HomeMy WebLinkAboutRegular Council Agenda Packet - 14 Oct 2013 - Agenda - PdfAGENDA
RENTON CITY COUNCIL
REGULAR MEETING
October 14, 2013
Monday, 7 p.m.
1.CALL TO ORDER AND PLEDGE OF ALLEGIANCE
2.ROLL CALL
3.PROCLAMATION
a. Disability Awareness Month - October 2013
4.SPECIAL PRESENTATION
a. Honoring Councilmember Rich Zwicker's AWC (Association of Washington Cities) Board of
Directors Service
5.PUBLIC MEETING
a. 2013 Water Use Effeciency (WUE) Goal Setting
6.ADMINISTRATIVE REPORT
7.AUDIENCE COMMENT
(Speakers must sign up prior to the Council meeting. Each speaker is allowed five minutes. The
first comment period is limited to one-half hour. The second comment period later on in the
agenda is unlimited in duration.) When you are recognized by the Presiding Officer, please walk to
the podium and state your name and city of residence for the record, SPELLING YOUR LAST NAME.
NOTICE to all participants: pursuant to state law, RCW 42.17A.555, campaigning for any ballot
measure or candidate in City Hall and/or during any portion of the council meeting, including
the audience comment portion of the meeting, is PROHIBITED.
8.CONSENT AGENDA
The following items are distributed to Councilmembers in advance for study and review, and the
recommended actions will be accepted in a single motion. Any item may be removed for further
discussion if requested by a Councilmember.
a. Approval of 10/7/2013 Council meeting minutes. Council concur.
b. City Attorney Department recommends amending definitions in Renton Municipal Code (RMC) 1-
3-3 in order to address nuisance violations more effectively. Refer to Public Safety Committee.
c. Community and Economic Development Department submits 60% Petition to Annex for the
proposed Maertins Annexation and recommends a public hearing be set on 10/28/2013 to
consider the petition and proposed R-4 zoning; 4.2 acres located south of NE 16th St., north of
SE Renton Issaquah Rd, and west of 145th Pl. SE. Council concur.
Page 1 of 97
d. Community Services Department recommends approval of a Job Order Contract (JOC) Work
Order #3 with Berschauer Phillips Construction Company in the amount of $120,980; and
approval of a budget adjustment to transfer $72,000 from the Regis Park Athletic Field
Expansion fund to the Pathway, Sidewalk, Patio, Boardwalk Repairs fund to cover the cost of the
contract. Refer to Finance Committee.
e. Community Services Department requests approval of a budget adjustment to transfer $5,000
from the Coulon Park Structural Repairs - Shoreline Erosion fund to the Parks Major Maintenance
Structural Reviews and Repairs fund in order to have a total project budget of $18,266 to
complete the structural review for the Cedar River Trail Trestle Bridge. Refer to Finance
Committee.
f. Community Services Department recommends approval of a lease with Curt Tiedeman, an
individual dba First Rate Mortgage, for Suite 400 of the 200 Mill Building at the rate of $4,213
per month. Refer to Finance Committee.
g. Transportation Systems Division recommends approval of the Washington State Department of
Transportation 2013-2015 Transportation Demand Management (TDM) Implementation
Agreement to accept $81,272 in grant funds to implement the City-wide 2013-2015 Commute
Trip Reduction (CTR) program. Council concur. (See 10.a. for resolution.)
9.UNFINISHED BUSINESS
Topics listed below were discussed in Council committees during the past week. Those topics
marked with an asterisk (*) may include legislation. Committee reports on any topics may be held
by the Chair if further review is necessary.
a. Committee of the Whole: Benson Hill Community Plan*
b. Community Services Committee: Benedetti Appointment to Planning Commission
c. Finance Committee: Reserve & Stabilization Funds
d. Utilities Committee: Water Use Efficiency Goal Setting
10.RESOLUTIONS AND ORDINANCES
Resolutions:
a. 2013-2015 Transportation Demand Management Implementation agreement with the
Washington State Department of Transportation (See 8.g.)
b. Benson Hill Community Plan (See 9.a.)
Ordinance for second and final reading:
a. Comcast cable television franchise extension (1st reading 10/7/2013)
11.NEW BUSINESS
(Includes Council Committee agenda topics; call 425-430-6512 for recorded information.)
12.AUDIENCE COMMENT
13.ADJOURNMENT
Page 2 of 97
COMMITTEE OF THE WHOLE AGENDA
(Preceding Council Meeting)
COUNCIL CHAMBERS
October 14, 2013
Monday, 6 p.m.
Benson Hill Community Plan
• Hearing assistance devices for use in the Council Chambers are available upon request to the City Clerk •
CITY COUNCIL MEETINGS ARE TELEVISED LIVE ON GOVERNMENT ACCESS CHANNEL 21 AND ARE RECABLECAST:
Tues. & Thurs. at 11 AM & 9 PM, Wed. & Fri at 9 AM & 7 PM and Sat. & Sun. at 1 PM & 9 PM
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3a. - Disability Awareness Month -
October 2013 Page 4 of 97
Water Use Efficiency Program
Information Packet for 2013 Goal Setting Meeting
October 14, 2013 at 7:00 p.m.
Renton City Hall, Council Chambers
Background
The State of Washington adopted the Municipal Water Supply-Efficiency Requirements Act,
commonly called the Municipal Water Law (MWL) or the Water Use Efficiency Rule in 2007. To
meet the requirements of this new rule, the City of Renton developed Water Use Efficiency
(WUE) goals, which were approved by the City Council on November 19, 2007.
The MWL is intended to help meet the growing needs of communities, agriculture, industry,
and to conserve water for fish. The rule is intended to help:
Provide more certainty and flexibility for water rights held by water systems.
Improve the ability to plan for future growth.
Offer greater flexibility to solve public health problems with water right changes and
transfers.
Advance water use efficiency.
Assure greater reliability of safe drinking water for communities.
What are the requirements of this rule?
The rule requires municipal water suppliers, such as Renton to use water efficiently and
demonstrate that they are doing so. Specifically, water systems must:
Develop goals through a public process and enact WUE measures to manage water use.
Reduce water system leakage to 10 percent or less.
Install meters on all customer connections by 2017 to accurately account for water use
and leakage.
Report annually on their progress in using water efficiently.
How will this affect Renton?
To comply with this rule, we are:
Conducting a water system audit that will allow us to account for all water used.
Setting goals for water use efficiency through a public process.
Re-evaluating our water supply and our forecasts for future water demands.
Reporting each year on our progress toward these goals as part of the Consumer
Confidence Report we send to all customers.
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Water Supply Characteristics
All of our drinking water comes from groundwater. Based on production of the last five years,
about 85 percent of our drinking water is supplied by five wells located in downtown Renton,
which is pumped from a source known as the Cedar Valley Aquifer. Ap proximately 14 percent
comes from Springbrook Springs, which is located at the south end of the City. These water
sources are very clean and need minimal treatment.
The City also pumps from three deep wells known as the Maplewood well field located under
the Maplewood golf course. These wells are a backup water source and, as such, are not
utilized continuously. The Maplewood water is also very clean, but because of its natural
mineral content, it must first be treated before it can be co -mingled with the water from the
other sources.
In January 2012, Renton signed a long-term agreement (2012 – 2062) with Seattle Public
Utilities to purchase water. This water will assure that the City has a secure supply of water,
especially during peak summer usage periods. During the first year of 2012, the City bought 3.1
million gallons of supplemental water from Seattle, which represents 0.01% of the year’s water
supply.
Water Use Characteristics
The City’s customer and water use characteristics are important considerations for identifying
WUE objectives, goals and measures.
Who uses the water?
The Renton Water Utility provides water for an estimated population of 62,100 in its retail
water service area. The rest of Renton citizens receive water from surrounding water
providers. Renton provides water to approximately 15,505 residential customers and 1,917
non-residential (commercial, industrial, government and schools) customers. In 2012, the City’s
customers used an average of 6,483,012 gallons a day.
As shown in Figure 1, single-family residential customers, who made up 79 percent of total
system connections, consumed 35 percent of total retail water sales. The multi -family
residential customer class accounted for 10 percent of system connections and 22 percent of
water use. Commercial users account for six percent of all system connections and use 18
percent of all water consumed. Industrial customers account for less than one percent of
system connections and two percent of water use. While only four percent of the total number
of accounts, irrigation use accounted for 13 percent of total water used. Wholesale water to
Skyway, SPU water to Boeing, and water consumption at the King County W astewater
Treatment Plant site accounted for roughly eight percent of the City’s consumption.
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Figure 1.
When does the water get used?
Water consumption is closely related to the weather. Year to year variations reflect drought
years, hot years or wet years. The largest variations in water use are seasonal. Typically in
Renton, the highest water use is during the period of June through October. During these five
months, the average monthly water consumption is about 45 percent higher than the other
seven months of the year. The average day consumption in 2012 was 6.48 million gallons. The
peak day use in 2012, which occurred on September 7, was 11.46 million gallons. The increased
summer consumption is due primarily to irrigation. The current automated meter read ing
project, that is underway, will allow finer detail about the timing of water consumption.
Water Demand Forecast
The City’s future water demand is estimated based on current use and anticipated growth
within the Renton Water System Area (RWSA), utilizing data provided in the Puget Sound
Regional Council’s (PSRC’s) Population, Households, and Employment Forecast database.
In general, there is very little vacant land within the City’s current RWSA; consequently, the
growth capacity within the City’s RWSA is limited. The majority of future growth is projected to
occur within the Regional Urban Center and the Sunset Area Community Planned Action
redevelopment boundaries. Projections of the average and maximum daily demands through
2071 are shown in Figure 2.
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Figure 2.
Current (2007 – 2013) Goals
Our current, adopted November 19, 2007, Water Use Efficiency goals are:
1) Reduce distribution system leakage (DSL) to ten percent or less by 2010.
2) Cap the peak day demand at 16.5 mgd until 2015.
3) Continue reduction of average annual water use by 0.5 percent per year.
Goal Achievements
1) Our first goal addressed distribution system losses. The Municipal Water Law requires that
DSL be 10 percent or less based on a three-year rolling average. If a system’s losses exceed this,
then it must develop a Water Loss Control Action Plan (WLCAP). Because ou r DSL in 2007 was
above 10%, a WLCAP was developed and began in 2008. The following figure shows the
progress that has been made. Our DSL for 2012 was 7.7%, although the three-year rolling
average was 11.9%. This reduction was achieved by taking steps to find and eliminate sources
of loss which included:
Conducting an acoustic leak detection survey to pinpoint leaks on an estimated 24 miles
of water mains and repaired 10 leaks found on existing water mains.
Investigating possible leak reports from the automated meter reading program and
repairing meter leaks.
Systematically replacing old, rusty and leaky water pipes to maintain water quality and
provide adequate flow for fire protection.
Renton should be in compliance with the three-year rolling average DSL requirement of less
than 10%, by the beginning of 2014. Figure 3 shows the steady progress made with the WLCAP.
0
5
10
15
20
25
30
2011 2012 2013 2014 2015 2016 2017 2021 2031 2041 2051 2061 2071
mg
d
Year
Projected Average and Maximum Day Demands
ADD mgd
MDD mgd
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Figure 3
2) Our second goal, which was to limit the peak water day demand to 16.5 million gallons per
day (mgd), has been achieved each year. Our highest peak day demand occurred in 2006 and
has been on a fairly steady decline, Figure 4. This reduction has been achieved through local
and regional education. Promotion of water wise gardening and the five-steps to healthy
gardens have been included in newsletters, garden classes offered by Renton Solid Waste, and
festivals. Renton has also participated in regional campaigns. Public attitudes, behavior and
understanding have moved towards a more water wise perspective. Letting lawns go dormant,
planting appropriately for the site, modifying when and how they water, and building healthy
soils have all helped reduce summer water consumption.
Figure 4
0
5
10
15
20
25
2006 2007 2008 2009 2010 2011 2012
pe
r
c
e
n
t
year
Distribution System Losses
rolling average DSL
actual DSL
y = -0.5682x + 15.749
0
2
4
6
8
10
12
14
16
18
2006 2007 2008 2009 2010 2011 2012
mg
d
Peak Day Demand
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3) The third WUE goal set in 2007 was to continue the historical trend of reduction in domestic
water use per connection by one-half (0.5%) percent per year. Although annual water
consumption varies greatly dependent on summer rainfall and temperature, Figure 5 shows
that the trend for the average annual domestic water use per connection has been an overall
decrease of 176 percent, meeting and exceeding our goal.
Figure 5
The sources of these savings are the result of variety of efforts. Table 1 presents the
“hardware” efforts that the City has employed since adopting our current goals in November
2007.
Table 1
Annual Conservation Program Savings
Total savings in million gallons/yr
Hardware/Incentive 2008 2009 2010 2011 2012
Washing machines 3.05 2.84 2.86 1.38
Aerators 3.1 0.102
Shower Heads 0.202
Toilets 1.03
Incentives 0.237
Irrigation 0.023
Millions of gallons per year total annual savings
from fixtures and incentives 14.82
y = -2.0864x + 126.98
105
110
115
120
125
130
2007 2008 2009 2010 2011 2012
cc
f
Average Annual Domestic Water Use per
Connection
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–
It is proposed that the City of Renton adopt the six-year regional Water Use Efficiency goal:
“reduce per capita water use from current levels so that the total average annual retail water
use of the members of the Saving Water Partnership is less than 105 MGD from 2013 through
2018 despite forecasted population growth.”
A new goal must be adopted every six years, for Renton that means by November 2013. The
Saving Water Partnership (SWP) collaborates to set a single regional goal for SWP members.
Renton became a member of the SWP in 2012 and has been participating in their programming.
The proposed goal will be implemented through targeting of the following six customer
program areas with specific measures and actions.
Communications
Youth and Community Education
Landscape
Landscape Irrigation Efficient Equipment
Residential Indoor Efficient Equipment
Industrial, Commercial, and Institutional Efficient Equipment
These targeted customer groups will be addressed with the following nine customer water use
efficiency strategies:
Promote water efficiency among residential, commercial, institutional customers in a
fair and cost effective manner using education, training, partnerships, and financial
incentives.
Increase youth participation in water conservation education by assessing what’s
working well in school districts and expanding it throughout the region.
Conduct outreach to communities to provide materials and information on leak
identification and repair, including multi-language “how-to” videos.
Provide information and low cost giveaway items for community events, festivals, and
customer service counters.
Explore new options to improve conservation communications, especially with non-
English speaking customers.
Create a seasonal on-line conservation message repository for utility newsletters and
other communications.
Promote changes in behavior that will lead to more water-efficient practices.
Monitor and encourage a customer ethic that values water conservation.
Comply with State Water Use Efficiency Rule.
Details of each of these six targeted programs are presented in the 2013 -2018 Water
Conservation Strategies and Actions document: Preserving the Customer Conservation Ethic:
2013-2018 Regional Water Conservation Strategies and Actions of the Saving Water
Partnership. Located at: http://www.savingwater.org/docs/2013WaterConsProgActionsStrategies.pdf
Individual programs are presented in Table 2. Current and Proposed Efficiency Activities.
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Table 2
Type Program Local or Regional Sector1 Ongoing
Program 2013-2018
Program SF MF ICI Youth
Education
Classroom presentations
delivered by NatureVision Regional X X
School presentations by request Local X X
Fairs and Festivals Local & Regional X X X X X
Fix leaks videos Regional X X (X) X
Landscape
Seasonal messaging Regional X X
Natural Yard Care workshops Local X X X
Savvy Gardener Workshops Local & Regional X (X) X
Festival displays and giveaways Local & Regional
Garden Hotline Regional (X) X
Brochures Local & Regional X X
Irrigation
Irrigation professional classes Regional X X X
Automatic irrigation systems
scheduling tools Regional X X X (X) X
Irrigation audit Regional X X (X) X
Residential
Indoor
Water bill consumption history Local X X X X X
Toilet leak detection tablets Local & Regional X X X X X
Toilet rebates Regional X X X (X) X
Low-flow shower heads Regional X X X
ICI
Commercial laundry machine
rebate Regional X X (X) X
Commercial kitchen rebates Regional X (X) X
Cooling and Refrigeration
Systems Regional X (X) XX
Medical Equipment Regional X (X) X
Process Water Improvements Regional X (X) X
Other Smart Water Use
Technologies Regional X (X) X
Footnotes: 1) SF = single family; MF = multi-family; ICI = industrial commercial and institutional; Youth relates to school based
2) (X) means ongoing since Renton joined Water Saving Partnership in 2012
5a. - 2013 Water Use Effeciency (WUE)
Goal Setting Page 12 of 97
CITY OF RENTON COUNCIL AGENDA BILL
Subject/Title:
Ordinance Amending Definitions in RMC 1-3-3
Meeting:
Regular Council - 14 Oct 2013
Exhibits:
Ordinance Amending Definitions in RMC 1-3-3
Submitting Data: Dept/Div/Board:
City Attorney
Staff Contact:
Garmon Newsom II, x6487
Recommended Action:
Refer to Public Safety Committee
Fiscal Impact:
Expenditure Required: $ Transfer Amendment: $
Amount Budgeted: $ Revenue Generated: $
Total Project Budget: $ City Share Total Project: $
SUMMARY OF ACTION:
In order to more effectively address nuisance violations in multi-family and commercial structures, it is
necessary to amend the definitions of “Calls for Service”, “Chronic Nuisance Premises” and “Premises”
in RMC 1-3-3 to criminalize nuisance and chronic nuisance conduct in residential locations and in or
around commercial, retail and entertainment businesses.
STAFF RECOMMENDATION:
Adopt the ordinance amending definitions in RMC 1-3-3
8b. - City Attorney Department
recommends amending definitions in
Page 13 of 97
1
CITY OF RENTON, WASHINGTON
ORDINANCE NO. ________
AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, AMENDING SECTION
1-3-3 OF CHAPTER 3, NUISANCES, OF TITLE I (ADMINISTRATIVE) OF THE
RENTON MUNICIPAL CODE, CRIMINALIZING NUISANCE AND CHRONIC
NUISANCE CONDUCT IN RESIDENTIAL LOCATIONS AND IN OR AROUND
COMMERCIAL, RETAIL AND ENTERTAINMENT BUSINESSES BY AMENDING THE
DEFINITIONS OF “CALLS FOR SERVICE”, “CHRONIC NUISANCE PREMISES” AND
“PREMISES”.
THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DOES ORDAIN AS
FOLLOWS:
SECTION I.Subsection 1-3-3.B.4, of section 1-3-3, Nuisances, of Chapter 3, Remedies
and Penalties, of Title I (Administrative) of the Renton Municipal Code, is amended as follows:
4. “Calls for service” means calls to 911, including but not limited to
Valley Communications, and/or calls directly to the Renton Police Department or
one of its officers. Calls for service, as that term is used in the definition of
“chronic nuisance premises,” does not include incidents that are unrelated to
the chronic nuisance premises, its resident(s), owner(s), or guest(s), patrons, or
calls for general information.
SECTION II.The first sentence of subsection 1-3-3.B.5.a, of section 1-3-3, Nuisances,
of Chapter 3, Remedies and Penalties, of Title I (Administrative) of the Renton Municipal Code,
is amended as shown below. Subsections 1-3-3.B.5.a.i through iii shall remain as currently
codified.
a. As it relates to single-family or duplex housing, or an individual
apartment unit, or a building or structure or business used for commercial, retail
8b. - City Attorney Department
recommends amending definitions in
Page 14 of 97
ORDINANCE NO. ________
2
or entertainment purposes, or the area within two hundred feet (200’) of such
premises, including those regulated by the Liquor Control Board, means a
property on which any of the following exists:
SECTION III.Subsection 1-3-3.B.24, of section 1-3-3, Nuisances, of Chapter 3,
Remedies and Penalties, of Title I (Administrative) of the Renton Municipal Code, is amended as
follows:
24.“Premises” means any building, factory-built house, dwelling,
house, mobile home, property, rental unit or property, or portion thereof,
including, but not limited to, any building or structure used as a residential or
commercial property, built for the support, shelter or enclosure of any persons,
animals, chattels or property, or any building or structure used for commercial,
retail or entertainment purposes, including those regulated by the Liquor Control
Board, or the area within two hundred feet (200’) of what is defined as a
premises. “Premises” and “property” may be used interchangeably in this
Chapter. As a result, “premises” may also mean lot, tax parcel, real estate or
land, or portions thereof.
SECTION IV.This ordinance shall be effective upon its passage, approval, and thirty
(30) days after publication.
PASSED BY THE CITY COUNCIL this _______ day of _____________________, 2013.
Bonnie I. Walton, City Clerk
8b. - City Attorney Department
recommends amending definitions in
Page 15 of 97
ORDINANCE NO. ________
3
APPROVED BY THE MAYOR this _______ day of _____________________, 2013.
Denis Law, Mayor
Approved as to form:
Lawrence J. Warren, City Attorney
Date of Publication:
ORD:1796:9/5/13:scr
8b. - City Attorney Department
recommends amending definitions in
Page 16 of 97
CITY OF RENTON COUNCIL AGENDA BILL
Subject/Title:
Maertins Annexation - Acceptance of 60%
Petition
Meeting:
Regular Council - 14 Oct 2013
Exhibits:
Issue Paper
60% Direct Petition
King County Certificate
Submitting Data: Dept/Div/Board:
Community and Economic Development
Staff Contact:
Angie Mathias, x6576
Recommended Action:
Council concur to set public hearing
Fiscal Impact:
Expenditure Required: $ Transfer Amendment: $
Amount Budgeted: $ Revenue Generated: $
Total Project Budget: $ City Share Total Project: $
SUMMARY OF ACTION:
The Council received a 60% Direct Petition to Annex on August 21, 2013, to annex approximately 4.2-
acres of unincorporated King County located within Renton’s Potential Annexation Area. The
proponent’s petition has been certified by King County as having signatures representing at least 60%
of the area’s taxable valuation. The area is at the northeastern portion of the City limits in the East
Renton Plateau area. It is bordered to the south by parcel lines located near Southeast Renton Issaquah
Road, by Northeast 16th Street to the north, and parcel lines to the east and west.
Under State law, the Council is required to hold a public hearing to consider the annexation petition and
the zoning in order to provide interested parties the opportunity to speak. Following the public hearing,
Council may approve the annexation of all or any portion of the area proposed for annexation. The site
is designated Residential Low Density (RLD) on the City’s Comprehensive Plan Land Use Map, but has
not been prezoned. The public hearing will also consider the proposed zoning of R-4 (allowing four
dwelling units per net acre).
The Administration is also seeking authorization to forward the Notice of Intent package to the
Boundary Review Board if Council decides to accept the 60% Direct Petition.
STAFF RECOMMENDATION:
Council set October 28, 2013, for a public hearing to consider the 60% Direct Petition and the proposed
zoning for the Maertins Annexation and to authorize the Administration to forward the Notice of Intent
package to the Boundary Review Board for King County.
8c. - Community and Economic
Development Department submits 60% Page 17 of 97
DEPARTMENT OF COMMUNITY
& ECONOMIC DEVELOPMENT
M E M O R A N D U M
DATE:October 14, 2013
TO:Randy Corman, Council President
Members of the Renton City Council
VIA:Denis Law, Mayor
FROM:Chip Vincent, Administrator x6592
STAFF CONTACT:Angie Mathias, Senior Planner x6576
SUBJECT:Maertins Annexation - Acceptance of 60% Direct Petition to
Annex
ISSUES:
Should the City Council accept the 60% Direct Petition to Annex from the Maertins
Annexation Area now that the petition has been certified by the King County
Department of Assessments?
If the City Council accepts the 60% Direct Petition, should the Administration be directed
to forward the Notice of Intent package for this annexation to the Boundary Review
Board?
RECOMMENDATION:
Council accept the 60% Direct Petition to Annex the approximately 4.2-
acre Maertins Annexation site;
Council authorize the Administration to forward the Notice of Intent for
the Maertins Annexation to the Boundary Review Board for King County
for their review.
BACKGROUND SUMMARY:
At its August 19,2013 public meeting, Council accepted the 10% Notice of Intent to
Commence Annexation petition and authorized the circulation of a 60% Direct Petition
to Annex. City of Renton departments reviewed the annexation proposal and all staff
reported that the annexation represents a logical extension of their respective services
and systems. There were no issues identified that would impede the annexation. A
more detailed discussion of this proposed annexation and review comments are
contained in the Department’s July 22, 2013, Maertins Annexation 10% Notice of Intent
issue paper.
On August 21, 2013, the petitioner submitted the 60% Direct Petition to Annex. That
petition was certified as sufficient, with signatures of property owners representing at
least 60% of the taxable value of the annexation area, by King County on August 28,
2013.
