified in paragraph 29.1. Sublessor shall (in addition to any other right or
remedy of Sublessor provided by law) have the same rights and remedies in the event
of the nonpayment of sums due under this Section as in the case of default by Tenant in
the payment of Rent.
29.5 Provisions Related To Bankruptl;y. If a petition (in this paragraph
29.5, "the petition") is filed by or against Tenant under the federal Bankruptcy Code (in
this paragraph 29.5, "the Code") the following provisions apply:
29.5.1 Adequate protection for Tenant's obligations under this
Sublease accruing after the filing shall be provided within fifteen days after the filing in
the form of a deposit equal to the then current Base Monthly Rent for one month and
the then current monthly payment on account of estimated Operating Costs.
29. 5.2 All amounts payable by Tenant to Sublessor under this
Sublease represent reasonable compensation for Tenant's occupancy of the Premises.
29.5.3 Tenant or the trustee in bankruptcy (in this paragraph 29.5,
"the trustee") for Tenant shall give Sublessor at least thirty days prior written notice of
any abandonment of the Premises or of any proceeding relating to administrative
claims concerning the Premises or this Sublease. If Tenant or the trustee abandons
without notice, Tenant or the trustee shall stipulate to entry of an order for relief from
stay to permit Sublessor to reenter and relet the Premises.
29.5.4 If Tenant had failed to perform when due any of its
obligations under this Sublease and such failure had not been cured before the petition
was filed, then for all purposes under the Code Tenant shall be deemed to have been in
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breach of such obligations on the date the petition is filed regardless of whether
Sublessor had given notice of anyone or more of such defaults and regardless of
whether any cure period applicable to anyone or more of such defaults had expired
before such filing.
29.5.5 For the purposes of Section 365(b)(I) of the Code (as
hereafter amended or replaced), prompt cure of the defaults in Tenant's obligations
under this Sublease shall mean cure within thirty days after assumption and shall
include cure of any defaults under any other agreements between Sublessor and
Tenant.
29.5.6 For the purposes of Section 365(b)(1) of the Code (as
hereafter amended or replaced), adequate assurance of future performance of this
Sublease by Tenant, the trustee, or any proposed assignee of Tenant's rights under this
Sublease, will require that Tenant, the trustee, or the proposed assignee deposit two
months of Base Monthly Rent and the then monthly payment on account of Operating
Costs into an escrow fund (to be held by the court or an escrow agent approved by
Sublessor and the court) as security for such future performance. In addition, if
Tenant's rights under this Sublease are to be assigned, adequate assurance of future
performance by the proposed assignee shall require that: (a) the proposed assignee
have a tangible net worth of not less than $500,000 or that the proposed assignee's
performance be unconditionally guaranteed by a person or entity that has a tangible net
worth not less than such amount; and (b) the proposed assignee assume in writing all of
Tenant's obligations under this Sublease.
29.5.7 If Tenant or the trustee intends to assume and/ or to assign
Tenant's rights under this Sublease, Tenant or the trustee shall provided Sublessor with
thirty days prior written notice of the proposed action, separate from and in addition to
any notice provided to all creditors. Notice of a proposed assignment and/or
assumption shall state the assurance of prompt cure, compensation for loss, and
assurance of future performance to be provided to Sublessor. Notice of a proposed
assignment shall also state: (a) the name, address, and federal tax identification
numbers and registration numbers of the proposed assignee; (b) all of the terms and
conditions of the proposed assignment; and (c) the assignee's proposed adequate
assurance of future performance to be provided to Sublessor.
29.6 Interest. All Rent and other sums payable to Sublessor by Tenant
under this Sublease not paid when due shall bear and Tenant shall pay interest from the
date they are due until they are fully paid at the rate of 18% per year or, if applicable,
such lower rate, if any, as is the highest rate permitted by Law, taking into account all
the provisions of such Law, including but not limited to that differentiate based on the
nature of the parties and those that differentiate between transactions for personal,
family or household use and other transactions.
29.7 Rights and Remedies Cumulative. Sublessor's rights and
remedies provided in this paragraph 29 and elsewhere in this Sublease are cumulative
with and in addition to each and also to such other and further rights granted to
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Sublessor by Law. The exercise of one right or remedy shall not be deemed to be or
otherwise operate as an election that excludes Sublessor's exercise at any time of a
different or inconsistent right or remedy. Sublessor's failure at any time to exercise any
right or remedy it has under the terms of this Sublease or by law shall not be deemed to
be or otherwise operate as waiver by it of its right to exercise such right or remedy or
any other right or remedy at any other or future time, whether for the same, a similar,
or a different event or circumstance.
30. HOLDOVER. If with Sublessor's consent Tenant holds over after
expiration or termination of this Sublease, such tenancy shall be a month-to-month
tenancy which may be terminated in accordance with applicable Law and Tenant shall
pay to Sublessor the same Rent and other sums payable to Sublessor as last applicable
under this Sublease and shall otherwise be bound by all applicable provisions of this
Sublease consistent with a month-to-month tenancy including without limitation those
which survive expiration or termination; provided, however that effective on the day
after the Term expired or was otherwise terminated the Base Monthly Rent and the
Security Deposit shall each increase to two hundred percent of the Base Monthly Rent
payable on account of the last full calendar month of the Term.
31. POSSESSION. If for any reason whatsoever Sublessor is not able to
tender possession of the Premises at the time for commencement of the Term, neither
Sublessor nor its agent shall be liable for any damage caused thereby, nor shall this
Sublease thereby become void or voidable, nor shall the Term be in any way extended.
However, as Tenant's sole and exclusive rights and remedies on account thereof, Tenant
shall not be liable for any Rent until such time as Sublessor tenders possession and
Tenant may terminate this Sublease by not less than thirty days' prior notice to
Sublessor unless Sublessor tenders possession before the end of such time.
32. NOTICES. Any notice provided for in or otherwise related to this
Sublease to be given by one party to the other shall be in writing and shall be sufficient
if given either by personal delivery to or by first class, postage prepaid, United States
mail to Sublessor's Notice Address or Tenant's Notice Address, as the case may be, or to
such other single substitute address (which shall thereafter be the party's Notice
Address) as may be designated by notice to the other party or, in the case of Tenant, to
the Premises. "Notice" includes without limitation a demand or a request. Notices that
are mailed shall be deemed given on the date mailed. At the option of the sender,
mailed notices may be mailed registered or certified mail with return receipt requested.
Notice given by Sublessor to anyone or more of those jointly and severally liable on
Tenant's obligations under this Sublease shall be effective as notice given to all such
persons. Notices that are sent and received by courier or messenger service shall be
considered to have been personally delivered when received. Notices that are sent and
received in complete form by electronic facsimile devices shall be considered to have
been personally delivered when sent if the sending party receives a written send
verification on its facsimile device. The preceding sentence does not obligate any party
to accept a facsimile transmission. "Facsimile transmission" is a method of encoding a
written document into data at a transmitting station, transmitting the encoded data
electronically, and decoding the transmission to reproduce a paper copy of the
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document at the receiving station, including but not limited to any graphic material on
the original document, such as signatures, drawings, notes, photographs, and the like.
The method of electronic communication commonly known as "e-mail" is not a
facsimile transmission (even if accompanied by an attachment) and is not an acceptable
means of giving notice.
33. TENANT IMPROVEMENTS AND ACCEPTANCE. Unless expressly
provided otherwise in the Tenant Improvement Rider attached to this Sublease, if any,
Sublessor has no obligation to make or pay for any improvements to or other alterations
of or to do any other work to the Premises for Tenant's benefit at or before
commencement of the Term ("Tenant Improvements"). If Sublessor has no such
obligation, then Tenant acknowledges it has inspected the Premises and accepts them in
their current condition, as is. If a Tenant Improvement Rider is attached hereto that
includes an obligation of Sublessor to make or pay for any Tenant Improvements, then
Tenant acknowledges it has inspected the Premises and accepts them in their current
condition subject to modification substantially in accordance with Sublessor's obligation
to make or pay for one or more Tenant Improvements as provided in such Rider. NO
REPRESENTATION OR WARRANTY IS MADE BY SUBLESSOR OR BY ANY OF
ITS OFFICERS, EMPLOYEES OR AGENTS REGARDING THE CONDITION OF
THE PREMISES, THE PROPERTY, THE PARKING GARAGE, OR THE STATION
OR ANY PART OF ANY OF THE FOREGOING OR THE SUITABILITY OF ANY OF
THE FOREGOING FOR TENANT OR FOR THE PERMITTED USE.
34. BROKERS. Tenant represents to Sublessor that Tenant has not made any
agreement for payment of any commission, finder's fee, or other compensation to any
real estate broker, sales agent, leasing agent, or other third party in connection with this
Sublease and agrees to defend, indemnify, and save harmless Sublessor from and
against any such claim based on an allegation of any such agreement by Tenant. Tenant
further represents to Sublessor that Tenant has not dealt with any real estate broker,
sales agent, leasing agent, or other third party in connection with this Sublease except
Northwest Corporate Real Estate, Inc.
35. TENANT'S REPRESENTATIONS. Tenant represents and warrants to
Sublessor that: (a) Tenant is a limited liability company duly organized, existing, and
good standing under the law of the state of Washington and (b) Tenant has obtained all
licenses and other governmental permits, and has otherwise complied with all Laws, so
that it is authorized to conduct such business at the Premises. Tenant shall at all times
during the Term obtain and maintain all such licenses and other permits and otherwise
comply with all such Laws.
36. TRANSFER OF LANDLORD'S INTEREST. This Sublease shall be
assignable by Sublessor without the consent of Tenant, including but not limited to
assignment to a Master Subtenant as permitted under paragraph 27. In the event of any
transfer or transfers of Sublessor's interest in the Premises or in the event of any transfer
or transfers of Sublessor's interest in this Sublease, other than a transfer for security
purposes only, upon the assumption of Sublessor's obligations under this Sublease by
the transferee, Tenant shall attorn to the transferee and Sublessor shall be automatically
33 of 47
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relieved of obligations and liabilities accruing from and after the date of such transfer,
except for any security deposit or prepaid rent retained by Sublessor and not delivered
by it to the transferee.
37. MISCELLANEOUS.
37.1 Tenant Financial Statements. Promptly after Sublessor's request
therefor from time to time, Tenant shall provide to Sublessor copies of Tenant's most
recent financial statements and tax returns.
37.2 Light. View and Air. Tenant has not been granted an easement or
other right for, and Sublessor has not otherwise guaranteed and is not obligated to
maintain, the present status of, light, air or view to or from the Premises from any
property whatsoever, including but not limited to the Plaza or any other part of the
Station. Any diminution or shutting off of light, air or view by any structure which may
be erected anywhere (including but not limited to the Station, adjacent to the Station, or
in the vacinity of the Station) shall in no way affect this Sublease or Tenant obligations
under this Sublease or impose any liability on Sublessor. Sublessor does not guarantee
and shall not be required to maintain the present status of light, air, or view of the
Premises over any part of the Property nor the present status of light, air, or view of any
part of the Property over any property adjoining or in the vicinity of the Property.
37.3 Waiver. Sublessor's failure to insist on strict performance of any
provision of this Sublease or of Sublessor's Rules and Regulations shall not be construed
or operate as a waiver of Sublessor's right to insist on strict performance of any other
provision at all times or of strict performance of such provision in the future. Sublessor
shall not be deemed to have waived its right to strictly enforce any provision of this
Sublease or of Sublessor's rules unless such waiver is expressly contained in a writing
signed by Sublessor. Sublessor's acceptance of Rent or any installment of or on account
of Rent or any part of Rent from Tenant or its assignee or other successor after any
default by Tenant or its assignee or other successor shall not constitute a waiver of any
such default or of any other default.
37.4 Sublessor's Consent. Sublessor's consent given in anyone instance
shall not constitute consent to or dispense with the necessity of obtaining Sublessor's
consent to any other or subsequent instance whether of the same or different kind.
37.5 Attomeys Fees And Costs. If Sublessor brings any action arising
under this Sublease against Tenant or if Tenant brings any action arising under this
Sublease against Sublessor, then the other party shall pay the reasonable attorney's fees
and costs and all other expenses incurred by the prevailing party in connection with
such action, including, without being limited to, the costs and fees of consultants,
experts, and witnesses. U Action" includes arbitration, if arbitration is required by law
or agreed by the parties, and appeals.
37.6 Joint And Several Liability. If Tenant is a partnership or joint
venture or if Tenant is more than one person, then all the general partners, joint
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venturers, or persons (in this paragraph called "such persons") shall be jointly and
severally liable for the payment and performance when due of all Tenant's obligations
under this Sublease and the agreement or other act or omission of anyone or more but
less than all of such persons is the act of the Tenant and is binding upon all of such
persons accordingly regardless of whether the other such persons authorized,
consented to or ratified such agreement or other act or omission and regardless of
whether the other such persons have specifically refused or withheld such authority or
consent. In addition, notice to or demand on anyone or more but less than all of such
persons shall be considered the same as notice to or demand upon all such persons.
37.7 Costs Incurred at Tenant's Expense. If the Tenant is obligated to
perform some act and fails to so perform or fails to perform in a timely manner, as an
alternative to default, the Sublessor, at its sole discretion, has the right to perform such
act, the costs and expenses for which shall be paid by the Tenant. Additionally, if the
Tenant is desirous certain work be performed by the Sublessor, for Tenant's benefit, and
the Sublessor, with the Tenant's prior written approval agrees to perform such work,
the costs and expenses of such work shall be paid by the Tenant.
37.7.1 Tenant shall be obligated to reimburse to Sublessor all of
Sublessor's costs and expenses of doing the act within fifteen days after receipt of
Sublessor's invoice therefor; and
37.7.2 At any time and from time to time Sublessor may (a) require
Tenant to deposit with Sublessor in cash the amount estimated by Sublessor to be
required to pay the costs and expenses of such act or, if applicable, to pay the costs of
completing such act and/or (b) Sublessor may require Tenant to provide security for or
other assurance of payment when due, all in form and substance satisfactory to
Sublessor in its absolute discretion. If Sublessor makes such any election under subpart
(b) of the preceding sentence, then without liability to Tenant Sublessor may delay
commencement of the act or suspend further performance of the act until Tenant makes
such deposit and/or provides such security or assurance.
37.8 Tenant's Expenses. Where under the provisions of this Sublease
Tenant is required to perform, or given an election to perform, an act at its expense,
Tenant shall pay when due all of the costs and expenses of such act. For the purposes of
the preceding sentence, if some part or parts of the total cost and expense of the act is or
are due at different times than others, then Tenant shall pay each part when it is due.
37.9 Heirs and Assigns. This Sublease shall apply to and be binding
upon Sublessor and Tenant and their respective heirs, executors, administrators,
successors and assigns.
37.10 Governing Law. This Sublease shall be governed by and construed
and enforced according to the Laws of the State of Washington.
37.11 Memorandum of Sublease. This Sublease shall not be recorded.
However, Sublessor and Tenant shall, promptly after the other's request, execute and
35 of 47
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record a memorandum of Sublease in recordable form that identifies Sublessor and
Tenant, the Commencement Date, the Term (including any options to extend) and a
description of the Premises.
37.12 Submission of Sublease Form Not an Offer. One party's
submission of this Sublease to the other for review shall not constitute an offer to lease
the Premises. This Sublease shall not become effective and binding upon Sublessor and
Tenant until it has been fully signed by both Sublessor and Tenant.
37.13 Authoritv of Parties. Any individual signing this Sublease on
behalf of an entity represents and warrants to the other that such individual has
authority to do so and, upon such individual's execution, that this Sublease shall be
binding upon and enforceable against the party on behalf of whom such individual is
signing.
38. ENTIRE AGREEMENT. This Sublease, including the Exhibits and Riders
attached hereto, constitutes the entire agreement between the parties concerning the
subject matter hereof and supercedes and replaces all contemporaneous and prior
negotiations, representations, understandings and agreements related thereto,
including but not limited to any proposals, offers, and letters of intent. Capitalized
terms that are used in the Exhibits and Riders attached hereto have the same meaning
as given to such terms in this Sublease. The following Exhibits and Riders are attached
hereto:
38.1 Exhibits:
Exhibit A Floor Plan Outline of the Premises
Exhibit B Legal Description
Exhibit C Site Plan of Auburn Transit Center
Exhibit D Rules and Regulations
Exhibit E Master Sublease
38.2. Riders: (List those attached; if none, so state):
Rent Rider
Option to Extend Rider
Non-Compete Rider
Tenant Improvement Rider
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BY THEIR SIGNATURES BELOW, OWNER AND TENANT AGREE
TO THE TERMS AND CONDITIONS HEREIN AND CERTIFY THE
PROVISIONS OF PARAGRAPH 25.2 WERE MUTUALLY
NEGOTIATED.
IN WITNESS WHEREOF this Sublease has been executed the date and year first
above written.
TENANT: SUBLESSOR:
i=\"<l ~\aY\~~' ~ LLC,
-
BY:~ L - ft~
Print ame: c:.. :t:?"~E;Y
Its """...."'.."'"...
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By: Attl~~
Print Name: Danie Daskam
Its City Clerk
HG/bv I sublease.cityolauburn.angelaney'slnc
37 of 47
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-
STATEOFWASHINGTON )
) ss.
COUNTY OF K ~ &- )
I certify that I know or have satisfactory evidence that Kc:..\,J ~ 10 LqV'.'f-2 is
the p'erson who appeared before me and said person acknowledge that
____H~_____________ signed this instrument, on oath stated that
I+~ was authorized to execute the instrument and acknowledged it
as the V'v\Q.l\. C(,.C..~i of A.r...~e.(c." ~\'~ LLL to be the free and voluntary act
of such party for the uses and purposes mentioned in the instrument.
