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LAG-06-019
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS LEASE
(Commercial)
TABLE OF CONTENTS
SECTION PAGE
BACKGROLTND .............................................................................................................................1
1. PROPERTY...........................................................................................................................1
1.1 Property Defined......................................................................................................... 1
1.2 Survey, Maps, and Plans............................................................................................. 1
1.3 Inspection.................................................................................................................... 1
2. USE........................................................................................................................................2
2.1 Permitted Use.............................................................................................................. 2
2.2 Restrictions on Use..................................................................................................... 2
2.3 Conformance with Laws............................................................................................. 2
2.4 Liens and Encumbrances ............................................................................................ 2
3. TERM ....................................................................................................................................2
3.1 Term Defined.............................................................................................................. 2
3.2 Renewal of the Lease.................................................................................................. 3
3.3 Delay in Delivery of Possession................................................................................. 3
3.4 End of Term................................................................................................................ 3
3.5 Hold Over.................................................................................................................... 3
4. RENT.....................................................................................................................................3
4.1 Annual Rent................................................................................................................ 3
4.2 Payment Place............................................................................................................. 3
4.3 Adjustment Based on Use........................................................................................... 4
4.4 Rent Adjustments for Water-Dependent Uses............................................................ 4
4.5 Rent Adjustment Procedures....................................................................................... 4
Form Date: May,2005 i Commercial Lease 22-A90012
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5. OTHER EXPENSES .............................................................................................................4
5.1 Utilities........................................................................................................................ 5
5.2 Taxes and Assessments............................................................................................... 5
5.3 Right to Contest.......................................................................................................... 5
5.4 Proof of Payment ........................................................................................................ 5
5.5 Failure to Pay.............................................................................................................. 5
6. LATE PAYMENTS AND OTHER CHARGES...................................................................5
6.1 Late Charge................................................................................................................. 5
6.2 Interest Penalty for Past Due Rent and Other Sums Owed......................................... 5
6.3 No Accord and Satisfaction........................................................................................ 5
6.4 No Counterclaim, Setoff, or Abatement of Rent. ....................................................... 6
7. IMPROVEMENTS................................................................................................................6
7.1 Existing Improvements............................................................................................... 6
7.2 Tenant-Owned Improvements .................................................................................... 6
7.3 Construction................................................................................................................ 6
7.4 Removal...................................................................................................................... 6
7.5 Unauthorized Improvements....................................................................................... 7
8. ENVIRONMENTAL LIABILITY/RISK ALLOCATION...................................................7
8.1 Definition.................................................................................................................... 7
8.2 Use of Hazardous Substances..................................................................................... 7
8.3 Current Conditions, Duty of Utmost Care, and Duty to Investigate........................... 7
8.4 Notification and Reporting ......................................................................................... 8
8.5 Indemnification........................................................................................................... 9
8.6 Cleanup..................................................................................................................... 10
8.7 Sampling by State, Reimbursement, and Split Samples........................................... 10
8.8 Reservation of Rights................................................................................................ 11
9. ASSIGNMENT AND SUBLETTING ................................................................................11
9.1 State Consent Required............................................................................................. 11
9.2 Event of Assignment................................................................................................. 12
9.3 Rent Payments Following Assignment..................................................................... 12
9.4 Terms of Subleases ................................................................................................... 12
9.5 Routine Subleasing of Moorage Slips....................................................................... 13
10. INDEMNITY, FINANCIAL SECURITY, INSURANCE..................................................13
10.1 Indemnity.................................................................................................................. 13
10.2 Financial Security ..................................................................................................... 13
10.3 Insurance................................................................................................................... 14
10.4 State's Acquisition of Insurance................................................................................ 16
10.5 Self Insurance............................................................................................................ 16
11. MAINTENANCE AND REPAIR.......................................................................................17
11.1 State's Repairs........................................................................................................... 17
11.2 Tenant's Repairs, Alteration, Maintenance and Replacement .................................. 17
12. DAMAGE OR DESTRUCTION.........................................................................................17
13. CONDEMNATION.............................................................................................................18
13.1 Definitions................................................................................................................. 18
Form Date:Mav,2005 ii Commercial Lease 22-A90012
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13.2 Effect of Taking........................................................................................................ 18
13.3 Allocation of Award ................................................................................................. 18
14. DEFAULT AND REMEDIES.............................................................................................19
15. ENTRY BY STATE ............................................................................................................20
16. DISCLAIMER OF QUIET ENJOYMENT.........................................................................20
17. NOTICE...............................................................................................................................20
18. MISCELLANEOUS ............................................................................................................21
18.1 Authority................................................................................................................... 21
18.2 Successors and Assigns............................................................................................. 21
18.3 Headings ................................................................................................................... 21
18.4 Entire Agreement...................................................................................................... 21
18.5 Waiver....................................................................................................................... 21
18.6 Cumulative Remedies............................................................................................... 21
18.7 Time is of the Essence .............................................................................................. 21
18.8 Language................................................................................................................... 21
18.9 Invalidity................................................................................................................... 21
18.10 Applicable Law and Venue....................................................................................... 22
18.11 Recordation............................................................................................................... 22
18.12 Modification.............................................................................................................. 22
EXHIBIT A: LEGAL DESCRIPTION AND SURVEY
EXHIBIT B: PLAN OF OPERATIONS AND MAINTENANCE
Form Date: May,2005 iii Commercial Lease 22-A90012
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STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS LEASE
(Commercial)
AQUATIC LANDS LEASE NO. 22-A90012
THIS LEASE is made by and between the STATE OF WASHINGTON, acting through the
Department of Natural Resources ("State"j, and the CITY OF RENTON, a government
agency/entity, ("Tenant").