8c. - Community and Economic
Development Department submits 60% Page 18 of 97
Rich Zwicker, Council President
Page 2 of 2
February 27, 2012
Page 2 of 2
Zoning
This area has not been pre-zoned and therefore needs to be zoned with City of Renton
zoning prior to annexing. The Comprehensive Plan Land Use Map designation for the
annexation area is Residential Low Density (RLD). There are three zones that implement
this designation: RC - Resource Conservation (one dwelling unit per 10 net acres), R-1 -
Residential One Dwelling Unit (one dwelling unit per net acre), and R-4 - Residential
Four Dwelling Units (four dwelling units per net acre). Staff recommends zoning the
area with R-4 zoning.
The City’s Comprehensive Plan policies (LU 151 and LU-153) call for land within the RLD
designation to be zoned R-4 where there are not significant environmental constraints.
Land that has significant environmental constraints is identified as land where:
a significant percentage of the gross area is critical areas,
developable areas are separated by pervasive critical areas,
sensitive areas are located where if developed development would be non-
contiguous, or
variances or modifications would be required to develop at the allowed density
on the land remaining after application of the required buffers.
None of these conditions apply to the area being considered in this zoning
recommendation.
CONCLUSION:
The proposed Maertins Annexation has been certified as having sufficient signatures
representing at least 60% of the area’s assessed value. It also has reasonable
boundaries and appears to comply with Boundary Review Board objectives. Reviewing
staff raised no objections to this annexation. The proposed Maertins Annexation
furthers the City’s Business Plan goals and is in the general welfare and interest of the
City. The Administration recommends the Council accept the 60% Direct Petition and
authorize staff to forward the Notice of Intent package to the Boundary Review Board
for King County.
8c. - Community and Economic
Development Department submits 60% Page 19 of 97
8c. - Community and Economic
Development Department submits 60% Page 20 of 97
8c. - Community and Economic
Development Department submits 60% Page 21 of 97
8c. - Community and Economic
Development Department submits 60% Page 22 of 97
8c. - Community and Economic
Development Department submits 60% Page 23 of 97
8c. - Community and Economic
Development Department submits 60% Page 24 of 97
CITY OF RENTON COUNCIL AGENDA BILL
Subject/Title:
Pathway, Sidewalk, Patio, Boardwalk Repairs -
Budget Adjustment/Contract Authorization for
Cedar River Trail Renovation
Meeting:
Regular Council - 14 Oct 2013
Exhibits:
Job Order Contracting Proposal No. 3-Cedar River
Trail Renovation
Submitting Data: Dept/Div/Board:
Community Services
Staff Contact:
Leslie Betlach, Ext. 6619
Recommended Action:
Refer to Finance Committee
Fiscal Impact:
Expenditure Required: $ $120,980 Transfer Amendment: $$72,000
Amount Budgeted: $ $48,980 Revenue Generated: $
Total Project Budget: $ $120,980 City Share Total Project: $ $120,980
SUMMARY OF ACTION:
In 2013 the City budgeted $75,000 in CIP line item 316.332009.020.594.76.63.000 (Pathway, Sidewalk,
Patio and Boardwalk Repairs) to install a new ADA compliant walk in Teasdale Park and to complete
upper walk repairs near the Renton Senior Activity Center along the Cedar River Trail. The concrete
walk in Teasdale Park was completed for $26,020.40, leaving a balance of $48,979.60. Due to the age
and condition of the existing Cedar River Trail upper walk (35 years old, cracked and heaved) and it's
location and use (north side of the Cedar River connecting Williams Avenue and the Senior Center) the
existing walk requires more than minor patch repairs. Removal of the existing concrete walk and brick
pavers, root pruning of adjacent trees and replacement with a new/narrower concrete walk with
stamped concrete brick colored pavers would better serve the public. This proposed work is similar to
what was completed in 2010 on the south bank of the Cedar River. Staff is proposing utilizing Job Order
Contracting (JOC) with Berschauer Phillips to complete the work, estimated at $107,677.58 (with
contingencies $120,979.60), leaving a project shortfall of $72,000. Staff is proposing transferring
$72,000 from CIP line item 316.332003.020.594.76.63.000 (Regis Park Athletic Field
Expansion) budgeted at $280,000. Work proposed in 2013/2014 for Ron Regis Park includes
preliminary work for future water and sewer connections to complete park expansion plans which have
not been budgeted. Transferring $72,000 from Regis Park Athletic Field Expansion leaves a remaining
balance of $208,000 which is estimated to be sufficient for preliminary utility work. Council approval
authorizing the mayor to execute the Small Works Agreement for the work is also required as the Job
Order Contract Work Order amount exceeds the amount budgeted for the project, requiring a fund
transfer. Upon project completion, any unexpended funds will be returned to
316.332003.020.594.76.63.000 (Regis Park Athletic Field Expansion).
STAFF RECOMMENDATION:
Approve agreement, authorize the Mayor and City Clerk to execute the agreement and adjust the
budget as described.
8d. - Community Services Department
recommends approval of a Job Order Page 25 of 97
CONTENTS
BERSCHAUER PHILLIPS CONSTRUCTION COMPANY
1736 4TH AVE SOUTH STE.B SEATTLE WA 206.626.0256
CITY OF RENTON
JOB ORDER CONTRACTING
proposal No
date:
contractor contact:
phone:
email:
rev. No
8d. - Community Services Department
recommends approval of a Job Order Page 26 of 97
8d. - Community Services Department
recommends approval of a Job Order Page 27 of 97
PROJECT: Cedar River Trail Renovation
Location: Cedar River Trail Date: August 28, 2013
Renton, WA
Estimated duration:
• 2 Weeks Pre construction / Mobilization / Permits
• 2 Weeks Construction
• 1 Week Closeout
Description: Provide all labor, materials and equipment to complete all work at the Cedar River Trial Renovation as
per BP Scope of Work and inclusions listed below dated 8/22/13.
General information
• The performance of all work will be in accordance with OSHA and WISHA safety requirements. Work in
accordance with applicable construction and buildings codes.
• The project start date will depend on award notice to proceed.
• All construction debris will be cleaned up during construction; all debris shall be disposed of off-site.
• Material storage shall be at the project site.
• Portable toilets will be provided for subcontractor use.
• This is a prevailing wage project.
• Signage to route pedestrian traffic will be in place.
• Traffic control and pedestrian control plans submitted and approved by the city of Renton
Work Plan
• Demo Concrete
o Provide permits as needed.
o Provide temp fence, delineators and cones as needed.
o Traffic control and pedestrian control plans submitted and approved by the city of Renton.
o Demo and remove approx. 240sf. of concrete in front of the water fountain, salvage brick for
reinstallation.
o Demo and remove approx. 200sf at the approach ramps adjacent to the water fountain, salvage
brick for reinstallation.
o Demo and remove approx. 460lf. x 9’ wide of concrete with brick boarder.
o Saw cut and remove roots as directed by the City of Renton’s arborist.
o Dispose of all concrete and brick off site.
• Placing Concrete
o Prep subgrade and provide and install 240sf. of concrete in front of the water fountain, install
salvaged brick to match existing.
o Prep subgrade and provide and install approx. 200sf at the approach ramps adjacent to the water
fountain, install salvaged brick to match existing.
Prep subgrade and provide and install approx. 460lf by a total width of 8’6”. The boarder of the
concrete will be stamped and match the color of the existing brick (see attached picture to match
layout and finish).
Special or potential long lead items
8d. - Community Services Department
recommends approval of a Job Order Page 28 of 97
• N/A
Potential disruptions to occupants and plans to minimize
•
Utility outages
• N/A
Special training / orientation requirements
• N/A
Hours of operation
• Normal work hours 7:00AM-5:00PM Monday-Friday & Saturday if needed.
Schedule issues / Milestones
• N/A
Special security requirements
• N/A
Closeout/Owner Stock Items
• N/A
Hazardous materials
• N/A
8d. - Community Services Department
recommends approval of a Job Order Page 29 of 97
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City of Renton JOC
Berschauer Phillips
8/28/2013 1of2
Hier4Level 4 Item Takeoff Labor Mat Equip Grand
Code Item Code Description Note Quantity Unit Total Total Total Total
Clear and Grub
31131320 0300 Selective tree and shrub removal, selective felling & piling, large tract, firm level terrain, no boulders, 300 H.P. dozer, up to 400 Remove ivy and cut roots 1.0 acre 695.00 2,450.00 3,145.00
trees per acre, 0 to 25% hardwoods, less than 12" diameter trees, with tractor
Clear and Grub Total 695.00 2,450.00 3,145.00
Concrete
01452350 2600 Concrete testing, mix design, one batch mix 2.0 EA 518.00
01452350 2650 Concrete testing, mix design, added trial batches Testing color for concrete 2.0 EA 240.00
01543310 2120B Rent pump concrete truck mounted 4"line 80'boom - Rent per day 2.0 days 1,740.00 1,740.00
01543310 2120E Rent pump concrete truck mounted 4"line 80'boom - Crew daily cost 2.0 days 1,431.60 1,431.60
03240530 0110 Fibrous reinforcing, synthetic fibers, add to concrete, 1-1/2 lb. per C.Y.60.0 CY 516.00 516.00
03051320 3200 Concrete admixture, for integral colored pigments, standard colors, 5 bag mix, 9.4 lb./bag, includes color only, add Color adder 20.0 CY 2,460.00 2,460.00
03305340 4650 Structural concrete, in place, slab on grade (3500 psi), 4" thick, includes forms(4 uses), Grade 60 rebar, concrete (Portland cement Concrete walk way 60.0 CY 3,840.00 7,140.00 33.00 11,013.00
Type I), and placing, excludes finishing
03305340 4650 Structural concrete, in place, slab on grade (3500 psi), 4" thick, includes forms(4 uses), Grade 60 rebar, concrete (Portland cement Concrete boarder 20.0 CY 1,280.00 2,380.00 11.00 3,671.00
Type I), and placing, excludes finishing
03305340 4705 Structural concrete, thickened edge for slab on grade (3500 psi), depth is added to and poured monolithically with slab, 8" wide x 8"Adder for thickend edge 500.0 LF 915.00 1,635.00 5.00 2,555.00
deep, unreinforced, includes forms(4 uses), concrete (Portland cement Type I), placing and finishing
03310570 9000 Structural concrete, placing, minimum equipment/labor charge, includes leveling (strike off) & consolidation Strike off at each pour 3.0 Job 2,670.00 99.00 2,769.00
03352930 0200 Concrete finishing, floors, basic finishing for unspecified flatwork, bull float, manual float & manual steel trowel, excludes placing,Finishing for exposed aggregate 4,720.0 SF 3,634.40 3,634.40
striking off & consolidating
03353350 0300 Slab texture stamping, alternate stamping estimating method includes all tasks above, excludes placing, striking off & consolidating Stamp concrete 1,640.0 SF 2,820.80 3,526.00 6,346.80
03391350 0015 Curing, burlap, 7.5 oz., 4 uses assumed 20.0 Csf 206.00 280.00 486.00
03391350 0400 Curing, curing blankets, buy, 1" to 2" thick 4,300.0 SF 1,462.00 1,462.00
05122340 9000 Lightweight framing, structural steel, minimum labor/equipment charge 1.0 Job 400.00 400.00
Concrete Total 15,766.20 19,399.00 3,319.60 39,242.80
Concrete demolition
01543320 0140C Rent excavator diesel hydraulic crawler mounted 3/4 CY capacity - Rent per week Excavator 1.0 week 1,870.00 1,870.00
01543320 0140E Rent excavator diesel hydraulic crawler mounted 3/4 CY capacity - Crew daily cost 5.0 days 3,474.00 3,474.00
01543320 0342C Rent excavator attachment, bucket thumbs - Rent per week Attachement for Excavator 2.0 week 1,440.00 1,440.00
01543320 0450C Rent backhoe-loader 45 to 60 HP 3/4 CY capacity - Rent per week Backhoe 1.0 week 885.00 885.00
01543320 0450E Rent backhoe-loader 45 to 60 HP 3/4 CY capacity - Crew daily cost 5.0 days 1,837.00 1,837.00
01543320 0486C Rent backhoe-loader attachment, hydraulic hammer 1200 ft lbs - Rent per week Breaker attachment for backhoe 1.0 week 650.00 650.00
01543320 0486E Rent backhoe-loader attachment, hydraulic hammer 1200 ft lbs - Crew daily cost 5.0 days 898.00 898.00
01543320 3880B Rent, Shovel/backhoe bucket, 1 CY - Rent per day Shovel attachment for backhoe 5.0 days 407.50 407.50
01543320 3880E Rent, Shovel/backhoe bucket, 1 CY - Crew daily cost 5.0 days 347.00 347.00
01543650 0020 Mobilization or demobilization, dozer, loader, backhoe or excavator, 70 H.P. to 150 H.P., up to 50 miles Mob and demo for back hoe 2.0 EA 146.00 284.00 430.00
01543650 0100 Mobilization or demobilization, dozer, loader, backhoe or excavator, above 150 H.P., up to 50 miles Mob and demob for excavator 2.0 EA 195.00 640.00 835.00
Concrete demolition Total 341.00 12,732.50 13,073.50
Earthwork
01543320 0450C Rent backhoe-loader 45 to 60 HP 3/4 CY capacity - Rent per week 1.0 week 885.00 885.00
01543320 0450E Rent backhoe-loader 45 to 60 HP 3/4 CY capacity - Crew daily cost 5.0 days 1,837.00 1,837.00
01543320 1350C Rent vibratory plate compactor 21" plate 5000 lb blow - Rent per week 1.0 week 92.00 92.00
01543320 1350E Rent vibratory plate compactor 21" plate 5000 lb blow - Crew daily cost 5.0 days 222.00 222.00
01543320 5250B Rent truck, dump, 2-axle, 12 ton, 8 C.Y. payload, 220 H.P. - Rent per day Trucking for back fill 2.0 days 456.00 456.00
01543320 5250E Rent truck, dump, 2-axle, 12 ton, 8 C.Y. payload, 220 H.P. - Crew daily cost Operator for truck 2.0 days 833.20 833.20
01543650 0100 Mobilization or demobilization, dozer, loader, backhoe or excavator, above 150 H.P., up to 50 miles Mob and demob 2.0 EA 195.00 640.00 835.00
31231642 1850 Excavating, bulk bank measure, 48" bucket, 1 C.Y. = 45 C.Y./hour, hydraulic excavator, truck mounted, excluding truck loading Site over excavation 50.0 B.C.Y.93.50 93.50
Earthwork Total 288.50 4,965.20 5,253.70
General Conditions
01412650 0100 Permits rule of thumb, most cities, maximum Permits street use and traffic control plan 45,000.0 %Job 900.00
01311320 0160 Field personnel, general purpose laborer, average Site cleanup 2.0 week 2,850.00 2,850.00
01562650 0100 Temporary Fencing, chain link, 6' high, 11 ga 500.0 LF 945.00 1,295.00 2,240.00
01543340 2200C Rent electric generator gas engine 5 kW - Rent per week 2.0 week 90.00 90.00
01543340 6410D Rent toilet portable chemical - Rent per month 1.0 mnth 183.00 183.00
01543340 7100C Rent truck pickup 3/4 ton 2 wheel drive - Rent per week Work truck 2.0 week 350.00 350.00
01543340 7100E Rent truck pickup 3/4 ton 2 wheel drive - Crew daily cost 10.0 days 1,546.00 1,546.00
General Conditions Total 3,795.00 1,295.00 2,169.00 8,159.00
Hauling and Dump Fees
01543320 5310C Rent truck, dump, 4 axle, 25 ton, 18 C.Y. payload, 450 H.P. - Rent per week Trucking debris truck A 1.0 week 1,425.00 1,425.00
01543320 5310C Rent truck, dump, 4 axle, 25 ton, 18 C.Y. payload, 450 H.P. - Rent per week Trucking debris truck B 1.0 week 1,425.00 1,425.00
01543320 5310E Rent truck, dump, 4 axle, 25 ton, 18 C.Y. payload, 450 H.P. - Crew daily cost Operator for truck A 5.0 days 4,335.00 4,335.00
01543320 5310E Rent truck, dump, 4 axle, 25 ton, 18 C.Y. payload, 450 H.P. - Crew daily cost Operator for truck B 5.0 days 4,335.00 4,335.00
02411920 0100 Selective demolition, dump charges, typical urban city, building construction materials, includes tipping fees only Concrete slab dump fees 60cy * 1.28= 77 tons 77.0 ton 6,314.00 6,314.00
Hauling and Dump Fees Total 6,314.00 11,520.00 17,834.00
Traffic Control
01311320 0160 Field personnel, general purpose laborer, average Traffic control 2.0 week 2,850.00 2,850.00
01562310 0800 Barricades, traffic cones, PVC, 18" high 10.0 EA 105.50 105.50
11141313 0020 Posts, portable for pedestrian traffic control, standard, minimum Traffic control signs 3.0 EA 387.00 387.00
Traffic Control Total 2,850.00 492.50 3,342.50
Grand Total 23,735.70 27,500.50 37,156.30 90,050.50
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City of Renton JOC
Berschauer Phillips
8/28/2013 2of2
CSI Division Labor Mat Subs Equip Other User Total
01 General Requirements 6,645 1,401 758 32,994 900 42,698
02 Site Construction 1,325 6,314 4,014 11,653
03 Concrete 15,366 19,399 148 34,913
05 Metals 400 400
12 Furnishings 387 387
Renton City Cost Index 4,503
Subtotal 94,553
City Renton Coefficient 1.04 3,782
Total Estimate 98,335
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CITY OF RENTON COUNCIL AGENDA BILL
Subject/Title:
Parks Major Maintenance Budget Adjustment -
Cedar River Trail Trestle Bridge Structural Review
Meeting:
Regular Council - 14 Oct 2013
Exhibits:
Consultant Agreement
Attachment A, Scope of Services
BergerABAM Proposal
Submitting Data: Dept/Div/Board:
Community Services
Staff Contact:
Leslie Betlach, Ext. 6619
Recommended Action:
Refer to Finance Committee
Fiscal Impact:
Expenditure Required: $ $18,266 Transfer Amendment: $$5,000
Amount Budgeted: $ $13,266 Revenue Generated: $
Total Project Budget: $ $18,266 City Share Total Project: $ $18,266
SUMMARY OF ACTION:
The October 2010 Inspection Report for the Cedar River Trail Trestle Bridge identified numerous major
maintenance items to be completed within two years (all have been completed) as well as
performing structural inspections at no greater than 3-year intervals to track decay and identify when
other timber elements require replacement. The 2013 Scope of Services with BergerABAM includes
inspecting the timber approach trestle and steel railroad bridge to determine if each structure continues
to be capable of supporting H-10 trucks and ambulances. The level of inspection will be suitable to
detect gross defects and obvious damage to the structures. As in the past, a final letter report will
contain an executive summary, inspection procedure utilized, descriptions of the structures, a
description of what was found during the inspection, a general condition assessment of each structure
and photographs. Identified structural defects will be programed in the Capital Improvement Program
budget. The budgeted amount to complete this work is $13,266 in 316.332028.020.594.76.63.000
(Parks MM - Structural Reviews & Repairs). The estimate to complete the work is $14,900 (with
contingencies $18,266), leaving a project shortfall of $5,000. Staff is proposing transferring $5,000 from
CIP line item 316.332045.020.594.76.63.016 (Coulon Park Structural Repairs, Shoreline Erosion) which
has a remaining budget of $15,719 (the Coulon Shoreline topographic survey has been completed) to
316.332029.020.594.76.63.000 - Parks Major Maintenance - Structural Reviews & Repairs.
STAFF RECOMMENDATION:
Adjust the budget as described.
8e. - Community Services Department
requests approval of a budget adjustment Page 33 of 97
CONSULTANT AGREEMENT
THIS CONSULTANT AGREEMENT (“Agreement”) is made as of the day of ,
2013, (the “Effective Date”), between the CITY OF RENTON, a non-charter code city organized
under RCW 35A and State of Washington municipal corporation, (“Renton”), and BergerABAM,
(“CONSULTANT”), to provide professional engineering services to inspect the timber approach
trestle and steel railroad bridge over the Cedar River – a portion of the Cedar River Trail, in the
City of Renton. Renton and CONSULTANT are at times collectively referred to as the “Parties”.
NOW THEREFORE, in consideration of the recitals, which are incorporated by reference, and
the following mutual promises and covenants contained in this Agreement, the Parties mutually
agree as follows:
1. Scope of Services.
The CONSULTANT will provide all material and labor necessary to perform all work
described in the PROPOSAL, which is attached and fully incorporated in this Agreement by
reference with this Agreement as Attachment “A”.
2. Renton’s Responsibility.
Renton will provide or coordinate access to the work site so that the work may be
performed.
3. Consideration.
Renton agrees to pay the CONSULTANT the Contract Sum, in exchange for complete
performance of the professional services referred to in this Agreement and/or as is detail ed in
Attachment A. Any conflict or ambiguity in terms of the CONTRACTOR’S expected performance
shall be guided by the terms of the contract and construed in favor of Renton.
Payment for services shall be made by Renton to the CONSULTANT for completed work on a
time and material basis consistent with the attached estimate, upon completion of the
contracted work. Such payment shall be the full compensation for work performed, services
rendered, and for all labor, materials, supplies, equipment, incidentals, and incidental costs
necessary to complete the work.
4. Contract Sum.
The total amount of this Contract is Fourteen Thousand Nine Hundred Dollars
($14,900.00) which includes Washington State sales tax.
8e. - Community Services Department
requests approval of a budget adjustment Page 34 of 97
2013 Consultant Agreement 2
5. Changes in Scope of Services.
Renton, without invalidating the Contract, may order changes in the Scope of Services
consisting of additions, deletions or modifications. The Contract Sum may be adjusted
according to any reasonable additional cost or expense resulting from such changes. Such
changes in the work shall be authorized by a written Change Order signed by Renton and the
CONSULTANT. The CONSULTANT shall not modify the Scope of Services, without forfeiting any
unpaid fees due, unless the CONSULTANT has received Renton’s prior written approval.
6. Time of Performance.
The CONSULTANT shall commence performance of the Contract no later than ten
calendar days after the Contract’s final execution, and shall complete the full performance of
the Contract not later than 90 calendar days from the date of commencement.
7. Duration of this Agreement.
This Agreement shall end at completion of the enclosed scope of services or when the
Time of Performance expires, whichever is first. This Agreement may be extended only upon
mutual written agreement of Renton and the CONSULTANT.
8. Method of Payment.
Payment by Renton for the Services will only be made after the Services have been fully
performed to Renton’s satisfaction and an invoice is submitted to Renton in an acceptable
form. Payment will be based on the percent of work completed, compliance with the Scope of
Services. Payment will be made in the next pay cycle of the Renton’s Finance and Information
Technology Department after receipt of such voucher or invoice (pay cycles are bi-weekly).
Renton shall have the right to withhold payment to the CONSULTANT for any work not
completed in a satisfactory manner until such time as the CONSULTANT modifies such work so
that the same is satisfactory. If the work is not satisfactorily modified or is not in compliance
with this Agreement, Renton may withhold the entire payment, without penalty.
9. Consultant is an Independent CONSULTANT.
The Parties intend to create an Independent CONSULTANT-Employer Relationship and
that the CONSULTANT will have the ability to control and direct the performance and details of
its work, with Renton being interested only in the results obtained under the Agreement. As a
result, CONSULTANT and its subcontractors, employees, agents and volunteers are not Renton
employees and shall not be entitled to any employee benefits or protections.
10. Record Keeping and Reporting.
The CONSULTANT and each sub-consultant, if any, shall submit upon Renton’s demand
to Renton such schedules of quantities and costs, progress schedules, payrolls, reports,
estimates, records and miscellaneous data pertaining to the Agreement.
11. Indemnity.
8e. - Community Services Department
requests approval of a budget adjustment Page 35 of 97
2013 Consultant Agreement 3
CONSULTANT agrees and covenants to hold and save Renton, its elected officials,
officers, agents, representatives, employees and volunteers harmless and to promptly
indemnify same from and against any and all claims, actions, damages , liability of every type
and nature including all costs and legal expenses incurred by reason of any negligent work
arising under or in connection with this Agreement or work related to the Agreement, including
loss of life, personal injury and/or damage to property arising from or out of any occurrence,
omission or activity upon, on or about the premises worked upon or in any way relating to this
Agreement. This hold harmless and indemnification provision shall likewise apply for or on
account of any patented or unpatented invention, process, article or appliance manufactured
for use in the performance of the Agreement, including its use by Renton, unless otherwise
specifically provided for in this Agreement.
