HomeMy WebLinkAboutEDWARD D JONESSUBLEASE
This Sublease ("Sublease") is entered into this ~-"/Wday of April, 2004 between the City
of Auburn, a Washington municipal corporation ("Sublessor"), and Edward D. Jones, a Missouri
Corporation. ("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 Edward D. Jones D/b/a Edward Jones .
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 2nd Street S.W., Suite
120, Auburn, Washington 98001. 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 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
does not
include all or any part of the Plaza Tenant Area.
1.5 Commencement Date. The Term of this Sublease shall commence on
May 1, 2004 , 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 April 30, 2009 , 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. /~/~~'~" ''" "~'
X according to the Rent Rider attached hereto~..j-''/!' ~J
a. Prepaid Rent. Upon execution of this Sublease, Ten--all payto
Sublessor the sum of One Thousand Three and 88/100 Dollars (1,003.8~ prepaid rent, to be
applied to the Base Monthly Rent due for the first calendar month of the Term.
1.10 Late Charge. The late charge is five percent of each Late Payment due
from Tenant to Sublessor.
1.11 Securi~. Deposit. The amount of the security deposit is One Thousand
Three and 88/100 Dollars .
1.12 Permitted Use. Tenant shall use said Premises for general office space in
connection with investment brokerage, insurance sales and related financial services.
1.13 Sublessor's Notice Addresses:
paragraph 32, "Sublessor's Notice Address" is:
Subject to change as provided in
City of Auburn
Attention: Director of Planning
25 West Main Street
Auburn, WA 98001-4998
1.14 Tenant's Notice Address: "Tenant's Notice Address" is, subject to
change as provided in paragraph 32, the following:
Attention:
Edward D. Jones and Co. (Headquarters)
12555 Manchester Road
St. Louis, MO 63131
Attention: Branch Leasing; BR# 15854
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 6.52%.
1.16 Ad,[ustments to Tenant's Share. 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 899 rentable square feet and
the Commercial Tenant Area has 13,768 rentable square feet. Sublessor may recalculate the
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
Tenant's Prorata Share, Sublessor shall give Tenant written notice of the new calculations and of
the new amounts of the 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.
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.
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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.
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 April 30, 2009 (the "Expiration
Date").
4.1 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.
4.2 Delay In Tender of Possession. If for any reason whatsoever Sublessor
is unable to tender possession of the Premises to Tenant by Ma',/1, 2004 , 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 (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 or after the Commencement Date, 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 60 full months plus any additional time necessary
so that the Term will end on the last day of a calendar month.
4.3 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 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
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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.
6.2 Sublessor's Right To AOOIv. 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 Securi .ty 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.
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 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 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. Additional
Rent means those costs incurred for the maintenance and operation of the building. 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. OPERATING COSTS.
8.1
specified below:
Definitions. The following terms in quotation marks have the meanings
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) 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); (1) 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, attributable 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.
(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 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. 8.2 Additional Rent. In addition to the Base Monthly Rent
provided in paragraph 7, Tenant shall pay as Additional Rent of the Premises Tenant's Prorata
Share of the Operating Costs for each calendar year during the Term for utility services~ common
area maintenance and any taxes incurred by the sublessor on behalf of the tenant or common
areas not directly paid by the tenant. 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.
8.2.1 Estimated Payment The estimated amount of Tenant's additional
rent shall be paid in monthly installments in the amount of Two Hundred Fifty and 00/100
Dollars ($250.00) beginning May 1, 2004. At the end of a calendar year period, the parties shall
calculate the actual amount for additional rent payments, based on costs for that year and any
over payment shall be remitted to tenant, and any amount of underpayment shall be billed to and
paid by tenant with ninety (90) days of notice of such underpayment submitted to the tenant. The
agreed upon estimated amount of estimated payment of additional rent is to be revised following
the end of the calendar year predicated upon actual additional rent paid for the previous year.
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8.3 Sublessor's Estimates and Statements.
8.3.1 At Commencement. By no later than the start of the third month
of this lease, the 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 third 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. 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. Any adjustments in actual costs will be prorated on the
next years NNN costs.
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
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or is terminated survive such expiration or other termination of this Sublease. Any adjustments
in actual costs will be prorated on the next years NNN costs.
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 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. Within 10 days after
receipt of the Review Notice, Sublessor shall 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 shall 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 shall be made by an independent certified public
accountant selected by Tenant and the costs and fees thereof shall 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 shall be credited to all sums then due from Tenant to
Sublessor (and to the extent of any balance, all 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 shall 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 shall nevertheless pay when due all 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 shall 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. For
informational purposes, the current rate of the leasehold excise tax is 12.84 per cent.
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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. REQUIREMENTS CONCERNING TENANT'S USE.
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 the Plaza Tenant Area Rider). 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 store 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
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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 Tenant
Alterations that were made by Tenant or that Tenant seeks to make.
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 expenses 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.
~2. COMMON AREAS. Tenant shall have the tight 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 tight 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
tight 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 the 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 tights 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 covetings; (b) window coverings; (c) interior walls and partitioning; (d) doors (if
damage is caused by the Tenant); (e) relights and other glass (including exterior windows if
damage is caused by the Tenant); (f) the interior side of demising walls; (g) electronic, phone,
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and data cabling and related equipment installed by or for the exclusive benefit of Tenant,
wherever 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 therefore.
Sublessor shall provide facilities to furnish to the Premises and the Common Areas (a) electricity
for lighting and customary 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
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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 10 p.m. (or later) until _2_7 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 any one 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.
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. Subtessor 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
16
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. 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 therefore 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. Tenant shall also pay Sublessor a fee for Sublessor's oversight and
coordination of the work of the Tenant Alteration in the amount equal to five percent of the cost
17
of the Alteration. Such fee shall be paid when the Tenant Alteration is completed and the total
cost thereof is determined. 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 ~vritten 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 fights
against which the lien was filed or otherwise created.
18. ASSIGNMENT AND SUBLETTING.
18.1 General Provisions. None of Tenant's fights or obligations under this
Sublease are assignable without Sublessor's prior written consent, which Sublessor may refuse or
condition in Sublessor's 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. 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 therefore 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.
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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), ifa 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.
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
19
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. Sublessor shall have the right to enter into the Premises after appropriate notice and at a
time convenient to the tenant for the purpose of installing or repairing ductwork, wiring or other
items in that portion of the sublessor's space in the area above the lower surface of the suspended
ceiling. 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.
Approval of installation of additional tenant security shall not be unreasonable denied.
21. DAMAGE AND DESTRUCTION. If any part of the 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 indirectly 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
20
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
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 alt compensation or
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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.
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 per occurrence and $3,000,000
general aggregate.
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 alt 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 Proof of Insurance. Tenant shall furnish a certificate of insurance evidencing the
insurance required by Section 23 to the Sublessor.
23.4 Requirements Concerning Tenant's Insurance Policies.
23.5.1 General Requirements. Each policy required of insurance Tenant
is required to maintain uner this Sublease shall (a) be issued by an insurance company with a
A.M. Best rating of not less than "A". (b) 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 cararier to endeavor to give Sublessor not less
22
than thirty (30) days written notice before the effective date of any cancellation (includijng but
not limited to cancellation for nonpayment of orenuyn) or of any modification of such coverage
(including but not limited to a change in deductible amounts)
23.5.2 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.
23.5.3 Waiver of Subroeation. 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, 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
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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.
~5. 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.
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 earlier termination of the Term, Sublessor 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.
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
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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 attomment, 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 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 pay or 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:
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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 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,
26
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 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 Bankruptcy. 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:
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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 breach of such obligations on
the date the petition is filed regardless of whether Sublessor had given notice of any one or more
of such defaults and regardless of whether any cure period applicable to any one or more of such
defaults had expired before such filing.