'''''\~
DATED: '\CI.~f.~U, I, a,o::\ .
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~ "',~ )lU~\,;o'!>j c; Printed Name: ~t'; "''''' .;:, "'VI' ~
\, ;;""~,~~?:"..~~~.! NOTARY PUBLIC in and for the State
of 1,,\ "rEOf'" ,,-- Washington, residing at Dc& ~~~
\\'1\\".............
My Commission expires: 8'- 7 _r:::- -{) ~
STATE OF WASHINGTON )
. ) ss.
COUNTY OF ~ ) ,
I certify that I know or have satisfactory evidence that Qdb, B .~iS
the ~~hO appeared before me and said person acknowledged that
----- ----------- signed this instrument, on oath stated that
- was auth(\i~ t~, the instrument and acknowledged it
as the "'--'\^" - of JWu.-to be the free and voluntary act
of such party f~ uses and purpose~ ioned in the instrument.
DATED:~"'\t:1hJ~ \1 , ~~. ,
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..:--~\CHARD;II\
;- ~:"'~O;iEX;';'.?1-\ Printed N e: ~, V\-..
~.:>.. .'","" 'o?'. I
~ ~:'~ O~p..p.y 't>\ ~ NOTARY PUBLIC in anor ~e State
of ~ <3:~ ~ ........,0 'f: ~ Washington, residing at H 1I~_
I :0 pU~" : ;
\ ....... 1_(Y~t:':..~ J My Commission expires: ~
II 6')) .......... '2>~-
1111:<J1l; OF\f'It::_:
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38 of 47
STATE OF WASHINGTON )
) ss.
COUNTY OF )
I certify that I know or have satisfactory evidence that is
the person who appeared before me and said person acknowledged that
-------------------- signed this instrument, on oath stated that
was authorized to execute the instrument and acknowledged it
as the of to be the free and voluntary act
of such party for the uses and purposes mentioned in the instrument.
DATED: ,
Printed Name:
NOTARY PUBLIC in and for the State
of Washington, residing at
My Commission expires:
STATE OF WASHINGTON )
) ss.
COUNTY OF )
I certify that I know or have satisfactory evidence that is
the person who appeared before me and said person acknowledged that
-------------------- signed this instrument, on oath stated that
was authorized to execute the instrument and acknowledged it
as the of to be the free and voluntary act
of such party for the uses and purposes mentioned in the instrument.
DATED:
Printed Name:
NOTARY PUBLIC in and for the State
of Washington, residing at
My Commission expires:
39 of 47
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EXHIBIT A
Outline of the Premises
40 of 47
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ANGELANEY'S ESSENTIAL BLEND LEASE PLAN
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EXHIBIT B
Legal Description
That certain parcel of land situated in the City of Auburn, County of King, State of
Washington, being all of Block 4 of the Town of Slaughter as shown on a plat thereof
recorded in Volume 2 of Plats, at Page 56, records of said county, and that portion of the
street vacated by Ordinance Nos. 481, 483 and 493 of said city, described as a whole as
follows:
BEGINNING at the northeast corner of said Block 4, said corner being the intersection
of the southerly margin of First Street SW (60.00 feet wide) with the westerly margin of
"A" Street SW (60.00 feet wide); thence along the northerly line of said block and said
southerly margin of First Street SW, and its westerly extension, North 89005'36" West
234.84 feet to the easterly line of The Burlington Northern and Santa Fe Railway
Company Right-of-Way; thence along said easterly line, South 00040'12" West 96.19 feet
to the beginning of a tangent curve concave easterly and having a radius of 17138.74
feet; thence continuing along said easterly line and along said curve southerly 164.42
feet through a central angle of 00032'59" to the westerly extension of the northerly
margin of Second Street SW (60.00 feet wide); thence along said westerly extension and
the southerly line of said block, South 89005'36" East 232.85 feet to the southeast corner
of said block and said westerly margin of "A" Street SW; thence along the easterly line
of said block and said westerly margin, North 00056'04" East 260.60 feet to the POINT
OF BEGINNING.
NOTE: THE FOREGOING LEGAL DESCRIPTION INCLUDES (a) ALL
THE REAL PROPERTY ON WHICH ALL THE PARKING GARAGE
AND SOME OF THE PLAZA ARE LOCATED. (b) SOME REAL
PROPERTY WHICH IS PART OF THE STATION BUT ON WHICH NO
PART OF THE PARKING GARAGE OR THE PLAZA IS LOCATED
BUT (e) DOES NOT INCLUDE ALL OF THE REAL PROPERTY ON
WHICH THE PLAZA IS LOCATED. WHEN AN ACCURATE LEGAL
DESCRIPTION OF THE REAL PROPERTY ON WHICH ONLY THE
PARKING GARAGE AND THE PLAZA ARE LOCATED A NEW
EXHIBIT B CO NT AINING SUCH DESCRIPTION SHALL BE
SUBSTITUTED FOR THE FOREGOING LEGAL DESCRIPTION.
410f47
-.....---.---- -- ~~_..
EXHIBIT C
Site Plan of Auburn Transit Station
42 of 47
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EXHIBIT 0
Rules and Regulations
for the Commercial Tenant Area
at the Parking Garage of the Auburn Transit Station
1. Smoking of tobacco or any other substance and use of any tobacco
product anywhere inside any part of the Parking Garage is prohibited.
2. Tenant shall not make or permit to be made any duplicate keys, key
cards or other operating devices for any lock or other security device provided
by Sublessor or by Sound Transit in the Premises or the Parking Garage. If more
than one key, key card or operating device for any such lock or other security
device is desired, subject to Sublessor's prior consent concerning the number,
such additional keys or operating devices shall be provided by Sublessor at
Tenant's expense.
3. Furniture, freight, supplies, equipment, and other property of any
kind which are not carried by hand by one person shall be brought into, moved
about in, and removed from the Property only at the times and in the manner
reasonably permitted by Sublessor. Any such property which is not carried by
hand shall be moved using hand trucks equipped with rubber tires and rubber
side guards and Sublessor may also require use of protective covering for
carpets, tile, and other floor coverings. All damage done to any part of the
Station by Tenant, its employees, agents, suppliers, or furniture and equipment
movers in bringing into, moving about in, or removing from the Property any
personal property shall be repaired by Sublessor at Tenant's expense.
4. Tenant shall not and shall not permit any of its employees, agents,
invitees, customers, licensees, permittees or contractors to obstruct any of the
driveways, entryways, or corridors of the Parking Garage and Tenant shall not
use any of such facilities for any purpose except ingress or egress to and from the
Premises. Tenant shall not bring into or keep within any part of the Premises
any animal, bird, bicycle, or other type of vehicle and shall not permit any of its
employees, agents, invitees, customers, licensees, permittees or contractors to do
so. The preceding sentence does not apply to animals trained to assist and
actually assisting persons with a disability.
5. Tenant shall not use or permit to be used in the Premises or Parking
Garage or about the Station anything that is dangerous to life or limb; nor in any
manner deface or injure any part of the Property or the Station; nor overload any
floor or other part thereof; nor permit any noise or odor to escape or be emitted
from the Premises.
6. Tenant shall insure that all water faucets or water apparatus and
electrically powered devices (except security devices) are turned off when Tenant
43 of 47
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or its employees leave the Premises, so as to prevent waste or damage. Tenant
shall be responsible for any damage to any part of the Property and any contents
therein and for all damage or injuries sustained by other persons in or about the
Property or the Station arising from Tenant's failure to observe this provision.
7. Tenant, its employees, agents, invitees, customers, licensees,
permittees and contractors shall obey all traffic and parking regulations and
restrictions posted by Sublessor or by Sound Transit in the Parking Garage and
anywhere else in the Station.
8. The toilets, urinals, sinks, and other apparatus in the restrooms and
elsewhere in the Parking Garage shall not be used for any purpose other than for
which they were constructed and no foreign substance of any kind whatsoever
shall be thrown or disposed of therein. Without limiting the generality of the
preceding, no feminine sanitary devices, cigar or cigarette butts, coffee grounds
or other kitchen waste, or any paper goods except toilet paper shall be disposed
of in or flushed down any urinal or toilet. Tenant shall pay all expenses of
correcting or repairing any breakage, stoppage, or damage resulting from
violation of this provision by Tenant or any of its employees, agents, invitees,
customers, licensees, permittees or contractors.
9. Except as provided in this paragraph, Tenant shall place all its
refuse, garbage, and other material Tenant desires to discard shall be placed in
the dumpster or dumpsters provided by Sublessor for the Property. If at any
time Tenant has material to be discarded that is not normal (in size, type,
volume, or otherwise) to day-to-day operation of its business in the Premises,
Tenant shall immediately notify Sublessor. In such cases, Sublessor shall have
the right, at its election, to require Tenant either to immediately and at Tenant's
expense remove such discards from the Property and the Station. Except with
Sublessor's prior consent, Tenant shall not place any material to be discarded
next to Sublessor's dumpsters or anywhere else in or about the Property except
in wastebaskets in the Premises. Tenant shall not, and shall not permit any of its
employees, agents, visitors, or contractors to, attempt to discard any refuse,
garbage, or other material through refuse removal furnished by Sublessor at the
Property except that which is generated by Tenant at the Premises in the
ordinary course of Tenant's use thereof. However, Tenant shall not, and shall not
permit any of its employees, agents, visitors, or contractors to, attempt to dispose
of any hazardous, toxic, or dangerous substance or waste through refuse removal
furnished by Sublessor.
10. Tenant shall not use or keep or permit to be used or kept in or
about the Premises, the Parking Garage, the Property or the Station any
kerosene, gasoline, or other inflammable or combustible fluid or material, or use
any method of heating or air-conditioning other than that furnished by
Sublessor.
11. Sublessor will direct electricians and other installers as to where
and how wires, cable, and conduit for electric service, telephone service, and
other communications services (including but not limited to audio, video,
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electronic, and Internet communications) and any pipes for water, sewer or gas
are to be introduced to the Premises, the Parking Garage and the Property.
Tenant shall not do or permit any boring or cutting for wires, cable, conduit, or
pipes without Sublessor's prior written consent. The location and manner of
affixation of outlets, jacks, and other connections for telephone, call boxes, and
other electric, electronic, communications, data processing, and office equipment
affixed to any part of the Premises or the Parking Garage Building shall be
subject to Sublessor's prior approval. Without Sublessor's prior consent, Tenant
shall not install anywhere in or about the Premises or the Parking Garage any
antenna, receiving dish, transmitter, or other device for transmission or reception
of any form of wireless communication.
12. Without Sublessor's prior written consent, Tenant shall not lay or
permit to be laid any linoleum, tile, carpet, or other floor covering so that the
same is affixed in any manner to the floor or subfloor of the Premises. Tenant
shall pay Sublessor's expenses of repairing any damage resulting from a
violation of this rule and of removing and replacing any floor covering laid by
Tenant.
13. In case of mob, riot, public excitement, other commotion or
disorder, or other emergency, Sublessor has the right, but not the obligation, to
attempt to prevent access to the Property during the continuance of the same by
locking the doors or otherwise.
14. Without Sublessor's prior written consent, no vending machine or
any other machine activated by insertion of coins, other money, or credit or other
access cards or devices bearing any coding device shall be place, maintained, or
operated anywhere in the Parking Garage.
15. Tenant shall not and shall not permit any of its employees, agents,
visitors, or contractors to cook or otherwise prepare any food in the Premises.
This rule does not prohibit the use of coffeemakers or similar appliances to
prepare coffee or hot water for tea or the use of microwave ovens to heat
previously prepared food. This rule also does not apply where the Permitted
Use includes preparation of food for consumption on or off the Premises by
Tenant's customers.
16. Sublessor has the right but not the obligation to exclude or expel
from the Property any person who is intoxicated or under the influence of any
alcoholic beverage or any drug, who is abusive to, threatening, harassing,
annoying, or otherwise disturbing any other person in or about the Property, or
who is violating any of these Rules. Tenant shall not permit any such person
who is one of Tenant's employees, agents, invitees, customers, licensees,
permittees or contractors to be or to remain in or about the Property.
17. From time to time in its discretion Sublessor may amend, add to,
delete from, or otherwise change these Rules provided that any such change
shall not be inconsistent with Tenant's rights under its sublease. Each such
45 of 47
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change shall be effective when made in writing and notice thereof given to
Tenant in the manner specified in Tenant's sublease for the giving of notice.
18. Capitalized terms used in these Rules that are defined in Tenant's
sublease have the same meaning as provided in such sublease. Wherever in
these rules Sublessor's consent or approval is required, Sublessor may in its
discretion refuse or condition such consent or approval.
46 of 47
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Exhibit E
Master Lease
47 of 47
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RESOLUTION NO. 3469
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
COUNCIL OF AUBURN, WASHINGTON, AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE A LEASE
AGREEMENT BETWEEN THE CITY OF AUBURN AND THE
CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY
(SOUND TRANSIT).
WHEREAS, the City of Auburn and the Central Puget Sound Regional
Transit Authority (Sound Transit) have been working cooperatively on the
development in utilization of the Sound Transit - Auburn Station, including
parking garage, plaza and retail spaces; and
WHEREAS, corollary to the Station activities, the City and Sound Transit
have cooperated in the construction of the Auburn Station and Sound Transit
has, on behalf of the City, constructed certain retail spaces available within the
City and over which the City has operational and management responsibilities;
and
WHEREAS, in order to manage and coordinate this retail space, in
cooperation with Sound Transit, the City and Sound Transit have negotiated a
lease acceptable to both parties; and
WHEREAS. it is also appropriate for the lease to address on-going
maintenance and operation responsibilities and relationships between the
City and Sound Transit for the retail space, as a master lease,
accommodating the individual leases into which the City of Auburn would
enter with subtenants; and
-
Resolution No. 3469
May 14, 2002
Page 1 013
- ,-.----"" ------_._._~--
WHEREAS, the City Council has heretofor authorized the leasing
arrangements in concept and has allocated resources in support thereof, with
its adoption of Resolution 3278, passed on November 6, 2000; and
WHEREAS, the City also is envisioned to have responsibility for 180
parking spaces in the Sound Transit - Auburn Station, which can be used for
retail parking in the downtown area.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON. HEREBY RESOLVES as follows:
Section 1. The City Council approves the the lease In substantially
the form as set for in Exhibit "A" between the Central Puget Sound Regional
Transit Authority (Sound Transit) as landlord and the City of Aubum, as tenant,
a copy of which is attached hereto, marked as Exhibit "A" and Incorporated
herein by this reference.
Section 2. That the Mayor and City Clerk are authorized to execute
the lease In substantially the form as set forth in Exhibit "A", and the Mayor is
further authorized to take such other and further actions as are necessary and
convenient for the management space over which the City has responsibility,
including executing sub-leases with merchants, and managing the 180 parking
spaces In accordance with the City's parking plan.
Section 3. That this resolution shall be in full force and affect upon
passage and signatures hereon.
DATED and SIGNED this z.o~y of May, 2002.