BACKGROUND
Tenant desires to lease the aquatic lands commonly known as Lake Washington, which is a
harbor area located in King County, Washington, from State, and State desires to lease the
property to Tenant pursuant to the terms and conditions of this Lease.
THEREFORE, the parties agree as follows:
SECTION 1 PROPERTY
1.1 Property Defined. State leases to Tenant and Tenant leases from State the real property
described in Exhibit A together with all the rights of State, if any, to improvements on and
easements benefiting the Property, but subject to the exceptions and restrictions set forth in this
Lease (collectively the "Property"). This Lease is subject to all valid interests of third parties
noted in the records of King County, or on file in the office of the Commissioner of Public
Lands, Olympia, Washington; rights of the public under the Public Trust Doctrine or federal
navigation servitude; and treaty rights of Indian Tribes. Not included in this Lease are any right
to harvest, collect or damage any natural resource, including aquatic life or living plants, any
water rights, or any mineral rights, including any right to excavate or withdraw sand, gravel, or
other valuable materials. State reserves the right to grant easements and other land uses on the
Property to others when the easement or other land uses will not unreasonably interfere with
Tenant's Permitted Use.
1.2 Survey, Maps, and Plans. In executing this Lease, State is relying on the surveys,plats,
diagrams, and/or legal descriptions provided by Tenant. Tenant is not relying upon and State is
not making any representations about any survey, plat, diagram, and/or legal description
provided by State.
1.3 Inspection. State makes no representation regarding the condition of the Property,
improvements located on the Property, the suitability of the Property for Tenant's Permitted Use,
Form Date:May,2005 1 of 25 Commercial Lease 22-A90012
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compliance with governmental laws and regulations, availability of utility rights, access to the
Property or the existence of hazardous substances on the Property. Tenant has inspected the
Property and accepts it"AS IS."
SECTION 2 USE
2.1 Permitted Use. Tenant shall use the Property for seaplane moorage (the "Permitted
Use"), and for no other purpose. The Permitted Use is described or shown in greater detail in
Exhibit B, the terms and conditions of which are incorporated by reference and made a part of
this Lease. The parties agree that this is a water-dependent use.
2.2 Restrictions on Use. Tenant shall not cause or permit any damage to natural resources
on the Property. Tenant shall also not cause or permit any filling activity to occur on the
Property. This prohibition includes any deposit of rock, earth, ballast, refuse, garbage, waste
matter (including chemical, biological or toxic wastes), hydrocarbons, any other pollutants, or
other matter in or on the Property, except as approved in writing by State. Tenant shall neither
commit nor allow waste to be committed to or on the Property. If Tenant fails to comply with all
or any of the restrictions on the use of the Property set out in this Subsection 2.2, State shall
notify Tenant and provide Tenant a reasonable time to take all steps necessary to remedy the
failure. If Tenant fails to do so in a timely manner, then State may take any steps reasonably
necessary to remedy this failure. Upon demand by State, Tenant shall pay all costs of such
remedial action, including but not limited to the costs of removing and disposing of any material
deposited improperly on the Property. This section shall not in any way limit Tenant's liability
under Section 8, below.
The prohibitions in this section against damage to natural resources, filling, deposition of any
unapproved materials, and waste, shall also apply to protect state-owned aquatic lands adjacent
to the Property from any of Tenant's activities related to Tenant's occupation of the Property.
All obligations imposed by this section on Tenant to cure any violation of the prohibited
activities in this section shall also extend to state-owned aquatic lands adjacent to the Property
when the violation arose from Tenant's activities related to Tenant's occupation of the Property.
2.3 Conformance with Laws. Tenant shall, at all times, keep current and comply with all
conditions and terms of any permits, licenses, certificates, regulations, ordinances, statutes, and
other government rules and regulations regarding its use or occupancy of the Property.
2.4 Liens and Encumbrances. Tenant shall lceep the Property free and clear of any liens
and encumbrances arising out of or relating to its use or occupancy of the Property.