The CONSULTANT agrees to name Renton as an Additional Insured on a noncontributory
primary basis, except for professional liability and worker’s compensation policies. In the event
Renton shall, without fault on its part, be made a party to any litigation commenced by or
against CONSULTANT, then CONSULTANT shall proceed and hold Renton harmless and he shall
pay all costs, expenses and reasonable attorney's fees incurred or paid by Renton in connection
with such litigation. Furthermore, CONSULTANT agrees to pay all costs, expenses and
reasonable attorneys’ fees that Renton may incur or pay in the enforcement of any of the
covenants, provisions and agreements.
Nothing in this Agreement shall require the CONSULTANT to indemnify Renton against
and hold harmless Renton, from claims, demands or suits based solely upon the conduct of
Renton, its elected officials, officers, and employees and provided further that if claims or suits
are caused by or result from the concurrent negligence of (a) the CONSULTANT's agents or
employees and (b) Renton, its elected officials, officers, and employees, and involves those
actions covered by RCW 4.24.115, (Validity of agreement to indemnify against liability for
negligence relative to construction, alteration, improvement, etc., of structure or improvement
attached to real estate or relative to a motor carrier transportation contract), this indemnity
provision with respect to claims or suits based upon such concurrent negligence shall be valid
and enforceable only to the extent of the CONSULTANT's negligence or the negligen ce of the
CONSULTANT's agents or employees.
Should a court of competent jurisdiction determine that this agreement is subject to
RCW 4.24.115, (Validity of agreement to indemnify against liability for negligence relative to
construction, alteration, improvement, etc., of structure or improvement attached to real
estate or relative to a motor carrier transportation contract) then, in the event of liability for
damages arising out of bodily injury to persons or damages to property caused by or resulting
from the concurrent negligence of the CONSULTANT and Renton, its elected officials, officers,
employees, agents, representatives and volunteers, the consultant’s liability under this
Agreement shall be only to the extent of the consultant’s negligence. It is further specifically
and expressly understood that the indemnification provided herein constitute the con sultant’s
waiver of immunity under RCW 51, the Industrial Insurance Act, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the Parties. The provisions of
this section shall survive the expiration or termination of this Agreement.
8e. - Community Services Department
requests approval of a budget adjustment Page 36 of 97
2013 Consultant Agreement 4
12. Insurance.
a. CONSULTANT’S Insurance. CONSULTANT shall secure and maintain the
following insurance policies, and shall not cancel or suspend the insurance policies
identified below, except after twenty (20) calendar day’s prior written notice by
certified-mail to the City of Renton:
i. Commercial General Liability Insurance: Commercial general
liability insurance in the minimum amounts of $1,000,000 for each
occurrence/$2,000,000 aggregate throughout the duration of this Agreement.
ii. Professional Liability Insurance: Professional liability insurance, in
the minimum amount of $1,000,000 for each occurrence, shall also be secured
for any professional services being provided to Renton that are excluded in the
commercial general liability insurance.
iii. Workers’ Compensation: Workers’ compensation coverage, as
required by the Industrial Insurance laws of the State of Washington.
iv. Renton as an Additional-Insured: It is agreed that on
CONSULTANT’S commercial general liability policy, the City of Renton will be
named as an Additional-Insured on a primary and non-contributory basis. Any
coverage maintained by the City of Renton is solely for the coverage and benefit
of Renton, and its elected officials, officers, agents, employees, representatives
and volunteers.
v. Verification of Coverage: Subject to Renton’s review and
acceptance, a certificate of insurance showing the proper endorsements, shall be
delivered to Renton before executing the work of this Agreement.
b. Review of Policy: Upon request, the CONSULTANT shall give Renton a full
copy of the insurance policy for its records and for the Renton City Attorney’s or Risk
Manager’s review. The policy limits may be reviewed and the value reassessed annually.
c. Termination: Notwithstanding any other provision of this Agreement, the
failure of the CONSULTANT to comply with the above provisions of this section shall
subject this Agreement to immediate termination without notice to any person in order
to protect the public interest.
13. Termination of Agreement.
This Agreement may be terminated by either party upon ten (10) calendar days written
notice should the other party fail substantially to perform in accordance with this Agreement’s
terms through no fault of the other party, subject to the non -performing party curing any
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2013 Consultant Agreement 5
failure to perform within said ten (10) calendar days. Should failure to perform be cured within
ten (10) calendar days, this Agreement shall remain in full force and effect.
In the event of termination, the CONSULTANT shall be paid for services performed up to
the termination date and accepted as conforming work by Renton, less any costs or expenses
incurred by Renton as a result of the CONSULTANT’S breach of the Agreement.
In that event, all finished or unfinished documents, data, studies, surveys, drawings,
maps, models, photographs and reports prepared by the CONSULTANT shall become Renton’s
property, and the CONSULTANT shall be entitled to receive just and equitable compensation for
any work completed on such documents and other materials , unless such documents or
materials failed to conform to the Agreement.
14. Arbitration.
Arbitration of all questions of dispute under this Agreement may be at the choice of
either party and shall be in accordance with the laws of the State of Washington. The results of
arbitration shall be binding on the Parties. Choice of Arbitrator shall be as follows: each party
to choose one with the third choice by mutual agreement or, if unable to agree, chosen by a
Superior Court Judge. Rules of arbitration: American Arbitration Association. All arbitrators
shall be well-versed/trained and experience in design and construction issues.
15. Assignment.
The Parties may not assign any portion of this Agreement without the non -assigning
party’s written consent, and any assignment in violation of this provision shall be void. If the
non-assigning party gives its written consent to any assignment, the terms of this Agreement
shall continue in full force and effect and no further assignment shall be made without
additional written consent.
16. Assigns and Successors.
Renton and the CONSULTANT each binds itself, its partners, successors, assigns, and
legal representatives to the other party to this Agreement, and to the partners, successors,
assigns, and legal representatives of such other party with respect to all covenants of the
Agreement.
17. Compliance with Laws.
CONSULTANT agrees to comply with all federal, state, and municipal laws, rules,
regulations, or guidelines that exist or come into existence that are applicable to
CONSULTANT’s business, equipment, and personnel engaged in operations covered by this
Agreement or accruing out of the performance of those operations.
18. Conflicts.
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2013 Consultant Agreement 6
In the event of any inconsistencies between CONSULTANT proposals and this
Agreement, the City of Renton Agreement shall prevail.
19. Counterparts.
The Parties may execute this Agreement in any number of counterparts, each of which
shall constitute an original, and all of which will together constitute this one Agreement.
20. Limitation of Actions.
CONSULTANT must, in any event, file any lawsuit arising from or connected with this
Agreement within 120 calendar days from the date the contract work is complete or
CONSULTANT’S ability to file that claim or suit shall be forever barred or waived. This section
further limits any applicable statutory limitations period.
21. Mediation.
Mediation may precede arbitration by mutual consent of the Parties.
22. Modification.
No waiver, alteration, or modification of any of the provisions of this Agreement shall be
binding unless in writing and signed by each party’s duly authorized representative.
23. Non-Discrimination and Compliance with Applicable Federal, State and Local Laws.
Except to the extent permitted by a bona-fide occupational qualification, the
CONSULTANT agrees as follows:
The CONSULTANT will not discriminate against any employee or applicant for
employment because of race, creed, color, national origin, sex, age, sexual orien tation,
physical, sensory or mental handicaps or marital status. The CONSULTANT will take
affirmative action to insure that applicants are employed and that employees are
treated during employment without regard to their race, creed, color, national origin,
sex, age, sexual orientation, physical, sensory or mental handicaps, or marital status.
Such action shall include, but not be limited to the following employment, upgrading,
demotion or transfer, recruitment or recruitment advertising, layoff or termin ation,
rates of pay or other forms of compensation and selection for training.
The CONSULTANT will, in all solicitations for employee’s job orders placed with any
employment agency or other firm or agency, state that all qualified applicants will
receive consideration for employment without regard for race, creed, color national
origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital
status. The words "equal opportunity employer" in advertisements shall constitute
compliance with this paragraph.
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2013 Consultant Agreement 7
The CONSULTANT will include the provisions of the foregoing paragraphs in every
subcontract or purchase order for the goods or services which are subject matter of this
contract.
In the event of non-compliance by the CONSULTANT with any of the non-discrimination
provisions of the contract, the Owner shall have the right, at its option, to cancel the
contract in whole or in part, without penalty. If the Agreement is canceled based on
non-compliance with this section of the Agreement after partial performance, Renton
shall be obligated to pay the fair market value or the contract price, whichever is lower,
for good or services which have been received and accepted.
The CONSULTANT is solely responsible for knowledge of and compliance with all federal,
state and local laws and regulations that may affect the satisfactory completion of the
project, which includes but is not limited to fair labor laws and wo rker’s compensation.
Renton requires all businesses and individuals doing business in Renton to have and maintain a
valid City of Renton business license. (For Renton licensing information call 425-430-6851).
24. No Waiver.
Neither the final certificate of payment nor any provision in the Agreement or partial or
entire use of any installation provided for by this Agreement shall relieve the CONSULTANT of
liability in respect to any warranties or responsibility for faulty materials or workmanship. The
CONSULTANT shall be under the duty to remedy any defects in the work and pay for any
damage to other work resulting therefrom which shall appear within the period of one (1) year
from the date of final acceptance of the work, unless a longer period is specified. Renton will
give notice of observed defects within a reasonably prompt time after discovery, and
CONSULTANT shall be obligated to take immediate steps to correct and remedy any such
defect, fault or breach at the sole cost and expense of CONSULTANT.
The failure of Renton to insist upon strict perfo rmance of any of the covenants and
agreements contained in this Agreement, or to exercise any option conferred by this
Agreement in one or more instances shall not be construed to be a waiver or relinquishment of
those covenants, agreements or options, and the same shall be and remain in full force and
effect.
25. Public Document/Public Disclosure.
This Agreement will be considered a public document and will be available for
reasonable inspection and copying by the public during regular business hours. This document
may be disclosed pursuant to RCW 42.56 (Public records act).
26. Remedies.
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2013 Consultant Agreement 8
Any remedies provided for in this Agreement are non-exclusive, and shall be cumulative
with all other remedies available to Renton at law, in equity, or by statutes, unless specifically
waived in this Agreement or in a subsequent signed document signed by Renton’s authorized
representative.
27. Singular, Plural and Gender.
Whenever required by the context of Agreement, the singular shall include the plural
and the plural shall include the singular. The masculine, feminine and neuter genders shall each
include the other.
28. Sole and Entire Agreement.
This Agreement is the entire agreement between the Parties and any representations or
understandings, whether oral or written, not incorporated by reference into this Agreement are
excluded.
29. Third-Party Beneficiaries.
Nothing in this Agreement is intended to, nor shall be construed to give any rights or
benefits in the Agreement to anyone other than Renton and CONSULTANT, and all duties and
responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive
benefit of Renton and CONSULTANT and no one else.
30. Written Notice:
All communications regarding this Agreement shall be sent to the Parties at the
addresses listed on the signature page of the Agreement, unless notified to the contrary. Any
written notice shall become effective three (3) business days after the date of mailing by
registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at
the address stated in this Agreement or such other address as may be specified by the recipient
Party in writing.
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the
date written above.
CONSULTANT
Signature
Printed Name and Title
Business Name
CITY OF RENTON
Signature
Terry Higashiyama
Community Services Administrator
Printed Name and Title
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2013 Consultant Agreement 9
Mailing Address
City State Zip
Telephone
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Attachment ‘A’
Railroad Trestle Bridge – Structural Inspection
Scope of Work
BergerABAM will provide professional engineering services to inspect the timber
approach trestle and steel railroad bridge over the Cedar River, which is a portion of the
Cedar River Trail. Payment will be on a Time and Materials Basis, Not to Exceed Budget
of Fourteen Thousand Nine Hundred Dollars ($14,900.00), which includes WSST.
Reference BergerABAM’s Proposal dated August 26, 2013
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26 August 2013
Mr. Todd Black, ASLA
Capital Project Coordinator
City of Renton, Parks Division
Renton City Hall, Sixth Floor
1055 South Grady Way
Renton, WA 98055
Subject: Proposal for Professional Engineering Services
Riverview Park Railroad Bridge Inspection
Dear Mr. Black:
We are pleased to have the opportunity to assist you in an inspection of the railroad bridge and
approach trestle over the Cedar River just south of Riverview Park. A discussion of the
proposed scope, schedule, and fee follows. This letter proposal will serve as the basis for our
agreement.
SCOPE OF SERVICES
We propose to inspect the timber approach trestle and steel railroad bridge over the Cedar
River, determine if each structure is capable of supporting H‐10 trucks and ambulances, and
provide a letter report summarizing our findings to the City of Renton. The level of inspection
will be suitable to detect gross defects and obvious damage to the structures. We have assumed
that the railroad bridge structure is capable of supporting an H‐10 truck or ambulance. We will
restrict our inspection to determining a general level of deterioration and whether original
members were removed during the conversion to a trail bridge, as well as restrict our analysis
for the load rating to the deck panels that were added to the bridge in its conversion to a trail.
Bridge and Trestle Inspection
The timber approach trestle structure can be inspected from the ground with the aid of a step
ladder. We propose to inspect all the stringers and bent members visually and by sounding
them with a hammer. Those members that are suspected to have damage will be drilled to
determine if fungal damage (dry rot) is present. A creosote‐treated dowel will be inserted into
the drilled hole to prevent water and insect intrusion. The trestle’s concrete deck panels will be
inspected for damage from above and below deck.
All members and connections in the steel truss structure will be visually inspected for damage
or deterioration. The upper chord, portal, and diaphragm members of the steel truss bridge will
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Mr. Todd Black, ASLA
26 August 2013
Page 2
be inspected with the aid of a rented man lift or bridge inspection snooper truck. The lower
chord, portal, and diaphragm members will be inspected with the snooper, if used, or will be
inspected by climbing down from the deck. The truss deck panels will be inspected from above.
They will also be inspected from below if the snooper is used.
Hand railing will be inspected visually for damage or loose connections.
The truss span’s concrete pier on the right bank will be visually inspected; the timber pile
supported pier on the left bank will be sounded for damage and drilled, if necessary.
We estimate that it will take three field days for a two‐person crew to inspect both structures.
Letter Report
We will prepare a letter report that contains an executive summary; inspection procedure;
descriptions of the structures including overall dimensions and type of construction: a
description of what was found during the inspection; and a general condition assessment of
each structure. Photographs will be provided that depict the overall layout of each structure,
typical member conditions, and any damage that is found.
If the City is able to locate drawings of the structures, reduced‐size copies of these drawings
indicating overall layout and typical member sizes will be included in an appendix to the
report. The creation of as‐built drawings is not included in the scope of this inspection and
report; however, new drawings could be included in the scope for an additional fee if the City
so desires.
SCHEDULE
We estimate that the field investigation of the bridge will be performed within two weeks from
receiving the notice to proceed. Verbal reports on the condition of the bridge will be provided
the day after the inspection and a draft report will be prepared for your review in
approximately three weeks of completing the field work. The final report will be provided
within two weeks of receiving your review comments.
FEE ESTIMATE
We propose to perform the work on a time‐and‐materials basis for an estimated fee of $14,900
(Fourteen Thousand Nine Hundred Dollars). Our detailed estimate and billing rates for
engineering services are as shown on the attached BergerABAM Standard Time and Expense
Charges. We will not exceed the above authorized amount without your prior approval.
If you agree with the above, please show your acceptance by signing both originals in the space
provided below. Please return one fully executed original to me and retain the other for your
files.
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Mr. Todd Black, ASLA
26 August 2013
Page 3
We look forward to working with you on this project. Please call me at 206/431‐2300 if you
should have any questions regarding this proposal.
Sincerely,
Elmer Ozolin, PE
EWO:LAK:keh
Attachment
BergerABAM Staff Hour and Expense Summary
ACCEPTED BY
CITY OF RENTON, PARKS DIVISION
_____________________________________________
Signature
_____________________________________________
Name (Printed)
_____________________________________________
Title
_____________________________________________
Date
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City of Renton
Community Services
Riverview Park Railroad Bridge and Trestle Inspection
BERGER/ ABAM - STAFF HOUR SUMMARY Date: 19 August 2013
Principal Task Project Tech/
Sr. Proj Mgr Proj. Mgr.Engineer Engineer Drafter Admin/WP
Item $185.00 $140.00 $105.00 $95.00 $100.00 $85.00 Totals
Contract Administration
Contract Administration 1 1 1 $410.00
Invoicing 2 1 $365.00
Field Work
Mob / Demob 6 6 $1,470.00
Timber trestle Inspection 1 15 15 $3,860.00
Steel Trestle Inspection 1 15 15 $3,860.00
Report
Draft Report 2 24 2 $3,900.00
Final Report 1 3 1 $690.00
Total Hours:6 66 36 5 113
Labor Cost:$1,110 $9,240 $3,780 $425 $14,555
(Note: Labor rates include overhead + profit)
Subtotal Labor $1,110 $9,240 $3,780 $425 $14,555
Other Expenses:
Reproduction 2 $25 / Each $50
FedEx 2 $25 / Each $50
Local Travel - 20 miles/ea way 100 $0.550 / Mile $55
Misc inspection expenses 1 $150 / Each $150
Subtotal $305
10% Markup:$31
Total Expenses:$336
Subtotal Expenses and markup:$336
TOTAL COST $14,891
Say,$14,900
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CITY OF RENTON COUNCIL AGENDA BILL
Subject/Title:
Lease with Curt Tiedeman DBA First Rate
Mortgage for Suite 400 at the 200 Mill Building
Meeting:
Regular Council - 14 Oct 2013
Exhibits:
Issue Paper
Lease
Submitting Data: Dept/Div/Board:
Community Services
Staff Contact:
Peter Renner, Facilities Director, Ext. 6605
Recommended Action:
Refer to Finance Committee
Fiscal Impact:
Expenditure Required: $ Transfer Amendment: $
Amount Budgeted: $ Revenue Generated: $$4,213/month
Total Project Budget: $ City Share Total Project: $
SUMMARY OF ACTION:
A current tenant in Suite 410 of the 200 Mill Building, Curt Tiedeman DBA First Rate Mortgage , intends
to expand his business and needs additional space. Suite 400 provides such space. The space requires
minimal tenant improvements and the rents are graduated to mirror his anticipated growth curve. The
fourth floor of the 200 Mill Building is already built out and furnished and Suite 410 will be available to
the market immediately. Approving this Lease provides additional cash flow for the City.
STAFF RECOMMENDATION:
Approve the lease and authorize the Mayor and City Clerk to sign the Lease.
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10/07/2013
COMMUNITY SERVICES
DEPARTMENT
M E M O R A N D U M
DATE:October 7, 2013
TO:Randy Corman, Council President
Members of Renton City Council
VIA:Denis Law, Mayor
FROM:Terry Higashiyama, Community Services Administrator
STAFF CONTACT:Peter Renner, Facilities Director, Ext 6605
SUBJECT:Lease with Curt Tiedeman, an individual dba First Rate
Mortgage (FRM), for Suite 400 in the 200 Mill Building
Issue:
Should the Council authorize the Mayor and the City Clerk to sign a Lease with FRM for
Suite 400 in the 200 Mill Building?
Recommendation:
Council authorize the Mayor and City Clerk to sign the Lease.
Background:
First Rate Mortgage has leased the neighboring suite, 410, since May, 2011.
The fourth floor of the 200 Mill Building is already built out and furnished with
City-owned furniture. Suite 410 is roughly one-third of the fourth floor and Suite
400 is the remaining two-thirds.
The tenant wants to expand in an ordered fashion and Suite 400 provides the
necessary expansion space.
Suite 410 will be available to the market immediately as it is also furnished.
The business points of the proposed amended lease are as follows:
o As the space will be filled out over the term of the lease, the rents are
graduated accordingly.
o During the first year, rents will be $3,250.00 per month
o During the second year, rents increase to $4,120.00 per month
o During the third year, the rents will be $5,270.00 per month.
o There are only minor tenant improvements involved.
o The Kidder Mathews brokerage fee will be $3,792.40.
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Randy Corman, Council President
Members of Renton City Council
Page 2 of 2
October 7, 2013
Conclusion:
Approving this Lease provides additional cash flow for the operation of the City’s Leased
Properties Fund 108 while maintaining flexibility for potential future City space needs.
cc:Jay Covington, Chief Administrative Officer
Iwen Wang, Finance & IS Administrator
Krisi Rowland, Senior Finance Analyst
Larry Warren, City Attorney
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1
KIDDER MATHEWS
12886 INTERURBAN AVENUE S
SEATTLE, WA 98168
TEL 206-248-7300 FAX 206-248-7330
OFFICE LEASE - GROSS
200 MILL AVENUE BUILDING
This Lease is made this 24th day of September, 2013 by and between The City of Renton,
Washington, a Washington municipal corporation ("Landlord"), and Curt Tiedeman, an individual, dba
First Rate Mortgage, ("Tenant"), who agree as follows:
1.Fundamental Terms. As used in this Lease, the following capitalized terms shall have the following
meanings:
(a)"Land" means the land on which the Building is located, situated in the City of Renton,
County of King, State of Washington, which is described on Exhibit A.
(b)"Building" means the building in which the Premises are located, commonly known as the 200
Mill Avenue Building, the street address of which is 200 Mill Avenue South, Renton, Washington 98057.
(c)"Premises" means that certain space crosshatched on Exhibit B, located on the Fourth floor
of the Building and designated as Suite 400.
(d)"Agreed Areas" means the agreed amount of rentable square feet of space in the Building
and the Premises. Landlord and Tenant stipulate and agree for all purposes under this Lease that the
Building contains approximately 49,490 rentable square feet of space (the "Building Area") and that the
Premises contains approximately 3,975 rentable square feet of space in Suite 400 on the fourth floor.
The total area under lease will be 3,975 rentable square feet, (the "Premises Area"). The parties agree
that the Premises will be remeasured by Landlord's architect to accurately determine the number of
rentable square feet of space in the Premises, which determination shall be made in accordance with the
Building Owners and Managers Association International (“BOMA”) standards, namely the “Standard
Method for Measuring Floor Area in Office Buildings – American National Standard,” ANSI Z65.1-1996.
Promptly after Landlord’s architect makes such determination, this Lease shall be amended to accurately
reflect the number of rentable square feet of space in the Building and the Premises as so determined. In
addition, the Minimum Monthly Rent, and Tenant’s Share, shall be proportionately adjusted based on the
actual number of rentable square feet of space in the Premises as so determined. Landlord and Tenant
further agree that the Building Area may exclude portions of the Building which are used for other than
office purposes, such as areas used for retail purposes.
(e)"Tenant's Share" means the Premises Area divided by the Building Area, expressed as a
percentage, which is eight percent (8.00%). Notwithstanding the foregoing, if one or more of the facilities,
services and utilities the costs of which are included within the definition of Operating Costs is not
furnished to one or more spaces or to particular types of spaces, then in connection with the calculation of
Tenant's Share of each of such costs the Building Area shall be reduced by the number of rentable
square feet contained in such space and Tenant's Share shall be separately computed as to each of such
costs. If the Building shall contain non-office uses during any period, Landlord shall have the right to
determine, in accordance with sound accounting and management principles, Tenant's Share of Real
Property Taxes and Operating Costs for only the office portion of the Building; in such event, Tenant's Share
shall be based on the ratio of the rentable area of the Premises to the rentable area of such office portion for
such period.
If a portion of the Building is damaged or condemned, or any other event occurs which alters the
number of rentable square feet of space in the Premises or the Building, then Landlord shall adjust Tenant's
Share to equal the number of rentable square feet of space then existing in the Premises (as altered by
such event) divided by the number of rentable square feet of space then existing in the Building (as altered
by such event).
"Commencement Date" means October 1, 2013, or such earlier or later date as provided in Section
4 hereof. Tenant shall have access to the Premises for furniture, telecommunications wiring, and
equipment assembly for a period of up to 14 calendar days prior to lease commencement at no
cost to Tenant. The City, or Kidder Mathews management may inspect the Premises prior to
Tenant occupancy, to insure that there has been no damage to the Premises by Tenant, prior to the
Commencement Date.
(f)"Expiration Date" means October 31, 2016.
(g)"Term" means the period of time commencing on the Commencement Date and ending on
the Expiration Date, unless sooner terminated pursuant to this Lease.