Resolution No. 3469
May 14, 2002
Page2of3
""- ._~..,.. ______.___n__.__.____._._
F:9.f AUBU/ j
J~._~.~
PE ER B. LEWIS
MAYOR
ATTEST:
~~OJC~
Damelle E. Daskam,
City Clerk
Resolution No. 3469
May 14, 2002
Page 3 of 3
,'- ... ~."- -------
LEASE
BETWEEN:
CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY
"So.und Transit"
as Landlo.rd
AND
CITY OF AUBURN
"City"
as Tenant
Date of Lease
June 26, 2002
267R6~ 11 06126102
- -- ------
LEASE
Table of Contents
Page
ARTICLE 1: BASIC TERMS ..................................................................................................2
1.1 Definitions........................................................................................................... .2
(a) City......................... ...................................................................... ...... ...... ....2
(b) City's Parking Spaces ...................................................................................2
(c) Commercial Tenant Area .............................................................................2
(d) Common Areas. ........................................... .............................................. ...2
(e) Kiss and Ride Spaces ...................................................................................3
(f) Leased Premises .................................. .........................................................3
(g) Other Parking Spaces ...................................................................................3
(h) Operating Procedures ...................................................................................3
(i) Parking Garage .......... ............. .................................... ...................... ............3
(j) Plaza ...................................... ........ ................ ..... ... ..... ..... ..... ........................3
(k) Plaza Tenant Area ........................................................................................3
(I) Sound Transit............... ............................................................. ...... .............3
(m) Station..................... ....... .................. ........................................... .... ..............3
(n) Term ........................... ..................................................................... ..... ........3
1.2 Date of Lease.................. ............................................ .................................. .......3
1.3 Landlord .... ................. .................................... .,. ......." '........,"........................ ......4
1.4 Tenant................. ... ... .................................. .........................................................4
1.5 Leased Premises...................................."........""........,........................................4
1.6 Lease Term. ... ..................... .......... ....................... ................... .... ..........................4
1.7 Permitted Uses ............................ ......... ........................................... .......... ...........4
1.8 Charges Payable by City ......................................................................................4
ARTICLE 2: LEASE, LEASE TERM AND CITY PAYMENTS ...........................................4
2.1 Lease of Property for Initial Lease Term.............................................................4
2.2 City's Options to Extend ......................................................................................5
2.3 Sound Transit's Work.................... .................................................. .....................5
2.4 Delivery; Early Occupancy; Delay in Commencement.......................................5
2.5 City's Additional Rights............. ............................................................ ..............6
(a) Common Areas............. ........................................................................ ........6
(b) Kiss and Ride Spaces ...................................................................................6
(c) Other Parking Spaces ...................................................................................6
(d) Special Events ..............................................................................................6
(e) Elevator Lobby ............................................................................................. 7
(f) Sidewalk Vendors and Kiosks......................................................................8
(g) Plaza Tenant Area .................................,......................................................8
(h) Vertical Shafts and 'RoofTop' Equipment and Devices ..............................8
2.6 City's Option To Purchase ...................................................................................9
(a) Preliminary Notices................. .............. ...................... .................................9
(b) Determination of Price .................................................................................1 0
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(c) Notice of Exercise ........................................................................................11
(d) Closing...................................... ............. .................................... ...................11
(d) Sound Transit's Option .................................................................................13
2.7 Termination; Advance Payments,.. "".."............................ ................................. .14
ARTICLE 3: CHARGES PAYABLE BY CITY............"........................................................l4
3.1 Utilities................................... .................... '" ... ............................ ..... ............. ..... .14
3.2 Parking Garage Operations ..................................................................................15
(a) Sound Transit's Obligations .........................................................................15
(b) Costs of Operations ......................................................................................15
3.3 Insurance Policies ....................................... ................................... ..................... .15
(a) Liability Insurance.......................... ............... .............................................. .16
(b) Sound Transit's Property Insurance..............................................................16
(c) Other Insurance ............................................................................................16
(d) Payment of Premiums ..................................................................................16
(e) Evidence of Insurance ..................................................................................17
(f) General Insurance Provisions .......................................................................17
3.4 Self-Insurance......... ................................. ......................................... ................. ..18
3.5 Leasehold Excise Tax ..........................................................................................18
ARTICLE 4: USE OF LEASED PREMISES ..........................................................................18
4.1 Permitted Uses .....................................................................................................] 8
(a) City's Parking Spaces and Other Parking Spaces.........................................18
(b) Commercial Tenant Area .................................................................;...........18
4.2 Manner of Use. .......... ........................... ............................................................... .18
(a) General .........................................................................................................18
(b) Prohibited Uses..................... ..................... ................................. ........ ...... ...,19
(c) Rules....... .................................. ................,.................................................. .19
4.3 Hazardous Materials ................ .................................................................... ........19
4.4 Signs.... ............................... .................................... ....... ...................................... .19
(a) Permanent Signs ...........................................................................................20
(b) Special Event Temporary Signs ...................................................................20
4.5 Indemnity.. .................................... ............... ................................................ ........20
4.6 Sound Transit's Access......... .............................................................................. .20
4.7 Quiet Possession............ .......................................... ........................................... .21
ARTICLE 5: CONDITION OF LEASED PREMISES; MAINTENANCE,
REPAIRS AND ALTERATIONS ....................................................................21
5.1 Condition and Suitability of Leased Premises .....................................................21
5.2 Exemption of Sound Transit from Liability.........................................................21
5.3 Sound Transit's Obligations to Repair .................................................................21
5.4 City's Obligations................ ............ ......................... .... ..... .......... ..... ....................22
5.5 Alterations, Additions and Improvements ...........................................................22
5.6 Condition Upon Termination. ............................................................................ ..22
ARTICLE 6: DAMAGE OR DESTRUCTION........................................................................23
6.1 Partial Damage to Parking Garage.......................................................................23
6.2 Substantial or Total Destruction ..........................................................................23
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6.3 Abatement of Certain Charges; Setoff of Certain Expenses................................23
6.4 Exceptions................. ..................................................................................... ......24
ARTICLE 7: CONDEMNA TION ......................,."...."............................................................24
7.1 Permanent Taking ................................ .................................... .......................... ..24
(a) General Provisions .......................................................................................24
(b) Allocation of Award,....................................................................................25
7.2 Abatement and Adjustment of Charges Payable by City.....................................25
7.3 Temporary Taking.. ...............................................,..................................... ........25
ARTICLE 8: ASSIGNMENT AND SUBLETTING ...............................................................26
8.1 Subletting.... ....................................... ................................................................ ..26
8.2 Assignment ....................................... ........................."'.........,, ......... .... ............. ..26
8.3 Release of City......................... ................................................. ......................... ..26
8.4 Requesting Sound Transit's Consent....................................................................26
8.5 Sound Transit's Right to Information...................................................................27
ARTICLE 9: BREACH AND REMEDIES..............................................................................27
9.1 Time is of the Essence .........................................................................................27
9.2 Default and Breach Defined.................................................................................27
9.3 Sound Transit's Remedies for City's Breach...........................,............................27
(a) General Provisions .......................................................................................27
(b) Termination .................. ................................,........................................ .......28
(c) Remedies Cwnulative....................................... ..... ................................. ......28
(d) Emergencies..... .................................., ........................................................ .28
9.4 City's Remedies for Sound Transit's Breach........................................................28
(a) General Provisions.............. ........................................................... ..............28
(b) Emergencies ................... ..................................................................... .........29
9.5 Interest................................................................................................................. .29
9.6 Attorneys' Fees and Costs ....................................................................................29
9.7 Dispute Resolution..................... ....... .......................................... .........................30
(a) Negotiation ...................... .................................................................. ...........30
(b) Mediation......................................................................................................30
ARTICLE 10: MISCELLANEOUS PROVISIONS.................................................................30
10.1 Non-Discrimination ..................."..................... .....................' ............................ .30
10.2 Interpretation........................................................................................................ 30
10.3 Notices....... .................................. ............................................................ ..... .......30
10.4 Recording .....................,..... ............................................................................. .....31
10.5 Binding Effect; Governing Law.....,......................................,..............................31
10.6 Force Majeure ......................................................................................................31
10.7 Authorized Persons ..............................................................................................31
10.8 Survival.................................... ............................................................... .............32
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2671111~ 11 06126/{)2
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LIST OF EXHIBITS
Exhibit 1.1 (b) Commercial Tenant Area and City's Parking Spaces
Exhibit 1.1(e) Station, Parking Garage, Plaza, Plaza Tenant Area and Kiss and Ride
Spaces
Exhibit 1.1(f) Legal Description of Parking Garage and Plaza Property
Exhibit 1.1 (i) Parking Garage Operating Procedures
Exhibit 2.3 Plans and Specifications for Sound Transit's Work
Exhibit 2.5(c) Holidays
Exhibit 3.2(b) Parking Garage Operating Costs
Exhibit 4.2( c) Station Rules and Regulations
Exhibit 4.4(d) Exterior Wall Sign Criteria
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RECITALS
A. CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY ("Sound
Transit") is a regional transit authority organized and existing under Chapters 81.104 and 81.112
of the laws of the State of Washington.
B. CITY OF AUBURN ("City") is a Washington municipal corporation and, in
connection with this Lease, is acting in its proprietary capacity.
C. King County ("King County") is a Washington municipal corporation.
D. King County operates a mass public transit system in King County, Washington
consisting primarily of buses. Sound Transit operates a high capacity public transit system in
Pierce, King, and Snohomish counties of the State of Washington consisting of buses and
commuter rail and intended to include light rail.
E. In 1999, Sound Transit, King County, and City made that Agreement Between
King County, City Of Auburn, And Central Puget Sound Regional Transit Authority For The
Planning, Design And Construction Of The Auburn Multimodal Transit Facility ("the
Agreement").
F. Pursuant to the Agreement, Sound Transit, King County, and City agreed to
jointly design, provide for the construction, and share the costs of development of a facility in the
downtown part of City to provide the public with facilities for access to and use of the public
transit facilities of Sound Transit and King County ("Station"). City's participation in such
development is intended in major part to further City's goal of rehabilitating its downtown by
acquiring parking spaces and developing space capable of being used for transit oriented retail,
office and dining use.
G. Sound Transit has acquired title or long tenn lease rights to the land on which the
Station is located and has constructed the Station, including a parking garage ("Parking Garage")
consisting of 6 floors with 562 parking spaces, 9 of which are designated as disabled parking
spaces. The ground floor of the parking garage has approximately 14,000 gross square feet of
space suitable for use by retail tenants ("Commercial Tenant Area"). Sound Transit has
constructed the Commercial Tenant Area as a "shell" with concrete floor and back wall but no
interior walls.
H. Pursuant to the Agreement, City contributed to the costs of development of the
Station by making $2,100,000 in improvements to streets in the vicinity of the Station. These
improvements were made to mitigate traffic impacts the Station will have and are properly
considered costs of development of the Station. Pursuant to the Agreement, City contributed
from Transportation Improvement Board and federal grants, an additional $1,802,323 toward the
costs of development of the Station, consisting of $400,000 for planning and approximately
$1,402,323 toward the costs of construction of a pedestrian bridge. The Agreement provided that
in exchange for these contributions, City would be entitled to lease the Commercial Tenant Area
and have exclusive use of 45 ofthe parking spaces in the Parking Garage.
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267165.11 06/26/02
- --_.".,---_.~ ----------------..--
I. City has agreed to contribute an additional $2,106,196 to the costs of construction
of the Parking Garage for a total contribution by City of $6,008,519 to costs of dcvclopment of
the Station. In exchange for this additional contribution, Sound Transit has agreed that City
would have (i) the exclusive use of an additional 135 of the parking spaces in the Parking
Garage, (ii) exclusive use of all other parking spaces in the Parking Garage during off-peak
hours, and (iii) other rights as set forth in Section 2.5 ofthis Lease.
1. By its Motion 2001-84 Sound Transit's Board of Directors authorized entry into
this Lease.
K. By its Resolution No 3278, City authorized entry into this Leasc.
THEREFORE, for and in consideration of City's improvements and payments described
in Recital H, City's agreement to make the payments described in Recital H as provided in
Sections 2.3, and City's agreement to make the payments described in Article 3 and Section 5.4,
City's other covenants contained herein, and other good and valuable consideration, the receipt
and sufficiency of which Sound Transit acknowledges, City and Sound Transit make the
following Lease:
ARTICLE I: BASIC TERMS
This Article 1 contains the Basic Terms of this Lease between the Sound Transit and
City. Other Articles and Sections of the Lease referred to in this Article I explain and define the
Basic Terms and are to be read in conjunction with the Basic Terms.
1.1 Def'mitions: In this Lease, the terms defined in this Section 1.1 have the meanings
specified below unless thc context clearly requires otherwise. Other terms are defined in other
Sections of this Lease.
(a) City. "City" is defined in Section 1.4.
(b) City's Parking Spaces. "City's Parking Spaccs" means the 180 parking
spaces that are outlined on the drawings of the ground through the sixth floors of the Parking
Garage attached hereto as Exhibit 1.1(b).
(c) Commercial Tenant Area. "Commercial Tenant Area" means that part of
the intcrior of the ground floor of the Parking Garage that is outlined and labeled as the
Commercial Tenant Area on the drawing of the ground floor of the Parking Garage that is
attached hereto as part of Exhibit 1.1{b).
(d) Common Areas. "Common Areas" means (i) the driving lanes of the
Parking Garage, (ii) the stairways and elevators of the Parking Garage, (iii) the elevator lobby,
the restrooms on the service corridor and accessible from the elevator lobby of the Parking
Garage, (iv) the trash area, truck delivery zone, vault room of the Parking Garage and (v) the
Plaza (defined below) except that during the term of any sublease thereof by City those parts of
the Plaza Tenant Area (defined below) subleased by City as permitted by this Lease shall not be
part of the Common Areas.
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267165.11 W26102
- ~,---
(e) Kiss and Ride Spaces. "Kiss and Ride Spaces" means those surface
spaces for motor vehicles at the Station north of the Plaza General Area that are outlined and
labeled as the Kiss and Ride Spaces on the copy of the site plan of the Station that is attached
hereto as Exhibit l.1(e).
(f) Leased Premises. "Leased Premises" is defined in Section 1.5. The legal
description of the Parking Garage and Plaza Property (as defined in Section 2.6) of which the
Leased Premises is a part is as set forth in Exhibit 1.1 (f) attached hereto.
(g) Other Parking Spaces. "Other Parking Spaces" is defined m
Section 2.6(b).
(h) Operating Procedures. "Operating Procedures" means the procedures,
rules and regulations for use of the Parking Garage attached as Exhibit I.I(i), and as they may
be changed from time to time by Sound Transit acting in its reasonable discretion after
consultation with City. Each such change shall be effective fifteen (15) days after the changed
Operating Procedures are received in writing by City. No such change shall unreasonably
interfere with City's use of City's Parking Spaces or, as permitted under this Lease, the Other
Parking Spaces.
(i) Parking Garage. "Parking Garage" means the parking garage at the
Station depicted on the copy of the site plan of the Station attached hereto as Exhibit l.l(e), and
includes, but is not limited to, the Leased Premises.
CD Plaza. "Plaza" means that part of the Station that is north of the Parking
Garage and is outlined and labeled as the Plaza on the copy of the site plan of the Station that is
attached hereto as Exhibit 1.I(e).
(k) Plaza Tenant Area. "Plaza Tenant Area" means that part of the Plaza
bounded by the north exterior wall of the Parking Garage, lines extended from and parallel with
thc east and west exterior walls of the Parking Garage, and a line thirty feet north of and parallel
to the north exterior wall of the Parking Garage and is outlined and labeled as the Plaza Tenant
Area on the copy of the site plan of the Station that is attached hereto as Exhibit I.1(e).
(1) Sound Transit. "Sound Transit" is defined in Recital A and Section 1.3.
(m) Station. "Station" is defined in Recital F, is depicted in the drawing
attached hereto as Exhibit I.I(e) and includes all improvements that are a part of the Station,
including hut not limited to the Leased Premises, the Parking Garage, the Plaza, platforms,
surface parking and loading areas, and roads.
(n) Term. "Initial Term," "Extended Term, "Term" and similar phrases are all
defmed in Section 1.6.
1.2 Date of Lease: June 26, 2002.
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267865,11 0612610'
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1.3 Landlord: CENTRAL PUGET SOUND REGIONAL TRANSIT
AUTHORITY, a regional transit authority organized under the laws of the State of Washington
("Sound Transit").
Address of Sound Transit: 401 South Jackson Street, Seattle, WA 98104-2826, which
shall be Sound Transit's address for notice purposes under Section 10.3 unless and until changed
according to the provisions of that Section.
1.4 Tenant: CITY OF AUBURN, a Washington municipal corporation ("City")
Address of City: 25 West Main Street, Auburn, WA 98001-4998, which shall be City's
address for noticc purposes under Section 10.3 unless and until changed according to the
provisions ofthat Section.
1.5 Leased Premises: "Leased Premises" means the Commercial Tenant Area, the
City's Parking Spaces, and during the term of any sublease thereof by City those parts of the
Plaza Tenant Area subleased by City as permitted by this Lease.
1.6 Lease Term: The "Initial Term" of this Lease is as provided in Section 2.1. City
shall have the option to extend the term of this Lease as set forth in Section 2.2 and "Extended
Term" means the term of this Lease as so extended from time to time, if and to the extent City
exercises one or more of such options. In this Lease, the terms "Lease Term," "Term," "Term of
this Lease," and phrases of similar import each means the Initial Term and, to the extent City
exercises its options to extend, the Extended Terms.
1.7 Permitted Uses: See Section 4.1. Notwithstanding any other provision of this
Lease, no use by City, its subtenants or licensees of all or any part of the Leased Premises or any
other part of the Station as to which City has the right to use or the right to grant a license or
other permit to use shall unreasonably interfere with Sound Transit's use of the Station for high
capacity public transit purposes.
1.8 Charges Payable by City: See Sections 2.3 (construction costs), 3.1 (utilities),
3.2 (operating costs), 3.3 (insurance premiums) and 5.4 (repair and maintenance).
ARTICLE 2: LEASE, LEASE TERM AND CITY PAYMENTS
2.1 Lease of Property for Initial Lease Term. On the terms. conditions and
covenants herein set forth, Sound Transit leases the Leased Premises to City, and City leases the
Leased Premises from Sound Tromsit, for the Lease Term, The Initial Lease Term is for the
period beginning on the Commencement Date and ending on the earlier of (a) ninety-nine years
thereafter or (b), if applicable, such earlier time as the end of the useful life of the Parking
Garage. The "Commencement Date" is the date on which this Lease has been fully executed by
the City and Sound Transit. When the Commencement Date has been determined, then promptly
after the request of either of them, City and Sound Transit shall mutually execute, acknowledge
and deliver to one another duplicate originals of a written agreement confirming the date which
is the Commencement Date.
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26'8b511 06126/02
-
2.2 City's Options to Extend. Provided that at the time each Extended Term would
commence City is not in material default beyond any applicable period for cure under this Lease,
City shall have the option to extend the Tenn of this Lease for successive period of ninety-nine
(99) years each. Each of City's Extended Tenns, if any, shall begin on the day after the
expiration of the Initial Lease Tenn or, if applicable, the day after the preceding Extended Tenn
and shall end on the earlier of (a) ninety-nine years thereafter or (b), if applicable, such earlier
time as the end of the useful life of the Parking Garage. City shall exercise its option to extend
by written notice to Sound Transit given not later than six months before the end of the current
Tenn. The tenns and conditions of this Lease during each Extended Tenn shall be on all the
same tenns and conditions of this Lease as for the Initial Tenn,
2.3 Sound Transit's Work. Sound Transit has constructed the Parking Garage, its
sidewalks, utilities, and amenities and the Plaza ("Sound Transit's Work") according to the plans
and specifications listed in or otherwise identified according to Exhibit 2.3 attached hereto (the
"Plans" and "Specifications."). Promptly after execution of this Lease Sound Transit shall deliver
to City one copy of "as-built" Specifications and one blueprint copy and one reverse mylar sepia
copy of "as-built" Plans for the Parking Garage and the Plaza. Sound Transit warrants that it has
constructed the Parking Garage and the Plaza according to the Plans and Specifications, in good
and workmanlike manner and in compliance with all applicable laws, ordinances, rules and
regulations of governmental authorities with jurisdiction, including but not limited to City acting
in its governmental capacity. At its sole expense, Sound Transit shall promptly correct (i) all
material defects in design of the Parking Garage or the Plaza; (ii) all material defects in materials
and workmanship of Sound Transit's Work and (iii) all failures to confonn to the Plans and
Specifications or to governmental requirements therefor, which defects or nonconformities are
discovered within one year after the Commencement Date. Sound Transit and City shall each
give the other prompt written notice after discovering any such defect or nonconfonnity. City
shall reimburse Sound Transit $2,106,196 of the costs of construction of the Parking Garage.