29.5.5 For the purposes of Section 365(b)(1) 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 a~eements between Sublessor and Tenant.
297.5.6 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
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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 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.
~1. POSSESSION. If for any reason ~vhatsoever 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
29
requested. Notice given by Sublessor to any one 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 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. and Helen
McGovern o_f Colliers International.
35. TENANT'S REPRESENTATIONS. Tenant represents and warrants to
Sublessor that: (a) (b) Tenant is engaged in the business of Finanncial Services; and (c) 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.
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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 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.
Sublessor's RepresentativeSublessor acknowledges that for the purposes of this lease it
has retained Northwest Corporate Real Estate, Inc. as its agent for advertising and marketing the
space.
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 any one 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 Attorneys 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
31
being limited to, the costs and fees of consultants, experts, and witnesses. "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 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 any one 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 any one 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 Deposit Against Costs To Be Incurred. If Sublessor agrees or elects to
do any act at Tenant's cost or expense, then:
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 Assigns. This Sublease shall apply to and be binding upon Sublessor and
Tenant and their respective 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 record a
memorandum of Sublease in recordable form that identifies Sublessor and Tenant, the
32
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 Authority 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
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Floor Plan Outline of the Premises
Legal Description
Site Plan of Auburn Transit Center
Rules and Regulations
Master Sublease
Tenants Improvement Plan
38.2. Riders: (List those attached; if none, so state):
Rent Rider
Option to Extend Rider
Tenant Improvement Rider
38.3
Adendums
Adendum A
Adendum B
33
BY THEIR SIGNATURES BELOW, OWNER AND TENANT AGREE TO
THE TERMS AND CONDITIONS HEREIN AND CERTIFY THE
PROVISIONS OF THIS CONTRACT WERE MUTUALLY
NEGOTIATED.
written.
IN WITNESS WHEREOF this Sublease has been executed the date and year first above
TENANT:
r D, Jones"& Co,
dJbJa Edward Jones
BjL~oJ, l.i,ers Turley Martin Tucker
By:'
Print Name:- 'd~~
Its ~r'~ ~/..~z
SUBLES~
Print Na~e:
Its
D~ielle Daskam
City Clerk
APPRO~'~VD AS~I~._Q~ A ~
Print i~an~e:
City Attorney
34
STATE OF WASHINGTON )
) ss.
COUNTY OF '
I certify that I know or have satisfactory evidence tha~ ~.,._.~,C c~j is the
person who appeared before me and said l~rson acknowledgeti that
signed this instrument, on oath stated that
was ~llthofi~,ed-t.o e~ecute the
instrument and acknowledged it as the~/~x, txa~,~.c- of~-/w~( ~,xJ~cV~.- to
be the flee and voluntary act of such pa~y for the ~es and pu¢oses mentio~d~he ins~ment.
*~ ~5. - ..'~; NOT~Y P~LIC in ~, foh the State of
"h,.F WASBX~ .~
'.,,,,,,,..--- ,
/~4 / ~,S'oa,~ /
STATE OF Wg'A~N
)
COUNTY OF ~4~ ~ ,..~ )
I certify that I know or have satisfactory evidence that ///-~ v,.-~/,'",g/~ ~ ~s th
person who appeared before me and said person acknowledged that ~' --
signed this instrument, on oath stated that ~7~ /-~~ s was autho------fized to exec---~ut-~ th---~
instrument and acknowledged it as the/,~}v~,~-, ~,w~,~~of L~'-~~iat/c-~-~ to
be the free and voluntary act of such party for th~ uses and purposes mentioned in the instrument.
Printed Name: ~7~/:3~W4~,t/ ~"~J'/~W,~W T~
NOTARY PUBLIC in and for the State of
Wa$~n, residing at
My Commission expires:
35
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 )
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:
36
EXHIBIT A
Outline of the Premises
37
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 comer of said Block 4, said comer 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 89o05'36'' 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 00°40'12'' 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 89o05'36" East 232.85 feet to the
southeast comer of said block and said westerly margin of "A" Street SW; thence along the
easterly line of said block and said westerly margin, North 00o56'04'' 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
(c) 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 CONTAINING SUCH DESCRIPTION SHALL BE
SUBSTITUTED FOR THE FOREGOING LEGAL DESCRIPTION.
38
EXHIBIT C
Site Plan of Auburn Transit Station
39
EXHIBIT D
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 no~t 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
?perating 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 carded 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 carded 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 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.
40
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 fum. ished 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, 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.
41
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 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.
19. Sublessor shall provide Tenant access to the Garage Monday through Friday, 7
AM - 10 PM and Saturday 7 AM - 6 PM.
42
Exhibit E
Master Lease
43
LEASE
BETWEEN:
CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY
"Sound Transit"
as Landlord
AND
CITY OF AUBURN
"City"
as Tenant
Date of Lease
June 26, 2002
267865.11
06/~6102
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 Ienant Area ............................................................................. 2
(d) Common Areas ............................................................................................. 2
(c) Kiss and Ride Spaces ................................................................................... 3
(f) Leased Premises ........................................................................................... 3
(g) Other Parking Spaces ................................................................................... 3
(h) Operating Procedures ................................................................................... 3
(i) Parking Garage ............................................................................................. 3
(j) Plaza ..............................................................................................................
(k) Plaza Tenant Area .........................................................................................
(1) Sound Transit ................................................................................................
(m) Station ............................................................................................................
(n) Term ..............................................................................................................
1.2 Date of Lease .......................................................................................................
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)
(b)
(c)
(d)
(e)
(0
(g)
(h)
2.6
Common Areas ............................................................................................. 6
Kiss and Ride Spaces ................................................................................... 6
Other Parking Spaces ................................................................................... 6
Special Events .............................................................................................. 6
Elevator Lobby ............................................................................................. 7
Sidewalk Vendors and Kiosks ...................................................................... 8
Plaza Tenant Area ........................................................................................ 8
Vertical Shafts and 'RoofTop' Equipment and Devices .............................. 8
City's Option To Purchase ................................................................................... 9
(a) Preliminary Notices ...................................................................................... 9
(b) Determination of Price ................................................................................. 10
267865.1 I
-i-
06/26/02:
(c) Notice of Exercise ........................................................................................ 11
(d) Closing .......................................................................................................... ! 1
(d) Sound Transit's Option ................................................................................. 13
2.7 Termination; Advance Payments ......................................................................... 14
ARTICLE 3: CHARGES PAYABLE BY CITY ............... : ...................................................... 14
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 ..................................................................................................... 18
(a) City's Parking Spaces and Other Parking Spaces ......................................... 18
(b) Commercial Tenant Area ............................................................................. 18
4.2 Manner of Use ...................................................................................................... 18
(a) General ......................................................................................................... 18
Co) 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
267865.11
-ii-
06/~6/02
6.3 Abatement of Certain Charges; Setoff of Certain Expenses ................................ 23
6.4 Exceptions ............................................................................................................ 24
ARTICLE 7: CONDEMNATION ............................................................................................ 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 Tcmporary 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 ................................................................ i ................ 27
9.3 Sound Transit's Remedies for City's Breach ........................................................ 27
(a) General Provisions ....................................................................................... 27
(b) Termination .................................................................................................. 28
(c) Remedies Cumulative ................................................................................... 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
10.2
10.3
10.4
10.5
10.6
10.7
10.8
Non-Discrimination ............................................................................................. 30
Interpretation ........................................................................................................ 30
Notices ................................................................................................................. 30
Recording ............................................................................................................. 31
Binding Effect; Governing Law ........................................................................... 31
Force Majeure ...................................................................................................... 31
Authorized Persons .............................................................................................. 31
Survival ................................................................................................................ 32
-iii-
06/26/02
LIST OF EXHIBITS
Exhibit 1.1 (b)
Exhibit 1.1 (e)
Exhibit 1.1(0
Exhibit 1.1 (i)
Exhibit 2.3
Exhibit 2.5(c)
Exhibit 3.2(b)
Exhibit 4.2(c)
Exhibit 4.4(d)
Commercial Tenant Area and City's Parking Spaces
Station, Parking Garage, Plaza, Plaza Tenant Area and Kiss and Ride
Spaces
Legal Description of Parking Garage and Plaza Property
Parking Garage Operating Procedures
Plans and Specifications for Sound Transit's Work
Holidays
Parking Garage Operating Costs
Station Rules and Regulations
Exterior Wall Sign Criteria
-iv-
RECITALS
A. CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY ("Sound
Transit") is a regional transit authority organized and cxisting 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 Aubum 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 term 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 of the parking spaces in the Parking Garage.