(h)"Minimum Monthly Rent" means the following amounts as to the following periods during the
Term of this Lease:
Period Monthly Amount
October 1, 2013 to October 31, 2013 $ 0.00 per month
November 1, 2013 to October 31, 2014 $ 3,250.00 per month
November 1, 2014 to October 31, 2015 $ 4,120.00 per month
November 1, 2015 to October 31, 2016 $ 5,270.00 per month
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2
(i)"Permitted Use" means use for purposes of general business offices for Mortgage financing
and related business activities
(j)"Base Year" means the calendar year 2014.
(k)"Prepaid Rent" means Three Thousand Two Hundred and Seventy Dollars ($2,500.00).
(l)"Security Deposit" means Five Thousand Two Hundred and Seventy Dollars ($5,270.00).
(m)"Landlord's Address for Notice" means 200 Mill Avenue Building, c/o Kidder Mathews, 12886
Interurban Avenue South, Seattle, WA 98168.
(n)"Landlord's Address for Payment of Rent" means 200 Mill Avenue Building, c/o Kidder
Mathews, P.O. Box 34860, Seattle, WA 98124-1860.
(o)"Tenant's Address for Notice" means First Rate Mortgage, 200 Mill Avenue Building, Suite
400, Renton, WA 98057 on and after the Commencement Date.
(p)"Landlord's Agent" means Kidder Mathews or such other agent as Landlord may appoint from
time to time.
(q)"Broker(s)" means Kidder Mathews representing the Landlord and Tenant.
(r)"Exhibits" means the following Exhibits to this Lease:
Exhibit A - Legal Description of the Property
Exhibit B - Outline Drawing of the Premises
Exhibit C - Work Letter
Exhibit D - Rules and Regulations
Exhibit E – Insurance Letter
(s)"Rider" means – N/A
(t)"Definitions" means the words and phrases defined in Section 41 captioned "Definitions".
2.Consent and Notices. Whenever the consent of either Landlord or Tenant is required under this
Lease, such consent shall not be effective unless given in writing and shall not be unreasonably withheld
or delayed, provided, however, that such consent may be conditioned as provided in this Lease. All
notices or requests required or permitted under this Lease shall be in writing as provided in Section 42(g).
3.Premises and Appurtenances. Landlord leases to Tenant and Tenant leases from Landlord the
Premises for the Term. Tenant, and its authorized representatives, shall have the right to use, in common
with others and subject to the Rules and Regulations, the Common Areas of the Building. Landlord shall
have the right, in Landlord's sole discretion, from time to time to (i) make changes to the Building interior
and exterior and Common Areas, including without limitation, changes in the location, size, shape,
number and appearance thereof, (ii) to close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available, and (iii) to use the Common
Areas while engaged in making additional improvements, repairs or alterations to the Building. All of the
windows and exterior walls of the Premises and any space in the Premises used for shafts, stacks, pipes,
conduits, ducts, electrical equipment or other utilities or Building facilities are reserved solely to Landlord
and Landlord shall have rights of access through the Premises for the purpose of operating, maintaining
and repairing the same, provided, however, that such changes shall not materially affect Tenant's access
to, or use and occupancy of, the Premises.
4.Term.
(a)Commencement Date. The Term shall commence on the Commencement Date and expire
on the Expiration Date, unless sooner terminated pursuant to this Lease. The Lease shall continue Month
to Month thereafter, subject to thirty (30) calendar day termination notice by either party at anytime. The
Commencement Date shall be:
(i)The date specified in Section 1, unless notice is delivered pursuant to Subsection
4(a)(ii), in which case the Commencement Date shall be such later date, or Tenant occupies the
Premises earlier pursuant to Subsection 4(a)(iii), in which case the Commencement Date shall be such
earlier date;
(ii)Such later date on which the Tenant Improvements to be made to the Premises by
Landlord, if any, are substantially complete, provided, however, that Landlord shall give notice of
substantial completion to Tenant at least five (5) calendar days before such date.
(iii)If Tenant shall occupy the Premises for the Permitted Use prior to the Commencement
Date specified in Section 1 or the date specified in the notice provided for pursuant to Subsection 4(a)(ii),
then the date of such early occupancy.
(b)Tenant Obligations. If the Tenant Improvements, if any, are not substantially completed on
the Commencement Date specified in Section 1 due to Tenant's failure to promptly review and approve
the plans and specifications for the Tenant Improvements or change orders with respect to the Tenant
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3
Improvements or to Tenant's failure to fulfill any other obligation under this Lease, then the Term shall be
deemed to have commenced on the Commencement Date specified in Section 1.
(c)Tenant Termination Rights. If Landlord is unable to deliver possession of the Premises with
the Tenant Improvements, if any, substantially completed to Tenant on the Commencement Date as a
result of causes beyond its reasonable control, Landlord shall not be liable for any damage caused by
failing to deliver possession and this Lease shall not be void or voidable. Tenant shall not be liable for
Rent until Landlord delivers possession of the Premises to Tenant. No delay in delivery of possession of
the Premises to Tenant shall change the Expiration Date or operate to extend the Term. If Landlord does
not deliver possession of the Premises to Tenant within six (6) months of the Commencement Date, then
Tenant may elect to terminate this Lease by giving written notice to Landlord within ten (10) calendar
days following the end of such six (6) month period.
(d)Confirmation of Commencement Date. When the Commencement Date as provided in
Subsection 4(a)(ii) or Subsection 4(a)(iii) has been established as an earlier or later date than the
Commencement Date specified in Section 1, Landlord shall confirm the Commencement Date by notice
to Tenant.
5.Minimum Monthly Rent; Late Charge.
(a)Minimum Monthly Rent. Tenant shall pay to Landlord the Minimum Monthly Rent without
deduction, offset, prior notice or demand, in advance on the first day of each month during the Term.
Minimum Monthly Rent for any partial month shall be prorated at the rate of 1/30th of the Minimum
Monthly Rent per day. Minimum Monthly Rent is exclusive of any sales, franchise, business or occupation
or other tax based on rents (other than Landlord's general income taxes) and should such taxes apply
during the Term, the Minimum Monthly Rent shall be increased by the amount of such taxes. All Rent
shall be paid to Landlord at Landlord's Address for Payment of Rent or at such other address as Landlord
may specify by notice to Tenant.
(b)Late Charge. Tenant acknowledges that the late payment by Tenant of any Rent will cause
Landlord to incur administrative, collection, processing and accounting costs and expenses not
contemplated under this Lease, the exact amount of which are extremely difficult or impracticable to
predict or remedy. Therefore, if any Rent is not received by Landlord from Tenant by the fifth (5th)
calendar day after such Rent is due, Tenant shall immediately pay to Landlord a late charge equal to five
percent (5%) of the amount of such Rent or Seventy-five and No/100th Dollars ($75.00), whichever is
greater. Landlord and Tenant agree that this late charge represents a reasonable estimate of such costs
and expenses and is fair compensation to Landlord for its loss caused by Tenant's nonpayment. Should
Tenant pay said late charge but fail to pay contemporaneously therewith all unpaid amounts of Rent,
Landlord's acceptance of this late charge shall not constitute a waiver of Tenant's default with respect to
Tenant's nonpayment nor prevent Landlord from exercising all other rights and remedies available to
Landlord under this Lease or under law.
6.Prepaid Rent and Security Deposit. As partial consideration for Landlord’s execution of this
Lease, on execution of this Lease, Tenant shall deposit with Landlord the Prepaid Rent, as monthly rent
for the first full month of the Term for which Rent is payable, and the Security Deposit, as a Security
Deposit for the performance by Tenant of the provisions of this Lease. Tenant has existing deposit on file
of $2,500 and must submit an additional $2,770 to be compliant for the full $5,270 deposit. If Tenant is in
default, Landlord may use the Security Deposit, or any portion of it, to cure the default, including without
limitation, paying for the cost of any work necessary to restore the Premises, the Tenant improvements
and any alterations to good condition or to compensate Landlord for all damage sustained by Landlord
resulting from Tenant's default. Tenant shall within five (5) calendar days of demand to pay to Landlord a
sum equal to the portion of the Security Deposit expended or applied by Landlord as provided in this
Section so as to maintain the Security Deposit in the sum initially deposited with Landlord. If Tenant is not
in default as of the expiration or termination of the Term, including without limitation, in default in payment
of the Rent for the last month of the Term, then Landlord shall return the Security Deposit, without
interest, to Tenant within a reasonable period of time not to exceed thirty (30) calendar days after the
expiration or termination of the Term, provided, however, that Landlord may retain a portion of the
Security Deposit for payment of increases in Real Property Taxes and Operating Costs the exact amount
of which has not been determined as of the expiration or termination of the Term. Landlord's obligations
with respect to the Security Deposit are those of a debtor and not a trustee. Landlord may commingle the
Security Deposit with Landlord's general and other funds.
7.Real Property Taxes.
(a)Payment of Tenant's Share of Increases in Real Property Taxes. The parties have
agreed, that for this Month to Month tenancy, Tenant will not be responsible for increased costs for Real
Property Taxes. Should Landlord and Tenant enter into a long term lease, Tenant shall pay to Landlord,
as Additional Rent, monthly, in advance on the first day of each month during the Term, an amount equal
to one-twelfth (1/12th) of Tenant's Share of all increases in Real Property Taxes that are or will be levied
or assessed against the Property during each calendar year during the Term over and above the Real
Property Taxes that are levied or assessed against the Property during the Base Year as reasonably
estimated by Landlord. Such Additional Rent is exclusive of any sales, franchise, business or occupation
or other tax based on rents and should such taxes apply during the Term, such Additional Rent shall be
increased by the amount of such taxes. Within one hundred twenty (120) calendar days after the end of
each calendar year during the Term or within such longer period of time as may be reasonably
necessary, Landlord shall furnish to Tenant a statement of the Real Property Taxes for the preceding
calendar year and Tenant's Share of the increase in Real Property Taxes. If Tenant's Share of the
increase in such Real Property Taxes for that calendar year over such Real Property Taxes for the Base
Year exceeds the monthly payments made by Tenant, then Tenant shall pay Landlord the deficiency
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within thirty (30) calendar days after receipt of the statement. If Tenant's payments made during that
calendar year exceed Tenant's Share of the increase in such Real Property Taxes for that calendar year
over such Real Property Taxes for the Base Year, then, at Landlord's option, either Landlord shall pay
Tenant the excess at the time Landlord furnishes the statement to Tenant, or Tenant shall be entitled to
offset the excess against the next installment(s) of Minimum Monthly Rent and Additional Rent, provided,
however, that at the end of the Term Landlord shall pay Tenant the excess at the time Landlord furnishes
the statement to Tenant.
(b)General and Special Assessments. With respect to any general or special assessments
which may be levied against or upon the Property, or which under the laws then in force may be
evidenced by improvement or other bonds or may be paid in annual installments, only the amount of such
annual installment, and interest due thereon, shall be included in the computation of Real Property Taxes.
(c)Proration. Tenant's Share of Real Property Taxes shall be prorated on the basis of a 360-
day year to account for any fractional portion of a tax year included in the Term at its commencement and
expiration.
(d)No Effect on Minimum Monthly Rent. Notwithstanding anything to the contrary in this
Section, the Minimum Monthly Rent payable by Tenant shall in no event be less than the Minimum
Monthly Rent specified in Section 1.
(e)Leasehold Excise Tax. Notwithstanding anything to the contrary contained in this Section 7,
Landlord and Tenant agree that Landlord is a municipal corporation under the State of Washington, and,
as such, pays leasehold excise taxes based on rent in lieu of Real Property Taxes. For purposes of
establishing a Base Year for taxes based on rent, Landlord and Tenant shall agree upon a tax
assessment based on the valuation of the Property for the Base Year, and Tenant shall pay to Landlord
as Additional Rent, monthly, in advance on the first day of each month during the Term, an amount equal
to one-twelfth (1/12th) of Tenant's Share of all increases in the valuation of the Property over the agreed
upon Base Year valuation that are or will be levied or assessed against the Property for each calendar
year during the Term.
8.Personal Property Taxes. Tenant shall pay prior to delinquency all personal property taxes
assessed against and levied upon trade fixtures, furnishings, equipment and all other personal property of
Tenant contained in the Premises or elsewhere. If possible, Tenant shall cause such trade fixtures,
furnishings, equipment and all other personal property of Tenant to be assessed and billed separately
from the Property.
9.Operating Costs.
(a)Payment of Tenant's Share of Increases in Operating Costs. The parties have agreed,
that for this Month to Month tenancy, Tenant will not be responsible for increase costs for Operating
Costs, unless Tenant utilizes the Premises beyond standard operating hours, and or has an excessive
use of the Premises. Should Landlord and Tenant enter into a long term lease,Tenant shall pay to
Landlord, as Additional Rent, monthly, in advance on the first day of each month during the Term, an
amount equal to one-twelfth (1/12th) of Tenant's Share of the increase in the Operating Costs of the
Property for each calendar year during the Term over the Operating Costs for the Base Year as
reasonably estimated by Landlord. Landlord may, in accordance with sound accounting and management
principles, both reasonably estimate, and finally determine, the Operating Costs for the Base Year and for
each calendar year during the Term based on the Operating Costs that would have been incurred if the
Building had been 95% occupied during the Base Year or each such calendar year, as the case may be,
taking into account historical operating costs for the Building. Landlord may, in accordance with sound
accounting and management principles, make any other appropriate changes to reflect adjustments to
Operating Costs for prior years or for the then current calendar year. Such Additional Rent is exclusive of
any sales, franchise, business or occupation or other tax based on rents and should such taxes apply
during the Term, such Additional Rent shall be increased by the amount of such taxes. Within one
hundred twenty (120) calendar days after the end of each calendar year during the Term or within such
longer period of time as may be reasonably necessary, Landlord shall furnish to Tenant a statement of
the Operating Costs for the preceding calendar year and Tenant's Share of the increase in the Operating
Costs. If Tenant's Share of the increase in the Operating Costs for that calendar year over the Operating
Costs for the Base Year exceeds the monthly payments made by Tenant, then Tenant shall pay Landlord
the deficiency within thirty (30) calendar days after receipt of the statement. If Tenant's payments made
during that calendar year exceed Tenant's Share of the increase in the Operating Costs for that calendar
year over the Operating Costs for the Base Year, then, at Landlord's option, either Landlord shall pay
Tenant the excess at the time Landlord furnishes the statement to Tenant, or Tenant shall be entitled to
offset the excess against the next installment(s) of Minimum Monthly Rent and Additional Rent, provided,
however, that at the end of the Term Landlord shall pay Tenant the excess at the time Landlord furnishes
the statement to Tenant.
(b)Proration. Tenant's Share of Operating Costs shall be prorated on the basis of a 360-day
year to account for any fractional portion of a year included in the Term at its commencement and
expiration.
(c)No Effect on Minimum Monthly Rent. Notwithstanding anything to the contrary in this
Section, the Minimum Monthly Rent payable by Tenant shall in no event be less than the Minimum
Monthly Rent specified in Section 1.
10.Use. Tenant shall use the Premises for the Permitted Use and for no other use without Landlord's
prior written consent. Tenant agrees that it has determined to its satisfaction that the Premises can be
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used for the Permitted Use. Tenant waives any right to terminate this Lease if the Premises cannot be
used for the Permitted Use during the Term unless the prohibition on use is the result of actions taken by
Landlord. Tenant's use of the Premises shall be in accordance with the following:
(a)Insurance. Tenant shall not do, bring, or keep anything in or about the Premises or the
Property that will cause a cancellation of any insurance covering the Property. If the rate of any insurance
carried by Landlord on the Property as published by the Washington Survey and Rating Bureau, or any
successor rating bureau or agency, is increased as a result of Tenant's use, then Tenant shall pay to
Landlord not less than ten (10) calendar days before the date Landlord is obligated to pay a premium on
the insurance, a sum equal to the difference between the original premium and the increased premium.
(b)Compliance with Laws. Tenant shall comply with all applicable laws concerning the
Premises and Tenant's use of the Premises.
(c)Waste, Nuisance and Improper Use. Tenant shall not use the Premises in any manner that
will constitute waste, nuisance or unreasonable annoyance to other tenants in the Building, including
without limitation, (i) the use of loudspeakers or sound or light apparatus that can be heard or seen
outside the Premises, (ii) for cooking or other activities that cause odors that can be detected outside the
Premises, or (iii) for lodging or sleeping rooms. Violation of this subsection may result in a finding that
Tenant is in violation of the Nuisance provision and/or other applicable Renton Municipal Code provisions
and/or applicable laws.
(d)Damage to Property. Tenant shall not do anything in, on or about the Premises that will
cause damage to the Property, excluding normal wear and tear associated with normal office use.
(e)Rules and Regulations. Tenant and its authorized representatives shall comply with the
Rules and Regulations set forth on Exhibit D attached hereto. Landlord shall have the right to reasonably
amend the Rules and Regulations from time to time. In the event of a conflict between this Lease and the
Rules and Regulations, as amended, this Lease shall control. Landlord shall have the right to enforce the
Rules and Regulations. Landlord shall have no liability or responsibility whatsoever with respect to the
noncompliance by other tenants or their authorized representatives with any of such Rules and
Regulations.
11.Hazardous Substances. Tenant shall not dispose of or otherwise allow the release of any
Hazardous Substances in, on or under the Premises, or the Property, or in any tenant improvements or
alterations placed on the Premises by Tenant. Tenant represents and warrants to Landlord that Tenant's
intended use of the Premises does not involve the use, production, disposal or bringing on to the
Premises of any Hazardous Substances, except for products normally used in general business offices
which constitute Hazardous Substances, provided that such products are used, stored and disposed of in
accordance with applicable laws and manufacturer's and supplier's guidelines. Tenant shall promptly
comply with all laws and with all orders, decrees or judgments of governmental authorities or courts
having jurisdiction, relating to the use, collection, treatment, disposal, storage, control, removal or cleanup
of Hazardous Substances, on or under the Premises or the Property, or incorporated in any tenant
improvements or alterations, at Tenant's expense.
(a)Compliance; Notification. After notice to Tenant and a reasonable opportunity for Tenant to
effect such compliance, Landlord may, but is not obligated to, enter upon the Premises and take such
actions and incur such costs and expenses to effect such compliance as it deems advisable to protect its
interest in the Premises and the Property, provided, however that Landlord shall not be obligated to give
Tenant notice and an opportunity to effect such compliance if (i) such delay might result in material
adverse harm to the Premises, or the Property, or (ii) an emergency exists. Tenant shall reimburse
Landlord for the full amount of all costs and expenses incurred by Landlord in connection with such
compliance activities, and such obligation shall continue even after expiration or termination of the Term.
Tenant shall notify Landlord immediately of any release of any Hazardous Substances on the Premises or
the Property.
(b)Indemnity by Tenant. Tenant agrees to hold Landlord harmless from and against any and all
damages, charges, cleanup costs, remedial actions, costs and expenses, which may be imposed on,
incurred or paid by, or asserted against Landlord, the Premises or the Property by reason of, or in
connection with the acts or omissions of Tenant, its authorized representatives, or any subtenant or other
person for whom Tenant would otherwise be liable, resulting in the release of any Hazardous Substances
on the Premises or the Property.
(c)Indemnity by Landlord. Landlord agrees to hold Tenant harmless from and against any and
all damages, charges, cleanup costs, remedial actions, costs and expenses, which may be imposed on,
incurred or paid by, or asserted against Tenant, the Premises or the Property by reason of, or in
connection with the acts or omissions of Landlord, or its employees, resulting in the release of any
Hazardous Substances on the Premises or the Property.
(d)Acknowledgment as to Hazardous Substances. Tenant acknowledges that the Premises
may contain Hazardous Substances, and Tenant accepts the Premises and the Building notwithstanding
such Hazardous Substances. If Landlord is required by any law to take any action to remove or abate any
Hazardous Substances, or if Landlord deems it necessary to conduct special maintenance or testing
procedures with regard to any Hazardous Substances, or to remove or abate any Hazardous Substances,
Landlord may take such action or conduct such procedures at times and in a manner that Landlord
deems appropriate under the circumstances, and Tenant shall permit the same. As long as the presence
of any hazardous substance is not the result of some act or omission by Tenant, or Tenant’s agents,
employees, representatives or volunteers, should Landlord's removal and abatement activities interfere
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with Tenant's intended use of the premises, Tenant shall have the option to elect between (a) abatement
of rent in a proportion to the percentage of the premises that are affected by the removal or abatement
activities calculated on a monthly basis, or (b) termination of this Lease.
(e)Survival. The provisions of this Section shall survive the expiration or sooner termination of
the Term. No subsequent modification or termination of this Lease by agreement of the parties or
otherwise shall be construed to waive or to modify any provisions of this Section unless the termination or
modification agreement or other document expressly so states in writing.
12.Landlord's Maintenance; Inclusion in Operating Costs.
(a)Landlord's Maintenance. Except as provided in Section 13 captioned "Tenant's
Maintenance; Remedies", Section 23 captioned "Destruction" and Section 24 captioned "Condemnation"
and except for damage caused by any negligent or intentional act or omission of Tenant or its authorized
representatives, Landlord shall maintain in good condition and repair the following: (i) the structural parts
of the Building, which structural parts include only the foundations, bearing and exterior walls, exterior
glass, glass entrance doors (excluding interior glass and interior glass doors), subflooring and roof, (ii) the
building standard lighting fixtures, window coverings and ceiling tiles and the unexposed electrical,
plumbing and sewage systems, including without limitation, those portions lying outside the Premises, (iii)
the heating, ventilating and air-conditioning system, if any, servicing the Building, (iv) the lobbies,
corridors, elevators, public or common restrooms and other common areas of the Building, and (v) the
sidewalks, grounds, landscaping, parking and loading areas, if any, and other common areas of the
Property.
(b)Inclusion in Operating Costs. The cost of maintaining, repairing, replacing or servicing the
portions of the Building that Landlord is required to maintain pursuant to this Section shall be included in
Operating Costs to the extent provided in Section 9 captioned "Operating Costs".
13.Tenant's Maintenance; Remedies.
(a)Tenant's Maintenance. Except as provided in Section 12 captioned "Landlord's
Maintenance; Inclusion in Operating Costs", Section 23 captioned "Destruction" and Section 24 captioned
"Condemnation" and except for damage caused by any grossly negligent or intentional act or omission of
Landlord or its authorized representatives, Tenant, at its cost, shall maintain in good condition and repair
the Premises, including without limitation, all of the Tenant Improvements, Tenant's alterations, Tenant's
trade fixtures, Tenant's personal property, signs, walls, interior partitions, wall coverings, windows, non-
building standard window coverings, glass within the Premises, doors, carpeting and resilient flooring,
non-building standard ceiling tiles, plumbing fixtures and non-building standard lighting fixtures. Tenant
shall be liable for any damage to the Premises and the Building resulting from the acts or omissions of
Tenant or its authorized representatives.
(b)Landlord's Remedies. If Tenant fails to maintain the Premises in good condition and repair
as required by Subsection 13(a) and if such failure is not cured within thirty (30) calendar days after
notice of such failure is given by Landlord to Tenant, then Landlord may, at its option, cause the Premises
to be maintained in good condition and repair and Tenant shall promptly reimburse Landlord for all
reasonable costs incurred by Landlord in performance of Tenant's obligation to maintain the Premises.
14.Tenant Improvements; Alterations and Trade Fixtures.
(a)Tenant Improvements. Tenant accepts the Premises in their "AS IS" condition without any
agreements, representations, understandings or obligations on the part of Landlord to perform any
alterations, repairs or improvements or to provide any allowances unless otherwise expressly provided in
this Lease or in the Work Letter attached hereto as Exhibit C. Tenant shall not make any improvements or
alterations to the Premises without Landlord's prior written consent.
(b)Alterations. Any improvements and alterations made by either party shall remain on and be
surrendered with the Premises on expiration or termination of the Term, except that Landlord can elect by
giving notice to Tenant within thirty (30) calendar days before the expiration of the Term, or within thirty
(30) calendar days after termination of the Term, to require Tenant to remove any improvements and
alterations that Tenant has made to the Premises. If Landlord so elects, Tenant, at its cost, shall restore
the Premises to the condition designated by Landlord in its election, before the last day of the Term, or
within thirty (30) calendar days after notice of election is given, whichever is later. Any improvements and
alterations that remain on the Premises on expiration or termination of the Term shall automatically
become the property of Landlord and title to such improvements and alterations shall automatically pass
to Landlord at such time without any payment therefor by Landlord to Tenant. If Tenant or its authorized
representatives make any improvements or alterations to the Premises as provided in this Section, then
such improvements and alterations (i) shall be made in a first class manner in conformity with then
building standard improvements, (ii) shall be made utilizing then building standard materials, (iii) shall be
made in compliance with the Rules and Regulations and the reasonable directions of Landlord, (iv) shall
be made pursuant to a valid building permit to be obtained by Tenant, at its cost, and (v) shall be made in
conformity with then applicable laws, including without limitation, applicable Renton Municipal Code
provisions and/or building codes.