Such reimbursement shall be payable in three equal installments of $702,065.33 each, without
interest, as follows: (a) the first installment within thirty (30) days after the Commencement
Date; (b) the second installment one year after the Commencement Date; and (c) the third
installment two years after the COmmencement Date.
2.4 Delivery; Early Occupancy; Delay in Commencement.
(a) On the Commencement Date, Sound Transit shall deliver to City, and City
shall take possession of, the Leascd Premises. On or before the Commencement Date, Sound
Transit shall deliver to the City any keys, access codes and operating instructions necessary for
City's access to the Leased Premises.
(b) City was permitted early occupancy of the City's Parking Spaces
beginning on January 28, 2002 and shall pay its forty percent share of utilities and operating
costs of the Parking Garage under Sections 3.1 and 3.2 beginning on that carly occupancy date.
Except for such payments, City shall have no obligation under this Lease to make any payments
of money otherwise required of it under this Lease until the Commencement Datc has occurred
and, upon such occurrence, no payments of money shall be required of City under this Lease on
account of any period of time before the Commencement Date.
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2.5 City's Additional Rights. In addition to the City's rights to the Leased Premises,
the City shall also have, and Sound Transit grants to City. the following rights for the Lease
Term:
(a) Common Areas. City, its licensees and invitees shall have the non-
exclusive right with others designated by Sound Transit to the free use of the Common Areas for
the intended and normal uses of such areas. Sound Transit has the right to change the Common
Areas provided that the change or changes (i) do not interfere with acccss to or use of the Leased
Premises by City, its subtenants and licensees, and their invitees and contractors and (ii) do not
interfere with exercise of any of City's other rights under this Lease.
(b) Kiss and Ride Spaces. Sound Transit shall not use and shall not permit
others (except City) to use the Kiss and Ride Spaces for parking vehicles or for any use except as
an area for loading and unloading Sound Transit's customers. City may use and may permit
others to use the Kiss and Ride Spaces as parking spaces (i) all day on weekends and holidays
and (ii) Monday through Friday except between the hours of 6:00 a.m. and 9:00 am and 4:00
p.m. and 6:00 p.m. Notwithstanding the preceding, on days when Sound Transit operates one or
more special events trains, City may not use and may not permit others to use the Kiss and Ride
Spaces during the period beginning one hour before the first such special event train is scheduled
to leave the station and ending when the last such special event train actually leaves the Station.
(c) Other Parking Spaces. In addition to City's Parking Spaces, City shall
have the nonexclusive license to use all other parking spaces in the Parking Garage ("Other
Parking Spaces") on a first-come, first-served basis from the following times until the Parking
Garage is closed for the day to use by the public for parking motor vehicles: (i) on those days on
which Sound Transit operates one or more special events trains (for example and not by way of
limitation those operated to offer transit services for sporting events), from the time the last
special events train or other special events transit service operated by Sound Transit of that day
actually leaves the Station; (ii) except as provided in item (i), on week days from the time the last
train or other transit service operated by Sound Transit actually leaves the Station; and
(iii) except as provided in item (i), at all times during Saturdays, Sundays, and holidays.
"Holidays" means those days which are listed on Exhibit 2.5(c). Sound Transit shall provide to
City its schedule of regular Sound Transit trains and all changes to such schedules promptly after
such schedules and changes are available. Sound Transit shall exercise its best efforts to give
City not less than thirty (30) days' prior notice of the schedules for special events trains. City
shall use the Other Parking Spaces consistent with the Operating Procedures. If City charges the
users any fees for use of the Other Parking Spaces, then Sound Transit shall be entitled to one-
half of City's net revenue from such charges. "City's net revenue" is that amount, if any, by
which the sums collected exceed (a) all taxes included within such collections (including any
taxes imposed by the City) plus (b) City's out-of-pocket costs incident to use of the Other
Parking Spaces (such as, but not limited to, those of operating and security personnel).
(d) Special Events. City may request the right to use all or a portion of the
Plaza, for itself or third persons for special events. Sound Transit shall grant such right provided
that the requested use is consistent with Sound Transit's reasonable written policies for public
use of the Plaza in effect at the time of the request and that the proposed use will not
unreasonably interfere with the use of the Station for public transit pwposes. "Special events"
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include but are not limited to street fairs. City shall give Sound Transit not less than thirty (30)
days prior written notice of each special event proposed to be held in the Plaza. If Sound Transit
determines the special event is inconsistent with its policies or would unreasonably interfere with
Sound Transit's use of the Station for public transit purposes, Sound Transit shall so notify City
not later than seven (7) days after receipt of City's request. At its expense, City shall provide,
perform or cause to be performed all security, maintenance, set up, take-down, appropriate
cleaning and refuse pickup and all other services required or desired by City and those
reasonably required by Sound Transit for each special event, both during the special event and
promptly after the end of each special event authorized under this Section 2.5(d). Any damage to
the Plaza suffered during such special event shall be repaired by City at its expense unless
(i) caused by Sound Transit or its customers, contractors, invitees or licensees in which case
Sound Transit shall repair such damage at its expense or (ii) caused by an occurrence that is
unrelated to the special event. If City derives any revenue from a special event under this
Section and such revenue exceeds City's costs of the special event, then unless otherwise agreed
Sound Transit shall be entitled to fifty percent (50%) of such excess in exchange for City's use of
the Plaza for such special event. For such purposes, City's "revenue" means those charges
collected by City from third parties in exchange for use of the Plaza or part thereof during the
special event and does not include derivative benefits such as tax revenues and City's "costs"
includes overhead such as but not limited to the salaries, wages and benefits paid to City's
employees reasonably allocable to the amount of time spent by them in connection with the
special event. On Sound Transit's request, City shall permit Sound Transit to inspect and copy
City's books and records related to a special event.
(e) Elevator Lobby. The Commercial Tenant Area includes a room adjacent
(in this Section called "the adjacent room") to the east interior wall (in this Section called "the
interior wall") of the ground floor elevator lobby of the Parking Garage (in this Section called
"the lobby"). The interior wall consists in part of windows through which part of the adjacent
room is visible from the lobby. Access to the adjacent room is by a door in the interior wall.
City intends to use, and to grant licenses to third parties who are governmental agencies or
nonprofit entities to use, a part of the adjacent room to install, maintain, and change from time to
time wall units and floor cases to display photographs, papers, artifacts, and other items of
historical interest and/or to display works of art, which displays may be seen from the lobby
through the windows in the interior wall. To the extent Sound Transit wishes from time to time
to participate in such displays or to add its own historical or art displays in such adjacent room,
City and its licensees will reasonably cooperate with Sound Transit in such matters. City intends
to sublease or otherwise license to a financial institution the remainder of the adjacent room for
installation, repair, replacement, maintenance and use of an automated teller machine or other
device for persons to electronically conduct banking business. City shall have the right to make,
and the right to permit such a financial institution to make, appropriate openings in the exterior
wall of the Parking Garage and/or in the interior wall for installation of such a machine or
device. So long as City desires to make the uses of the adjacent room that are described in this
paragraph, Sound Transit shall not, and shall not permit anyone else to, obstruct the view through
the windows of the interior wall into the adjacent room or access into the adjacent room through
the door in the interior wall. The preceding sentence does not apply to temporary obstructions
required by routine maintenance or repairs or to any obstructions required by emergency. The
provisions of this Section control over any inconsistency with the provisions of Section 2.5(a).
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(f) Sidewalk Vendors and Kiosks. Sound Transit shall not lease, license or
otherwise grant the right to use any part of the Plaza to any person ("sidewalk vendor") to offer
any goods or services for sale or other distribution to the public from a cart, kiosk, or other
temporary or pennanent facility which goods or services are the same or competitive with those
offered for sale or other distribution to the public by any of City's subtenants or licensees of the
Commercial Tenant Area. The preceding does not apply to vending machines for beverages or
snacks or other devices for the sale or free distribution of newspapers or other periodicals. In
addition, the preceding does not apply to leases, licenses or other rights granted to a competing
sidewalk vendor before the City's sublease was made or license granted ("existing sidewalk
vendor"), but in such cases, Sound Transit shall not renew or extend a competing existing
sidewalk vendor's lease, license or other right during the term of the sublease or license of the
City's subtenant or licensee and, if the lease, license or other right granted by Sound Transit to
the competing existing sidewalk vendor is tenninable by Sound Transit without cause and
without payment of money, then Sound Transit shall terminate such lease, license or other right
according to the terms for such tennination. If the competing existing sidewalk vendor's rights
are terminable without cause by Sound Transit but conditioned on Sound Transit's payment of
money, then Sound Transit shall terminate such rights on City's request and City's agreement to
make such payment.
(g) Plaza Tenant Area. City shall have the right to grant its subtenants and
licensees of retail space along the north side of the Parking Garage the right to exclusive use of
that part of the Plaza Tenant Area adjacent to their subleased or licensed premises but only for
use in connection with the business conducted by such subtenant or licensee in such subleased or
licensed premises. Such uses may include, but shall not be limited to, outdoor seating areas for
restaurants and coffee shops and displays of merchandise. Notwithstanding the provisions of the
first sentence of this Section, no use by City's subtenants or licensees shall unreasonably interfere
with, and City's subtenants and licensees shall permit, concurrent use of the Plaza Tenant Area
by the public for pedestrian access in, about, and through the Plaza. In addition, the provisions
of this Section are applicable for the limited term of ten (10) years beginning with the
commencement date of this Lease. Beginning six (6) months before the end of such limited
term, City and Sound Transit shall negotiate in good faith concerning the terms and conditions
on which such limited term shall be extended. Sound Transit shall not unreasonably refuse or
condition such extension.
(h) Vertical Shafts and "Roof Top" Equipment and Devices. With Sound
Transit's prior approval as to purpose, location, plans and specifications, City's subtenants of all
or part of the Commercial Tenant Area may install in existing (and any future) vertical shafts in
the Parking Garage and on any of the second through the top floors of the Parking Garage
mechanical equipment, antennae and other devices for venting odors and smoke from space in
the Commercial Tenant Area or for communications and electronic data-transfer, including
cables, ducts, filters, fans and other appropriate associated items to enable usc of such equipment
or devices in the space rented by them in the Commercial Tenant Area and for use in connection
with the subtenant's primary business or other operations conducted in such space (so long as
such primary business is not provision of telecommunications services). Sound Transit shall not
unreasonably refuse, condition or delay such approval but may consider, among other things: (i)
whether use of the proposed equipment or devices for communications or data-transfer purposes
would interfere with any of Sound Transit's similar equipment at the Station; (ii) whether the
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proposed location, plans and specifications provide reasonable enclosures or screening from
view for aesthetic purposes and for noise suppression and safety; (iii) whether such equipment or
devices would unreasonably interfere with the primary use of the floor of the Parking Garage for
motor vehicle parking; and (iv) and the manner in which such equipment or devices (and
associated screening or enclosures) are to be attached to the structure of the Parking Garage.
With regard to subpart (iii), such use shall not be considered to unreasonably interfere merely
because one or more parking spaces are lost to such equipment, devices or associated screening
or enclosures if the spaces lost are some of City's Parking Spaces or, if not, City pennits Sound
Transit to use without charge the same number of City's Parking Spaces as are lost while such
equipment or other devices and any associated screening or enclosures are in place. If Sound
Transit's approval is granted to iostallation and use of any such equipment or devices, City's
subtenants shall: (v) obtain all necessary pennits for installation thereof and otherwise conform
to all requirements of Law for installation and use thereof; (vi) maintain, service, repair and
replace such equipment or other devices and any associated screening and enclosures so that they
are at all times in good working order; (vii) at the end of the term of the subtenant's sublease of
its space in the Commercial Tenant Area, remove the equipment or devices and all associated
screening, enclosures and other things installed in COnnection therewith and restore all affected
parts of the Parking Garage as reasonably as practical to the condition immediately before such
installation; and (viii) pay when due all costs ofthe foregoing. City shall be responsible for such
removal and restoration if City's subtenant fails to do so when required.
2.6 City's Option To Purchase. If at any time during the term of this Lease (as it
may be extended) Sound Transit decides to cease using the Station for public transit purposes
and its governing body authorizes disposition of the Parking Garage and Plaza, then City shall
have the option to purchase the Parking Garage and the Plaza, the real property on which such
improvements are located, and all other improvements located on, in or over such real property
(in this Section 2.6 collectively called "the Parking Garage and Plaza Property" and legally
described in Exhibit 1.1(f2 attached hereto) on the terms and conditions specified in this Section
2.6 ("City's Option"). If City's Option is exercised, then the purchase price for the Parking
Garage and the Plaza shall be the fair market value of the Parking Garage and Plaza Property as
encumbered by the City's interest in such property under this Lease as such fair market value is
determined in accordance with subsection (b) ofthis Section 2.6. City's Option expires when the
Term of this Lease expires unless before then by appropriate action of Sound Transit's governing
body Sound Transit decides to cease such use of the Station and to dispose of its interest in the
Parking Garage and Plaza Property. If such action is taken before expiration of the Term of this
Lease, then City's Option survives such expiration, subject however to the time limits specified
in this Section 2.6.
(a) Preliminary Notices. Promptly after Sound Transit's governing body
decides to cease use of the Station for public transit purposes and to dispose of the Parking
Garage and Plaza Property, Sound Transit shall give City written notice of Sound Transit's
decision and the anticipated date that such use will cease ("Sound Transit's Cessation Notice").
Within sixty (60) days after receiving Sound Transit's Cessation Notice, City shall give Sound
Transit written notice of City's preliminary intention to exercise its option to purchase the
Parking Garage and Plaza Property ("City's Notice of Intent"). If City's Notice of Intent is not
timely given, then City's Option shall expire.
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(b) Determination of Price. If City's Notice of Intent is timely given, then the
purchase price for the Parking Garage and Plaza Property pursuant to City's Option, if exercised,
shall be determined as provided in this Section 2.6(b).
(I) During the period of forty-five (45) days beginning with the day
after City's Notice of Intent is given, City and Sound Transit shall negotiate in good faith in an
effort to agree in writing upon the amount of the purchase price. If agreement is not made in
writing within such forty-five day period, then the fair market value of the Parking Garage and
Plaza Property as encumbered by City's interest in such property under this Lease shall be
determined as provided in Section 2.6(b)(2) and the purchase price for Parking Garage and Plaza
Property pursuant to City's Option. if exercised, shall be that amount that is equal to such fair
market value.
(2) Within sixty (60) days after City's Notice ofIntent is given, each of
City and Sound Transit shall select an appraiser and the two appraisers shall independently
determine and make their written report to each other and to each of City and Sound Transit of
the appraiser's opinion of the fair market value of the Parking Garage and Plaza Property as
encumbered by City's interest in such property under this Lease. If within ten (10) days after the
last of such reports is delivered, the two appraisers agree on such fair market value, then the two
appraisers shall report such agreement in writing to City and Sound Transit and the fair market
value of the Parking Garage and Plaza Property as so encumbered shall be the sum so agreed. If
the two appraisers do not so agree within such period and if their written opinions of such value
are within five percent of the lowest of them, then the fair market value of the Parking Garage
and Plaza Property as so encumbered shall be that amount determined by adding the two
opinions together and then dividing by two. If the two appraisers' opinions are not within such
five percent tolerance then within twenty (20) days after the last oftheir reports were delivered to
City and Sound Transit, these two appraisers shall select a third appraiser who shall
independently (but with the benefit of the reports of the first two appraisers) determine and make
its written report to each of City and Sound Transit of the third appraiser's opinion of the fair
market value of the Parking Garage and Plaza Property as so encumbered, in which case such
fair market value shall be that amount determined by the third appraiser except that such fair
market value shall not be greater than the highest, nor lower than the lowest, of the fair market
value as determined by the two appraisers first selected under this Section 2.6(2).
(i) If City does not select an appraiser, if Sound Transit does
not select an appraiser or if the first two appraisers do not select a third, all as required and by the
time specified in Section 2.6(b)(2), then on application the appraiser may be selected by the then
president of the chapter of the American Institute of Appraisers (or its successor organization)
whose area includes King County, Washington or on such person's failure to act within ten (10)
days after the application, by the superior court of King County, Washington. If the failure of
selection is by City, the application for appointment may be made by Sound Transit. If the
failure of selection is by Sound Transit, the application for appointment may be made by City. If
the failure of selection is by the first two appraisers, then the application for appointment may be
made by either or both of City and Sound Transit.
(ii) All appraisers selected or appointed under Section 2.6(b )(2)
shall deliver their written reports not later than thirty (30) days after their respective selection or
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appointment. All appraisers selected or appointed under Section 2.6(b)(2) shall have been a
member of the American Institute of Appraisers (or its successor organization) for not less than
the period of fifteen (15) years preceding selection or appointment and regularly (not necessarily
exclusively) engaged in the profession of appraising the fair market value of improved
commercial real property in King County, Washington for not less than the period of ten (10)
years preceding selection or appointment.