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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 development 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 of this Lease.
Jo
this Lease.
By its Motion 2001-84 Sound Transit's Board of Directors authorized entry into
K. By its Resolution No 3278, City authorized entry into this Lease.
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 1: 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 1 explain and define the
Basic Terms and are to be read in conjunction with the Basic Terms.
1.1 Definitions: In this Lease, the terms defined in this Section 1.1 have the meanings
specified below unless the 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 Spaces" 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 lA(b).
(c) Commercial Tenant Area. "Commercial Tenant Area" means that part of
the interior 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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267g65. I 1 06/26/02
(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.l(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 in
Section 2.6(b).
(h) Operating Procedures. "Operating Procedures" means the procedures,
rules and regulations for use of the Parking Garage attached as Exhibit 1.10), 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 1.1.(e), and
includes, but is not limited to, the Leased Premises.
(j) 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 lA(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
the 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 1.1(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 1.1(e) and includes all improvements that are a part of the Station,
including but 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
defined in Section 1.6.
1.2 Date of Lease: June 26, 2002.
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267865 1 I 06/26,'02
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 notice purposes under Section 10.3 unless and until changed according to the
provisions of that 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 Transit, 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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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 Term of this Lease for successive period of ninety-nine
(99) years each. Each of City's Extended Terms, if any, shall begin on the day after the
expiration of the Initial Lease Term or, if applicable, the day after the preceding Extended Term
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
Term. The terms and conditions of this Lease during each Extended Term shall be on all the
same terms and conditions of this Lease as for the Initial Term.
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 conform 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 nonconformity. 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 Leased 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.
267865,
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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 l'or 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 fight to change the Common
Areas provided that the change or changes (i) do not interfere with access 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 fight 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 purposes. "Special events"
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267865 1 l 06/26/02
include but are not limited to street fa/rs. 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 permanent 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 fight during the term of the sublease or license of the
City's subtenant or licensee and, if the lease, license or other fight granted by Sound Transit to
the competing existing sidewalk vendor is terminable 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 termination. 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 fights 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 enablc 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 permits 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 installation and use of any such equipment or devices, City's
subtenants shall: (v) obtain all necessary permits 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
pans of the Parking Garage as reasonably as practical to the condition immediately before such
installation; and (viii) pay when due all costs of the 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 l.l(f) 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) of this 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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06/26/02
(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 exemised,
shall be determined as provided in this Section 2.6(b).
(1) 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 pr/ce. 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 of Intent 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 of their 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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2§?$6511 06/2~02
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 ail 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 of the 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 seIected 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 other
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 obligations 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 Properly is required in order for such properly 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 survey or, 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) Sound 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 security 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 Sound 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, except 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 limited 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 measures, 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 Sound
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 fight 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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06126102
(a) Liability Insurance. At all times during the Lease Term, at its expense
City shall maintain a policy of liability 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 shall 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 performance 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.
Co) Sound Transit's Property Insurance. At all times during the Lease Term,
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 permit 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) PaTment 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
267865 I 1
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06/26/02
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 officer of the insurance company, showing that the required insurance is in full
force and effect.
(f) General Insurance Provisions.
(1) Any insurance which each party is required to maintain under this
Lease shall include 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 coverage.
(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 insurance 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 insurance.
(3) The parties acknowledge 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 murficipal 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 any one or more of the preceding
provisions of this Article 3. However, ifa 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 be 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 thereof) 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 ovemight 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 fights 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, DDT, 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
may or 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
Premises (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(a) 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 wail 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
harmless 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 harmless 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 of Washington) and, to that
extent, each of the parties hereby waive any immunity otherwise 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 accessible to City. The provisions of this
Section 5.2 shall not, however, exempt Sound Transit from liability for Sound Transit's warranty
obligations under Section2.3 or from Sound Transit's obligations under this Lease of
maintenance, repair, and rebuilding.
5.3 Sound Transit's Obligations to Repair. Except (i)as otherwise 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
Article 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 Obligations. Subject to the provisions of Article6 (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 ftoor level of the Parking Garage; (b) any
awnings at or below the second ftoor 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 o£ any plumbing, mechanical, electrical and
I-IVAC 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 3.3Co) 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 permit 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 conformity 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 thereof.
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 termination 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 cma 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 reasonabIy 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 under 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 fi.om proceeds of insurance shall be setoff
against all sums payable by City to Sound Transit under this Lease in the order in which such
sums would otherwise be due until the entire mount, 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 Taking.
(a) General Provisions. If ail 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 cntitled 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 fight 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 conveyed 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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prevented from doing so pursuant to the terms of the taking, 'the City and Sound Transit shall
each perform and observe all of the terms 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 Term, 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 Term of this Lease.
ARTICLE 8: ASSIGNMENT AND SUBLETTING
8.1 Subletting. City shall exercise reasonable efforts to locate suitable tenants for the
Commercial Tenant Area. City may sublease all or any part of the Commercial Tenant Area
from time to time during the term 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 otherwise 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 perform 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 consent 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 terms 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 Right to Information. Promptly after Sound Transit's request
at reasonable intervals from time to time, City shall provide Sotmd Transit a written statement
identifying the name and address of all such City's then current subtenants and licensees, a copy
of their then current written subleases and licenses and, in the case of any unwritten tenancies or
licenses, a written statement in reasonable detail of the terms and conditions thereof. Sound
Transit may inspect City's books and records to verify thc 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 pay or perform the obIigation as and when
due, except that if such failure is later cured, then the parly 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 a~er 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 ali 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 recover 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 notice 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 fights 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 attom 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)
and (v) of this Section;
Terminate this Lease and recover and setoff under subparts (iv)
(2) Bring an action for specific performance of Sound Transifs
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. If Sound 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 Sound 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 shall bear interest at the rate of eight percent (8%) per annum from the due
date of such amount. The payment of interest on such amounts shall not excuse or cure any
default under this Lease on account of the failure to pay the amount 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 shall 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
-29-
26'/865.11 06/26/02
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 of the 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
-30-
269865.11 06/26102
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 whtten notice to the other party. "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 complete 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 decoding 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 Recording. 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 hereofi The party requesting such recording shall
pay the recording fees thereof.
10.5 Binding Effect; Governing 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 of law.
10.6 Force Majeure. 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.
267865.11
-31-
06,'26/02
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"
Central Puget Sound Regional Transit Authority
APPROVED AS TO FORM
"CITY"
City of Auburn
Peter B. Lewis, Mayor
Dated: ~_~-~. ~aZ ~_~
ATTEST:
,2002
~gound Tr~ans[t L'%gal Counsel
Cathy R.i.~, Deputy City Clerk
APPROVED AS TO FORM:
Da~l B. He~ .4ttomey x,,...