(c)Trade Fixtures. Tenant shall not install any trade fixtures in or on the Premises without
Landlord's prior written consent.
15.Mechanics' Liens. Tenant shall pay, or cause to be paid, all costs of labor, services and/or
materials supplied in connection with any Work. Tenant shall keep the Property free and clear of all
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mechanics' liens and other liens resulting from any Work. Prior to the commencement of any Work
costing more than an amount equal to one (1) month’s Minimum Monthly Rent, or the supply or furnishing
of any labor, services and/or materials in connection with any such Work, Tenant shall provide Landlord
with a labor and material payment bond, a letter of credit or other security satisfactory to Landlord in an
amount equal to one hundred percent (100%) of the aggregate price of all contracts therefor, with release
of the bond conditioned on Tenant's payment in full of all claims of lien claimants for such labor, services
and/or materials supplied in the prosecution of the Work. Said payment bond shall name Landlord as a
primary obligee, shall be given by a surety which is satisfactory to Landlord, and shall be in such form as
Landlord shall approve in its sole discretion. Tenant shall have the right to contest the correctness or
validity of any such lien if, immediately on demand by Landlord, it procures and records a lien release
bond issued by a responsible corporate surety in an amount sufficient to satisfy statutory requirements
therefor in the State of Washington. Tenant shall promptly pay or cause to be paid all sums awarded to
the claimant on its suit, and, in any event, before any execution is issued with respect to any judgment
obtained by the claimant in its suit or before such judgment becomes a lien on the Premises, whichever is
earlier. If Tenant shall be in default under this Section, by failing to provide security for or satisfaction of
any mechanic's or other liens, then Landlord may (but shall not be obligated to), in addition to any other
rights or remedies it may have, discharge said lien by (i) paying the claimant an amount sufficient to settle
and discharge the claim, (ii) procuring and recording a lien release bond, or (iii) taking such other action
as Landlord shall deem necessary or advisable, and, in any such event, Tenant shall pay as Additional
Rent, on Landlord's demand, all reasonable costs (including reasonable attorney fees, expenses and
court costs) incurred by Landlord in settling and discharging such lien together with interest thereon in
accordance with Section 39 captioned "Interest on Unpaid Rent" from the date of Landlord's payment of
said costs. Landlord's payment of such costs shall not waive any default of Tenant under this Section.
16.Utilities and Services.
(a)Utilities and Services Furnished by Landlord. Landlord shall furnish the Premises with:
(i)Electricity for lighting and power suitable for the use of the Premises for ordinary
general office purposes; provided, however, that Tenant shall not at any time have a connected electrical
load for lighting purposes in excess of the wattage per square foot of Premises Area required for building
standard amounts of lighting, or a connected load for all other power requirements in excess of four (4)
watts per square foot of Premises Area as determined by Landlord, and the electricity so provided for
lighting and power shall not exceed such limits, subject to any lower limits set by any governmental
authority with respect thereto;
Subject to the reasonable limitations of the existing building systems, heating, ventilating and
air-conditioning, if the Building has an air-conditioning system, to maintain a temperature
range in the Premises which is customary for similar office space in the King County,
Washington area (but in compliance with any applicable governmental regulations with
respect thereto). Tenant agrees to keep closed, when necessary, blinds, draperies and
windows which must be closed to provide for the efficient operation of the heating and air
conditioning systems, if any, and Tenant agrees to cooperate with Landlord and to abide by
the regulations and requirements which Landlord may prescribe for the proper functioning
and protection of the heating, ventilating and air-conditioning system, if any. If Tenant
requires heating, ventilating and air conditioning to the Premises other than during normal
business hours from 7:30 A.M. to 6:00 P.M. daily, and 8:00 A.M. to 11:00 A.M on Saturdays,
except Sundays and those legal holidays generally observed in the State of Washington,
Landlord shall, upon Tenant's request made not less than 24 hours before the time Tenant
requires the after hour service, and not later than Noon on the Friday before any Saturday or
Sunday on which Tenant requires such service, and not later than Noon of the day before
any holiday on which Tenant requires such service (except as otherwise provided in the
Rules and Regulations), furnish such heating, ventilating and air conditioning. If Tenant
receives such services, then Tenant shall pay, upon demand, an amount equal to Tenant's
proportionate share of the actual direct cost to Landlord in providing the heating, ventilating
and air conditioning outside of normal business hours which Landlord and Tenant agree will
be $25.00 per hour at this time
(ii)Water for restroom and drinking purposes and access to restroom facilities;
(iii)Elevator service for general office pedestrian usage if the Building is serviced by
elevators;
(iv)Relamping of building-standard light fixtures;
(v)Washing of interior and exterior surfaces of exterior windows with reasonable
frequency; and
(vi)Janitorial service five (5) times per week, except holidays.
(b)Payment for Excess Utilities and Services. All services and utilities for the Premises not
required to be furnished by Landlord pursuant to Section 16(a) shall be paid for by Tenant. If Tenant
requires, on a regular basis, water, heat, air conditioning, electric current, elevator or janitorial service in
excess of that provided for in Section 16(a), then Tenant shall first obtain the written consent of Landlord
which consent may be withheld in Landlord's sole discretion. If Landlord consents to such excess use,
Landlord may install an electric current or water meter (including, without limitation, any additional wiring,
conduit or panel required therefor) to measure the excess electric current or water consumed by Tenant
or may cause the excess usage to be measured by other reasonable methods (e.g. by temporary "check"
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meters or by survey). Tenant shall pay to Landlord upon demand (i) the cost of any and all water, heat, air
conditioning, electric current, janitorial, elevator or other services or utilities required to be furnished to
Tenant in excess of the services and utilities required to be furnished by Landlord as provided in Section
16(a); (ii) the cost of installation, maintenance and repair of any meter installed in the Premises; (iii) the
cost of all electricity and water consumed by Tenant in connection with any dedicated heating, ventilating
and/or air conditioning, computer power and/or air conditioning, telecommunications or other special
systems of Tenant, including any power usage other than through existing standard 110-volt AC outlets;
and (iv) any reasonable cost incurred by Landlord in keeping account of or determining such excess
utilities or services furnished to Tenant. Landlord's failure to bill Tenant for any such excess utilities or
services shall not waive Landlord's right to bill Tenant for the excess at a later time.
(c)Temperature Balance. Landlord makes no representation to Tenant regarding the adequacy
or fitness of the heating, ventilating and air-conditioning systems in the Building to maintain temperatures
that may be required for, or because of, any of Tenant's equipment other than normal office equipment,
such as personal computers, laser printers, copiers, dictating machines and other small equipment
normally used in business offices, and Landlord shall have no liability for loss or damage suffered by
Tenant or others in connection therewith. If the temperature otherwise maintained in any portion of the
Premises by the heating, air conditioning or ventilation system is affected as a result of (i) any lights,
machines or equipment (including without limitation electronic data processing machines) used by Tenant
in the Premises or the use of more than one personal computer per person, (ii) the occupancy of the
Premises by more than one person per two hundred (200) square feet of rentable area therein, (iii) an
electrical load for lighting or power in excess of the limits per square foot of rentable area of the Premises
specified in Section 16(a), or (iv) any rearrangement of partitioning or other improvements, Landlord may
install any equipment, or modify any existing equipment (including the standard air conditioning
equipment) Landlord deems necessary to restore the temperature balance. The cost of any such
equipment, including without limitation, the cost of design and installation thereof, and the cost of
operating, metering, maintaining or repairing the same, shall be paid by Tenant to Landlord upon
demand. Tenant shall not install or operate window-mounted heating or air-conditioning units.
(d)Special Electrical or Water Connections; Electricity Use. Tenant will not, without the prior
written consent of Landlord, which Landlord in its sole discretion may refuse, connect or use any
apparatus or device in the Premises (i) using current in excess of 110 volts or (ii) which will cause the
amount of electricity, water, heating, air conditioning or ventilation furnished to the Premises to exceed
the amount required for use of the Premises for ordinary general office purposes, as determined by
Landlord, during normal business hours or (iii) which would cause Tenant's connected load to exceed any
limits established in Section 16(a). Tenant shall not connect with electric current except through existing
outlets in the Premises and shall not connect with water pipes except through existing plumbing fixtures in
the Premises. In no event shall Tenant's use of electricity exceed the capacity of existing feeders to the
Building or the risers or wiring installation, and Landlord may prohibit the use of any electrical equipment
which in Landlord's opinion will overload such wiring or interfere with the use thereof by other tenants in
the Building. If Landlord consents to the use of equipment requiring such changes, Tenant shall pay the
cost of installing any additional risers, panels or other facilities that may be necessary to furnish energy to
the Premises.
Landlord will not permit additional coring of the floor of the Premises in order to install new electric
outlets in the Premises unless Tenant furnishes Landlord with X-ray scans of the floor area where the
Tenant wishes to place additional electrical outlets and Landlord, in its absolute discretion, is satisfied, on
the basis of such X-ray scans and other information obtained by Landlord, that coring of the floor in order to
install such additional outlets will not weaken the structure of the floor.
(e)Landlord's Duties. Landlord shall not be in default under this Lease or liable for any
damages resulting from, or incidental to, any of the following, nor shall any of the following constitute an
actual or constructive eviction of Tenant, nor shall the Rent be abated by reason of: (i) failure to furnish or
delay in furnishing any of the services described in this Section when such failure or delay is caused by
accident or any condition beyond the reasonable control of Landlord, including the making of necessary
repairs or improvements to the Premises or to the Building, (ii) any electrical surges or spikes, or (iii)
failure to make any repair or to perform any maintenance, unless such failure shall persist for an
unreasonable time after notice of the need for such repair or maintenance is given to Landlord by Tenant.
Landlord shall use reasonable efforts to remedy any interruption in the furnishing of such services.
(f)Governmental Regulations. Any other provisions of this Section notwithstanding, if any
governmental authority or utility supplier imposes any laws, controls, conditions, or other restrictions upon
Landlord, Tenant, or the Building, relating to the use or conservation of energy or utilities, mandated
changes in temperatures to be maintained in the Premises or the Building or the reduction of automobile
or other emissions (collectively, the "Controls"), or in the event Landlord is required or elects to make
alterations to the Building in order to comply with the Controls, Landlord may, in its sole discretion, comply
and may require Tenant to comply with the Controls or make such alterations to the Building in order to
comply with the Controls. Such compliance and the making of such alterations shall not constitute an
actual or constructive eviction of Tenant, impose on Landlord any liability whatsoever, or entitle Tenant to
any abatement of Rent.
17.Indemnity.
(a)Generally. Tenant shall defend, indemnify, and hold harmless Landlord, its officers, agents,
officials, employees, representatives and volunteers from and against any and all claims, suits, actions, or
liabilities for injury or death of any person, or loss of damage to property, which arises out of Tenant’s use
of the Premises, or from the conduct of Tenant’s business, or from any activity, work or thing done,
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permitted, or suffered by Tenant in or about the Premises, except only such injury or damage as shall be
deemed to have occured as a direct result of negligence by Landlord.
Landlord shall defend, indemnify, and hold harmless Tenant, its officers, agents, officials, and
employees from and against any and all claims, suits, actions, or liabilities for injury or death of any
person, or loss of damage to property, which arises out of any damage to any persons or property
occurring in, on or about the Premises or the Property resulting from the deliberate acts or omissions of
Landlord or its authorized representatives, excluding any injury, death, loss or damage which arises as a
result of Tenant’s negligence.
(b)Provisions Specifically Negotiated. LANDLORD AND TENANT ACKNOWLEDGE BY
THEIR EXECUTION OF THIS LEASE THAT EACH OF THE INDEMNIFICATION PROVISIONS OF THIS
LEASE (SPECIFICALLY INCLUDING BUT NOT LIMITED TO THOSE RELATING TO WORKER'S
COMPENSATION BENEFITS AND LAWS) WERE SPECIFICALLY NEGOTIATED AND AGREED TO BY
LANDLORD AND TENANT.
18.Exemption of Landlord from Liability. Neither Landlord, nor any of Landlord’s agents or assigns
shall be liable for injury to Tenant's business or loss of income therefrom or for damage which may be
sustained by the person, goods, wares, merchandise or property of Tenant, its authorized
representatives, or any other person in or about the Premises, caused by or resulting from fire, steam,
electricity, gas, water or rain, which may leak or flow from or into any part of the Premises, or from the
breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures of the same, whether the said damage or injury resulting from conditions
arising upon the Premises or upon other portions of the Building or the Property unless such injury or
damage is determined to have been caused by direct negligence or misconduct of Landlord or its
authorized representatives.
19.Commercial General Liability and Property Damage Insurance. Tenant, at its cost, shall
maintain commercial general liability insurance (including contractual liability) with liability limits of not less
than $2,000,000 per occurrence, and $3,000,000 annual aggregate if the Premises contain less than
5,000 rentable square feet of space or $5,000,000 annual aggregate if the Premises contain 5,000
rentable square feet of space or more, insuring against all liability of Tenant and its authorized
representatives arising out of or in connection with Tenant's use and occupancy of the Premises and
property damage insurance with liability limits of not less than $1,000,000. All such commercial general
liability and property damage insurance shall insure performance by Tenant of the indemnity provisions of
Section 17 captioned "Indemnity". Landlord and Landlord's Agent shall be additional named insureds on
such insurance policy.
20.Tenant's Fire Insurance. Tenant, at its cost, shall maintain on all of Tenant's Alterations, Trade
Fixtures and Personal Property in, on or about the Premises, a policy of standard All Risk fire insurance,
in an amount equal to at least their full replacement cost. The proceeds of any such policy shall be used
by Tenant for the restoration of Tenant's Alterations and Trade Fixtures and the replacement of its
Personal Property. Any portion of such proceeds not used for such restoration shall belong to Tenant.
21.Waiver of Claims; Waiver of Subrogation Landlord and Tenant release each other, and their
respective authorized representatives, from, and waive their entire claim of recovery for, any claims for
damage to the Premises and the Building and to Tenant's alterations, trade fixtures and personal property
that are caused by or result from fire, lightning or any other perils normally included in an “all risk”
property insurance policy whether or not such loss or damage is due to the negligence of Landlord, or its
authorized representatives, or of Tenant, or its authorized representatives. Landlord and Tenant shall
cause each property insurance policy obtained by it to provide that the insurance company waives all
right of recovery by way of subrogation against either party in connection with any damage covered by
such insurance policy.
22.Other Insurance Matters. All insurance required to be carried by Tenant under this Lease shall: (i)
be issued by insurance companies authorized to do business in the State of Washington with a rating of
A/VI or better as rated in the most recent edition of Best's Insurance Reports; (ii) be issued as a primary
policy, and (iii) contain an endorsement requiring thirty (30) calendar days' prior written notice from the
insurance company to both parties, to Landlord's Agent, and, if requested by Landlord, to Landlord's
lender, before cancellation or change in the coverage, scope, or amount of any policy. Each policy or a
certificate of the policy, together with evidence of payment of premiums, shall be deposited with Landlord
on or before the Commencement Date, and on renewal of the policy not less than ten (10) calendar days
before expiration of the term of the policy.
23.Destruction.
(a)Insured Damage. If during the Term the Premises or the Building are partially or totally
destroyed by any casualty that is covered by any insurance carried by Landlord covering the Building,
rendering the Premises partially or totally inaccessible or unusable, Landlord shall restore the Premises
or the Building to substantially the same condition as they were in immediately before such destruction, if
(i) the insurance proceeds available to Landlord equal or exceed the cost of such restoration, (ii) in the
opinion of a registered architect or engineer appointed by Landlord such restoration can be completed
within one hundred eighty (180) calendar days after the date on which Landlord obtains all permits
necessary for such restoration, and (iii) such restoration is permitted under then existing laws to be done
in such a manner as to return the Premises, or the Building, as the case may be, to substantially the
same condition as they were in immediately before such destruction. To the extent that the insurance
proceeds must be paid to a mortgagee under, or must be applied to reduce any debt secured by, a
mortgage covering the Property, the insurance proceeds shall be deemed not to be available to Landlord
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unless such mortgagee permits Landlord to use the insurance proceeds for such restoration. Such
destruction shall not terminate this Lease.
(b)Major or Uninsured Damage. If during the Term the Premises or the Building are partially or
totally destroyed by any casualty and Landlord is not obligated under Section 23(a) captioned "Insured
Damage" to restore the Premises or the Building, as the case may be, then Landlord may, at its election,
either (i) restore the Premises or the Building to substantially the same condition as they were in
immediately before such destruction, or (ii) terminate this Lease effective as of the date of such
destruction. If Landlord does not give Tenant notice within sixty (60) calendar days after the date of such
destruction of its election to restore the Premises or the Building, as the case may be, Landlord shall be
deemed to have elected to terminate this Lease. If Landlord elects to restore the Premises or the
Building, as the case may be, Landlord shall use commercially reasonable efforts to complete such
restoration within one hundred eighty (180) calendar days after the date on which Landlord obtains all
permits necessary for such restoration, provided, however, that such one hundred eighty (180) calendar
day period shall be extended by a period equal to any delays caused by Force Majeure, and such
destruction shall not terminate this Lease. If Landlord does not complete such restoration within one (1)
year following the date of such destruction, then Tenant may elect to terminate this Lease by giving
written notice to such effect to Landlord within ten (10) calendar days following the end of such one (1)
year period.
(c)Damage to the Building. If during the Term the Building is partially destroyed by any
casualty and if in the opinion of Landlord the Building should be restored in such a way as to materially
alter the Premises, then Landlord may, at Landlord's election, terminate this Lease by giving notice to
Tenant of Landlord's election to do so within sixty (60) calendar days after the date of such destruction.
(d)Extent of Landlord's Obligation to Restore. If Landlord is required or elects to restore the
Premises as provided in this Section, Landlord shall not be required to restore alterations made by
Tenant, Tenant's trade fixtures and Tenant's personal property, such excluded items being the sole
responsibility of Tenant to restore.
(e)Abatement or Reduction of Rent. In case of damage to, or destruction of, the Premises or
the Building, the Minimum Monthly Rent shall be abated or reduced, between the date of destruction and
the date of completion of restoration, by an amount that is in the same ratio to the Minimum Monthly Rent
as the total number of square feet of the Premises that are so damaged or destroyed bears to the total
number of square feet in the Premises.
24.Condemnation. If during the Term there is any taking of part or all of the Premises or the Building
by condemnation, as decreed by a court of competent jurisdiction, then the rights and obligations of the
parties shall be as follows:
(a)Award. The entire award for the Premises, the Building and the Property, shall belong to and
be paid to Landlord, Tenant hereby assigning to Landlord Tenant's interest therein, if any, provided,
however, that Tenant shall have the right to claim and recover from the condemnor compensation for the
loss of any alterations made by Tenant, Tenant's trade fixtures, Tenant's personal property, moving
expenses and business interruption.
25.Assignment and Subletting.
(a)Landlord's Consent; Definitions. Tenant acknowledges that the Building is a multi-tenant
office building, occupied by tenants specifically selected by Landlord, and that Landlord has a legitimate
interest in the type and quality of such tenants, the location of tenants in the Building and in controlling the
leasing of space in the Building so that Landlord can better meet the particular needs of its tenants and
protect and enhance the relative image, position and value of the Building in the office building market.
Tenant further acknowledges that the rental value of the Premises may fluctuate during the Term in
accordance with market conditions, and, as a result, the Rent paid by Tenant under the Lease at any
particular time may be higher or lower than the then market rental value of the Premises. Landlord and
Tenant agree, and the provisions of this Section are intended to so provide, that, if Tenant voluntarily
assigns its interest in this Lease or in the Premises or subleases any part or all of the Premises, a portion
of the profits from any increase in the market rental value of the Premises shall belong to Landlord.
Tenant acknowledges that, if Tenant voluntarily assigns this Lease or subleases any part or all of the
Premises, Tenant's investment in the subject portion of the Premises (specifically including, but not
limited to, tenant improvements, good will or other assets) may be lost or reduced as a result of such
action.
(b)Consent Required. Tenant shall not voluntarily assign or encumber its interest in this Lease
or in the Premises, or sublease any part or all of the Premises, without Landlord's prior written consent,
which consent shall not be unreasonably withheld. Any assignment, encumbrance or sublease without
Landlord's written consent shall be voidable and, at Landlord's election, shall constitute a default by
Tenant under this Lease. In determining whether to approve a proposed assignment or sublease,
Landlord shall place primary emphasis on the proposed transferee's reputation and creditworthiness, the
character of the business to be conducted by the proposed transferee at the Premises and the affect of
such assignment or subletting on the tenant mix in the Building. In addition, Landlord shall have the right
to approve the specific form of any assignment or sublease agreement. In no event shall Landlord be
obligated to consent to any assignment or subletting which increases (i) the Operating Costs, (ii) the
burden on the Building services, or (iii) the foot traffic, elevator usage or security concerns in the Building,
or creates an increased probability of the comfort and/or safety of the Landlord and other tenants in the
Building being unreasonably compromised or reduced (for example, but not exclusively, Landlord may
deny consent to an assignment or subletting where the space will be used for a school or training facility,
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an entertainment, sports or recreation facility, retail sales to the public (unless Tenant's permitted use is
retail sales), a personnel or employment agency, a medical office, or an embassy or consulate or similar
office). Landlord shall not be obligated to approve an assignment or subletting to (x) a current tenant of
the Building or (y) a prospective tenant of the Building with whom Landlord is then negotiating. Landlord's
foregoing rights and options shall continue throughout the entire term of this Lease. No consent to any
assignment, encumbrance or sublease shall constitute a waiver of the provisions of this Section and no
other or subsequent assignment, encumbrance or sublease shall be made without Landlord's prior written
consent. Neither an assignment or subletting nor the collection of Rent by Landlord from any person other
than Tenant, nor the application of any such Rent as provided in this Section shall be deemed a waiver of
any of the provisions of this Section or release Tenant from its obligation to comply with the terms and
provisions of this Lease and Tenant shall remain fully and primarily liable for all of Tenant's obligations
under this Lease, including the obligation to pay Rent under this Lease. Any personal guarantee(s) of
Tenant's obligations under this Lease shall remain in full force and effect following any such assignment
or subletting. In addition to Landlord’s other rights under this Section, Landlord may condition approval of
an assignment or subletting hereunder on an increase in the amount of the Security Deposit or on receipt
of personal guarantees of the assignee's or sublessee's obligations under this Lease. If Landlord
approves of an assignment or subletting hereunder and this Lease contains any renewal options,
expansion options, rights of first refusal, rights of first negotiation or any other rights or options pertaining
to additional space in the Building, such rights and/or options shall not run to the assignee or subtenant, it
being agreed by the parties hereto that any such rights and options are personal to Tenant named herein
and may not be transferred.
(c)Conditions to Assignment or Sublease. Tenant agrees that any instrument by which
Tenant assigns or sublets all or any portion of the Premises shall expressly provide that the assignee or
subtenant may not further assign or sublet the assigned or sublet space without Landlord's prior written
consent (which consent shall not, subject to Landlord's rights under this Section, be unreasonably
withheld or delayed), and that the assignee or subtenant will comply with all of the provisions of this
Lease and that Landlord may enforce the Lease provisions directly against such assignee or subtenant. If
this Lease is assigned, whether or not in violation of the terms and provisions of this Lease, Landlord may
collect Rent from the assignee. If the Premises, or any part thereof, is sublet, Landlord may, upon a
default under this Lease, collect rent from the subtenant. In either event, Landlord may apply the amount
collected from the assignee or subtenant to Tenant's obligation to pay Rent under this Lease. Nothing in
this subsection that preclude Landlord from pursuing Rent, fees, or other remedies from Tenant, if the
Tenant’s subtenant or assignee fails to comply with all the applicable provisions of the Lease or sublease.
(d)Events Constituting an Assignment or Sublease. For purposes of this Section, the
following events shall be deemed an assignment or sublease, as appropriate: (i) the issuance of equity
interests (whether stock, partnership interests or otherwise) in Tenant, or any assignee or subtenant, if
applicable, or any entity controlling any of them, to any person or group of related persons, in a single
transaction or a series of related or unrelated transactions, such that, following such issuance, such
person or group shall have Control (as defined below) of Tenant, or any assignee or subtenant, if
applicable; or (ii) a transfer of Control of Tenant, or any assignee or subtenant, if applicable, or any entity
controlling any of them, in a single transaction or a series of related or unrelated transactions (including,
without limitation, by consolidation, merger, acquisition or reorganization), except that the transfer of
outstanding capital stock or other listed equity interests by persons or parties other than "insiders" within
the meaning of the Securities Exchange Act of 1934, as amended, through the "over-the-counter" market
or any recognized national or international securities exchange, shall not be included in determining
whether Control has been transferred. "Control" shall mean direct or indirect ownership of fifty percent
(50%) or more of all the legal and equitable interest in any business entity.