(iii) City shall pay the costs and fees of the appraiser selected
by or appointed for it and, if a third appraiser is appointed, one-half the fees and costs of the third
appraiser. Sound Transit shall pay the costs and fees of the appraiser selected by or appointed
for it and, if a third appraiser is appointed, one-half the fees and costs of the third appraiser. City
and Sound Transit shall bear their own costs and fees, including those of attorneys, witnesses,
and consultants of any application made for appointment of an appraiser under Section
2.6(b)(2)(i).
If agreed according to subpart (1) of Section 2.6(b), the purchase price as so agreed for the
Parking Garage and Plaza Property is binding and conclusive on City and Sound Transit and all
other persons having any interest in the premises. If determined according to subpart (2) of this
Section 2.6(b), the fair market value of the Parking Garage and Plaza Property as encumbered by
the City's interest in such property under this Lease as so determined and the purchase price
being equal to such value as provided in Section 2.6(a), are binding and conclusive on City and
Sound Transit and all other persons having any interest in the premises.
(c) Notice of Exercise. City may exercise City's Option by written notice to
Sound Transit ("City's Notice of Exercise") given not later than sixty (60) days after the purchase
price of the Parking Garage and Plaza Property has been agreed or determined as provided in
Section 2.6(b). If City's Notice of Exercise is not timely given then City's Option shall expire.
(d) Closing. If City's Notice of Exercise is timely given, then the purchase and
sale ofthe Parking Garage and Plaza Property shall be closed as provided in this Section 2.6( d).
(1) The purchase and sale of the Parking Garage and Plaza Property
shall be closed in escrow with the title company selected by City as provided in subpart (4) of
this Section 2.6(d) acting as the escrow agent at such title company's office in (and, if none,
nearest to) downtown Seattle, Washington. Closing shall occur on the later of (i) sixty (60) days
after City's Notice of Exercise is given or (ii) thirty (30) days after any required segregation
under subpart (7) of this Section 2.6( d) is accomplished.
(2) At closing, City shall pay the purchase price of the Parking Garage
and Plaza Property in full, in cash and Sound Transit shall deliver to City a statutory warranty
deed for the Parking Garage and Plaza Property conveying such property to City free and clear of
all encumbrances, claims, defects, liens and other defects in title except: (i) those of City's
subtenants and licensees, if any; (ii) utility and other easements that do not materially interfere
with use of the Parking Garage and Plaza Property; and (iii) rights reserved in federal patents or
state deeds.
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(3) At closing, the following shall be prorated and adjusted between
the parties as of the date of closing: (i) Sound Transit's share under the terms of this Lease of the
charges for utilities and operating costs of the Parking Garage and Plaza; (ii) rents and othcr
charges payable by third parties to Sound Transit for use of parking spaces in or any other part of
the Parking Garage (except the Leased Premises); and (iii) sums payable under agreements that
are assigned to City as provided in Section 2.6(d)(6).
(4) At closing, Sound Transit shall provide and pay for an extended
form of owner's policy of title insurance insuring City as the owner of the Parking Garage and
Plaza Property with no exceptions other than those provided in subpart (2) of this Section 2.6(d)
and such other exceptions and exclusions as are included in the title company's printed form of
policy jacket. The policy limits of such policy shall be equal to the purchase price to be paid by
City for the Parking Garage and Plaza Property. Thc title policy shall be issued by such title
insurance company as City selects in its discretion.
(5) City shall pay the following costs of the closing: the costs of
recording the deed, one-half the title company's fees and costs for acting as escrow agent, and, if
applicable, City's net share of the prorations described in subpart (3) of this Section 2.6(d).
Sound Transit shall pay the following costs of the closing: the title company's premium for the
title policy described in subpart (4) of this Section 2.6(d), one-half the title company's fees and
costs of acting as escrow agent, and, if applicable, Sound Transit's net share of the prorations
described in subpart (3) of this Section 2.6(e) and the costs of any survey required by the title
company as a condition to issuing the extended form of owner's policy of title insurance.
(6) At closing, Sound Transit shall terminate all licenses, permits,
leases, and other contracts with third parties to provide services to the Parking Garage and Plaza
Property or to use any part of such Property except the Leased Premises (in this Section 2.6(d)
collectively, "agreements") that are terminable without cause and without payment of money,
except any that City elects to have assigned to City at closing. At closing, Sound Transit shall
assign to City such agreements that City elects to have assigned to it under the preceding
sentence and such other agreements that are not terminable without cause and without payment
of money, and City shall assume and agree to perform (and indemnify and defend Sound Transit
against claims and liabilities on account of or arising from) Sound Transit's obli.gations under the
agreements that are assigned to City to the extent such obligations first accrue on and after the
date of closing. Sound Transit shall perform (and indemnify and defend City against claims and
liabilities on account of or arising from) the obligations in connection with such agreements to
the extent such obligations accrue before the date of closing. At closing, Sound Transit shall
deliver to City copies of all agreements assigned to City under this subpart (including but not
limited to all amendments and modifications thereof) and of all Sound Transit's records relating
thereto. The assignments and assumptions described in this subpart shall be in form and
substance reasonably satisfactory to City, Sound Transit and their respective legal counsel.
(7) If a short plat, boundary adjustment or other subdivision or
segregation of the Parking Garage and Plaza Property is required in order for such property to be
legally conveyed to City, then the parties shall cooperate with one another in order to accomplish
such segregation as promptly as practical after City's Notice of Exercise is given. City and
Sound Transit shall each pay one half the fees and costs of such segregation, including but not
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limited to those of engineers, surveyors and other professionals engaged to accomplish the
segregation and the usual fees of the applicable governmental authorities with jurisdiction
(including but not limited to City) incident to applying for, processing, and accomplishing such
segregation. If a survey is reasonably required in order to prepare an accurate legal description
of the Parking Garage and Plaza Property, then Sound Transit, after consultation with City, shall
select the surveyor and City and Sound Transit shall each pay one-half the fees and costs of the
surveyor for making such survey and preparing such description. If the title company requires a
survey as a condition to its willingness to issue an extended form of owner's policy of title
insurance, then Sound Transit shall pay the costs of such surveyor. as applicable, the additional
costs required to upgrade any survey otherwise provided in this subpart (7) to the standards
required by the title company as a condition to issuing such extended form of owner's policy.
(e) Sound Transit's Option. If City has but does not exercise City's Option, then
Sound Transit shall have the option ("Sound Transit's Option") to purchase City's leasehold
interest under this Lease in the Parking Garage and Plaza Property ("City's Leasehold Interest ")
for a purchase price equal to the fair market value of City's Leasehold Interest. Such fair market
value shall be determined in the manner and within the time periods specified in Section 2.6(b)
for the purposes of determine the fair market value of the Parking Garage and Plaza Property as
encumbered by the City's interest in such property under this Lease. Sound Transit shall give
City written notice of Sound Transit's preliminary intention ("Sound Transit's Notice of Intent")
to exercise Sound Transit's Option not later than sixty (60) days after the earliest of the following
to occur: (i) the time for City to timely give City's Notice of Intent under Section 2.6 (a) expires
without such notice having been given; or (ii) the time for City to timely give City's Notice of
Exercise under Section 2.6(c) expires without such notice having been given. If Sound Transit's
Notice of Intent is timely given, Sound Transit may exercise Sound Transit's Option by written
notice to City ("Sound Transit's Notice of Exercise") given not later than sixty (60) days after the
fair market value of City's Leasehold Interest has been determined. Sound Transit's Option shall
expire on the earlier of the following to occur: (i) Sound Transit does not timely give Sound
Transit's Notice of Intent; or (ii) Sound Transit does not timely give Sound Transit's Notice of
Exercise. If Sound Transit exercises Sound Transit's Option, then Sound Transit's purchase of
City's Leasehold Interest shall be closed as follows:
(1) Closing shall occur on or before sixty (60) days after Sound Transit's
Notice of Exercise is given.
(2) At closing, Sound Transit shall pay the purchase price of City's
Leasehold Interest in full, in cash and City shall execute and deliver to Sound Transit an
assignment thereof. Such assignment shall be in form reasonably acceptable to Sound Transit
and shall be sufficient for Sound Transit to obtain an owner's standard policy of title insurance
for the Parking Garage and Plaza Property having no exception for City's Leasehold Interest (but
subject to any agreements assigned to Sound Transit as provided in the next subpart).
(3) At closing, City shall terminate all subleases, licenses, permits, leases,
and other contracts with third parties to provide services to or use all or any part of the Leased
Premises (in this Section 2.6(e) collectively, "agreements") that are terminable without cause and
without payment of money, except any that Sound Transit elects to have assigned to Sound
Transit at closing. At closing, City shall assign to Sound Transit such agreements that Sound
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Transit elects to have assigned to it under the preceding sentence and such other agreements that
are not terminable without cause and without payment of money, and Sound Transit shall assume
and agree to perform (and indemnifY and defend City against claims and liabilities on account of
or arising from) City's obligations under the agreements that are assigned to Sound Transit to the
extent such obligations first accrue on and after the date of closing. City shall perform (and
indemnify and defend Sound Transit against claims and liabilities on account of or arising from)
the obligations in connection with such agreements to the extent such obligations accrue before
the date of closing. At closing, City shall deliver to Sound Transit copies of all agreements
assigned to Sound Transit under this subpart (including but not limited to all amendments and
modifications thereof) and of all City's records relating thereto. In addition, at closing, City shall
deliver to Sound Transit fully executed estoppel certificates from each subtenant, licensee or
permittee of an agreement that is assigned to Sound Transit as provided in this subpart. The
assignments, assumptions, and estoppel certificates described in this subpart shall be in form and
substance reasonably satisfactory to City, Sound Transit and their respective legal counsel;
provided, however, the estoppel certificates shall not require the subtenant, licensee or permittee
from stating as fact any matter as to which such person does not have knowledge.
(4) At closing, the following shall be prorated and adjusted between the
parties as of the date of closing: (i) City's share under the terms of this Lease of the charges for
utilities and operating costs of the Parking Garage and Plaza; (ii) rents and other charges payable
by third parties to City under any sublease, license or permit for use of all or any part of City's
Parking Spaces or for use of all or any part of the Commercial Tenant Area or Plaza Tenant
Area; and (iii) sums payable under agreements that are assigned to Sound Transit as provided in
Section 2.6(e)(3). In addition, City shall at closing deliver to Sound Transit (or, at Sound
Transit's option) allow as a credit against the purchase price of City's Leasehold Interest, the
amount, if any, of any security or other deposits from third parties held by City under any
sublease, license, or permit affecting all or any part of the Commercial Tenant Area or City's
Parking Spaces.
2.7 Termination; Advance Payments. Upon expiration or termination of this Lease
under any provision of this Lease or of law (including but not limited to closing of City's
purchase under Section 2.6), Sound Transit shall refund or credit to City any advance payments
made by City under this Lease that are applicable or attributable to any period of time after the
effective date of expiration or termination, excluding payments made under Section 2.3.
ARTICLE 3: CHARGES PAYABLE BY CITY
3.1 Utilities. City shall pay, or cause its subtenants and licensees to pay when due,
directly to the appropriate supplier, the cost of all natural gas, heat, light, power, sewer service,
water, refuse disposal and other utilities supplied to the Commercial Tenant Area. Sound Transit
shall cause such services to be separately metered or otherwise separately charged to such Area.
City may install or cause the service providers to install additional meters or other devices to
monitor usage so that charges for the services consumed by City's individual subtenants and
licensees may be billed directly to or properly allocated among them. Sound Transit shall pay
when due the costs of natural gas, heat, light, power, sewer service, water, refuse disposal and
other utilities provided to the remainder of the Parking Garage and the Station (including but not
limited to those in the Plaza during a special event but excluding those utilities provided to the
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Commercial Tenant Area). City shall reimburse Sound Transit forty percent (40%) of the costs
of such utilities and services to the Parking Garage within sixty (60) days after receipt of Sound
Transit's invoice therefor, which invoice shall be accompanied by copies of the underlying
billings from the providers. Sound Transit shall render such invoices regularly and, in any case,
not less frequently than once each three months.
3.2 Parking Garage Operations.
(a) SOWld Transit's Obligations. In consultation with the City, Sound Transit
shall operate the Parking Garage (except the Commercial Tenant Area) consistent with Sound
Transit Operating Procedures and during Sound Transit Operating Hours only. Such operations
shall include, but not be limited to establishing and observing procedures, installing and
maintaining signs, markings and devices, employing such personnel and/or contracting with such
third party providers, and supervising the performance of such employees and contractors all as
are reasonably intended to provide sccurity for the Parking Garage and users thereof and
maintain a clean and safe environment. For the purpose of this Section 3.2(a) and Section 3.2(b),
"City's Parking Spaces" include the Other Parking Spaces during those periods that City is
entitled to use of the Other Parking Spaces under Section 2.5(a). At its election from time to
time, City may notifY SOWld Transit that it wishes to extend the operating hours of the Parking
Garage by either or both opening the Parking Garage earlier or closing the Parking Garage later
than Sound Transit Operating Hours. In such event, the City shall notify Sound Transit no less
than 14 days in advance and Sound Transit will arrange with its staff or contractors to operate
and provide security for the Parking Garage during the requested time period, cxcept that, with
Sound Transit's prior approval as to the appropriate level of security, City may provide security
during the extended hours through hiring commissioned police officers. Sound Transit shall
have no liability to City for damages, losses or personal injury that occur during times that are
not Sound Transit Operating Hours, including but not limitcd to during extended operating hours
requested by City.
(b) Costs of Operations. Sound Transit shall pay when due the costs of
operating the Parking Garage, including but not limited to the costs of the measurcs, personnel,
and contractors described in Section 3.2(a) and as further detailed in Exhibit 3.2(b). For
employees of Sound Transit, such costs include those for benefits. City shall reimburse SOWld
Transit forty percent (40%) of such costs allocable to Sound Transit's Operating Hours, and one
hundred percent (100%) of such costs allocable to extended hours requested by City. Such
payment shall be made within sixty (60) days after receipt of Sound Transit's invoice therefor,
which invoice shall be accompanied by a statement in reasonable detail of the amount and
purpose of each of the various items of cost, copies of any underlying billings from third parties
and other reasonable evidence of the amount, purpose and allocation between Sound Transit and
City of the various items of cost. Sound Transit shall render such invoices regularly and, in any
case, not less frequently than once each three months. City shall have the right on demand to
inspect and copy Sound Transit's books and records concerning operation of the Parking Garage
and, if applicable, the books and records of any third party contractor engaged by Sound Transit
to provide goods or services in connection with operation of the Parking Garage and City's
Parking Spaces.
3.3 Insurance Policies.
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(a) Liability Insurance. At all times during the Lease Tenn, at its expense
City shall maintain a policy ofliability insurance insuring City against liability for bodily injury,
property damage (including loss of use of property) and personal injury arising. out of the
operation, use or occupancy of the Leased Premises and the Other Parking Spaces. City shall
name Sound Transit as an additional insured under such policy. The initial amount of such
insurance shall be in the City's discretion but not less than Two Million Dollars ($2,000,000) per
occurrence. Not less frequently than every five years, the parties shal] review such minimum
coverage for possible increase based upon inflation, increased liability awards, recommendation
of City's and of Sound Transit's professional insurance advisers and other relevant factors. Any
such agreed increase shall be evidenced by the parties executing and delivering to each other
duplicate originals of a writing specifying the newly agreed minimum coverage. Neither party
shall unreasonably refuse to agree to an increase in such minimum coverage. The liability
insurance obtained by City under this Section 3.3(a) shall (i) be primary and non-contributing
with Sound Transit's liability insurance policies; (ii) contain cross-liability endorsements; and
(iii) insure Sound Transit against City's perfonnance under Section 4.5, if the matters giving rise
to the indemnity under Section 4.5 result from the negligence of City; and (iv) contain a
contractual liability endorsement. At its expense, Sound Transit may also obtain liability
insurance, in an amount and with coverage determined by Sound Transit, insuring Sound Transit
against liability arising out of ownership, operation, use or occupancy of the Station, including
but not limited to the Parking Garage and the Leased Premises.
(b) Sound Transit's Property Insurance. At all times during the Lease Tenn,
Sound Transit shall maintain a policy of property insurance covering loss of or damage to the
Parking Garage, including the Leased Premises, in the full amount of its then current
replacement cost without deduction for depreciation. Such policy shall provide protection
against all perils included within the classification of "all risk," including but not limited to fire,
extended coverage, vandalism, malicious mischief, special extended perils, sprinkler leakage and
any other perils which Sound Transit deems reasonably necessary after consultation with City.
Sound Transit shall have the right to obtain flood and earthquake insurance. Sound Transit shall
not obtain insurance for fixtures or equipment or improvements installed by City, its subtenants
or licensees in the Commercial Tenant Area or any other property of City, its subtenants or
licensees located in or about the Station. City, its subtenants and licensees shall maintain
policies of insurance covering loss of or damage to their respective fixtures, equipment,
improvements, and/or other property installed in or located in or about in the Station, including
the Leased Premises. At its expense, City may also maintain a policy of insurance covering loss
of or damage to those parts of the Parking Garage that City is obligated to repair or replace under
Section 5.4 of this Lease. Neither party shall do or pennit anything to be done in or about the
Station that would invalidate any of the other party's insurance policies described in this
Section 3.3(b).
(c) Other Insurance. Each party may, at its respective expense, maintain such
other insurance for its own purposes or benefit, as it desires from time to time.