-32-
267865 11
SOUND TRANSIT'S ACKNOWLEDGEMENT
STATE OF WASHINGTON )
COUNTY OF KING )
I certify that I know or have satisfactory evidence that ..JOE~.DF} H. ['-['(T(} ~ ~ is
the person who appeared before me, and said person acknowledged that-be/she signed this
instrument, on oath stated that he was authorized to execute the instrument and acknowledged it
as the{_"J3(~- f~fBint._.~'{,,~ ~;~-~( of CENTRAL PUGET SOUND REGIONAL TRANSIT
AUTHORITY to be the free and voluntary act and deed of said Washington regional transit
authority, for the uses and purposes mentioned in the instrument.
W_~t~'I~'S"~,,tl~d and official seal hereto affixed this ~. day of ec ' 2002.
~.~v,. ......... ,..,~, ~, , ,
~ :or.._._.. ,~: ~. ..
~, :....o I~Bt.'G .:' ,~ (Si~atureofNoLa~)-'
h.':~'. ..... :-:'.2~d (Print or stamp name of Notkry)
NOTARY PUBLIC in and for the State
o£ Washington
My Appointment Expires: l0 ~C~..O~
CITY'S ACKNOWLEDGEMENT
STATE OF WASHINGTON )
COUNTY OF KING )
I certify that I know or have satisfactory evidence that PETER B. LEWIS is the person
who appeared before me, and said person acknowledged that he signed this instrument, on oath
stated that he was authorized to execute the instrument and acknowledged it as the Mayor of
CITY OF AUBURN to be the free and voluntary act and deed of said Washington municipal
corporation, for thc uses and purposes mentioned in the instrument.
WITNESS my hand and official seal hereto affixed this A ? ~day of ?,bxd~, 2002.
(Signature of Notary)
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Washington
My Appointment Expires: t/tg~ q
25786511
-33-
o6r26t02
Exhibit 1.1(b)
Commercial Tenant Area and City's Parking Spaces
2678651t
COi'IHERCIAL'
TENANT AREA
"9 r'l I"1 19 -- -- I"1 --
J ~ CITY'.~ PARKING SPACES
/ VAULT ROOM
I
I
I
COtlMERCJAL TENANT AREA
I
Il I Il II II Il Jl I
..... J I. .... j I. .... J ~. .... .I L .... J I. .... J I. .... J L .... J
\
Q1
AUBURN STATION PARKING GARAGE
UP
DN
kk~T~
~EC..OND ~ TI-IIly, D FLOOR
AUBURN STATION PARKING GARAGE
CITY'S PARKING SPACE~
~R~ECT
FOURTFI I¢ FIFTH FLOOR
AUBURN STATION PARKING GARAGE
G ~
DN
$IXTN FLOOR
I/a2~ ot~-O"
AUBURN STATION PARKING GARAGE
Exhibit 1.1(e)
Station, Parking Garage, Plaza, Plaza Tenant Area and Kiss and Ride Spaces
Sltf- PLAN
AUBURN STATION PARKING GARAGE
Exhibit 1.1(0
Legal Description of Parking Garage and Plaza Property
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 comer of said Block 4, said comer 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 89°05'36'' 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 00°40'12'' 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 89°05'36" East 232.85 feet to the
southeast comer of said block and said westerly margin of "A" Street SW; thence along the
easterly line of said block and said westerly margin, North 00o56'04'' 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 (c) DOES NOT INCLUDE ALL OF THE REAL PROPERTY ON
WHICH THE PLAZA IS LOCATED. ON OR BEFORE THE DATE WHICH IS SIX (6)
MONTHS AFTER THE DATE OF THIS LEASE, SOUND TRANSIT SHALL AT ITS
EXPENSE PROVIDE AN ACCURATE LEGAL DESCRIPTION OF THE REAL
PROPERTY ON WHICH ONLY THE PARKING GARAGE AND THE PLAZA ARE
LOCATED, PERFORMING ANY SURVEY REQUIRED THEREFOR. WHEN SUCH
ACCURATE LEGAL DESCRIPTION IS PREPARED A NEW EXHIBIT lA(f)
CONTAINING SUCH DESCRIPTION SHALL BE SUBSTITUTED FOR THE
FOREGOING LEGAL DESCRIPTION.
267865 11 06/26/02
Exhibit 1.10)
Parking Garage Operating Procedures
Hours of Operation
A. Standard Hours
1. 6:00 am to 9:00 p.m.
2. Monday through Friday
3. Closed for Sounder Holidays
(New Years Day, Memorial Day, Fourth of July, Labor Day,
Thanksgiving Day, Christmas Day)
B. Special Event Service Hours of Operation -- Special events days (Mariner games,
Seahawk games, etc.) will have operating hours as updated from time to time and published on
Sound Transit's website, www. soundtransit.org/Sounder/timetables/event.
II. Authorized Vehicles
Ao
B.
C.
D.
Sounder rail commuters
Other public transit and rideshare commuters
City of Auburn employees and guests
City of Auburn subtenants, licensees and their employees, customers, invitees and
guests
III. Authorized Access and Key Holder Protocol
Ao
Authorized Key Holders
1. Sound Transit
2. Agents of Sound Transit such as security personnel
3. Auburn Fire Dept. (through required fire key lockbox)
4. City of Auburn
5. City of Auburn tenants (commercial space only)
IV.
B. Key Holder Protocol
1. All key holders will sign liability document, acknowledging responsibility
for how key assigned will be used;
2. Key holders will agree to no unauthorized key duplication or distribution
3. Upon occasional required "re-keying" of locks, authorized party
responsible for duplication will provide duplicate copies for all other
parties within a reasonable period of time;
Staff Contacts for Garage Related Issues
Sound Transit
City of Auburn
Jeff Benoit, Security Manager
206-398-5506
Jim Kelley, Police Chief
253-931-3080'
267865. I 1 06/26/02
Rob Huyck, Safety Manager
206-398-5331
Bob Hill, Facilities Manager
206-689-3378
Martin Young, Operations Manager
206-398-5115
Robert Johnson, Fire Chief
253-931-3080'
Paul Krauss, Planning Director
253-931-3091
Jack Locke, Spec. Proj. Eng.
253-804-5071
Michael Fuess, Traffic Manager
253-931-3022
*Non-emergency number
267865.11
06126102
Exhibit 2.3
Plans and Specifications for Sound Transit's Work
Those drawings titled "Auburn Parking Garage, Central Puget Sound Regional Transit Authority,
Auburn, Washington" wherein the general contractor is PCL Construction Services, Inc. of
BelLevue, Washington and the architect is Integrus Architecture of Seattle, Washington, dated
January 22, 2001 as revised on May 3, 2001.
267865 1 I
06/26/02 ·
Exhibit 2.5(c)
Holidays
2.
3.
4.
5.
6.
7.
8.
9.
10.
each Sunday
the first day of each January (New Year's Day)
the third Monday of each January (anniversary of the birth of Martin Luther King, Jr.)
the third Monday of each February (President's Day)
the last Monday of each May (Memorial Day)
the fourth day of each July
the first Monday in each September (Labor Day)
the eleventh day of each November (Veterans' Day)
the fourth Thursday of each November (Thanksgiving Day)
the twenty-fifth day of each December (Christmas Day)
NOTE: If any of the foregoing (except Sunday) falls on a Sunday, the holiday is observed on the
following Monday. If any of the foregoing (except Sunday) falls on a Saturday, the holiday is
observed on the preceding Friday.