(e)Processing Expenses. Tenant shall pay to Landlord the amount of Landlord's cost of
processing each proposed assignment or subletting, including without limitation, reasonable attorneys'
and other related fees, and the cost of Landlord's administrative, accounting and clerical time (collectively,
"Processing Costs"), and the amount of all reasonable direct and indirect expense incurred by Landlord
arising from the assignee or sublessee taking occupancy of the subject space, including without limitation,
reasonable costs of freight elevator operation for moving of furnishings and trade fixtures, security
service, janitorial and cleaning service, rubbish removal service, costs of changing signage, and costs of
changing locks and making new keys (collectively, "Occupancy Costs"). Notwithstanding anything to the
contrary herein, Landlord shall not be required to process any request for Landlord's consent to an
assignment or subletting until Tenant has paid to Landlord Three Hundred Dollars ($300.00), or
Landlord's estimate of the Processing Costs and the Occupancy Costs, whichever is greater.
(f)Consideration to Landlord. In the event of any assignment or sublease, whether or not
requiring Landlord's consent, Landlord shall be entitled to receive, as Additional Rent, one-half (1/2) of
any consideration, including without limitation, payment for leasehold improvements paid for by Landlord,
paid by the assignee or subtenant for the assignment or sublease and, in the case of sublease, the
excess of the amount of rent paid for the sublet space by the subtenant over the total amount of Minimum
Monthly Rent under Section 5 and Additional Rent under Sections 7 and 9. Upon Landlord's request,
Tenant shall assign to Landlord all amounts to be paid to Tenant by the assignee or subtenant and shall
direct such assignee or subtenant to pay the same directly to Landlord. If there is more than one sublease
under this Lease, the amounts (if any) to be paid by Tenant to Landlord pursuant to the preceding
sentence shall be separately calculated for each sublease and amounts due Landlord with regard to any
one sublease may not be offset against rental and other consideration due under any other sublease.
(g)Procedures. If Tenant desires to assign this Lease or any interest therein or sublet all or part
of the Premises, Tenant shall give Landlord written notice thereof designating the space proposed to be
sublet and the terms proposed. If the proposed sublease covers the entire Premises and if the term of the
proposed sublease (including any renewal terms) will expire during the final six (6) months of the Term (or
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if Tenant has exercised a renewal option, if any, then during the final six (6) months of the subject
renewal period), then Landlord shall have the prior right and option (to be exercised by written notice to
Tenant given within fifteen (15) calendar days after receipt of Tenant's notice) (i) to terminate this Lease,
or (ii) to approve Tenant's proposal to sublet conditional upon Landlord's subsequent written approval of
the specific sublease obtained by Tenant and the specific subtenant named therein. If Landlord exercises
its option described in (ii) above, Tenant shall submit to Landlord for Landlord's written approval Tenant's
proposed sublease agreement (in which the proposed subtenant shall be named) together with a current
reviewed or audited financial statement prepared by a certified public accountant for such proposed
subtenant and a credit report on such proposed subtenant prepared by a recognized credit reporting
agency. If Landlord fails to exercise its option to terminate this Lease, this shall not be construed as or
constitute a waiver of any of the provisions of this Section. If Landlord exercises its option to terminate
this Lease, Landlord shall not have any liability for any real estate brokerage commission(s) or with
respect to any of the costs and expenses that Tenant may have incurred in connection with its proposed
subletting, and Tenant agrees to hold Landlord harmless from and against any and all claims (including,
without limitation, claims for commissions) arising from such proposed subletting. Landlord's foregoing
rights and options shall continue throughout the Term. For purposes of this Section, a proposed
assignment of this Lease in whole or in part shall be deemed a proposed subletting of such space.
(h)Documentation. No permitted subletting by Tenant shall be effective until there has been
delivered to Landlord a counterpart of the sublease in which the subtenant agrees to be and remain jointly
and severally liable with Tenant for the payment of Rent pertaining to the sublet space and for the
performance of all of the terms and provisions of this Lease; provided, however, that the subtenant shall
be liable to Landlord for rent only in the amount set forth in the sublease. No permitted assignment shall
be effective unless and until there has been delivered to Landlord a counterpart of the assignment in
which the assignee assumes all of Tenant's obligations under this Lease arising on or after the date of the
assignment. The failure or refusal of a subtenant or assignee to execute any such instrument shall not
release or discharge the subtenant or assignee from its liability as set forth above.
(i)No Merger. Without limiting any of the provisions of this Section, if Tenant has entered into
any subleases of any portion of the Premises, the voluntary or other surrender of this Lease by Tenant, or
a mutual cancellation by Landlord and Tenant, shall not work a merger, and shall, at the option of
Landlord, terminate all or any existing subleases or subtenancies or, at the option of Landlord, operate as
an assignment to Landlord of any or all such subleases or subtenancies.
26.Default. The occurrence of any of the following shall constitute a default by Tenant under this
Lease:
(a)Failure to Pay Rent. Failure to pay Rent when due, if the failure continues for a period of
three (3) calendar days after notice of such default has been given by Landlord to Tenant.
(b)Failure to Comply with Rules and Regulations. Failure to comply with the Rules and
Regulations, if the failure continues for a period of twenty-four (24) hours after notice of such default is
given by Landlord to Tenant. If the failure to comply cannot reasonably be cured within twenty-four (24)
hours, then Tenant shall not be in default under this Lease if Tenant commences to cure the failure to
comply within twenty-four (24) hours and diligently and in good faith continues to cure the failure to
comply.
(c)Other Defaults. Failure to perform any other provision of this Lease, if the failure to perform
is not cured within thirty (30) calendar days after notice of such default has been given by Landlord to
Tenant. If the default cannot reasonably be cured within thirty (30) calendar days, then Tenant shall not
be in default under this Lease if Tenant commences to cure the default within thirty (30) calendar days
and diligently and in good faith continues to cure the default.
(d)Appointment of Trustee or Receiver. The appointment of a trustee or receiver to take
possession of substantially all of the Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where possession is not restored to Tenant within sixty (60) calendar days; or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where such seizure is not discharged within sixty (60) calendar days.
27.Remedies. If Tenant commits a default, Landlord shall have the following alternative remedies,
which are in addition to any remedies now or later allowed by law:
(a)Maintain Lease in Force. Maintain this Lease in full force and effect and recover the Rent
and other monetary charges as they become due, without terminating Tenant's right to possession,
irrespective of whether Tenant shall have abandoned the Premises. If Landlord elects to not terminate the
Lease, Landlord shall have the right to attempt to re-let the Premises at such rent and upon such
conditions and for such a term, and to do all acts necessary to maintain or preserve the Premises as
Landlord deems reasonable and necessary without being deemed to have elected to terminate the Lease
including removal of all persons and property from the Premises; such property may be removed and
stored in a public warehouse or elsewhere at the cost of and for the account of Tenant. In the event any
such re-letting occurs, this Lease shall terminate automatically upon the new Tenant taking possession of
the Premises. Notwithstanding that Landlord fails to elect to terminate the Lease initially, Landlord at any
time during the term of this Lease may elect to terminate this Lease by virtue of such previous default of
Tenant.
(b)Terminate Lease. Terminate Tenant's right to possession by any lawful means, in which
case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to
Landlord. In such event Landlord shall be entitled to recover from Tenant all damages incurred by
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Landlord by reason of Tenant's default including without limitation thereto, the following: (i) The worth at
the time of award of any unpaid Rent which had been earned at the time of such termination; plus (ii) the
worth at the time of award of the amount by which the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of such rental loss that Tenant proves could have
been reasonably avoided; plus (iii) the worth at the time of award of the amount by which the unpaid Rent
for the balance of the Term after the time of award exceeds the amount of such rental loss that is proved
could be reasonably avoided; plus (iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in
the ordinary course of things would be likely to result therefrom, including without limitation, any costs or
expenses incurred by Landlord in (A) retaking possession of the Premises, including reasonable attorney
fees therefor, (B) maintaining or preserving the Premises after such default, (C) preparing the Premises
for reletting to a new tenant, including repairs or necessary alterations to the Premises for such reletting,
(D) leasing commissions incident to reletting to a new tenant, and (E) any other costs necessary or
appropriate to relet the Premises; plus (v) at Landlord's election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by applicable state law. The amounts
described in clauses (C) and (D) shall be amortized over the term of the new tenant’s lease, and Tenant
shall only be liable to Landlord for the portion of such amounts attributable to the period prior to the
Expiration Date of this Lease set forth in Section 1. Upon any such re-entry Landlord shall have the right
to make any reasonable repairs, alterations or modifications to the Premises, which Landlord in its sole
discretion deems reasonable and necessary. As used in Subsection 27(b)(i) the "worth at the time of
award" is computed by allowing interest at the rate of fifteen percent (15%) per year from the date of
default. As used in Subsections 27(b)(ii) and 27(b)(iii) the "worth at the time of award" is computed by
discounting such amounts at the discount rate of eight percent (8%) per year.
28.Bankruptcy.
(a)Assumption of Lease. If Tenant becomes a Debtor under Chapter 7 of the Bankruptcy Code
("Code") or a petition for reorganization or adjustment of debts is filed concerning Tenant under Chapters
11 or 13 of the Code, or a proceeding is filed under Chapter 7 of the Code and is transferred to Chapters
11 or 13 of the Code, the Trustee or Tenant, as Debtor and as Debtor-In-Possession, may not elect to
assume this Lease unless, at the time of such assumption, the Trustee or Tenant has:
(i)Cured all defaults under the Lease and paid all sums due and owing under the Lease
or provided Landlord with "Adequate Assurance" (as defined below) that: (i) within ten (10) calendar days
from the date of such assumption, the Trustee or Tenant will completely pay all sums due and owing
under this Lease and compensate Landlord for any actual pecuniary loss resulting from any existing
default or breach of this Lease, including without limitation, Landlord's reasonable costs, expenses,
accrued interest, and attorneys' fees, expenses and court costs incurred as a result of the default or
breach; (ii) within twenty (20) calendar days from the date of such assumption, the Trustee or Tenant will
cure all non-monetary defaults and breaches under this Lease, or, if the nature of such non-monetary
defaults is such that more than twenty (20) calendar days are reasonably required for such cure, that the
Trustee or Tenant will commence to cure such non-monetary defaults within twenty (20) calendar days
and thereafter diligently prosecute such cure to completion; and (iii) the assumption will be subject to all
of the provisions of this Lease.
(ii)For purposes of this Section, Landlord and Tenant acknowledge that, in the context of
a bankruptcy proceeding involving Tenant, at a minimum, "Adequate Assurance" shall mean: (i) the
Trustee or Tenant has and will continue to have sufficient unencumbered assets after the payment of all
secured obligations and administrative expenses to assure Landlord that the Trustee or Tenant will have
sufficient funds to fulfill the obligations of Tenant under this Lease; (ii) the Bankruptcy Court shall have
entered an Order segregating sufficient cash payable to Landlord and/or the Trustee or Tenant shall have
granted a valid and perfected first lien and security interest and/or mortgage in or on property of Trustee
or Tenant acceptable as to value and kind to Landlord, to secure to Landlord the obligation of the Trustee
or Tenant to cure the monetary and/or non-monetary defaults and breaches under this Lease within the
time periods set forth above; and (iii) the Trustee or Tenant, at the very minimum, shall deposit a sum
equal to two (2) month's Minimum Monthly Rent to be held by Landlord (without any allowance for interest
thereon) to secure Tenant's future performance under the Lease.
(b)Assignment of Lease. If the Trustee or Tenant has assumed the Lease pursuant to the
provisions of this Section for the purpose of assigning Tenant's interest hereunder to any other person or
entity, such interest may be assigned only after the Trustee, Tenant or the proposed assignee have
complied with all of the terms, covenants and conditions of this Lease, including, without limitation, those
with respect to Additional Rent. Landlord and Tenant acknowledge that such terms, covenants and
conditions are commercially reasonable in the context of a bankruptcy proceeding of Tenant. Any person
or entity to which this Lease is assigned pursuant to the provisions of the Code shall be deemed without
further act or deed to have assumed all of the obligations arising under this Lease on and after the date of
such assignment. Any such assignee shall upon request execute and deliver to Landlord an instrument
confirming such assignment.
(c)Adequate Protection. Upon the filing of a petition by or against Tenant under the Code,
Tenant, as Debtor and as Debtor-In-Possession, and any Trustee who may be appointed agree to
adequately protect Landlord as follows: (i) to perform each and every obligation of Tenant under this
Lease until such time as this Lease is either rejected or assumed by Order of the Bankruptcy Court; (ii) to
pay all monetary obligations required under this Lease, including without limitation, the payment of
Minimum Monthly Rent, Tenant's Share of Real Property Taxes, Tenant's Share of Operating Costs and
any other sums payable by Tenant to Landlord under this Lease which is considered reasonable
compensation for the use and occupancy of the Premises; (iii) provide Landlord a minimum of thirty (30)
calendar days prior written notice, unless a shorter period is agreed to in writing by the parties, of any
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proceeding relating to any assumption of this Lease or any intent to abandon the Premises, which
abandonment shall be deemed a rejection of this Lease; and (iv) to perform to the benefit of Landlord as
otherwise required under the Code. The failure of Tenant to comply with the above shall result in an
automatic rejection of this Lease.
29.Limitation of Actions. Any claim, demand, right or defense of any kind by Tenant which is based
upon or arises in connection with this Lease or the negotiations prior to its execution, shall be barred
unless Tenant commences an action thereon, or interposes in a legal proceeding a defense by reason
thereof, within three (3) years after the date Tenant actually becomes aware of the act or omission on
which such claim, demand, right or defense is based.
30.Signs. Tenant shall not have the right to place, construct or maintain any sign, advertisement,
awning, banner or other exterior decoration without Landlord's consent. Any sign that Tenant has
Landlord's consent to place, construct and maintain shall comply with all laws, and Tenant shall obtain
any approval required by such laws. Landlord makes no representation with respect to Tenant's ability to
obtain such approval. Notwithstanding the foregoing, Landlord and Tenant have agreed to allow Tenant
the right to install one (1) Exterior sign on the building, pursuant to the Rider attached hereto.
31.Landlord's Right to Enter the Premises. Landlord and its authorized representatives shall have
the right to enter the Premises at reasonable times and upon reasonable prior notice (except in an
emergency when no such notice shall be required) for any of the following purposes: (i) to determine
whether the Premises are in good condition and whether Tenant is complying with its obligations under
this Lease, (ii) to do any maintenance; to make any restoration to the Premises or the Building that
Landlord has the right or the obligation to perform, and to make any improvements to the Premises or the
Building that Landlord deems necessary, (iii) to serve, post or keep posted any notices required or
allowed under the provisions of this Lease, (iv) to post any ordinary "For Sale" signs at any time during
the Term and to post any ordinary "For Lease" signs during the last ninety (90) calendar days of the
Term, and (v) to show the Premises to prospective brokers, agents, purchasers, tenants or lenders, at
any time during the Term.
Landlord shall not be liable in any manner for any inconvenience, annoyance, disturbance, loss of
business, nuisance, or other damage arising out of Landlord's entry on the Premises as provided in this
Section, except damage resulting from the grossly negligent or willful acts of Landlord or its authorized
representatives. Tenant shall not be entitled to an abatement or reduction of Rent if Landlord exercises any
right reserved in this Section. Landlord shall conduct its activities on the Premises as allowed in this Section
in a reasonable manner so as to cause minimal inconvenience, annoyance or disturbance to Tenant.
32.Subordination. This Lease is and shall be prior to any mortgage recorded after the date of this
Lease affecting the Property. If, however, a lender requires that this Lease be subordinate to any
mortgage, this Lease shall be subordinate to that mortgage if Landlord first obtains from the lender a
written agreement that provides substantially the following:
"As long as Tenant performs its obligations under this Lease, no foreclosure of,
deed given in lieu of foreclosure of, or sale under the mortgage, and no steps or
procedures taken under the mortgage, shall affect Tenant's rights under this Lease. "
Tenant shall attorn to any purchaser at any foreclosure sale, or to any grantee or transferee
designated in any deed given in lieu of foreclosure. Tenant shall execute the written agreement and any
other documents required by the lender to accomplish the purposes of this Section.
33.Right to Estoppel Certificates. Tenant, within ten (10) business days after notice from Landlord,
shall execute and deliver to Landlord, in recordable form, a certificate stating that this Lease is unmodified
and in full force and effect, or in full force and effect as modified and stating the modifications. The
certificate shall also state the amount of Minimum Monthly Rent, the dates to which Rent has been paid in
advance, and the amount of any Prepaid Rent or Security Deposit and such other matters as Landlord
may reasonably request. Failure to deliver the certificate within such ten (10) business day period shall be
conclusive upon Tenant for the benefit of Landlord and any successor to Landlord, that this Lease is in
full force and effect and has not been modified except as may be represented by Landlord requesting the
certificate.
34.Transfer of Landlord's Interest. If Landlord sells or transfers the Property, Landlord, on
consummation of the sale or transfer, shall be released from any liability thereafter accruing under this
Lease if Landlord's successor has assumed in writing, for the benefit of Tenant, Landlord's obligations
under this Lease. If any Security Deposit or Prepaid Rent has been paid by Tenant, Landlord shall
transfer such Security Deposit or Prepaid Rent to Landlord's successor and on such transfer Landlord
shall be discharged from any further liability with respect to such Security Deposit or Prepaid Rent.
35.Attorneys' Fees. If either party shall bring any action for relief against the other party, declaratory
or otherwise, arising out of this Lease, including any action by Landlord for the recovery of Rent or
possession of the Premises, the losing party shall pay the successful party a reasonable sum for
attorneys' fees which shall be deemed to have accrued on the commencement of such action and shall
be paid whether or not such action is prosecuted to judgment.
36.Surrender; Holding Over.
(a)Surrender. On expiration or ten (10) calendar days after termination of the Term, Tenant
shall surrender the Premises and all Tenant's improvements and alterations to Landlord broom clean and
in good condition. Tenant shall remove all of its trade fixtures and personal property, which personal
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property specifically includes all cabling installed in the Premises by Tenant (unless Tenant has received
consent from Landlord that such cabling may be surrendered with and remain in the Premises), within the
time period stated in this Section. Tenant, at its cost, shall perform all restoration made necessary by, and
repair any damage to the Premises caused by, the removal of its trade fixtures, personal property and
signs to Landlord's reasonable satisfaction within the time period stated in this Section. Landlord may, at
its election, retain or dispose of in any manner any of Tenant's trade fixtures or personal property that
Tenant does not remove from the Premises on expiration or within ten (10) calendar days after
termination of the Term as allowed or required by the provisions of this Lease by giving ten (10) calendar
days notice to Tenant. Title to any such trade fixtures and personal property that Landlord elects to retain
or dispose of on expiration of such ten (10) calendar day period shall vest in Landlord. Tenant waives all
claims against Landlord for any damage to Tenant resulting from Landlord's retention or disposition of any
such trade fixtures and personal property. Tenant shall be liable to Landlord for Landlord's reasonable
costs for storing, removing and disposing of Tenant's trade fixtures and personal property. If Tenant fails
to surrender the Premises to Landlord on expiration or ten (10) calendar days after termination of the
Term as required by this Section, Tenant shall pay Landlord Rent in an amount equal to 150% of the
Minimum Monthly Rent applicable for the month immediately prior to the expiration or termination of the
Term, or the amount provided by law, whichever is greater, for the entire time Tenant thus remains in
possession and Tenant shall be liable for, shall indemnify Landlord against and shall hold Landlord
harmless from all damages resulting from Tenant's failure to timely surrender the Premises, including
without limitation, (i) any Rent payable by, or any damages claimed by, any prospective tenant of any part
or all of the Premises, and (ii) Landlord's damages resulting from such prospective tenant rescinding or
refusing to enter into the prospective lease of part or all of the Premises by reason of Tenant's failure to
timely surrender the Premises. If Tenant, without Landlord's prior written consent, remains in possession
of the Premises after expiration or termination of the Term, or after the date in any notice given by
Landlord to Tenant terminating this Lease, such possession by Tenant shall be deemed to be a tenancy
at sufferance terminable at any time by either party.
(b)Holding Over with Landlord's Consent. If Tenant, with Landlord's prior written consent,
remains in possession of the Premises after expiration or termination of the Term, or after the date in any
notice given by Landlord to Tenant terminating this Lease, such possession by Tenant shall be deemed
to be a month-to-month tenancy terminable by Landlord by a notice given to Tenant at least twenty (20)
calendar days prior to the end of any such monthly period or by Tenant by a notice given to Landlord at
least thirty (30) calendar days prior to the end of any such monthly period. During such month-to-month
tenancy, Tenant shall pay Rent in the amount then agreed to in writing by Landlord and Tenant. All
provisions of this Lease, except those pertaining to term, shall apply to the month-to-month tenancy.
37.Agency Disclosure; Broker.
(a)Agency Disclosure. Kidder Mathews hereby discloses that it represents the Landlord and
Tenant in this transaction.
(b)Broker. Landlord and Tenant each represent to the other that neither is represented by any
broker, agent or finder with respect to this Lease in any manner, except the Broker(s). The commission
due to the Broker(s) shall be paid by Landlord pursuant to a separate agreement. Each party agrees to
indemnify and hold the other party harmless from and against any and all liability, costs, damages,
causes of action or other proceedings instituted by any broker, agent or finder, licensed or otherwise,
claiming through, under or by reason of the conduct of the indemnifying party in any manner whatsoever
in connection with this Lease. If Tenant engages a broker, agent or finder to represent Tenant in
connection with any renewal of this Lease, then the commission or any fee of such broker, agent or finder
shall be paid by Tenant.
38.Interest on Unpaid Rent. In addition to the Late Charge as provided in Section 5(b), Rent not paid
when due shall bear interest from the date due until paid at the rate of fifteen percent (15%) per year, or
the maximum legal rate of interest, whichever is less.
39.Landlord's Option to Relocate Tenant. Landlord shall have the option at any time to relocate
Tenant, upon not less than ninety (90) calendar days advance written notice by Landlord to Tenant, to
any floor of the Building in which the Premises are located so long as the square footage of the Premises
leased hereunder is not reduced. Rent shall not be changed because of the relocation of Tenant
notwithstanding any increase in the square footage of the Premises to which Tenant is relocated unless
the increase in square footage is caused by Tenant's request for additional space. In the event Landlord
gives Tenant written notice of the relocation of Tenant after Tenant and Landlord have commenced or
completed the approved installation of partitioning or other improvements, Landlord shall furnish Tenant
with similar partitioning or other improvements of equal quality in the Premises to which Tenant is
relocated. Landlord shall pay expenses associated with relocation of existing telephones, existing office
furniture, and existing equipment.
40.Tenant’s Option to Terminate. Provided Tenant is not then in default, Tenant shall have the right,
at its option, to terminate this Lease any time after the eighteenth (18th) month of paid rent of the Term
(by giving Landlord prior notice to such effect (the ''Termination Notice") not less than three (3) months
prior to the date of termination (the "Termination Date") specified in the Termination Notice. On the
Termination Date Tenant shall pay to Landlord an amount equal to two (2) months rent at the current
rental rate. This option is based upon an economic downturn beyond tenant’s reasonable control or a
divestiture of tenant’s business. Downturn is defined as “a reduction in profit for four (4) consecutive
months of twenty-five percent (25%) or more over the average profit for the previous six (6) months. If the
Termination Notice is not so given and received, and/or the Termination Fee is not paid as set forth
herein, and/or the Rent due through the Termination Date is not paid in full prior to the Termination Date,
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then this option shall become null and void and this Lease shall continue in full force and effect through
the Expiration Date.
41.Tenant’s Option to Extend. Landlord hereby grants to Tenant the right, at its option, to extend the
Term for one (1) period of five (5) year, commencing when the prior term expires (an "Extended Term")
upon each and all of the following terms and conditions:
(a) Tenant gives to Landlord, and Landlord actually receives, at least nine (9) months (but not
more than twelve (12) months) prior to the Expiration Date a written notice (the "Notice of Exercise") of
the exercise of the option to extend the Term, time being of the essence. If the Notice of Exercise is not
so given and received or, if received, Landlord and Tenant cannot agree on the Minimum Monthly Rent to
be paid by Tenant during the Extended Term, as set forth in (d) below, then this option shall automatically
expire and this Lease shall terminate on the Expiration Date.