(d) Payment of Premiums. City shall pay all premiums for the insurance
policies described in Sections 3.3(a) through 3.3(c) that City is to or may obtain. Sound Transit
shall pay all premiums for the insurance policies described in Sections 3.3(a) through 3.3(c) that
Sound Transit is to or may obtain. City shall reimburse Sound Transit forty percent (40%) of the
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premiums for the property insurance described in Section 3.3(b) on the Parking Garage obtained
by Sound Transit (including any flood or earthquake coverage). Such reimbursement shall be
paid within sixty (60) days after City's receipt of Sound Transit's invoice therefor which shall be
accompanied by a copy of the premium statement or other evidence of the amount due. If such
property policy maintained by Sound Transit also covers other improvements on real property in
addition to the Parking Garage (whether located in the Station or elsewhere), Sound Transit shall
allocate the premiums of such policy between the Parking Garage and such other improvements
on a fair and reasonable basis and, concurrently with delivery to City of Sound Transit's invoice
and a copy of the premium statement described in this Section, Sound Transit shall also deliver
to City a written statement showing in reasonable detail the basis upon which such allocations
were made, and City's share of the premium calculated.
(e) Evidence of Insurance. Promptly after the request of the other party, each
party shall deliver to the other a copy of each policy of insurance which the party is required to
maintain under this Section 3.3. As an alternative to providing a copy of any or all of such
policies, each party shall have the right to provide the other a certificate of insurance, executed
by an authorized otlicer ofthe insurance company, showing that the required insurance is in full
force and effect.
(t) General Insurance Provisions.
(I) Any insurance which each party is required to maintain under this
Lease shall includc a provision which requires the insurance carrier to give the other party not
less than thirty (30) days' written notice before the effective date of any cancellation (including
but not limited to cancellation for nonpayment of premium) or modification of such coveragc.
(2) If either party fails to obtain and continuously maintain any policy
of insurance required of it, the other party may obtain such insurance, in which case the party in
default shall reimburse the other for the cost of such insurancc within thirty (30) days after
receipt of an invoice therefor accompanied by a copy of the premium statement or other evidence
of the cost of such insurancc.
(3) The parties acknowlcdge insurance markets change and that
insurance in the form and amounts described in this Section 3.3 may not be available in the
future. If at any time during the Lease Term the precise form of any policy required under this
Section 3.3 is not available because of any change in insurance markets, the party required to
obtain such policy shall nevertheless maintain insurance coverage that is customary and
commercially reasonable in the insurance industry and as nearly the same as (or better than) that
required under this Section 3.3.
(4) Unless prohibited under the applicable insurance policy, each party
hereby releases and waives any and all rights of recovery against the other (and their respective
officials, officers, employees, agents and representatives), for loss of or damage to its property or
the property of others under its control, if such loss or damage is covered by any insurance policy
in force (whether or not described in this Lease) at the time of such loss or damage or would
have been covered if the party had obtained the insurance it was required to obtain under this
Section 3.3. Upon obtaining the policies of insurance required or permitted in this Section 3.3,
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the parties shall give notice to their respective insurance carriers of this mutual release and
waiver of subrogation and use reasonable efforts, including payment of any additional premium,
to cause their respective insurance carriers to consent to the provisions of this subpart.
Notwithstanding the preceding, the release and waiver in this subpart shall not be effective if the
effect would be to void coverage under the policy.
3.4 Self-Insurance. Any party to this lease, which is a municipal government, a
regional transit authority or other governmental authority, has the right to self-insure (either
alone or jointly with other like or similar entities) under anyone or more of the preceding
provisions of this Article 3. However, if a party elects to self-insure, then for the purposes of this
Lease it shall be obligated under all provisions of this Lease as if it had obtained the relevant
policy or policies as described in this Article 3 from an insurance company. Without limiting the
generality of the preceding sentence: (i) a party who elects to self-insure with respect to property
damage shall bc considered to have obtained a policy that does not prohibit the release and
waiver of Section 3.4(iv) and such release and waiver shall be fully effective; and (ii) if Sound
Transit elects to self-insure the risks that would otherwise be covered by the property insurance
on the Parking Garage described in Section 3.3(b), then (A) City has no obligation to pay to
Sound Transit any sums under Section 3.3(d) on account of premiums for such coverage and
(B) Sound Transit is liable to City for what would have been City's share of the proceeds of such
a policy under Sections 5.3 and 6.4.
3.5 Leasehold Excise Tax. City shall comply with any obligations imposed upon
City under the provisions of Chapter 82.29A, Revised Code of Washington (and any
amendments or replacements thereoO concerning leasehold excise taxes payable, if any, by
City's subtenants and licensees of the Commercial Tenant Area arising from such subleases or
licenses.
ARTICLE 4: USE OF LEASED PREMISES
4.1 Permitted Uses. Subject to the provisions of Section 4.2 and this Section:
(a) City's Parking Spaces and Other Parking Spaces. City, its subtenants and
licensees shall use the City's Parking Spaces and, when permitted under Section 2.5(a), the Other
Parking Spaces and the Kiss and Ride Spaces only for the temporary parking of motor vehicles.
No overnight parking shall be permitted in the Other Parking Spaces or Kiss and Ride Spaces.
(b) Commercial Tenant Area. Subject to the provisions of Section 4.1 (c),
City, its subtenants and licensees may use the Commercial Tenant Area for general office, retail,
and/or dining purposes.
4.2 Manner of Use.
(a) General. City shall not cause or permit any part of the Leased Premises or
the Other Parking Spaces to be used in any way that constitutes a violation of any law,
ordinance, or governmental regulation or order or that constitutes a nuisance or waste. City or its
various subtenants or licensees shall obtain and pay for all permits, including but not limited to
one or more certificates of occupancy, required for occupancy and use of the Commercial Tenant
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Area. City shall promptly take, or cause its subtenants or licensees to promptly take, all actions
necessary to comply with all applicable statutes, ordinances, rules, regulations, orders,
requirements and permits regulating their respective use of any part of the Leased Premises
under lease, sublease, license or permit from the City.
(b) Prohibited Uses. No portion of the Leased Premises may be used as an
adult bookstore or videostore, "headshop", for the sale of weapons, for the sale of fortified
wines, as a tavern, as office space for a bail bondsman, or for the sale of alcoholic beverages
except when sold for consumption off the premises or for consumption on the premises in
connection with a dining establishment which derives at least fifty percent (50%) of its gross
revenue from the sale of food and beverages other than alcoholic beverages.
(c) Rules. City, its subtenants, licensees and invitees shall abide by the
reasonable rules and regulations established from time to time by Sound Transit for the safety,
care, cleanliness and good order in and about the Station. However, except as provided in the
next sentence, no such rule or regulation is binding upon City, its subtenants, licensees and
invitees until fifteen (15) days after a written copy thereof is delivered to City and no such rule is
binding upon City, its subtenants, licensees and invitees to the extent the rule or regulation is
inconsistent with, or unreasonably interferes with the exercise of, City's rights under this Lease.
Rules and regulations established by Sound Transit to address emergency situations shall become
effective immediately. A copy of Sound Transit's rules and regulations in effect on the
Commencement Date, if any, is attached hereto as Exhibit 4.2(c).
4.3 Hazardous Materials. As used in this Lease, the term "Hazardous Material"
means any radioactive materials, hazardous or toxic substances, material or waste or related
materials, including any substances defined as or included in the definition of "hazardous
substances" , "hazardous wastes", "hazardous materials" or "toxic substances" now or
subsequently regulated under any applicable federal, state or local laws or regulations, including
but not limited to petroleum-based products, paints, solvents, lead, cyanide, DOT, printing inks,
acids, pesticides, ammonia compounds and other chemical products, asbestos. and PCBs. City
shall not cause or permit any Hazardous Material to be generated, produced, brought upon, used,
stored, treated or disposed of in or about the Station by City, its subtenants or invitees without
the prior written consent of Sound Transit, which shall not be unreasonably delayed, refused or
conditioned. Sound Transit shall be entitled to take into account such factors or facts as are
reasonably relevant in determining whether to grant or withhold consent to City's proposed
activity with respect to Hazardous Material. Even though such vehicles, supplies or materials
mayor do contain Hazardous Material, nothing in this Section 4.3 prohibits: (a) vehicles from
using any of City's Parking Spaces or the Other Parking Spaces; or (b) the City or its various
subtenants and licensees, and the various contractors, agents, and employees of any of them,
from bringing upon, using, storing, and disposing of supplies and materials that are usually and
ordinarily used (i) in the normal course of repairing, replacing, maintaining, cleaning, and
making improvements as permitted or required under this Lease or (ii) in the normal course of
such businesses and other activities as may be conducted or permitted from time to time by City
or its various subtenants and licensees as provided in this Lease.
4.4 Signs.
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(a) Permanent Signs. City may place or permit such signs on the Leased
Prcmiscs (including the exterior walls and windows of the Commercial Tenant Area) as are usual
and ordinary for the occupants thereof to identifY and promote their respective businesses or
affairs. However, signs placed on the exterior walls of the Parking Garage shall conform to the
standards specified in Exhibit 4.4(8) attached hereto or to such other standards as Sound Transit
and City may hereafter agree. Any sign installed by City or its subtenants or licensees on the
exterior wall of the Parking Garage shall be removed at the end of the term of the respective
sublease or license and the part of the such wall affected by such installation or removal shall be
restored to as nearly the same condition as practical to that immediately before such installation.
City shall be responsible for such removal and restoration if City's subtenant or licensee fails to
do so when required. At expiration or earlier termination of this Lease, City shall similarly
remove all signs installed or permitted by it and restore the affected parts of the Parking Garage.
(b) Special Event Temporary Signs. City may place or permit signs and
banners to be placed on or over the Plaza in connection with a special event permitted under
Section 2.5(d) that are (i) usual and ordinary to the pertinent special event or participants in the
special event, (ii) temporary, and (iii) not attached to any part of the Station with any permanent
fastening. All such signs placed by City or its subtenants or licensees shall be removed at the
end of the special event and City shall restore or cause to be restored all damage to the Station
caused by the placement of any such signs.
4.5 Indemnity. City shall indemnifY Sound Transit against and hold Sound Transit
hannless from any and all costs, claims or liability arising from: (a) use of the Leased Premises,
the Other Parking Spaces or the Kiss and Ride Spaces by City, its subtenants, and licensees;
(b) anything done or permitted by City to be done in or about the Leased Premises, the Other
Parking Spaces, the Kiss and Ride Spaces, or the Common Areas, including any contamination
of any property resulting from the presence or use of Hazardous Material caused or permitted by
City, its subtenants and licensees; (c) any negligent or intentional misconduct of City; or (d) use
of any portion of the Station by the City, its agents, licensees, subtenants, or any of the
foregoing's licensees, agents, customers, guests. or invitees, for any of the City's special events.
Sound Transit shall indemnifY City against and hold City hannless from any and all costs, claims
or liability arising from: (1) anything done or permitted by Sound Transit to be done in or about
the Parking Garage or the Station, including any contamination of any property resulting from
the presence or use of Hazardous Material caused or permitted by Sound Transit; or (2) any
negligent or intentional misconduct of Sound Transit. The parties' obligations under this Section
extend to. without limitation, injuries to their respective employees (as such employees are
defined in the Industrial Insurance Act, Title 51, Revised Code 0 f Washington) and, to that
extent, each of the parties hereby waive any immunity othelWise afforded to them, respectively,
under that Act or any other applicable workmen's or employees' compensation law.
Notwithstanding the generality of the preceding, the scope of each party's obligation to
indemnifY the other in the case of damage or injury caused by the joint or concurrent negligent or
intentional misconduct of both parties shall be limited to the extent the damage or injury is
caused by the indemnifYing party.
4.6 Sound Transit's Access. Sound Transit may enter any part of the Leased
Premises. the Other Parking Spaces and the Kiss and Ride Spaces at all reasonable times to
inspect such premises and spaces, to make repairs and replacements thereto Sound Transit is
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obligated or elects to do, to perform such other cleaning and maintenance thereto that Sound
Transit is obligated or elects to do, and for any other proper purpose. However, except in the
case of an emergency, Sound Transit shall not enter any part of the Commercial Tenant Area or
City's Parking Spaces for any of such purposes without first giving City and each of City's
subtenants and licensees of such of the Area to be affected by such entry not less than two (2)
business days prior written notice of the entry, the purpose therefor, and the expected scope and
duration thereof
4.7 Quiet Possession. So long as City complies with its obligations under this Lease.
Sound Transit covenants that City and its subtenants and licensees may quietly occupy and enjoy
the Leased Premises for the full term of this Lease, subject however to the terms and conditions
of this Lease.
ARTICLE 5: CONDITION OF LEASED PREMISES; MAINTENANCE,
REPAIRS AND ALTERATIONS
5.1 Condition and Suitability of Leased Premises. Subject to Sound Transit's
obligations with respect to initial construction of and warranty work related to the Leased
Premises under Section 2.3, City shall accept the Leased Premises in their condition as of the
Commencement Date. City acknowledges that Sound Transit has not made any representation as
to the suitability of the Leased Premises for City's intended use.
5.2 Exemption of Sound Transit from Liability. Except for any damage or injury
caused by its negligence or intentional misconduct, Sound Transit shall not be liable for any
damage or injury to the person, business (or any loss of income therefrom), goods, wares,
merchandise or other property of City, its subtenants and licensees or any other person in or
about the Leased Premises, whether such damage or injury is caused by or results from: (a) fire,
steam, electricity, water, gas or rain; (b) the breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or any other
cause; or (c) conditions arising in or about the Leased Premises or other parts of the Station.
Sound Transit shall not be liable for any such damage or injury even though the cause of or the
means of repairing such damage or injury are not acccssible to City. The provisions of this
Section 5.2 shall not, however, exempt Sound Transit from liability for Sound Transit's warranty
obligations under Section 2.3 or from Sound Transit's obligations under this Lease of
maintenance, repair, and rebuilding.
5.3 Sound Transit's Oblil{ations to Repair. Except (i) as othetwise provided in
Section 5.4 and except (ii) for damage caused by the negligence or intentional misconduct of
City or its subtenants or licensees and except (iii) to the extent of City's obligations under
Sections 2.5(d) and subject to (iv) the provisions of Article 6 (Damage or Destruction) and
Anicle 7 (Condemnation), Sound Transit, at Sound Transit's expense, shall at all times keep neat
and clean and maintain in good order, condition and state of repair the Station including but not
limited to performing all appropriate service to and making all necessary replacements of all
parts and systems thereof. It is the intention of Sound Transit and City that Sound Transit shall
at all times maintain all parts and systems of the Station that Sound Transit is obligated to
maintain in an attractive, first-class and fully operative condition.
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5.4 City's Obli2ations. Subject to the provisions of Article 6 (Damage or
Destruction) and Article 7 (Condemnation), at its expense City shall keep (or shall cause its
subtenants and licensees to keep) neat and clean and maintain in good order, condition and state
of repair (including interior repainting and refinishing, as needed): (a) all parts of the
Commercial Tenant Area bounded by and including (i) the exterior plate glass and exterior
doors, (ii) the interior surfaces of the perimeter walls, and (iii) everything within the air space
above the upper surface of the concrete slab floor and beneath the underside surface of the
ceiling that is also part of the floor of the second floor level of the Parking Garage; (b) any
awnings at or below the second floor level along the north, south, and east exterior walls of the
of the Parking Garage; (c) any signs on the exterior walls of the Parking Garage installed by City
or its subtenants or licensees; and (d) the parts of any plumbing, mechanical, electrical and
HV AC systems of the Parking Garage which serve only the Commercial Tenant Area. Without
limiting the generality of the preceding, at its expense City shall repair or cause to be repaired
any damage caused to the Commercial Tenant Area by the negligence or intentional misconduct
of City or any of its subtenants or licensees (or their invitees, contractors, and customers) but
after completion of such work, City shall be entitled to receive the proceeds of Sound Transit's
property insurance policy described in Section 3.3(b) to the extent of the policy's coverage for
such damage. City shall provide Sound Transit and its insurer with a statement of City's costs of
the work and, on request, copies of invoices and other billings for the various parts of such work.
It is the intention of Sound Transit and City that at all times City shall maintain the portions of
the Leased Premises that City is obligated to maintain in an attractive, first-class and fully
operative condition.
5.5 Alterations, Additions and Improvements. City may make (or may pennit any
of its tenants and licensees to make) any non-structural alterations, additions, or improvements to
all or any part of the Commercial Tenant Area and its various systems and parts (including
installation of awnings and signs on the exterior walls thereof) without Sound Transit's prior
written consent. City may not make (and shall not permit any of its tenants or licensees to make)
any alterations, additions, or improvements to any part of the Plaza or any structural alterations,
additions, or improvements to any of the Commercial Tenant Area without Sound Transit's prior
written consent. Sound Transit shall not unreasonably delay, condition or refuse such consent.
All alterations, additions, and improvements made by City, its tenants or licensees, shall be done
in a good and workmanlike manner and in confonnity with all applicable laws and regulations.
City shall pay, or cause its tenants or licensees who do the work to pay, when due all costs of
such work. If requested by Sound Transit, then promptly after completion of any such work
involving structural alterations, additions, or improvements, City shall provide, or cause its
tenants or licensees who did the work to provide, Sound Transit with "as built" plans and
reasonable evidence of payment of the costs thereoE
5.6 Condition Upon Termination. Upon the expiration or earlier termination of this
Lease, City shall surrender the Leased Premises to Sound Transit, broom clean and in the same
condition as received except for: (i) ordinary wear and tear; (ii) alterations, additions and
improvements made as provided in Section 5.5; and (iii) alterations, additions and improvements
made by Sound Transit, if any. However, City shall not be obligated to repair any damage that
Sound Transit is required to repair under Section 5.3 nor any damage described in Article 6
(Damage or Destruction) or Article 7 (Condemnation). In addition, Sound Transit may require
City to remove any alterations, additions, or improvements made by City, its tenants or licensees
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for which Sound Transit's consent was required and, when given, such consent was conditioned
on such removal. All alterations, additions and improvements which City is not obligated to
remove shall become Sound Transit's property and shall be surrendered to Sound Transit upon
the expiration or earlier tcnnination of this Lease, except that City, its tenants and licensees may
remove (i) their respective trade fixtures and (ii) all or any part of their respective machinery and
equipment which can be removed without material damage to the Leased Premises. City shall
repair at City's expense, or City shall cause City's tenants and licensees to repair at their expense,
any damage to the Leased Premises, including any improvements thereon, caused by the removal
of any such machinery, equipment or trade fixtures.