267865.11
06/26/02
Exhibit 3.2
Parking Garage Operating Costs
I. Categories of Billable Costs
The following are categories of costs that will or may be incurred that would be covered or
shared by thc parties as agreed to (though costs are not limited to these categories).
1, Utilities
a. Gas
b. Electric
c. Water
d. Sewer
e. Storm Sewer
f. Refuse
g. Supplies
h. Telecommunications
Repairs/Maintenance
a. Janitorial (sweeping, cleaning, trash removal)
b. Garage Sweeper
c. Landscape maintenance
d. Surveillance System
e. HVAC
f. Electrical
g. Plumbing
h. Elevator
1 .). Maintenance
2.) Cleaning
3.) Permitting
4.) Associated Utilities
5.) Repair
Glass
I.)
2.)
Routine Cleaning
Replacement as required
Structural Repairs as required
Signage
1 .) Maintenance
2.) Repair
3.) Replacement as required
Mid-Life Costs
a. Painting
b. Damage from Natural Disasters
26786511
06/~6/02
5.
6.
7.
c. Items with expired warranties
Security
Parking Management
Insurance
Vandalism
a. Cleaning
b. Repair
c. Replacement
267865.11
0612~'02
Exhibit 4.2(c)
Station Rules and Regulations
None as of the date of the Lease.
Exhibit 4.4(d)
Exterior Wall Sign Criteria
These criteria have been estabhshed for the purpose of controlling the size, design and location
of all exterior signage for the retail subtenant spaces at the Auburn Station Parking Garage.
Conformance to these criteria is required. Sound Transit may remove or correct any installed
nonconforming signs at City's expense (which City may recover from its subtenant). Except as
provided in paragraph 10 of this Exhibit, before Sound Transit exercises such right it shall give
City not less than twenty-one days prior written notice of the nonconformity.
Two building attached signs will be allowed for each subtenant of the Commercial
Tenant Area, one on the exterior wall of the building adjacent to each space above the
canopies and one under the canopies near the entrance to each space. The attached
drawings depict typical sizes and locations of these signs.
In addition to conforming to these criteria, a permit will be required from the City for
these signs under City's sign ordinances. Approval by City under this Lease or under a
sublease by City of a particular sign is not compliance with, and does not bind City,
under City's permitting requirements.
o
Signs on the exterior wall of the Parking Garage shall be attached to such wall according
to one or more designs for such attachment proposed bY City and approved by Sound
Transit. Sound Transit shall not unreasonably refuse or condition such approval.
No signs with electrical components will be permitted. With Sound Transit's prior
written approval of the design therefor, City may at its expense install lighting on the
exterior wall of the Parking Garage to illuminate the signs on the exterior wall. Sound
Transit shall not unreasonably refuse or condition such approval.
5. No projection above or below the sign band and/or panel as depicted in the attached
drawings will be permitted.
No permanent window signs will be permitted except painted or decal applied lettering
for purpose of store identification. Each subtenant will also be permitted to place upon
each entrance to its demised premises not more than on hundred forty four (144) square
inches of lettering not to exceed two inches (2") in height, indicating hours of business,
emergency telephone, etc. Temporary window signs will be installed on the interior of
windows only and will be allowed for a maximum of two weeks.
7. City may at its expense install numbers or letters on or near the primary entrance to each
subleased space to identify the address thereof.
8. Each subtenant will pay for the construction, installation and maintenance of all its signs.
267865. I I
06/26/02
o
At City's request from time to time, exceptions to these standards will be reviewed by
the City and Sound Transit. However, and without limiting other possible reasons for
refusal, the parties recognize deviations may result in substantial inequities between
City's subtenants and any such inequity is sufficient ground for either party to refuse
permission for a requested exception.
10.
No sandwich boards or banners will be displayed upon the exterior of or anywhere
adjacent to the Parking Garage. Sound Transit has the right, without any notice to City
or any of City's subtenants, to remove and dispose of any sandwich boards at City's
expense (which City may recover from it subtenant).
2678fiS. H
06/26KJ2
Page: I c~ 2
Rev]aed: ~)-7-200~
Pro]eot: 20149.04
AUBURN GARAGE RETAIL
81GNAGE
EAST ELEVATION
-)
INTI~GRUS
ARCHITECTURE:
720 3rd Ave, Sui'ce 2300, Seol:tle, WA 98104
206/628-3137 FAX 206/628-3138
Page: 2 oI~ 2
Reviled: 5-'7-~2OO2
Prolect: 20149.04
AUBURN GARAGE RETAIL
81GNA~tE
ELEVATION/WALL SECTION
INTI~,GRUS
ARCHITECTURE
720 3rd Ave, Suite 2300, Seattle, WA 9810~.
206/628-3137 FAX 206/628-3138
Exhibit F
Tenant Improvement Plan
The following work to be completed by landlord subject to the bids received for the cost of
the work.
a.
b.
C.
d.
e.
f.
go
Finish and paint existing interior walls
Drop ceiling with lighting per industry standards
Heating and air conditioning system
Sewer and water service to leased premises
Electrical meter for leased premises
One (1) exterior sign placed under canopy, and One (1) sign attached to the
building above the canopy.
Internal electrical, data, telephone outlets.
Carpet.
44
'EXHIBIT G
The following work to be completed by tenant subject to State of Washington and City of
Auburn Code requirements.
EDWARD JONES BRANCH OFFICE SPECIFICATIONS
ACCURATE FIELD MEASUREMENTS SHOULD BE TAKEN BEFORE ANY
CONSTRUCTION BEGINS! DISCREPANCIES OR CHANGES SHOULD BE
REPORTED TO EDWARD JONES IMMEDIATELY! OFFICE DESIGN: 1-800-
824-6525 x2 for leasing x3 for design/construction
GENERAL NOTES
a) The following information is provided as a general guide. In all cases, it is preferred that the
building standard be used; otherwise, use the information provided below. It is the intent that these
modifications/additions/improvements will be performed on an "as needed" basis, at the
reasonable discretion of Edward Jones (Tenant). All finish work is only to be done in the rooms
listed on the Finish Schedule of space plan, i.e. paint, carpet.
b) Furniture, equipment, phone and data wiring & all terminations to be provided by the tenant.
However, Contractor to install a pull string/box/mud ring or 1 ½ inch conduit at all Iow voltage
communication connections.
c) The furniture/equipment plan provided is NOT an official construction document.
d) All work should be performed per local, state, and national codes. All construction will be
completed so that an occupancy permit will be granted prior to lease commencement.
e) Edward Jones has an established relationship with national vendors for flooring, paint, and Iow
voltage wiring.
INTERIOR CONSTRUCTION SPECIFICATIONS
1. DEMOLITION
a) Demolish and remove from the site all debris from the areas as shown on the space plan. Leave
space free of all construction debris.
b) Remove existing finishes only in areas that are to receive new finishes per the finish schedule
shown on Exhibit A.
c) Leave and/or prepare floor to accept new glue down flooring per Finish Schedule. Surfaces that
are to accept new flooring should be free of all debris and cementitious or resinous deposits. Fill
all floor cuts remaining from any plumbing or other termination with concrete.
2. DOORS
a) Re-use existing doors when possible. Any existing doors being re-used shall be touched up and
re-varnished or re-painted as appropriate.
b) New interior door(s) to be no less than three (3) feet wide. They are to be solid core wood veneer.
All new interior door(s) should match existing style. Birch is preferred in the event there is no
existing standard.
c) All door(s) to exterior or common spaces must have closers and deadbolts, keyed to the inside
with sign "This Door Must Remain Unlocked During Business Hours."
d) Door(s) and other woodwork should be stained or painted to match existing building standard. If
NO standard is established, use Sherwin Williams Stain: SW3110, sanding sealer, and clear
polyurethane finish. Finished door will be free from uneven color, drips or runs. All door edges,
including top and bottom, should be finished.