(b) Tenant is not in default under this Lease either at the time the Notice of Exercise is given and
received or as of the date that the Extended Term would commence.
(c) All of the terms and conditions of this Lease shall apply, except where specifically modified
by this option.
(d) Minimum Monthly Rent during the Extended Term shall be mutually agreed upon between
Tenant and Landlord (taking into consideration Tenant's performance and long-term tenancy) within
ninety (90) calendar days after Tenant gives the Notice of Exercise, and, if not agreed upon within such
period, as it may be extended by mutual agreement of the parties. The Minimum Monthly Rent during the
Extended Term shall in no event be less than the Minimum Monthly Rent paid during the last month of the
initial Term, but shall not exceed ninety percent (90%) of the then current market rent. If the parties agree
on the, Minimum Monthly Rent for the Extended Term within such ninety (90) calendar day period, then
they shall promptly and diligently proceed to execute an Amendment to this Lease stating the Minimum
Monthly Rent payable by Tenant for the Extended Term.
(e) If Landlord and Tenant are unable to mutually agree upon the Minimum Monthly Rent for the
Extended Term within the time specified in (d) above, this option shall become null and void and be of
no further force and effect; and this Lease shall expire on the Expiration Date.
42.Definitions. As used in this Lease, the following words and phrases, whether or not capitalized,
shall have the following meanings:
(a)"Additional Rent" means pass-throughs of increases in Operating Costs and Taxes, as
defined in this Lease, and other monetary sums to be paid by Tenant to Landlord under the provisions of
this Lease.
(b)"Alteration" means any addition or change to, or modification of, the Premises made by
Tenant, including without limitation, fixtures, but excluding trade fixtures as defined in this Section.
(c)"Authorized representatives" means any officer, agent, employee, representative,
independent contractor or invitee of either party.
(d)"Award" means all compensation, sums or anything of value awarded, paid or received on a
total or partial condemnation.
(e)"Common Areas" means all areas outside the Premises and within the Building or on the
Land that are provided and designated by Landlord from time to time for the general, non-exclusive use of
Landlord, Tenant and other tenants of the Building and their authorized representatives, including without
limitation, common entrances, lobbies, corridors, stairways and stairwells, elevators, escalators, public
restrooms and other public portions of the Building.
(f)"Condemnation" means the exercise of any governmental power, whether by legal
proceedings or otherwise, by a condemnor and a voluntary sale or transfer by Landlord to any
condemnor, either under threat of condemnation or while legal proceedings for condemnation are
pending.
(g)"Condemnor" means any public or quasi-public authority or entity having the power of
condemnation.
(h)"Damage" means any injury, deterioration, or loss to a person, property, the Premises or the
Building caused by another person's acts or omissions or by Acts of God. Damage includes death.
(i)"Damages" means a monetary compensation or indemnity that can be recovered in the
courts by any person who has suffered damage to his person, property or rights through another's acts or
omissions.
(j)"Date of taking" means the date the condemnor has the right to possession of the property
being condemned.
(k)"Encumbrance" means any mortgage, deed of trust or other written security device or
agreement affecting the Premises, and the note or other obligation secured by it, that constitutes security
for the payment of a debt or performance of an obligation.
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(l)"Expiration" means the coming to an end of the time specified in the Lease as its duration,
including any extension of the Term.
(m)"Force majeure" means strikes, lockouts, labor disputes, shortages of labor or materials, fire
or other casualty, Acts of God or any other cause beyond the reasonable control of a party.
(n)"Good condition" means the good physical condition of the Premises and each portion of the
Premises, including without limitation, all of the Tenant Improvements, Tenant's alterations, Tenant's
trade fixtures, Tenant's Personal Property, all as defined in this Section, signs, walls, interior partitions,
windows, window coverings, glass, doors, carpeting and resilient flooring, ceiling tiles, plumbing fixtures
and lighting fixtures, all of which shall be in conformity with building standard finishes, ordinary wear and
tear, damage by fire or other casualty and taking by condemnation excepted.
(o)"Hazardous substances" means any industrial waste, toxic waste, chemical contaminant or
other substance considered hazardous, toxic or lethal to persons or property or designated as hazardous,
toxic or lethal to persons or property under any laws, including but not limited to, asbestos material or
materials containing asbestos.
(p)"Hold harmless" means to defend and indemnify from all liability, losses, penalties, damages
as defined in this Section, costs, expenses (including without limitation, attorneys' fees), causes of action,
claims or judgments arising out of or related to any damage, as defined in this Section, to any person or
property.
(q)"Law" means any constitution, statute, ordinance, regulation, rule, resolution, judicial
decision, administrative order or other requirement of any federal, state, county, municipal or other
governmental agency or authority having jurisdiction over the parties or the Property, or both, in effect
either at the time of execution of this Lease or at any time during the Term, including without limitation,
any regulation or order of a quasi-official entity or body (e.g., board of fire examiners or public utilities)
and any legally effective conditions, covenants or restrictions affecting the Property.
(r)"Lender" means the mortgagee, beneficiary, secured party or other holder of an
encumbrance, as defined in this Section.
(s)"Lien" means a charge imposed on the Premises by someone other than Landlord, by which
the Premises are made security for the performance of an act.
(t)"Maintenance" means repairs, replacement, repainting and cleaning.
(u)"Mortgage" means any deed of trust, mortgage or other written security device or agreement
affecting the Premises, and the note or other obligation secured by it, that constitutes security for the
payment of a debt or performance of an obligation.
(v)"Mortgagee" means the beneficiary under a deed of trust or mortgagee under a mortgage.
(w)"Mortgagor" means the grantor or trustor under a deed of trust or mortgagor under a
mortgage.
(x)"Operating Costs" means all costs of any kind incurred by Landlord in operating, cleaning,
equipping, protecting, lighting, repairing, replacing, heating, air-conditioning, maintaining and insuring the
Property. Operating Costs shall include, without limitation, the following costs: (i) salaries, wages,
bonuses and other compensation (including hospitalization, medical, surgical, retirement plan, pension
plan, union dues, life insurance, including group life insurance, welfare and other fringe benefits, and
vacation, holidays and other paid absence benefits) relating to employees of Landlord or its agents
directly engaged in the operation, repair, or maintenance of the Property; (ii) payroll, social security,
workers' compensation, unemployment and similar taxes with respect to such employees of Landlord or
its authorized representatives, and the cost of providing disability or other benefits imposed by law or
otherwise, with respect to such employees; (iii) uniforms (including the cleaning, replacement and
pressing thereof) provided to such employees; (iv) premiums and other charges incurred by Landlord with
respect to fire, earthquake, other casualty, all risk, rent loss and liability insurance, any other insurance as
is deemed necessary or advisable in the reasonable judgment of Landlord and, after the Base Year, costs
of repairing an insured casualty to the extent of the deductible amount under the applicable insurance
policy; (v) water charges and sewer rents or fees; (vi) license, permit and inspection fees; (vii) sales, use
and excise taxes on goods and services purchased by Landlord in connection with the operation,
maintenance or repair of the Property and Building systems and equipment; (viii) telephone, facsimile,
messenger, express delivery service, postage, stationery supplies and other expenses incurred in
connection with the operation, management, maintenance, or repair of the Property; (ix) property
management fees and expenses; (x) repairs to and physical maintenance of the Property, including
building systems and appurtenances thereto and normal repair and replacement of worn-out equipment,
facilities and installations, but excluding the replacement of major building systems (except to the extent
provided in (xvi) and (xvii) below); (xi) janitorial, window cleaning, security, extermination, water treatment,
rubbish removal, plumbing and other services and inspection or service contracts for elevator, electrical,
HVAC, mechanical and other building equipment and systems or as may otherwise be necessary or
proper for the operation or maintenance of the Property; (xii) supplies, tools, materials, and equipment
used in connection with the operation, maintenance or repair of the Property; (xiii) accounting, legal and
other professional fees and expenses; (xiv) painting the exterior or the public or common areas of the
Building and the cost of maintaining the sidewalks, landscaping and other common areas of the Property;
(xv) all costs and expenses for electricity, chilled water, air conditioning, water for heating, gas, fuel,
steam, heat, lights, power and other energy related utilities required in connection with the operation,
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maintenance and repair of the Property; (xvi) the cost of any improvements which Landlord elects to
capitalize made by Landlord to the Property during the Term in compliance with the requirements of any
laws or regulation or insurance requirement with which the Property was not required to comply during
the Base Year, as reasonably amortized by Landlord, with interest on the unamortized balance at the rate
of twelve percent (12%) per year, or the maximum legal rate of interest, whichever is less; (xvii) the cost
of any improvements which Landlord elects to capitalize made by Landlord to the Property during the
term of this Lease for the protection of the health and safety of the occupants of the Property or that are
intended to reduce other Operating Costs, as reasonably amortized by Landlord, with interest on the
unamortized balance at the rate of twelve percent (12%) per year, or the maximum legal rate of interest,
whichever is less; (xviii) a reasonable reserve for repair or replacement of equipment used in the
maintenance or operation of the Property; (xix) the cost of furniture, draperies, carpeting, landscaping and
other customary and ordinary items of personal property (excluding paintings, sculptures and other works
of art) provided by Landlord for use in common areas of the Building or in the Building office (to the extent
that such Building office is dedicated to the operation and management of the Property), such costs to be
amortized over the useful life thereof; (xx) Building office rent or rental value; and (xxi) all other costs
which, in accordance with generally sound accounting and management principles used by Landlord, as
applied to the maintenance and operation of office and/or retail buildings, are properly chargeable to the
operation and maintenance of the Property.
Operating Costs shall not include the following: (i) depreciation on the Building; (ii) debt service; (iii)
capital improvements, except as otherwise provided in clauses (xvi) and (xvii) above, (iv) rental under any
ground or underlying leases; (v) Real Property Taxes, (vi) attorneys' fees and expenses incurred in
connection with lease negotiations with prospective tenants, or default or enforcement proceedings with
respect to defaulting tenants; (vii) the cost of tenant improvements; (viii) advertising expenses; or (ix) real
estate broker's or other leasing commissions.
(y)"Parties" means Landlord and Tenant.
(z)"Party" means Landlord or Tenant.
(aa)"Person" means one or more human beings, or legal entities or other artificial persons,
including without limitation, partnerships, corporations, trusts, estates, associations and any combination
of human beings and legal entities.
(bb)"Property" means the Premises, Building and Land.
(cc)"Provision" means any term, agreement, covenant, condition, clause, qualification, restriction,
reservation, or other stipulation in the Lease that defines or otherwise controls, establishes, or limits the
performance required or permitted by either party.
(dd)"Real Property Taxes" means any form of tax, assessment, general assessment, special
assessment, lien, levy, bond obligation, license fee, license tax, tax or excise on rent, or any other levy,
charge or expense, together with any statutory interest thereon, (individually and collectively, the
"Impositions"), now or hereafter imposed or required by any authority having the direct or indirect power
to tax, including any federal, state, county or city government or any school, agricultural, lighting, drainage
or other improvement or special assessment district thereof, (individually and collectively, the
"Governmental Agencies") on any interest of Landlord or Tenant or both (including any legal or equitable
interest of Landlord or its mortgagee, if any) in the Premises or the Property, including without limitation:
(i)any Impositions upon, allocable to or measured by the area of the Premises or the
Property, or the rental payable hereunder, including without limitation, any gross income tax or excise tax
levied by any Governmental Agencies with respect to the receipt of such rental; or
(ii)any Impositions upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair or use or occupancy by Tenant of the Premises or any
portion thereof; or
(iii)any Impositions upon or with respect to the building equipment and personal property
used in connection with the operation and maintenance of the Property or upon or with respect to the
furniture, fixtures and decorations in the common areas of the Property.
(iv)any Impositions upon this Lease or this transaction or any document to which Tenant is
a party creating or transferring an interest or an estate in the Premises; or
(v)any Impositions by Governmental Agencies (whether or not such Impositions constitute
tax receipts) in substitution, partially or totally, of any impositions now or previously included within the
definition of real property taxes, including those calculated to increase tax increments to Governmental
Agencies and to pay for such services as fire protection, water drainage, street, sidewalk and road
maintenance, refuse removal or other governmental services formerly provided without charge to property
owners or occupants; or
(vi)any and all costs, including without limitation, the fees of attorneys, tax consultants and
experts, incurred by Landlord should Landlord elect to negotiate or contest the amount of such real
property taxes in formal or informal proceedings before the Governmental Agency imposing such real
property taxes; provided, however, that real property taxes shall in no event include Landlord's general
income, inheritance, estate, gift or franchise taxes.
(ee)"Rent" means Minimum Monthly Rent, as adjusted from time to time under this Lease,
Additional Rent, Prepaid Rent, Security Deposit, all as defined in this Section, payments of Tenant's
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Share of increases in Real Property Taxes and Operating Costs, insurance, utilities and other charges
payable by Tenant to Landlord.
(ff)"Rentable square feet of space" as to the Premises or the Building, as the case may be,
means the number of usable square feet of space times the applicable R/U Ratio(s) as defined in this
Section.
(gg)"Restoration" means the reconstruction, rebuilding, rehabilitation and repairs that are
necessary to return damaged portions of the Premises and the Building to substantially the same physical
condition as they were in immediately before the damage.
(hh)"R/U Ratio" means the rentable area of a floor of the Building divided by the usable area of
such floor, both of which shall be computed in accordance with American National Standard Z65.1-1996
Method of Measuring Floor Space in Office Buildings as published by the Building Owners and Managers
Association, as amended from time to time.
(ii)"Substantially complete" or "substantially completed" or "substantial completion" means the
completion of Landlord's construction obligation, subject to completion or correction of "punch list" items,
that is, minor items of incomplete or defective work or materials or mechanical maladjustments that are of
such a nature that they do not materially interfere with or impair Tenant's use of the Premises for the
Permitted Use.
(jj)"Successor" means assignee, transferee, personal representative, heir, or other person or
entity succeeding lawfully, and pursuant to the provisions of this Lease, to the rights or obligations of
either party.
(kk)"Tenant Improvements" means (i) the improvements and alterations set forth in Exhibit C, (ii)
window coverings, lighting fixtures, plumbing fixtures, cabinetry and other fixtures installed by either
Landlord or Tenant at any time during the Term, and (iii) any improvements and alterations of the
Premises made for Tenant by Landlord at any time during the Term.
(ll)"Tenant's personal property" means Tenant's equipment, furniture, and movable property
(including cabling) placed in the Premises by Tenant.
(mm)"Tenant's trade fixtures" means any property attached to the Premises by Tenant.
(nn)"Termination" means the ending of the Term for any reason before expiration, as defined in
this Section.
(oo)"Work" means the construction of any improvements or alterations or the performance of any
repairs done by Tenant or caused to be done by Tenant on the Premises as permitted by this Lease.
43.Miscellaneous Provisions.
(a)Entire Agreement. This Lease sets forth the entire agreement of the parties as to the subject
matter hereof and supersedes all prior discussions and understandings between them. This Lease may
not be amended or rescinded in any manner except by an instrument in writing signed by a duly
authorized officer or representative of each party hereto.
(b)Governing Law. This Lease shall be governed by, and construed and enforced in
accordance with, the laws of the State of Washington.
(c)Severability. Should any of the provisions of this Lease be found to be invalid, illegal or
unenforceable by any court of competent jurisdiction, such provision shall be stricken and the remainder
of this Lease shall nonetheless remain in full force and effect unless striking such provision shall
materially alter the intention of the parties.
(d)Jurisdiction. In the event any action is brought to enforce any of the provisions of this Lease,
the parties agree to be subject to exclusive in personam jurisdiction in the Superior Court in and for King
County, Washington or in the United States District Court for the Western District of Washington and
agree that in any such action venue shall lie exclusively at Seattle or Kent, Washington
(e)Waiver. No waiver of any right under this Lease shall be effective unless contained in a
writing signed by a duly authorized officer or representative of the party sought to be charged with the
waiver and no waiver of any right arising from any breach or failure to perform shall be deemed to be a
waiver of any future right or of any other right arising under this Lease.
(f)Captions. Section captions contained in this Lease are included for convenience only and
form no part of the agreement between the parties.
(g)Notices. All notices or requests required or permitted under this Lease shall be in writing and
sent by certified mail, return receipt requested, postage prepaid, or by messenger service to the
addresses established for notice for both Tenant and Landlord.
(h)Binding Effect. Subject to the provisions of Section 25 captioned "Assignment and
Subletting", this Lease shall be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. No permitted assignment of this Lease or Tenant's rights hereunder
shall be effective against Landlord unless and until an executed counterpart of the instrument of
assignment shall have been delivered to Landlord and Landlord shall have been furnished with the name
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and address of the assignee. The term "Tenant" shall be deemed to include the assignee under any such
permitted assignment.
(i)Effectiveness. This Lease shall not be binding or effective until properly executed and
delivered by Landlord and Tenant.
(j)Gender and Number. As used in this Lease, the masculine shall include the feminine and
neuter, the feminine shall include the masculine and neuter, the neuter shall include the masculine and
feminine, the singular shall include the plural and the plural shall include the singular, as the context may
require.
(k)Time of the Essence. Time is of the essence in the performance of all covenants and
conditions in this Lease for which time is a factor.
Signatures on following page
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Dated the date first above written.
Landlord:
The City of Renton, Washington, a
Washington municipal corporation
By:
Title:
Date executed:
By:
Title:
Date executed:
Tenant:
Curt Tiedeman, an individual, dba First Rate
Mortgage
By:
Title:
Date executed:
This Lease has been prepared for submission to you and your attorney. Kidder Mathews is not authorized to
give legal or tax advice. Neither Landlord nor Kidder Mathews makes any representations or
recommendations as to the legal sufficiency, legal effect or tax consequences of this document or any
transaction relating thereto. These are questions for your attorney with whom you should consult before
signing the document to determine whether your legal rights are adequately protected.
[Notary attached]
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CITY OF RENTON COUNCIL AGENDA BILL
Subject/Title:
Washington State Department of Transportation
2013-2015 Transportation Demand Management
(TDM) Implementation Agreement
Meeting:
Regular Council - 14 Oct 2013
Exhibits:
Issue Paper
Transportation Demand Management
Implementation Agreement, GCA 1563
Resolution
Submitting Data: Dept/Div/Board:
Public Works
Staff Contact:
Dan Hasty, Transportation Planner x 7217
Recommended Action:
Council Concur
Fiscal Impact:
Expenditure Required: $ Transfer Amendment: $
Amount Budgeted: $ 40,636 Revenue Generated: $81,272
Total Project Budget: $ City Share Total Project: $
SUMMARY OF ACTION:
The city implements a program in accordance with the state and local Commute Trip Reduction (CTR)
laws to monitor Renton employers with CTR-affected worksites for progress and compliance. This law
was enacted as part of the Washington State Clean Air Act to provide measures that would improve air
quality and manage congestion by encouraging the use of alternatives to single occupancy vehicle
(SOV) commute travel through the use of incentives to employees at businesses with 100 or more
employees arriving at work between 6-9 a.m.
Funding provided by the state of Washington covers the expenses to implement state and local CTR
laws.
STAFF RECOMMENDATION:
Authorize the Mayor and City Clerk to enter into the 2-year agreement with the Washington State
Department of Transportation for the implementation of the Citywide CTR Program with a cost
reimbursement to Renton in the amount of $81,272 and present the resolution for reading and adoption.
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PUBLIC WORKS DEPARTMENT
M E M O R A N D U M
DATE:October 14 , 2013
TO:Randy Corman, Council President
Members of the Renton City Council
VIA:Denis Law, Mayor
FROM:Gregg Zimmerman, Administrator
STAFF CONTACT:Dan Hasty, Transportation Planner, extension 7217
SUBJECT:Washington State Department of Transportation
2013-2015 Transportation Demand Management (TDM)
Implementation Agreement
ISSUE:
Should the City of Renton enter into a 2-year agreement with the Washington State
Department of Transportation for performance of the Transportation Demand
Management (TDM) Implementation Agreement, i.e. citywide Commute Trip Reduction
(CTR) Program?
RECOMMENDATION:
Authorize the Mayor and City Clerk to enter into the 2-year agreement with the
Washington State Department of Transportation for the implementation of the citywide
CTR Program with a cost reimbursement to Renton in the amount of $81,272 and
present the resolution for reading and adoption.
BACKGROUND:
The City of Renton implements a program in accordance with the state and local CTR
law to monitor Renton employers with CTR-affected worksites for progress and
compliance. This law was enacted as part of the Washington State Clean Air Act to
provide measures that would improve air quality and manage congestion by
encouraging the use of alternatives to single occupancy vehicle (SOV) commute travel
through the use of incentives to employees at businesses with 100 or more employees
arriving at work between 6-9 a.m.
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Randy Corman, Council President
Members of the Renton City Council
Page 2 of 2
October 14, 2013
To support the state mandated CTR law, WSDOT historically has provided funding to
jurisdictions with CTR-affected work sites. It is based on the number of worksites being
monitored. Currently, there are 18 CTR-affected employer work sites, but with four
newly affected sites identified, the number will be back up to 22 CTR-affected employer
work sites in the City of Renton by the end of the year.
TDM is no longer an element in the Transportation Systems Division 2014-2019
Transportation Improvement Program (Six-Year TIP). Originally, $45,000 had been
allocated in 2013 for TDM with $40,636 (actual) per year anticipated to come from
WSDOT CTR funding and any remaining balance would have been made up from the
business license fee account. In 2014 the grant funding will be placed into the general
fund with expenditures and revenues expected to equal $81,272 (the amount of the
grant) for the 2-year funding cycle ending in June 2015.
Attachment: Commute Trip Reduction (CTR) Administrative Work Plan
cc:Doug Jacobson, Deputy Public Works Administrator – Transportation
Dan Hasty, Transportation Planner
Nancy Thompson, Transportation Administrative Secretary
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GCB1563 Page 1 of 16
Transportation Demand Management
Implementation Agreement
Washington State Department of
Transportation
310 Maple Park Avenue SE
PO Box 47387
Olympia, WA 98504-7387
Contact Person: Dacia Stricklett 360-705-7845
Contractor
City of Renton
1055 S. Grady Way
Renton, WA 98055
Federal ID #: 91-6001271
Contact Person:
John (Dan) Hasty 425-430-7321
Project Costs: Scope of Project: Carry out the
State Funds $81,272 Project as described in Exhibit 1, Project
Contractor Funds $0 Scope of Work
Total Project Cost $81,272
Agreement Number:
GCB1563
Term of Project:
July 1, 2013 through June 30, 2015
Service Area: Renton
This AGREEMENT is entered into by the Washington State Department of Transportation ,
hereinafter referred to as “WSDOT” and the Contractor identified above, hereinafter referred to
as “CONTRACTOR”, and/or individually referred to as the “PARTY” and collectively referred
to as the “PARTIES.”
WHEREAS, RCW 70.94.521 through RCW 70.94.555 establishes the state’s leadership role,
and the requirements and parameters to reduce traffic congestion, fuel use, and air pollution
through commute trip reduction programs, including transportation demand management
programs for growth and transportation efficiency centers (“GTEC”) in Washington State; and
WHEREAS, RCW 47.06.050 requires that when planning capacity and operational
improvements, the State’s first priority is to assess strategies to enhance the operational
efficiency of the existing system, and states that strategies to enhance the operational efficiencies
include, but are not limited to, access management, transportation system management, and
demand management (“Strategies”); and
WHEREAS, RCW 47.01.078 directs the State to develop strategies to reduce the per capita
vehicle miles traveled, to consider efficiency tools including commute trip reduction and other
demand management tools, and to promote the integration of multimodal planning in support of
the transportation system policy goals described in RCW 47.04.280; and
WHEREAS, the Legislature has directed the State to increase the integration of public
transportation and the highway system, to facilitate coordination of transit services and planning,
and to maximize opportunities to use public transportation to improve the efficiency of
transportation corridors (RCW 47.01.330); and
WHEREAS, RCW 47.80.010 encourages the State and local jurisdictions to identify
opportunities for cooperation to achieve statewide and local transportation goals; and
WHEREAS, the State of Washington in its Sessions Laws of 2013, chapter 306, Section 220(6),
(7) and (8), authorizes funding for Public Transportation and Commute Trip Reduction programs
and other special proviso funding through the multi-modal transportation account as identified in
the budget through its 2013-2015 biennial appropriations to WSDOT; and
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WHEREAS the WSDOT Public Transportation Division is responsible for administering funds
on behalf of the Washington State Legislature;
NOW, THEREFORE, in consideration of terms, conditions, performances and mutual
covenants herein set forth and the attached Exhibit 1, “Project Scope of Work,” and Exhibit 2,
“Project Progress Reports,” which are both incorporated and made a part of this AGREEMENT,
IT IS MUTUALLY AGREED AS FOLLOWS:
Section 1
Purpose of Agreement
The purpose of this AGREEMENT is for WSDOT to provide funding to the CONTRACTOR to
be used solely for activities undertaken to fulfill the requirements of RCW 70.94.521 through
RCW 70.94.555, hereinafter known as the “Project.”