ARTICLE 6: DAMAGE OR DESTRUCTION
6.1 Partial Damage to Parking Garage. City shall notify Sound Transit in writing
promptly after it learns of the occurrence of any damage to the Leased Premises. If as a result of
any cause the Parking Garage is partially damaged, Sound Transit shall repair the damage,
including any damage to the Leased Premises, as soon as reasonably possible and this Lease
shall remain in effect. Sound Transit may elect (but is not required) to repair any damage to
fixtures, equipment, or improvements made by City, its tenants or licensees. "Partially
damaged" means the cost of repair, as reasonably estimated by Sound Transit, is not more than
sixty percent (60%) of what would be the cost of constructing at that time the Parking Garage as
originally constructed plus any improvements, alterations or additions made thereto by Sound
Transit after completion of initial construction.
6.2 Substantial or Total Destruction. If the Parking Garage is substantially
destroyed by any cause whatsoever (e.g., the damage to the Parking Garage is greater than partial
damage as defined in Section 6.2), Sound Transit may elect to restore the Parking Garage
(including the Leased Premises), in which case Sound Transit shall do so as soon as reasonably
possible and this Lease shall remain in effect. Sound Transit may elect (but is not required) to
repair any damage to fixtures, equipment, or improvements made by City, its tenants or
licensees. Not later than ninety (90) days after the date of the destruction, Sound Transit shall
give written notice to City of whether Sound Transit will or will not restore the Parking Garage
under this Section and, if Sound Transit elects to restore, whether its restoration will include
fixtures, equipment, or improvements made by City, its tenants or licensees. If Sound Transit
elects not to restore the Parking Garage under this Section, then (a) this Lease shall terminate as
of the date of the damage and (b) after deducting therefrom the costs of demolition of the
Parking Garage, the proceeds, if any, of the property insurance policy described in Section 3.3(b)
including any optional flood or earthquake coverage) shall be paid to Sound Transit and to City
in the proportion of their respective interests in the Parking Garage.
6.3 Abatement of Certain Charges; Setoff of Certain Expenses. If this Lease
remains in effect after damage or destruction under any of Sections 6.1 or 6.2, then to the extent
that as a result of such damage or destruction to, or of the work of restoration of, the Commercial
Tenant Area or City's Parking Spaces is or are not reasonably useable for the purposes they were
being used immediately before the damage or destruction occurred, then those charges to be paid
by City Wlder Sections 3.1 through 3.3 and Section 5.4 shall abate in the proportion that such
Area or the City's Parking Spaces, or both, is or are not so useable. If Sound Transit elects not to
restore under Section 6.2 but City does elect to restore under such Section, then the amount of
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City's costs of restoration which are not reimbursed from proceeds of insurance shall be setoff
against all sums payable by City to Sound Trdllsit under this Lease in the order in which such
sums would otherwise be due until the entire amount, together with interest at eight percent (8%)
per annum on the declining principal balance thereof, has been fully setoff.
6.4 Exceptions. Notwithstanding the preceding provisions of this Article 6. this
Lease shall terminate as of the date of the damage and Sound Transit shall have no obligation to
restore the damage if (a) the damage occurs within the last two years of what would otherwise be
the Term of this Lease or (b) the work of restoration cannot reasonably be completed by a date
on which there would be remaining at least two years in the Lease Term. For the purposes of the
preceding, if not previously exercised, City may exercise its option under Section 2.2 to extend
the Term of this Lease if such option is exercised within sixty (60) days after the date the damage
occurred.
ARTICLE 7: CONDEMNATION
7.1 Permanent Takin2.
(a) General Provisions. If all or any portion of the Leased Premises are
permanently taken under the power of eminent domain or are conveyed under the threat of that
power, this Lease shall terminate as to the part taken or conveyed as of the date the condemning
authority is entitled to possession thereof. If twenty percent (20%) or more of the floor area of
the Commercial Tenant Area is taken, City may terminate this Lease as to the remainder of the
Commercial Tenant Area or as to all the Leased Premises as of the date the condemning
authority is entitled to possession. If twenty percent (20%) or more of the City's Parking Spaces
is taken, City may terminate this Lease as to the remainder of City's Parking Spaces or as to all
the Leased Premises as of the date the condemning authority is entitled to possession. If some
but not all of the parking spaces in the Parking Garage are taken and if this Lease remains in
effect after such taking, then the remaining parking spaces in the Parking Garage shall be
reallocated between City and Sound Transit so that, after such reallocation, the City's Parking
Spaces bear the same proportion to the remaining parking spaces in the Parking Garage as the
number 180 bears to the number 562. Notwithstanding the preceding sentence, if such
reallocation would reduce the number of the Other Parking Spaces below four hundred eighteen
(418), then Sound Transit may elect to allocate to itself up all or any part of the remaining
parking spaces in excess of thirty-six (36) of such remaining parking spaces (which shall be
allocated to City) but in such case, and as a condition to such election, Sound Transit shall pay to
City that sum of money calculated as follows: (i) first, determine the number of the remaining
parking spaces that would have been allocated to City on the basis of the ratio of 180 to 562; (ii)
second, determine the number of the remaining parking spaces allocated to City after Sound
Transit's reallocation election; (iii) third, subtract the second of such numbers from the first of
such numbers; (iv) fourth, divide the amount of the compensation for the taking that is allocable
to the parking spaces taken by the number of the parking spaces that was taken; and (iv) fifth,
multiply the number derived in the third step by the amount derived in the fourth step. Sound
Transit and City shall each exercise their respective elections by written notice to the other given
within sixty (60) days after receipt of final written notice from the condemning authority of the
final extent of the taking (or in the absence of such notice, within sixty (60) days after the
condemning authority is entitled to possession). If this Lease is not terminated according to the
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preceding parts of this Section, then this Lease shall remain in effect as to the portion of the
Leased Premises not taken and Sound Transit shall restore those portions of the Parking Garage
that are not taken to as nearly as practical the condition immediately before such taking and in a
configuration so that the various parts of the restored Parking Garage are economically
functional and useable for their intended purpose. The plans and specifications for the work of
restoration and any changes thereto shall be as agreed by both Sound Transit and City, neither of
which shall unreasonably refuse, delay or condition their agreement. Copies of such plans and
specifications, as they may be changed and as-built, shall be provided to City, all similarly to the
provisions of Section 2.3 for initial construction of the Parking Garage. Sound Transit and City
shall each contribute to the costs of such restoration in the proportion that they received
compensation for the taking (excluding any part of their respective compensation that was
separately awarded in addition to the value of their respective property interests, such as
compensation for moving or other relocation expenses).
(b) Allocation of Award. In the case of a permanent taking or damaging of
the Parking Garage or any part thereof, City and Sound Transit shall each receive the value of
their respective interests in the property taken or damaged by eminent domain or conveyed under
threat thereof, together with such interest thereon and attorneys fees and other costs to the extent
awarded. City and Sound Transit shall each have the right, as against the condemning authority,
to recover, to the extent of their respective interests, damages or other compensation for the
permanent taking of or damage or injury to the Leased Premises or any part thereof. City and
Sound Transit shall each have the right to participate in any condemnation proceeding and be
represented by counsel for the purpose of protecting their respective interests under this Section.
If the City and Sound Transit do not agree on their respective shares (after engaging in the
dispute resolution process set forth in Section 9.7), then such shares shall be as determined by the
King County Superior Court in the condemnation proceedings, if any, or in a separate action
between City and Sound Transit. In addition, each of City and Sound Transit shall have the right
to recover from the condemning authority such other compensation as they may, respectively, be
entitled in addition to compensation for the value of the property taken, damaged or injured.
Such additional compensation may include but is not necessarily limited to loss of business and
relocation costs.
7.2 Abatement and Adjustment of Charges Payable by City. If there is a
permanent taking or damaging (collectively "taking") and this Lease is not terminated under
Section 7.1 then to the extent that as a result of the taking (or of the work of restoration) the
Commercial Tenant Area or City's Parking Spaces is or are not reasonably useable for the
purposes they were being used immediately before the taking occurred, then those charges to be
paid by City under Sections 3.1 through 3.3 and Section 5.4 shall abate in the proportion that
such Area or City's Parking Spaces, or both, is or are not so useable. After the work of
restoration is completed, the City's share of the costs and expenses described in Sections 3.1
through 3.3 and Section 5.4 shall be adjusted equitably to the extent appropriate, if any, to reflect
the changes in the Leased Premises as a part of the restored Parking Garage as compared to the
Leased Premises as a part of the Parking Garage before the taking.
7.3 Temporary Taking. If the whole or any part of the Leased Premises is
temporarily taken under the power of eminent domain or temporarily conveycd under threat of
the exercise of such power, then this Lease shall continue and, except to the extent the parties are
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~___n'. _____~
prevented from doing so pursuant to the tenns of the taking, the City and Sound Transit shall
each perfonn and observe all of the tenns and conditions of this Lease as though the taking had
not occurred. In the event of such a temporary taking, City shall be entitled to receive the entire
amount of any award made for such taking, whether paid by way of damages, rent or otherwise,
unless such period of temporary taking shall extend beyond the expiration date of the Tenn, in
which case such award shall be apportioned between the City and Sound Transit as of such
expiration date. For the purposes of the preceding, if not previously exercised, City may exercise
its option under Section 2.2 to extend the Tenn of this Lease,
ARTICLE 8: ASSIGNMENT AND SUBLETTING
8.1 Subletting. City shall exercise reasonable efforts to locate suitable tenants for the
Comll).ercial Tenant Area. City may sublease all or any part of the Commercial Tenant Area
from time to time during the tenn of this Lease and no consent of Sound Transit is required on
account thereof or to any assignment or sub-subleasing of all or any part of the subtenant's rights
under its sublease with City, provided that: (i) City attaches a copy of this Lease to each such
sublease; (ii) the sublease requires the subtenant to maintain liability and property insurance as
provided in Section 3.3(a) through (d) and 3.3, including naming Sound Transit as an additional
insured; and (iii) if the subtenant provides alcoholic beverages anywhere on the Station, the
subtenant shall also obtain a host liquor liability endorsement to its liability insurance.
8.2 Assignment. City may assign all, but not a part, of its rights and obligations
under this Lease to any municipal government or any governmental agency that is a successor to
the City's municipal functions in the area where the Parking Garage is located and no consent of
Sound Transit is required on account thereof. City may not othelWise assign all or any part of its
rights or obligations under this Lease without Sound Transit's prior written consent, which Sound
Transit shall not unreasonably refuse, delay, or condition.
8.3 Release of City. Except as provided below, no sublease by City and no
assignment by City shall release City or change City's primary liability to perfonn all its
obligations under this Lease. Consent to one assignment where Sound Transit's consent is
required is not consent to any subsequent assignment for which Sound Transit's conscnt is
required. In the case of City's assignment to a successor municipal government or governmental
agency, City shall be released and discharged from all obligations of performance under this
Lease and the assignee shall be liable for payment and performance of all City's obligations
under this Lease, including any which have not been fully paid or performed when the
assignment is made.
8.4 Requesting Sound Transit's Consent. City's request for consent to any
assignment described in Section 8.1 for which Sound Transit's consent is required shall be in
writing and shall describe the proposed transaction in sufficient detail so that Sound Transit is
fully informed of the parties to and the nature and scope of the proposed assignment, including
but not limited to the name of the proposed assignee, the proposed effective date of the
assignment, and the proposed tenns and conditions of the assignment. Promptly on Sound
Transit's request therefor, City shall provide any additional information reasonably requested by
Sound Transit in order to evaluate whether to give its consent to the proposed assignment.
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8.5 Sound Transit's KiRbt to Information. Promptly after Sound Transit's request
at reasonable intervals from time to time, City shall provide Sound Transit a written statement
identifYing the name and address of all such City's then current subtenants and licensees, a copy
of thcir then CUrrent written subleases and licenses and, in the case of any unwritten tenancies or
licenses, a written statement in reasonable detail of the tenns and conditions thereof. Sound
Transit may inspect City's books and records to verifY the accuracy of the information and copies
provided by City to Sound Transit under this Section.
ARTICLE 9: BREACH AND REMEDIES
9.1 Time is of the Essence. Time is of the essence in the performance of all
covenants and conditions under this Lease of Sound Transit and of City.
9.2 Default and Breach Defined. A party to this Lease shall be in "default" of an
obligation it has under this Lease if the party does not payor perform the obligation as and when
due, except that if such failure is later cured. then the party shall no longer be in default on the
obligation. A party to this Lease .shall be in "breach" of an obligation it has under this Lease:
(a) If the party fails to make any payment required of it under this Lease
within thirty (30) days after the other party's written notice of default specifying the amounts in
default and the due date(s) thereof;
(b) If the party fails to perform any of the party's other obligations under this
Lease for a period of thirty (30) days after written notice from the other party specifYing the
obligation in default and the action required of the party in default to cure such default.
However, if more than thirty (30) days are reasonably required to complete such performance,
the party in default shall not be in breach if the party commences such performance within the
thirty (30) day period and thereafter diligently and continuously pursues such performance to
completion.
(c) If (i) a petition for adjudication of bankruptcy or for reorganization or
rearrangement is filed by or against the party and is not dismissed within one hundred eighty
(180) days; or if (ii) if a trustee or receiver is appointed to take possession of substantially all of
the party's assets and such appointment is not dismissed or if possession of such assets is not
restored to the party within one hundred eighty (180 days) after such appointment.
The requirements for notice specified in subparts (a) and (b) of this Section 9.2 are
intended to satisfY any and all notice requirements imposed by law and are not in addition to any
such requirement.
9.3 Sound Transit's Remedies for City's Breach.
(a) General Provisions. On or at any time after the occurrence of any breach
of one or more of City's material obligations under this Lease, Sound Transit may elect to:
(1) Recover the sums owed by City under this Lease together with
interest thereon at the rate of eight percent (8%) per annum on the unpaid principal balance
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thereof from time to time beginning with the date the sums were due and ending when the sums
have been fully paid;
(2) Specifically enforce City's obligations under this Lease;
(3) Recover damages caused to Sound Transit by City's breach; and/or
(4) Perform the obligations of City that are in breach and recovcr from
City the costs incurred by Sound Transit in such performance.
(b) Termination. If, during any period of thirty-six consecutive months during
the Term of this Lease, Sound Transit obtains a judicial order that is final and not appealable
specifically enforcing one or more of City's material obligations under this Lease and (i) City
fails to comply with such order within the time period set forth with the order (as it may be
amended) for such compliance or (ii) Sound Transit obtains a second judicial order specifically
enforcing one or more of City's material obligations under this Lease (whether the same or
different obligations than involved in the first order), then Sound Transit may terminate City's
right to possession of the Leased Premises by written notice to City if such noticc is given not
later than thirty days after the second order is final and not appealable and provided that such
notice gives City not less than thirty (30) days after the date of the notice to surrender possession
of the Leased Premises to Sound Transit.
(c) Remedies Cumulative. The remedies provided in this Sections 9.3(a) and
9.3(b) are cumulative with each other and cumulative with and in addition to all other remedies
as may be permitted by law or equity except that (except as otherwise provided in Section
9.3(b)), Sound Transit hereby waives and releases any and all rights, and shall have no right, to
terminate this Lease or City's rights of possession of any part of the Leased Premises on account
of any breach by City of one or more of its obligations under this Lease. As a substitute for such
termination, Sound Transit may obtain an order from a court with jurisdiction over the parties
and the subject matter directing City's subtenants and licensees to attorn to and perform to and
for the benefit of Sound Transit all of such subtenants' and licensees' respective obligations under
their sublease or license until City has fully cured its breach, including payment (to the extent
applicable) under subparts (i), (ii) and (iv) of this Section or such other time as the court may
direct.
(d) Emergencies. If City's default in any of its obligations under this Lease
creates or enhances an emergency, a serious risk of death or injury to any person, or a serious
risk of injury or damage to any property, Sound Transit may, without giving City prior notice
and opportunity to cure, immediately exercise the remedy specified in Section 9.3(a)(iv) with
respect to that default and, for that purpose, enter any part of the Leased Premises reasonably
necessary to do so.
9.4 City's Remedies for Sound Transit's Breach.
(a) General Provisions. On or at any time after the occurrence of any breach
of one or more of Sound Transit's obligations under this Lease, City may elect to:
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(1) Terminate this Lease and recover and setoff under subparts (iv)
and (v) of this Section;
(2) Bring an action for specific performance of Sound Transit's
obligations and recover under subpart (iv) of this Section;
(3) Perform the obligations of Sound Transit which are in breach and
recover under subpart (iv) of this Section;
(4) Recover from Sound Transit (A) all monetary sums, if any, then
due and unpaid to City by Sound Transit, (B) the costs of performing or completing obligations
of which Sound Transit is in breach, and (C) damages caused to City by Sound Transit's breach;
and
(5) Setoff all or any part of the sums dcscribcd in subpart (iv) of this
Section against any sums payable by City to Sound Transit under this Lease in the order in which
such sums would otherwise be due until the entire amount, together with interest at eight percent
(8%) per annum on the declining principal balance thereof, has been fully setoff.
City shall give Sound Transit written notice of City's elections under this Section 9.4.