45
e) Suite entry door(s) shall have existing operable closer (s) or receive new closer(s).
f) All door(s) to have wall or floor mounted stops, consistent with the rest of the space.
g) Provide new passage hardware for new door(s) to match existing. In the event that the owner has
established no standard finish, bright brass is preferred.
h) Provide hollow metal frames if no other standard is established.
i) If restroom is in occupied space provide privacy lock, all other doors to receive passage set. All
new hardware to be lever style.
3. NEW WALL
a) All new interior hallways to be no less than 44 inches wide, unless otherwise required by code or
noted on drawing.
b) All demising walls to be to structure above, sealing all penetrations. If property utilizes a plenum
return acceptable to take demising walls to underside of ceiling provide sound batt insulation
installed above ceiling along new demising partition.
c) All walls that die into exterior walls or mullions to include sound caulk at point of connection.
d) All new walls will be constructed of metal studs (wood studs are acceptable if approved by local
codes) and drywall.
e) A minimum of 3" sound bart insulation shall be installed as indicated on Exhibit A between studs
and above ceiling where the wall and ceiling meet.
All walls shall be taped and smooth, ready for paint.
All existing walls in areas that are to be finished are to be patched and primed to prepare for paint.
Verify condition of demising walls for:
1. Completion to deck above.
2. Existence of sound insulation.
f)
g)
h)
4. PAINT
a) All exposed surfaces in areas indicated on Finish Schedule shall be painted with ICI/Dulux paint.
Please see attached floor plan, Finish Schedule, for specification and color. Colors may include
several, but not all, of the following:
Primer: ICI 1000 Dulux Professional Interior Primer
Drywall (except ceilings and & accent walls): 2 finish coats over an existing finish or a primer.
· 1st & 2® Coats: ICI 1201 Dulux Professional Velvet Matte Latex. Velvet Matte Finish (Semi-
gloss should be used on metal frames and doors)
· Color:
1.) ICI (Edward Jones) Designer Gray
2.) Sherwin Williams Architectural Gray
Accent walls: ICI Primer: 1 coat 1020 Ultra-Hide All Purpose Primer-Sealer. Final coats: 2
coats 1201 Dulux Professional Velvet Matte Latex.
· Color: ICI EJ Green -indicated on floor plan by keyed note. 2 finish coats over an
existing finish or primer.
Ceiling: 1 finish coat over an existing finish or primer -
Primer: 1030 Ultra-Hide PVA Interior Primer/Sealer
Finish Coat: 2 coats 1210 Ultra-Hide Interior Latex Flat Finish.
· Color: Pure White
b) Assume one trip for touch up paint after flooring installation and furniture delivery. Touch up paint
should be left in the Tenant's storage area, clearly labeled.
c) If there are any questions regarding paint colors, please contact Edward Jones branch design:
800-432-8146
d) Exact specifications may be obtained from ICI Paints: 800-241-8168 Theresa Clark or call John
Corley at 314-267-7202.
46
5. FLOORING
a) Flooring material and base should be included in your scope of work. Carpet should be
Shaw/Stratton - 'Edward Jones'. Color as specified on finish schedule (Note: This is a private
label, must order materials from Floor Scouts). There are three colors utilized in the program:
Jones Street (CT-green); NYSE (CS-blue); NASDAQ (C9-burgundy). Please refer to
b) VCT - 51911 Classic White Tile by Armstrong
c) Base - use 4" Roppe Vinyl Base, color = 578 Pewter (Available from Floor Scouts).
d) If existing base is wood and to be re-used, patch in as required for new partitions. OR provide
alternate cost for all new vinyl base.
e) Contact for flooring material is Floor Scouts: 800-262-4957 Tricia Noell/Linda Barry.
f) Contractors who have not previously done business with Floor Scouts will be required to set up an
account and go through a credit check (please allow 1 week for credit check).
g) Contractor must provide Floor Scouts with a materials takeoff (fax-314-997-3974). Allow 2 to 3
weeks for delivery.
h) Installation method for carpet is direct glue. Floor prep responsibility of contractor. In cases of
severe floor prep, provide cost for pad, it sufficient for making floor level.
i) See manufacture's instructions for post-installation/cleaning instructions.
6. HVAC
a) HVAC system should be able to maintain 75 degree summer and 70 degree winter temperatures
in accordance with the ASHRAE design standards applicable to this location. If necessary, a
formal inspection to verify equipment condition can be done.
b) System to be fully operational, in good condition and properly balanced upon completion of work.
Please make sure the thermostat is located in an occupied area of the space.
c) For all new and re-model projects Install a new White-Rodgers 7-day programmable thermostat.
Provide appropriate stat for unit size and type. Set stat for M-F 8-5 hours of operation. Leave
instructions taped to stat for future reference.
d) All diffusers, grilles, and thermostats shall be clean, in good condition and properly functioning.
Location to be revised as necessary for new partition layout.
e) If space is being subdivided, Edward Jones space to be separately controlled--sharing of
thermostat with adjacent spaces is not acceptable.
f) Edward Jones BOC (location noted on Exhibit A) requires ventilation. Acceptable methods are:
1. Add a supply/return duct or grill to the room
2. Undercut the door to the room 1"
3. Or, add a Iouvered vent in door.
7. FIXED WINDOW (Only if shown on Exhibit A)
a) New interior window between IR office and BOA area to be a fixed, 42"w x 30"h and 42" AFF
(unless Exhibit A notes differently).
b) If metal frame is used, trim to be painted to match new wall color in which the window is placed
c) If wood trim is used, match to surrounding wall color or new door/frame color.
d) Glass preferred to be clear, ¼" tempered.
8. PLUMBING/RESTROOM
a) Lavatory sink(s), if any, to have hot and cold-water service. Insta-hot NOT acceptable.
b) Please adhere to any local, state, or national codes, which might require modification of existing
restroom.
c) Restroom fixtures to be in good condition (i.e. in good operation and free of stains or cracks). The
restroom is to have a mirror, paper towel dispenser or towel rack, and toilet paper holder. Please
verify that these items exist or provide cost of new accessories and installation of such.
9. CEILING
a) Ceilings should be free from stains and dirt.
bi Acoustical Ceilings-tiles should be free from chips and breaks. All tiles should be the same color
and style. The grid should be even, free from holes (or filled), and should be clean. Tiles should be
a standard commercial grade acoustical tile. Contiguous area must have matching tile.
c) Installation of ceiling grid and component to comply with all local codes for renovation or new
installations.
d) Drywall Ceilings- Should be level, have an even texture, and should be painted white (See paint
spec)
ELECTRICAL AND LOW VOLTAGE
GENERAL
a) Electrical to include all new outlets per Exhibit A, including dedicated isolated ground outlets.
b) Existing outlets can be used to meet the requirements for general-purpose outlets. Electrical
outlets to be installed where shown on the furniture plan at 18" above finished floor unless an
existing device is already within 36" of the desired location.
c) The computer equipment for this office is sensitive to high electromagnetic interference (EMI). We
recommend that the ambient EMI in the office not exceed 2 Mg.
d) Landlord responsible for setting up utilities or providing temporary electrical in space that is new
construction or space that is being subdivided. Electrical contractor to verify existing electrical
panel will accommodate Jones requirements.
e) Electrician to install 1 l/=,, conduit & box with pull string or mud ring at 5 locations (see
section 4 below) for all Iow voltage communication connections. Additionally electrician to
install 1- %" conduit for incoming phone jacks (R J11) within 1' of BOC. If conduit is less
than 1 1/2 inches please contact Branch Facilities immediately.