Section 2
Scope of Work
The CONTRACTOR agrees to perform all designated tasks of the Project under this
AGREEMENT as described in Exhibit 1, “Project Scope of Work,” which by this reference is
incorporated into this AGREEMENT as if fully set forth herein.
Section 3
Term of Project
The CONTRACTOR shall commence, perform and complete the Project within the time defined
in the caption space header above titled “Term of Project” of this AGREEMENT regardless of
the date of execution of this AGREEMENT, unless terminated as provided herein. The caption
space header above entitled’ “Term of Project” and all caption space headers above are by this
reference incorporated into this AGREEMENT as if fully set forth herein.
Section 4
Project Costs
The total reimbursable cost to accomplish the Project Scope of Work shall not exceed the “State
Funds” detailed in the caption space header above titled “Project Costs.” The CONTRACTOR
agrees to expend eligible “State Funds” together with any “Contractor Funds” identified above in
the caption space header “Project Costs,” in an amount sufficient to complete the Project as
detailed in Exhibit 1, “Project Scope of Work.” If at any time the CONTRACTOR becomes
aware that the cost which it expects to incur in the performance of this AGREEMENT will differ
from the amount indicated in the caption space titled “Project Costs” above, the CONTRACTOR
shall notify WSDOT in writing within three (3) business days of making that determination.
Section 5
Reimbursement and Payment
A. Payment will be made with State Funds by WSDOT on a reimbursable basis for actual costs
and expenditures incurred while performing eligible direct and related indirect Project work
during the Project period provided that payment is subject to the submission to and approval by
WSDOT of properly prepared invoices that substantiate the costs and expenses submitted by
CONTRACTOR for reimbursement and that are accompanied by progress reports and financial
information as required in Section 7 – Progress Reports. The CONTRACTOR must submit an
invoice using either State of Washington Form A-19 (Invoice Voucher), a copy of which is
attached hereto as Exhibit 3 and by this reference incorporated into this AGREEMENT or a
format approved by WSDOT. Such invoices may be submitted no more than once per month
and no less than once per year, during the course of this AGREEMENT. If approved by
WSDOT, said invoices shall be paid by WSDOT within thirty (30) days of receipt of the invoice.
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B. The CONTRACTOR shall submit an invoice by July 15, 2014, for any unreimbursed eligible
expenditures incurred between July 1, 2013, and June 30, 2014. If the CONTRACTOR is unable
to provide an invoice by this date, the CONTRACTOR shall provide an estimate of the charges
to be billed so WSDOT may accrue the expenditures in the proper fiscal period. Any subsequent
reimbursement request submitted will be limited to the amount accrued as set forth in this
section. The CONTRACTOR shall submit a final invoice to WSDOT no later than July 15,
2015. Any invoice received after July 15, 2015 will not be eligible for reimbursement.
Section 6
Project Records
The CONTRACTOR agrees to establish and maintain for the Project, either a separate set of
accounts or, accounts within the framework of an established accounting system in order to
sufficiently and properly reflect all eligible direct and related indirect Project costs incurred in
the performance of this AGREEMENT. Such accounts are referred to herein collectively as the
"Project Account." All costs claimed against the Project Account must be supported by properly
executed payrolls, time records, invoices, contracts, and payment vouchers evidencing in
sufficient detail the nature and propriety of the costs claimed.
Section 7
Progress Reports
The CONTRACTOR shall submit quarterly progress reports to WSDOT so that WSDOT may
adequately and accurately assess the progress made under the terms of this AGREEMENT. The
progress reports shall be prepared as prescribed by WSDOT on the forms provided in Exhibit 2,
“Project Progress Report” and/or as provided and modified by WSDOT staff. The
CONTRACTOR shall provide a final progress report, as prescribed in Exhibit 4, “Final Project
Progress Report” and/or as provided by WSDOT staff, with any changes to the form applied
according to the agreement modification process in Section 9. Progress reports shall be
submitted to WSDOT no later than forty-five (45) days from the end of each calendar quarter.
Section 8
Audits, Inspections, and Records Retention
WSDOT, the State Auditor, and an y of their representatives, shall have full access to and the
right to examine, during normal business hours and as often as they deem necessary, all of the
CONTRACTOR’s records with respect to all matters covered by this AGREEMENT. Such
representatives shall be permitted to audit, examine and make excerpts or transcripts from such
records, and to make audits of all contracts, invoices, materials, payrolls, and other matters
covered by this AGREEMENT. In order to facilitate any audits and inspections, the
CONTRACTOR shall retain all documents, papers, accounting records, and other materials
pertaining to this AGREEMENT for six (6) years from the date of completion of the Project or
the Project final payment date. However, in case of audit or litigation extending past that six (6)
years period, then the CONTRACTOR must retain all records until the audit or litigation is
completed. The CONTRACTOR shall be responsible to assure that the CONTRACTOR and
any subcontractors of CONTRACTOR comply with the provisions of this section and provide,
WSDOT, the State Auditor, and any of their representatives, access to such records within the
scope of this AGREEMENT.
Section 9
Agreement Modifications
A. Either PARTY may request changes to this AGREEMENT, including changes in the
Scope of Project. Such changes that are mutually agreed upon shall be incorporated as written
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amendments to this AGREEMENT. No variation or alteration of the terms of this
AGREEMENT shall be valid unless made in writing and signed by authorized representatives of
the PARTIES hereto.
B. If an increase in funding by the funding source augments the CONTRACTOR’s
allocation of funding under this AGREEMENT, the CONTRACTOR and WSDOT agree to enter
into an amendment to this AGREEMENT, providing for an appropriate change in the Scope of
Project and/or the Project Cost in order to reflect any such increase in funding.
C. If a reduction of funding by the funding source reduces the CONTRACTOR’s allocation
of funding under this AGREEMENT, the CONTRACTOR and WSDOT agree to enter into an
amendment to this AGREEMENT providing for an appropriate change in the Scope of Project
and/or the Project Cost in order to reflect any such reduction of funding.
Section 10
Recapture Provision
In the event that the CONTRACTOR fails to expend State Funds in accordance with state law
and/or the provisions of this AGREEMENT, WSDOT reserves the right to recapture State Funds
in an amount equivalent to the extent of noncompliance. Such right of recapture shall exist for a
period not to exceed three (3) years following termination or expiration of this AGREEMENT.
The CONTRACTOR agrees to repay such State Funds under this recapture provision within
thirty (30) days of demand.
Section 11
Disputes
A. If the PARTIES cannot resolve by mutual agreement, a dispute arising from the performance
of this AGREEMENT the CONTRACTOR may submit a written detailed description of the
dispute to the Public Transportation Division’s Statewide Transportation Demand Management
Programs Manager or the Statewide Transportation Demand Management Programs Manager’s
designee who will issue a written decision within ten calendar (10) days of receipt of the written
description of the dispute. This decision shall be final and conclusive unless within ten (10) days
from the date of CONTRACTOR’s receipt of WSDOT’s written decision, the CONTRACTOR
mails or otherwise furnishes a written appeal to the Director of the Public Transportation
Division or the Director’s designee. In connection with any such appeal the CONTRACTOR
shall be afforded an opportunity to offer material in support of its position. The
CONTRACTOR’s appeal shall be decided in writing within thirty (30) days of receipt of the
appeal by the Director of the Public Transportation Division or the Director’s designee. The
decision shall be binding upon the CONTRACTOR and the CONTRACTOR shall abide by the
decision.
B. Performance During Dispute. Unless otherwise directed by WSDOT, the CONTRACTOR
shall continue performance under this AGREEMENT while matters in dispute are being
resolved.
Section 12
Termination
WSDOT, at its sole discretion, may suspend or terminate this AGREEMENT in whole, or in
part, for the reasons following:
A. The CONTRACTOR materially breaches, or fails to perform any of the requirements of this
AGREEMENT and after fourteen (14) days written notice, has failed to cure the condition(s)
causing that breach. Conditions of breach may include, but are not limited to:
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1. Any action taken by the CONTRACTOR without WSDOT approval, which under the
provisions of this AGREEMENT, required WSDOT approval;
2. Failure to perform in the manner called for under this AGREEMENT; or
3. Failure to comply with any provision of this AGREEMENT;
B. The CONTRACTOR is prevented from proceeding with this AGREEMENT by reason of a
temporary, preliminary, special, or permanent restraining order or injunction of a court of
competent jurisdiction where the issuance of such order or injunction is primarily caused by the
acts or omissions of persons or agencies other than the CONTRACTOR;
C. The requisite State funding is reduced or becomes unavailable through failure of
appropriation or otherwise;
D. WSDOT determines that the continuation of the Project would not produce beneficial results
commensurate with the further expenditure of funds; or
E. WSDOT, in its sole discretion, determines to accept a request made in writing by the
CONTRACTOR to terminate this AGREEMENT in whole or in part; or
F. WSDOT determines that suspension or termination is in the best interests of the State.
If this AGREEMENT is terminated under subsections B, C, D, E, and/or F of this Section, the
CONTRACTOR may be reimbursed only for actual, eligible direct and related indirect expenses
incurred prior to the date of termination, and then only to the extent of awarded funds. If this
AGREEMENT is terminated under subsection A of this Section, the WSDOT shall not be
obligated to provide any additional reimbursement, and WSDOT shall retain all rights to seek
recapture or damages from the CONTRACTOR.
Section 13
Forbearance by WSDOT Not a Waiver
Any forbearance by WSDOT in exercising any right or remedy hereunder, or otherwise afforded
by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy.
Section 14
Waiver
In no event shall any WSDOT payment of grant funds to the CONTRACTOR constitute or be
construed as a waiver by WSDOT of any CONTRACTOR breach, or default, and shall in no
way impair or prejudice any right or remedy available to WSDOT with respect to any breach or
default. In no event shall acceptance of any WSDOT payment of grant funds by the
CONTRACTOR constitute or be construed as a waiver by CONTRACTOR of any WSDOT
breach, or default which shall in no way impair or prejudice any right or remedy available to
CONTRACTOR with respect to any breach or default.
Section 15
WSDOT Advice
The CONTRACTOR bears complete responsibility for the administration and success of the
work as it is defined in this AGREEMENT and any amendments thereto. Although the
CONTRACTOR may seek the advice of WSDOT, the offering of WSDOT advice shall not
modify the CONTRACTOR’s rights and obligations under this AGREEMENT and WSDOT
shall not be held liable for any advice offered to the CONTRACTOR.
Section 16
Limitation of Liability and Indemnification
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A. The CONTRACTOR shall indemnify and hold harmless WSDOT, its agents, employees, and
officers and process and defend at its own expense any and all claims, demands, suits at law or
equity, actions, penalties, losses, damages, or costs (hereinafter referred to collect ively as
“claims”), of whatsoever kind or nature brought against WSDOT arising out of, in connection
with or incident to this AGREEMENT and/or the CONTRACTOR’s performance or failure to
perform any aspect of this AGREEMENT. This indemnity provision applies to all claims against
WSDOT, its agents, employees and officers arising out of, in connection with or incident to the
negligent acts or omissions of the CONTRACTOR, its agents, employees and officers. Provided,
however, that nothing herein shall require the CONTRACTOR to indemnify and hold harmless
or defend the WSDOT, its agents, employees or officers to the extent that claims are caused by
the negligent acts or omissions of the WSDOT, its agents, employees or officers. The
indemnification and hold harmless provision shall survive termination of this AGREEMENT.
B. The CONTRACTOR shall be deemed an independent contractor for all purposes, and the
employees of the CONTRACTOR or its subcontractors and the employees thereof, shall not in
any manner be deemed to be the employees of WSDOT.
C. The CONTRACTOR specifically assumes potential liability for actions brought by
CONTRACTOR’s employees and/or subcontractors and solely for the purposes of this
indemnification and defense, the CONTRACTOR specifically waives any immunity under the
State Industrial Insurance Law, Title 51 Revised Code of Washington.
D. In the event either the CONTRACTOR or WSDOT incurs attorney’s fees, costs or other legal
expenses to enforce the provisions of this section of this AGREEMENT against the other
PARTY, all such fees, costs and expenses shall be recoverable by the prevailing PARTY.
Section 17
Governing Law, Venue, and Process
This AGREEMENT shall be construed and enforced in accordance with, and the validity and
performance thereof shall be governed by the laws of the State of Washington. In the event that
either PARTY deems it necessary to institute legal action or proceedings to enforce any right or
obligation under this AGREEMENT, the PARTIES hereto agree that any such action shall be
initiated in the Superior Court of the State of Washington situated in Thurston County.
Section 18
Compliance with Laws and Regulations
The CONTRACTOR agrees to abide by all applicable State and Federal laws and regulations,
including, but not limited to, those concerning employment, equal opportunity employment,
nondiscrimination assurances, Project record keeping necessary to evidence AGREEMENT
compliance, and retention of all such records. The CONTRACTOR will adhere to all of the
nondiscrimination provisions in Chapter 49.60 RCW. The CONTRACTOR will also comply
with the Americans with Disabilities Act of 1990 (ADA), Public Law 101-336, including any
amendments thereto which provides comprehensive civil rights protection to individuals with
disabilities in the areas of employment public accommodations, state and local government
services and telecommunication.
Section 19
Severability
If any covenant or provision of this AGREEMENT shall be adjudged void, such adjudication
shall not affect the validity or obligation of performance of any other covenant or provision, or
part thereof, that in itself is valid if such remainder conforms to the terms and requirements of
applicable law and the intent of this AGREEMENT. No controversy concerning any covenant or
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provision shall delay the performance of any other covenant or provision except as herein
allowed.
Section 20
Counterparts
This AGREEMENT may be executed in several counterparts, each of which shall be deemed to
be an original having identical legal effect. The CONTRACTOR does hereby ratify and adopt
all statements, representations, warranties, covenants, and agreements and their supporting
materials contained and/or mentioned in such executed counterpart, and does hereby accept State
Funds and agrees to all of the terms and conditions thereof.
Section 21
Execution
This AGREEMENT is executed by the Director of the Public Transportation Division, State of
Washington, Department of Transportation, or the Director's designee, not as an individual
incurring personal obligation and liability, but solely by, for, and on behalf of the State of
Washington, Department of Transportation, in his/her capacity as Director of the Public
Transportation Division.
Section 22
Binding Agreement
The undersigned acknowledges that they are authorized to execute the AGREEMENT and bind
their respective agency(ies) and/or entitity(ies) to the obligations set forth herein.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and
year last signed below.
WASHINGTON STATE CONTRACTOR
DEPARTMENT OF TRANSPORTATION
By: By:
Brian Lagerberg
Director, Public Transportation Print Name:
Title:
Who certifies proper authority to execute this
AGREEMENT on behalf of the
CONTRACTOR
Date: Date:
Approved as to form:
By: __________________________________
Assistant Attorney General
Date: _________________________________
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EXHIBIT 1
Project Scope of Work
Commute Trip Reduction (CTR)
1. Scope of Work
A. Administrative Work Plan
The CONTRACTOR agrees to submit to WSDOT an administrative work plan by the end of
the first quarter of this agreement or when the CONTRACTOR submits its first invoice,
whichever is sooner. The administrative work plan will include the following elements:
1. The work plan shall identify the deliverables, schedule, expected outcomes,
performance measures and the budget specific to strategies associated with this
AGREEMENT and other strategies as defined in the approved and locally
adopted CTR or GTEC plans. These plans may include, but are not limited to,
recruiting new employer worksites, reviewing employer programs, administering
surveys, reviewing program exemption requests, providing employer training,
providing incentives, performing promotion and marketing, and providing
emergency ride home and other commuter services.
2. The administrative work plan budget shall identify how the CONTRACTOR will
use the state funds provided in this AGREEMENT for each task. The work plan
shall also provide an estimate of the other financial resources not provided in this
AGREEMENT that will be used to complete each task.
3. The administrative work plan must be approved in writing by the WSDOT Project
Manager and signed by the CONTRACTOR, and shall be incorporated as a
written amendment to the AGREEMENT. The administrative work plan may be
amended based on mutual written agreement between the WSDOT Project
Manager and the CONTRACTOR and shall be incorporated as a written
amendment to this AGREEMENT.
B. Work to be Performed
The county or city, whichever applies, has enacted or will enact a Commute Trip Reduction
(CTR) ordinance in compliance with RCW 70.94.521 through RCW 70.94.555. The
CONTRACTOR agrees to implement a CTR program based on the approved administrative
work plan and the draft or adopted local CTR plan and to comply with all provisions of the
applicable county or city ordinance.
C. Use of State Funds for Incentives
The CONTRACTOR agrees to use State funds provided as part of this AGREEMENT in
accordance with incentives guidance to be provided by WSDOT.
D. Quarterly Progress Reports and Invoices
The CONTRACTOR agrees to submit to WSDOT complete quarterly progress reports, as
specified by WSDOT in Section 7 – Progress Reports of the AGREEMENT, in Exhibit 2,
“Project Progress Report”, and as integrated with the deliverables identified in the
administrative work plan, along with all invoices in accordance with Section 5 –
Reimbursement and Payment of the AGREEMENT. All invoices shall be complete and
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accurately reflect actual State funded expenditures. Only those activities identified in the
CONTRACTOR’S approved administrative work plan will be reimbursed by WSDOT.
E. Final Progress Report
The CONTRACTOR agrees to submit to WSDOT a final progress report, a template of
which is attached hereto as Exhibit 4, “Final Project Progress Report,” to replace the last
quarterly progress report in the period of the AGREEMENT. The final progress report shall
provide an estimate of the other financial resources not provided in this AGREEMENT that
were used to complete each task and shall provide a list of the funds provided in this
AGREEMENT that were disbursed by the CONTRACTOR to its eligible contracting
partner(s).
F. Funding Distribution
The CONTRACTOR may distribute funds to local jurisdictions to include counties, cities,
transit agencies, Transportation Management Associations, and Metropolitan Planning
Organizations or other eligible organizations authorized to enter into agreements for the
purposes of implementing CTR and/or GTEC, plans as applicable, and ordinances as
authorized by RCW 70.94.527(5) and RCW 70.94.544.
G. Implementation Plans
The CONTRACTOR shall incorporate appropriate sections of the Project Scope of Work and
incentives guidance, as well as the approved administrative work plan, in all agreements with
eligible contracting partner(s), as necessary, to coordinate the development, implementation,
and administration of such CTR and/or GTEC plans, and compliance with applicable
ordinances.
H. Appeals and Modifications
The CONTRACTOR shall maintain an appeals process consistent with the Administrative
Procedures section contained in the CTR Guidelines which may be obtained from WSDOT
or found at http://www.wsdot.wa.gov/Transit/CTR/law.htm.
I. Coordination with Regional Transportation Planning Organizations (RTPO)
The CONTRACTOR shall coordinate the development and implementation of its CTR
and/or GTEC plan and programs with the applicable regional transportation planning
organization (RTPO). The CONTRACTOR agrees to notify the RTPO of any substantial
changes to its plans and programs that could impact the success of the regional CTR plan.
The CONTRACTOR agrees to provide information about the progress of its CTR and/or
GTEC plan and programs to the RTPO upon request.
J. Survey Coordination
The CONTRACTOR agrees to coordinate with WSDOT and its contracting partners for
commute trip reduction employer surveys.
K. Planning Data
The CONTRACTOR agrees to provide WSDOT with the program goals established for
newly affected worksites when they are established by the local jurisdiction. The
CONTRACTOR agrees to provide WSDOT with updated program goals for affected
worksites and jurisdictions as requested. These updates shall be submitted electronically in a
format specified by WSDOT.
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L. Database Updates
The CONTRACTOR agrees to provide WSDOT and the CONTRACTOR’s contracting
partners with updated lists of affected or participating worksites, employee transportation
coordinators, and jurisdiction contacts, as requested. These updates will be submitted in a
format specified by WSDOT.
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EXHIBIT 2
Project Progress Report
Commute Trip Reduction (CTR) Quarterly Project Report
Reporting quarter: Date:
Organization: Agreement number:
Biennial
targets
Estimate of drive-alone trips to reduce to meet goal:
Key
deliverables:
(from
administrative
work plan)
Completed activities this quarter
Planned activities for next quarter
Describe issues, risks or challenges and resolutions
Estimated expenditures of state funds for this quarter
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Exhibit 3 MINORITY BUSINESSES
MARK BOX(ES) IF APPROPRIATE
M
W
E
%
%
VENDOR OR CLAIMANT (WARRANT TO BE PAYABLE TO)
agency
address
city, state ZIP
contact name Phone # email
VENDOR’S CERTIFICATE. I here by certify under penalty of perjury that the items and
total listed herein are proper charges for materials, merchandise or services furnished to
the State of Washington, and that all goods furnished and / or services rendered have
been provided without discrimination on the grounds of race, creed, color, national origin,
sex or age.
BY (SIGNATURES IN INK)
FEDERAL I.D. NUMBER OR SOCIAL SECURYTY NUMBER
(FOR REPORTINGPERSONAL SVCS. CONTRACT PAYMENT TO IRS) 00-0000000 TITLE
DATE
INSTRUCTIONS TO VENDOR OR CLAIMANT: Show complete detail for each item below.
DATE DESCRIPTION CURRENT
EXPENDITURES
EXPENDITURES
TO DATE
TDM Implementation
AGREEMEN
T
INVOICE
xxxx
DESCRIPTION
Transportation Demand Management Implementation
(TDM)
BILLING PERIOD
ACCOUNT CONTROL SECTION FEDERAL
JOB NUMBER WORK OP
OJB SUB
OBJ ORG. NUMBER EQUIPMENT NUMBER
ORDER NUMBER
NON-PARTICIPATING NET AMOUNT
1P0000-00 0723 NZ13 631020
TOTAL→
ACCOUNTING CLASSIFICATION
SIGNATURE OF APPROVING AUTHORITY DATE RECEIVING VERIFICATION
(SIGNATURE)
DATE RECEIVED
CHECKED AND APPROVED FOR PROCESSING BY DATE WARRANT NUMBER
VOUCHER NUMBER
Invoice Voucher
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EXHIBIT 4
Final Project Progress Report
Commute Trip Reduction (CTR) Final Project Report
Biennium: 2013-2015 Date:
Organization: Agreement number: GCB
Biennial
targets
Estimate of drive-alone trips to reduce to meet goal:
Deliverables:
(from
administrative
work plan)
Describe your progress on each of your deliverables this biennium.
Did you meet your targets for this biennium? Why or why not?
What were your major successes this biennium? How did they help you make
progress toward the goals in your jurisdiction’s CTR plan(s)?
What were your major challenges this biennium? How did they hinder your
progress toward the goals in your jurisdiction’s CTR plan(s)?
How do you measure the performance of your strategies?
What did you learn this biennium?
What would help you be more successful in the future? Please be specific (If it’s
more resources, how much and what would they be for, etc.).
For each of the strategies in your administrative work plan, describe your
expected outcomes, whether you met those outcomes, and why or why not.
Strategy Expected
outcomes
Performance
measures
Outcomes
met?
Why or why not?
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If your organization used other financial resources besides state CTR funds to
implement the activities in your administrative work plan for this agreement,
please provide the information below.
Source of local funds Estimated funds spent
this agreement
How the funds were
used
Total local funds:
If your organization disbursed any state CTR funds to other organizations to
implement the activities in your administrative work plan for this agreement,
please list the total amount disbursed for the biennium below.
Organization Total disbursed this
agreement
Purpose of disbursal
Total disbursement:
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10a. - 2013-2015 Transportation Demand
Management Implementation agreement Page 91 of 97
10a. - 2013-2015 Transportation Demand
Management Implementation agreement Page 92 of 97
10b. - Benson Hill Community Plan (See
9.a.)Page 93 of 97
10b. - Benson Hill Community Plan (See
9.a.)Page 94 of 97
10a. - Comcast cable television franchise
extension (1st reading 10/7/2013)Page 95 of 97
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extension (1st reading 10/7/2013)Page 96 of 97
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