City's election of any of the remedies under subparts (ii) through (v) shall not preclude City from
electing at a subsequent time any other of such remedies or of electing to proceed under
subpart (i). The election of the remedy under subpart (i) precludes the subsequent exercise of
any other remedy. Except as provided in the preceding sentence, the remedies specified in this
Section are cumulative with each other and cumulative with and in addition to all other remedies
as may be permitted by law or equity.
(b) Emergencies. IfSoWld Transit's default in any of its obligations under this
Lease creates or enhances an emergency. a serious risk of death or injury to any person, or a
serious risk of injury or damage to any property, City may, without giving SOWld Transit prior
notice and opportunity to cure, immediately exercise the remedy specified in Section 9.4(a)(iv)
with respect to that default and, for that purpose, enter any part of the Parking Garage and of the
Station reasonably necessary to do so.
9.5 Interest. Any amount owed by one party to the other under this Lease which is
not paid when due shaH bear interest at the rate of eight percent (8%) per annum from the due
date of such amount. The payment of interest on such amoWlts shaH not excuse or cure any
default under this Lease on account of the failure to pay the amoWlt owed when due.
9.6 Attorneys' Fees and Costs. In any action between the parties arising out of or
related to this Lease, the prevailing party shall recover from, and the losing party shaH pay to the
prevailing party, the prevailing party's reasonable expenses of the action. "Action" includes:
(i) litigation or other adversary proceeding in any court or governmental body with jurisdiction
(including but not limited to a bankruptcy court); appeals of the decision of any lower tribunal
(including but not limited to an award in arbitration); and, if such proceedings are required by
law or agreed by the parties, alternative dispute resolution proceedings (such as but not limited to
mediation and/or arbitration). "Expenses of the action" include but are not limited to the
reasonable fees and costs of witnesses, consultants, experts, and attorneys. However, anything
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appearing to the contrary notwithstanding, the provisions of this Section 9.6 do not apply to
mediation under Section 9.7(b).
9.7 Dispute Resolution,
(a) Negotiation. The Parties agree to use their best efforts to resolve disputes
and other matters arising out of the planning, design and construction of the Station and Station
Area (including but not limited to the Parking Garage and the Plaza Areas), arising out of the
ongoing administration of the Parking Garage and Plaza Areas facilities, and arising under this
Lease. If an issue cannot be resolved between Sound Transit and City, either of thcm may
invoke a formal conflict resolution process. The fIrst step in the process is a meeting including
Sound Transit's Chief Operating Officer and City's Planning Director. If these persons do not
resolve the dispute in a timely manner, the second step in the conflict resolution process shall be
a meeting of Sound Transit's Executive Director and City's Mayor. If these persons do not
resolve the dispute in a timely manner the third step in the conflict resolution process shall be a
meeting of Sound Transit's Chairman of the Board and City's Mayor. Sound Transit and City
agree to exhaust all three steps of this negotiation process before seeking mediation as next
described.
(b) Mediation. If the parties do not resolve the dispute in the conflict
resolution process described in Section 9.7(a), then either party may by written notice to the
other require that the dispute be submitted to mediation. Within fourteen (14) days after such
notice, the parties shall agree on and mutually appoint a mediator. If such agreement and
appointment is not made, then either party may petition the King County Superior Court to
appoint a mediator. Each party shall participate in good faith in the mediation process with the
appointed mediator. Sound Transit and City each agree to participate in good faith in the
mediation process with appointed mediator before seeking redress in a court of law or other
tribunal. The costs and fees of the mediator shall be paid one-half each by City and by Sound
Transit.
ARTICLE 10: MISCELLANEOUS PROVISIONS
10.1 Non-Discrimination. Neither City nor Sound Transit shall discriminate against
any person or group of persons on the basis of race, color, sex, creed, national origin or ancestry
in any way related to or arising out ofthe party's rights or obligations under this Lease.
10.2 Interpretation. The captions of the Articles and Sections of this Lease are
intended only to assist in reading this Lease and are not a part of the terms or provisions of this
Lease nor shall they be considered in construing or interpreting any provision of this Lease.
Whenever required by the context of this Lease, the singular shall include the plural and the
plural shall include the singular. The masculine, feminine and neuter genders shall each include
the other. In any provision relating to the conduct, acts or omissions of either party to this Lease,
reference to the party shall also be to the party's agents, employees, contractors, and successors.
10.3 Notices. Any notice required or permitted to be given by one party to this lease to
the other related to this Lease shall be in writing and shall be sufficient. if given to the other party
either by personal delivery or by first class, postage prepaid, United States mail. Notices to City
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~-~._----_._--
shall be addressed to City's Director of Planning and delivered to the address specified in
Section 1.4. Notices to Sound Transit shall be addressed to Sound Transit's Sounder Operations
Manager and delivered to the address specified in Section 1.3. Either party may change its
notice address by written notice to the other parly. "Notice" includes but is not limited to a
demand and a request. At the option of the sender, mailed notices may be mailed registered or
certified mail with return receipt requested. Notices that are personally delivered shall be
deemed given on the date the notice is delivered. Notices that are mailed shall be deemed given
on the third business day after the notice is mailed. Notices that are sent and received by courier
or messenger service shall be considered to have been personally delivered. Notices that are sent
and received in complcte form by facsimile transmission shall be considered to have been
personally delivered when sent if the sending party receives a written send verification on its
facsimile device. The preceding sentence does not obligate any party to accept a facsimile
transmission. "Facsimile transmission" is a method of encoding a written document into data by
a transmitting device, transmitting the encoded data to a receiving device, and dccoding the
transmission at the receiving device to reproduce a paper copy of the original document,
including but not limited to any graphic material on the original document, including but not
limited to signatures, drawings, logos, notes, and photographs. The method of electronic
communication commonly known as "e-mail" is not a facsimile transmission (even if
accompanied by an attachment) and is not an acceptable means of giving notice.
10.4 Recordin2. This Lease shall not be recorded without the prior written consent of
both parties. However, promptly after the request of either party. both parties shall execute,
acknowledge, deliver to one another, and record a Memorandum of this Lease giving
constructive notice of the terms and conditions hereof. The party requesting such recording shall
pay the recording fees thereof.
10.5 Bindin2 EtTect; Governin2 Law. This Lease is binding upon the parties hereto
and their respective successors and assigns in interest. However, the preceding sentence does not
permit any assignment in contravention of other provisions of this Lease. This Lease is governed
by and shall be construed and enforced according to the laws of the State of Washington,
excluding that State's laws relating to choice oflaw.
10.6 Force Maj~. If either party cannot perform any of its obligations due to
events beyond the party's control, the time provided for performing such obligations shall be
extended by a period of time equal to the duration of such events. Events beyond a party's
control include, but are not limited to, acts of God, war, civil commotion, labor disputes, strikes,
fire, flood or other casualty, shortages of labor or material, government regulation or restriction
and weather conditions.
10.7 Authorized Persons. For the purpose of all provisions of this Lease that require
Sound Transit's consent or approval or that require Sound Transit to consult or agree with City,
the person authorized to act for Sound Transit in all such matters is Sound Transit's Chief
Operating Officer. For the purpose of all provisions of this Lease that require City's consent or
approval or that require City to consult with or agree with Sound Transit, the person authorized
to act for City in all such matters is City's Director of Planning. Each party may from time to
time change its authorized person by written notice to the other.
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10.8 Survival. Terms and provisions of this Lease related to liability and indemnity
obligations shall survive the expiration or earlier termination of this Lease.
BY THEIR SIGNATURES BELOW, EACH OF THE PARTIES CERTIFY THE
PROVISIONS OF SECTION 4.5 WERE MUTUALLY NEGOTIATED.
"SOUND TRANSIT" "CITY"
Central Puget Sound Regional Transit Authority City of Auburn
BY"-l~ -
~
Peter B. Lewis, Mayor
. Dated: .... <)10 wl .1., ,2002
APPROVED AS TO FORM ATTEST:
~~~~
Sound TranSIt egal Counsel
APPROVED AS TO FORM:
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OPTION TO EXTEND RIDER
PROVIDED tenant is not in default at the time of exercise or upon the commencement of
any extension term, Tenant shall have Two (2) (if not completed, zero) successive
options to extend the term of this Lease for Five (5) years each. Tenant shall exercise
each option by delivering written notice to Landlord not less than one hundred eighty
(180) days prior to the expiration of the then current Lease term. Upon the exercise of
any option, the term of this Lease shall be extended for the period of the subject option
upon all of the same terms, conditions and covenants as set forth herein, except for the
amount of the Base Monthly Rental stated in year 5 of the current Lease which shall be
increased or decreased in accordance with the change in the United States Department of
Labor, Bureau of Labor Statistics Consumer Price Index for All Urban Consumers for the
Seattle-Tacoma -Bremerton area up to a maximum of the CPI reported for the year
ending with the final year ofthe current lease CPI plus 2%.
In subsequent years the rent paid annually will, at the landlord s option, increase
by the CPI.
_~d_ .__
Non-Compete Rider
Non-Compete
Tenant s principal permitted use of the leased premises is as a retail outlet for the
sale of coffee products, coffee specialty drinks and nutritional supplements. The parties
agree that this Lease gives the Tenant s business a priority position for such business on
that part of the premises over which the Landlord has lease control. Accordingly, in the
event that any other tenant of any part of the premises over which the Landlord has lease
control wishes to operate a coffee cart or espresso stand on the premises, the Landlord
shall give the Tenant the opportunity to object to such business. If the Tenant
communicates to the Landlord an objection to such business, which objection must be
received within thirty (30) days of notice by the Landlord, the Landlord shall not permit
such coffee cart or espresso stand business on any part of the premises over which the
Landlord has lease control during the term ofthe tenant s lease and any extensions
thereof.
NOTE:
The provisions of Section 2.5(1) of the Master Lease with the Central Puget Sound
Regional Transit Authority contains language that also addresses limitations on coffee
carts and espresso stands.
__..__'._M'__
TENANT IMPROVEMENT RIDER
The work outlined below will be completed by the Landlord and, additional, Landlord
will pay Fifty Thousand Five Hundred and Eight Dollars and No/100 ($50,508.00), (an
amount equal to Eighteen Dollars and No/lOa ($18.00) per square foot of Premises)
toward Architectural Services and other mutually agreed Tenant Improvements to be
performed by Landlord s contractor. Tenant may review bids submitted to Landlord for
such work and may choose which services will be provided by Landlord up to $50,508.00
allowance.
Architectural:
I. Demising walls and furred walls at the perimeter of each tenant space
including metal studs, acoustic or thermal insulation, and gypsum wall board
finished with tape and compound ready for paint
2. Thermal insulation at underside of second floor slab.
3. Storefront changes as required, and door to back hallway.
4. Two exterior signs. One mounted at the underside of the canopy above the
front entrance, and one large wall mounted sign above the canopy.
Mechanical:
1. HV AC equipment, piping, and duct work for a heat pump system complete to
and including the heat pump units in the ceiling space and exhaust ductwork
for 1 range hood. Not included are the air distribution ducts from the heat
pumps to the future ceilings, the ceiling diffusers and grilles, and the
thermostats and related wiring. See drawings M2.0 & M4.0
Electrical:
1. Power service to each tenant space including meter and step down transformer
in the central electrical room, conduit, wiring, and breaker panel in the tenant
space.
See drawing E I.
2. Power to the mechanical equipment.
3. Fire alarm system
4. Conduit with pull rope for telephone system from main telephone terminal to
the ceiling area of each tenant space. Wiring not included.
Also included in the Landlord Improvements outside the tenant spaces are new ceilings,
lighting, and vinyl flooring in the back hallway; vinyl flooring in the toilet rooms; and the
work required for the HV AC system. Space is available for one additionatexhaust duct I
to the rooffor a future range hood.
RENT RIDER
LANDLORD and Tenant should complete only those provisions below which apply.
Any provision below which is not completed shall not apply to the Lease.
I. BASE MONTHLY RENT SCHEDULE. Tenant shall pay Landlord base monthly
rent during the Lease Term according to the following schedule. Base Rent does not
include the Leasehold Tax as established by the State of Washington.
Lease Year IStated in Years) Base Monthlv Rent Amount
Year 1 $1.169.17
Year 2 $1.636.83
Year 3 $3.039.83
Year 4 $3.507.50
Year 5 $3.507.50
MJIrl. },(L I
Tenant's Initials
Landlord's Initials Tenant's Initials
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ADDENDUM TO THE [INTERLOCAL] AGREEMENT
BETWEEN THE CITY OF AUBURN AND ANGELANEY'S LLC
RELATING TO 110 2ND St. SW SPACE AI06
THIS ADDENDUM is made and entered into this l!i...- day of .J!."!15t/A'/lN ,
2003, by and between the CITY OF AUBURN, a municipal corporation of the State of
Washington (hereinafter referred to as the "City"), and Angelaney's LLC (hereinafter referred to
as The Tenant), as an addendum to the Agreement between the parties for the Lease of Space at
110 2nd St SW Space Al 06 executed on the 17th day of January, 2003.
WIT N E SSE T H:
WHEREAS, the parties hereto have heretofore contracted for the lease of commercial
space services and each appreciates that contracting for such services provides a number of
mutually beneficial advantages, and in order to provide further advantages for each of the parties,
they agree that the Agreement referred to above should be amended as provided hereinbelow.
NOW THEREFORE in consideration of their mutual covenants, conditions and promises,
the PARTIES HERETO HEREBY AGREE as follows:
ITEM ONE REVISION TO rentable square feet: That Section 1.16 of the Agreement
is amended to read as follows:
Adjustments to Base Monthly Rent and Tenant's Share. The Base Monthly Rent
provided in Paragraph 1.8 is calculated at Ten Dollars and No/100 1$10.00) per year for each
rentable square foot (or part thereof) in the Premises as determined according to the standards
last published by the Building Owners And Managers Association ("BOMA") when this
Sublease is made. Tenant's Prorata Share is calculated as the percentage, which is the same
percentage of the rentable square feet in the Premises bears to the rentable square feet of the
Commercial Tenant Area. For these purposes, Sublessor and Tenant agree that, at
commencement of the Term, the Premises has 2,918 rentable square feet and the Commercial
Tenant Area has 13 ,490 rentable square feet. Sublessor may recalculate the Base Monthly Rent
and Tenant's Prorata Share from time to time during the Term if there is a change in
configuration of the Premises or any other space in the Commercial Tenant Area. If Sublessor
recalculates the Base Monthly Rent and Tenant's Prorata Share, Sublessor shall give Tenant
written notice of the new calculations and of the new amounts of the Base Monthly Rent and
Tenant's Prorata Share. The recalculated Base Monthly Rent and Tenant's Prorata Share shall
become effective beginning on the first day of the first calendar month during the Term that
occurs at least fifteen days after Sublessor's notice is given.
ITEM TWO REVISION TO Prorata Share is: That Section 1.15 of the
Agreement is amended to read as follows: Tenant's Prorata Share. "Tenant's Prorata Share" is
21.63%.
ITEM THREE REVISION TO RENT RIDER: That RENT RIDER of the
Agreement is amended to read as follows:
The Rent Rider attached to the Lease Agreement between Angelaney's LLC, otherwise known as the Tenant, and
the City of Auburn, otherwise known as the Snblessor is hereby amended as follows:
Landlord and Tenant should complete only those provisions below which apply. Any provision below which is not
completed shall not apply to the lease.
1. BASE MONTHLY RENT SCHEDULE. Tenant shall pay Landlord base monthly rent during the Lease
Term according to the following schedule. Base Rent does not include the Leasehold Tax as established by
the State of Washington.
Lease Year (Stated in Years)
Year I 1.215,83
Year 2 1,702.17
Year 3 3,161.17
Year 4 3,647.50.
Year 5 3,647.50
ITEM FOUR: REMAINING TERMS UNCHANGED: That all other provisions of the
Agreement between the parties for the Lease of Space at 110 2nd St SW Space AI06 executed on
the 17th day ofJanuary, 2003.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
TENANT
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By:
Its:
Attest: Attest:
,
By:
Its:
Approved as to form:
Attorney for Tenant
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STATE OF WASHINGTON )
COUNTY OF ;titJ ~ ss.
I certify that I know or have satisfactory evidence that f'e.1// f/.. la,n. eq is the
person who appeared before me and said persh :cknowledged that j::f..t,t It / d Ite:l
signed this instrument, on oath stated that was authorized to execute the
instrument and acknowledged it as the 5> t!J.jI1.D... tu... r~ of A. {' S to
be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED, 1.f~ ILf ,abO'3.
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f uft NOT4f/y1\ i~ Printed Name: ro{Jl-r Gl5frO'-Wt
~ ~ Pu-;-.~ mf ~ NOTARY PUBLIC in and ~or the S::t;
'" ~....?o L,v.,.... J Washington, residing at Ko(.~ 11
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\(0'*.......... .:- My Commission expires' I b -Z-f -" 3
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STATE OF WASHINGTON )
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COUNTY OF )
I certify that I know or have satisfactory evidence that -.!Je.-LIZ(.v/ S is the
person who appeared before me and said person acknowledged that t'e-re. Le4U1 '5
signed this instrument, on oath stated that It of was authorized to execute the
instrunlent and acknowledged it as the .tJ1 ~t" r of Au 6 u r 1'1 to
be the free and voluntary act of such party for t e uses and purposes mentIOned III the IIlstrument.
DATED:J~/1 ,~b6?
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..:---O"::.~...f:. ~\I Printed Name: ~ tpl:J~ E gm~
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f U :'~~\ ~" 0', NOT AR Y PUBLIC in and for the State of
~ i8 NOi409y 1;': ~~ Washington, residing at ~ fJ.~
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~~:.. .> P~LIC "'/ ! My Commission expires: I ~- Z7'-o >
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