1. DEDICATED OUTETS
Definition: A dedicated outlet is wired directly to the main power distribution panel through a
designated (dedicated) circuit breaker. An isolated ground is a ground wire connected at only one
common point in the electrical breaker panel. The dedicated outlets are color coded to distinguish
them from general-purpose outlets. Only the laser printer and PES/DIU (BOC) should be plugged into
them). The technical information for these outlets is as follows:
a) Two Dedicated Isolated Ground outlets (simplex not duplex) required for the Laser Printer and
BOC (Shown on Exhibit A with center of outlet darkened)
b) Each to be standard 3-prong, 120 volt, 20 amp, dedicated isolated ground circuit
c) Each to be SIMPLEX, orange or at a minimum marked with a "D", color coded
receptacle (NEMA type 5-15 PJIG outlet, GE5362-1G or equivalent)
d) All grounds must have same ground potential.
2. GENERAL PURPOSE OUTLETS (Should be placed as shown on drawing)
a.) One (1) quad outlet at TVNCR location.
b.) At terminals and other office equipment as shown on the plan
c.) All outlets to be 110 volt standard 3-pron.q outlets that meet state and local requirements (NEMA
type 5-15R). The grounding conductors for the building's circuits should be referenced to the point
of "zero current" within the electrical supply system, which is where the neutral and ground for the
system are tied together.
3. LIGHTING
a.) Should be even and have a minimum of 60-foot candles at desktop height. All lighting should be
fully operational and in good condition.
b.) Please verify that all lenses and lamps are consistent in color. Lenses to be free of stains.
c.) A switch should occur at each egress door, and shall be 3-way if applicable.
d.) Please verify emergency/exit lighting meets code requirements. If not, please provide cost of new
equipment and installation of such to meet code.
48
TO COMMON
RESTROOMS
COMMON HAt. LWAY
EQUI~UPP.
OPEN
4'-6" 12'-T'
IR OFFICE
IT-fi"
PARTITION PLAN
l/8"=I'-0"
EDWARD JONES
KEY PEiN - NO?' ro SCALE
KEYED NOTES'
LEGEND:
c:::=DEMO PARTITION
, EXIST. PARTITION
...... EXIST. DEMISING PARTITION
· .,-.-,,,- NEW PARTITION
,:,:'~::':":~NEW PARTITION/ INSUL.
:'-'n-'~NEW DEMISING PARTITION
~,x, EXISTING DOOR
[-"~ NEW DOOR
(~) DUPLEX RECEPTACLE
~ OUADRAPLEX RECEPTACLE
(b DEDICATED SIMPLEX RECEPTACLE
W/ ISOLATED GROUND TO BE
MARKED WITH "D" &: ORANGE
,~ PHONE/DATA
# DEPICTS PORTS ON
FACE PLATE
~ SWITCH
EP ELECTRICAL PANEL
r-m
QTHERMOSTAT LOCATION
(~HOT WATER HEATER
GENERAL NOTES:
i. CONTRACTOR to field verify all
existing conditions; if there
are any changes, revisions or
discrepancies please call:
1-800-824-6525 ext. 53205.
'Existing and new partition
dimension tolerance 2"-6"
unless noted as HOLD.
2.Landlord/Contractor to provide
for separate tIVAC controls roi'
Edward Jones space.
3.Electrical devices have not been
field verified; receptacles and
switches shown are for reference
only. Contractor to provide new
electrical devices as indicated oil
plan, if an existing device is not
within 36" of device indicated.
'Do not remove devices that are
existing in remaining walls,
unless noted.
4.A switch shall occur at each
egress door, and shall be 3-way
if applicable for multiple
entrances.
EdwardJones
BRANCH FACILITIES
BRANCH OFFICE 1 '5~f:54
!10 2nd S(ree( SW
Auburn, WA 15854
LEASE SQ. FT. ':,'f': -.
FIXED C~SS WINDOW:
30"H X 42"W; WOOD FRAMING,
WOOD 9ULLNOSE EDGED SiLL
@42"),FF.
~v~ PHONE COMPANY SERVICE TO EE
LOCATED WlI'HIN 1'-0" OF THE
DEDICATED SIMPLEX RECEPTACLE
IN ROCM 104.
CONTRACTOR NOTES:
',. PAINT ~'iE,V WALLS TO MATCH EXIST/%
2. THER,',,!OS2.\T TO REMA['I IN PLA. CE
3. RELOCATE SPRINKLERS AND LIGHTS TO ACCO!,~ODATE blEW PARTiT;O~S
4. ADD SU?!:LY/REfURN iF FiECESS,~R'r' TO 8ALZLCE AIR FLOW
THROUGH,DdT SPACE AFTER WALLS ARE INSTA_LED
ISSUES/ R~ISIONS
NO. DATE [ DESCRIPTION
: I
ts~HIBtT~
COMMON HALLWAY
OPEN
'-'--x IR OFFIg
o9.._
TO COMMON
RESTROOMS
ACCENT WALL TO 8E PAINTED
WITH CUSTOM "EDJ GREEN"
SEE BELOW FOR CONTACT
INFORMATION
EDJ EQUIPMENT LEGEND (NIC):
E~ TERMtNAL
~ bASER PRINTER
BOC-(Bronch Off[ce Controller)
-DIGITAL INDOOR UNIT
-INT REC DECODER
-PHONE SYSTEM
~ TV/VCR CABINET
[~] ~/VCR LOCATION
FURNITURE: EXISTING - ors NH
UPHOLSTERY: HUNTER GREEN
FURNITURE/EDJ EQUIP.
PLaN
PLAN
CNOTE: PAINT AND BASE FOR NEW
WALLS TO MATCH EXISTING
N.I.C. = NOT IN CONTRACT FOR FINISHES
N/A = FINISH NOT APPLICABLE TO THIS ROOM
RM.NO.
101
102
103
104
106
FINISH SCHEDULE
j PAINT CARPET
IEXIST. EXIST.
jEXtST. EXIST.
IEXIST. EXIST.
IEXIST. EXIST.
EXIST. EXIST.
BASE
EXIST.
VCT'
N/A
NOTES
N/A
SEE NnT:v ,_ 'A'
Edwardjones
BRANCH FACILITIES
EXIST. N/A SEE NOTE 'A' BRANCH OFFICE
EXIST.
PAINT
~ T
EXIS,. N/A
EXIST. N/A
FINISH SPECIFICATIONS
ICl 440-826-5649 TERESA CL~RK SHERWlN WILLIAMS 800-,32t-8194
P3- 0ESIGNER CRE'r' -OR- P3- AGREEABLE GRAY SW7029
110 2nd Street SW
Auburn, WA 15354
LEASE SQ. ,CT,. ::2:, ,.,."
ISSIJES/ R~¢IS;C,qS
NO. DATE ! DESCR:P'.'PCN
'CARPET
tVCT
ACCENT W~LLS- CUSTCM 'EOJ GREEN' ACCENF WALLS- CUSTOM 'EOd GREEN"
- ', ,'." E s,£=' I 1
..' ' U1 -GREEN
FLCOR SCOU,S- 800-262-4957 -OR- 314-997-3436I
~ ~
AR~JSTRONG STAND~RO EXCELCN CCMMERCI4L/:kIPERIAL BA.E ROPF~
J B -~578 PE'¢ER
] ~CAfr-
RENT RIDER
LANDLORD and Tenant should complete only those provisions below which apply.
Any provisions 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 Period (Stated in Months)
Months 01 - 12
Months 13 - 24
Months 25 - 36 $1,003.88
Months 37 - 48 $1,003.88
Months 49 - 60 $1,003.88
Base Monthlv Rent Amount
_$1,003.88
_$1,003.88
Landlord's Ini~ls~
Tenant's Initials
Landlord's '~s;~
Tena~nt"s~tials
53
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 One (1) (if not completed,
zero) successive option to extend the term of this Lease for Five (5) years. Tenant
shall exercise each option by delivering written notice to Landlord not less than ninety
(90) 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 a
base rent of Fifteen Dollars ($15.00) per square foot of leased space and increased in
accordance with the increase in the United States Department of Labor, Bureau of
Labor Statistics Consumer Price Index for All Urban Consumers up to a maximum of
the CPI plus 2% from the date of the initial lease. During the option term the rent paid
annually will, at the landlord's option, increase by the CPI.
54
TENANT IMPROVEMENT RIDER
The Sublessor will improve the premises per the Tenant Improvement Plan as established in
exhibit F of this document. Sublessor shall deliver to the tenant the premise pursuant to the
lease to which this Rider is attached upon completion of the improvements provided in the
Tenant Improvement Plan. All other terms and conditions of this lease shall remain in full
force and effect.
55
ADDENDUM A
This Addendum A to the Lease is made this __ day of April, 2004 by and between CITY OF
AUBURN, A WASHINGTON MUNICIPAL CORPORATION And EDWARD D. JONES &
CO., d/b/a EDWARD JONES AS Tenant. In the event of any conflict between the terms of
the Lease and the terms of this Addendum, the terms of this Addendum shall prevail.
1. Form W-9
Under Section 6109 of the Internal Revenue Code, Sublessor is required to provide Tenant
with the correct Taxpayer Identification Number (TIN) in order for Tenant to file information
returns to the IRS to report income paid to Sublessor. Sublessor shall complete all IRS
required forms and return to Tenant as requested. Notwithstanding anything to the contrary
herein, if Sublessor fails to submit a properly completed Form W-9 as requested by Tenant,
Sublessor agrees that Tenant has the right (but not the obligation), pursuant to Section 3406 of
the Internal Revenue Code, to withhold and pay to the IRS a percentage of the total monthly
rent payment.
In the event that Sublessor shall have a change in its business or legal name, Sublessor agrees
to notify Tenant in writing, within 30 days of any such change, and submit a new Form W-9
reflecting such change(s).
2. Early Termination
Notwithstanding anything to the contrary contained elsewhere in this Lease it is expressly
understood and agreed between the parties hereto that Tenant is granted an option to cancel
this Lease upon Sixty (60) days written notice to Sublessor at any time prior to the stated
maturity of said Lease, then Tenant shall pay to Sublessor as liquidated damages, a sum
equivalent to Four (4) months base rent. Tenant also agrees to pay that unamortized portion
of the broker's commission. Upon payment of aforesaid sum, Sublessor shall hold harmless
and relieve Tenant from any further liability or obligation under this lease.
3. Delivery Upon Termination
Upon expiration of the Lease term, or any subsequent renewal term, or other sooner
termination of this Lease, Tenant shall deliver to Sublessor possession of the premises,
together with all improvements or additions in or to the Premises, in the same condition as
received, ordinary wear and tear excepted.
Tenant shall not be required to remove any of said improvements or return the Premises to its
original condition upon any termination of this Lease. All said improvements shall remain in
place as the Property of the Sublessor. Tenant shall remove its furniture, fixtures and
equipments and make any repairs occasioned by said removal upon any termination of this
Lease.
56
4. Subordination and Attornment
this Lease shall be subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation of security now or hereafter placed upon the Premises or Project and to any and
all advances made on the security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such subordination, Tenant's right to
quiet possession of the Premises shall not be disturbed if Tenant is not in default and so long
as Tenant shall pay the rent and observe and perform all of the provisions of this Lease, unless
this Lease is otherwise terminated pursuant to its terms. If any mortgagee, trustee or ground
Sublessor shall elect to have this Lease prior to the Lien of its mortgage, deed of trust or
ground lease, and shall give written notice thereof to Tenant, this Lease shall be deemed prior
to such mortgage, deed of trust or ground lease, whether this Lease is dated prior to or
subsequent to the date of said mortgage, deed of trust or ground lease or the date of the
recording thereof.
Tenant agrees to execute any documents required to effectuate an attomment, a subordination,
or to make this Lease prior to the lien of any mortgage, deed of trust or ground lease, as the
case may be. In the event of any foreclosure, sale or transfer in lieu of foreclosure, Edward
Jones shall attorn to the purchaser, transferee or Sublessor as the case may be, and recognize
that part as Sublessor under this Lease, provided such party acquires and accepts the Premises
subject to this Lease.
5. Tenant Improvements
Sublessor, hereby approves of Tenant making the modifications and additions to the Premis~~%_
as per the attached Exhibi.t~ A & B.a Sublessor will furnish Tenant with heating, ventilating,
and air conditioning equ~ipment x~ich will create a comfortable working environment for
Tenant. ~ ~~.q\ ~
6. Hazardous Material,~
To the best of Sublessor's knowledge, the Building, its Common Areas, and Premises contain
no Hazardous Materials (as defined by the US Environmental Protection Agency), and/or
harmful contaminants, and is in compliance with all applicable local, state and federal
material rules, regulations, laws and ordinances. In the event that Hazardous Materials,
and/or harmful mold, and/or harmful contaminants are identified as present in the Premises,
Building, its Common Areas, and/or Property during the term of this Lease, Sublessor shall be
responsible for the removal of said Hazardous Materials, and/or harmful mold, and/or harmful
contaminants. Sublessor shall hold harmless and indemnify Tenant for any hazardous waste,
mold, and/or contaminant costs, clean-up, fine, damage, or judgment caused by Sublessor or
its agents. Tenant shall be responsible for removal of any Hazardous Materials, and/or
harmful contaminants introduced to the Building, its Common Areas, or Premises by third
parties not controlled by Tenant. Additionally, Sublessor shall continue to comply with all
applicable local, state and federal material rules, regulations, laws, and ordinances.
57
7. Holdover
Provided Tenant has not vacated the Premises, and provided Tenant has not exercised any
option to renew, or has not entered into a new Lease regarding the Premises, then if Tenant
holds over after the Lease term, this Lease shall revert to a month-to-month agreement upon
expiration of the lease term and a ninety (90) day notice by either party shall be required to
terminate this said month-to-month tenancy. All other terms and conditions of the original
Lease would remain in effect during this month-to-month tenancy, including the rental
amount paid during the last month of the Lease term.
8. Agency Disclosure
Tenant represents and warrants that it has not consulted or negotiated with any broker, finder
or agent with regard to this Lease except Helen McGovern, who shall be paid a commission
by the Sublessor representing the first five (5) years only.
9. Continuous Occupancy
Notwithstanding anything to the contrary in the Lease, if during the term of this Lease and
any extensions hereof, so long as Tenant shall continue to pay rent as outlined herein, Tenant
shall not be considered in default of this Lease by reason of abandonment or non-use in the
event the Tenant's employee(s) vacates or fails to initially occupy the Premises. Tenant will
use its best efforts to locate other employees to occupy the Premises. Tenant shall maintain
the interior appearance of the Premises in a clean and orderly fashion at all times.
This Addendum is not in effect until duly signed by Sublessor and Tenant
Sublessor:
CIT~Q.~ AUBURN, A WASHINGTON
B ;Y'
(Authorized Signature)
mfintedName: ',t-~/~/oQ..~t ~0~
Date
Federal ID#
Tenant
EDWARD D. JONES & CO
d/b/a EDWARD JONES
58