SECTION 3 TERM
3.1 Term Defined. The term of this Lease is thirty (30) years (the "Term"), beginning on the
ls`day of April, 2006 (the "Commencement Date"), and ending on the 31St day of March, 2036
(the "Termination Date"), unless terminated sooner under the terms of this Lease.
Form Date: May,2005 2 of 25 Commercial Lease 22-A90012
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3.2 Renewal of the Lease. Tenant shall have the option to renew this Lease for zero (0)
additional terms of N/A years each. The initial Term of this Lease, and all renewal terms, shall
not exceed thirty (30) years in the aggregate. Tenant shall exercise this option by providing
written notice of its election to renew at least ninety (90) days prior to the Termination Date of
the initial Term or any renewal term of this Lease. Tenant shall not be entitled to renew if it is in
default under the terms of this Lease at the time the option to renew is exercised. The terms and
conditions of any renewal term shall be the same as set forth in this Lease, except that rent shall
be recalculated, the required amounts of financial security may be revised, and provisions
dealing with hazardous waste or impacts to natural resources may be changed at the time of the
renewal.
3.3 Delay in Delivery of Possession. If State, for any reason whatsoever, cannot deliver
possession of the Property to Tenant on the Commencement Date, this Lease shall not be void or
voidable, nor shall State be liable to Tenant for any loss or damage resulting from the delay in
delivery of possession. In such event, the date of delivery of possession shall be the
Commencement Date for all purposes, including the payment of rent. In the event Tenant takes
possession before the Commencement Date, the date of possession shall be the Commencement
Date for all purposes, including the payment of rent. If the Lease Term commences earlier or
later than the scheduled Commencement Date, the Termination Date shall be adjusted
accordingly.
3.4 End of Term. Upon the expiration or termination of the Term or extended term, as
applicable, Tenant shall surrender the Property to State in the same or better condition as on the
Commencement Date, reasonable wear and tear excepted.
3.5 Hold Over. If Tenant remains in possession of the Property after the Termination Date,
the occupancy shall not be an extension or renewal of the Term. The occupancy shall be a
month-to-month tenancy, on terms identical to the terms of this Lease, which may be terminated
by either party on thirty (30) days written notice. The monthly rent during the holdover shall be
the same rent which would be due if the Lease were still in effect and all adjustments in rent
were made in accordance with its terms. If State provides a notice to vacate the Property in
anticipation of the termination of this Lease or at any time after the Termination Date and Tenant
fails to do so within the time set forth in the notice, then Tenant shall be a trespasser and shall
owe the State all amounts due under RCW 79.01.760 or other applicable law.
SECTION 4 RENT
4.1 Annual Rent. Until adjusted as set forth below, Tenant shall pay to State an annual rent
of Two Thousand Two Hundred Seventy Seven Dollars and Ninety One Cents ($2,277.91)
related to the water-dependent use. The annual rent, as it currently exists or as adjusted or
modified (the "Annual Rent"), shall be due and payable in full on or before the Commencement
Date and on or before the same date of each year thereafter.
4.2 Payment Place. Payment is to be made to Financial Management Division, 1111
Washington St SE, PO Box 47041, Olympia, WA 98504-7041.
Form Date:May,2005 3 of 25 Commercial Lease 22-A90012
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4.3 Adjustment Based on Use. Annual Rent is based on Tenant's Permitted Use of the
Property, as described in Section 2 above. If Tenant's Permitted Use changes, the Annual Rent
shall be adjusted as appropriate for the changed use.
4.4 Rent Adjustments for Water-Dependent Uses.
(a) Inflation Adjustment. State shall adjust water-dependent rent annually pursuant
to RCW 79.105.010 -902, except in those years in which the rent is revalued
under Subsection 4.4(b) below. This adjustment shall be effective on the
anniversary of the Commencement Date.
(b) Revaluation of Rent. State shall, at the end of the first four-year period of the
Term, and at the end of each subsequent four-year period, revalue the
water-dependent Annual Rent in accordance with RCW 79.105.010-.902.
(c) Rent Cap. After the initial year's rent is determined under Subsection 4.1, rent
may increase by operation of Subsection 4.4(a) or 4.4(b). If application of the
statutory rent formula for water-dependent uses would result in an increase in the
rent attributable to such uses of more than fifty percent (50%) in any one year, the
actual increase implemented in such year shall be limited to fifty percent(50%) of
the then-existing rent, in accordance with RCW 79.105.260. The balance of the
increase determined by the formula shall be deferred to subsequent years and
added to the next and subsequent years' rental increases until the full amount of
the increase is lawfully implemented.
4.5 Rent Adjustment Procedures.
(a) Notice of Rent Adjustment.
Notice of any adjustments to the Annual Rent that are allowed by Subsection
4.4(b) shall be provided to Tenant in writing no later than ninety (90) days after
the anniversary date of the Lease.
(b) Procedures on Failure to make Timely Adjustment.
In the event the State fails to provide the notice required in Subsection 4.5(a), it
shall be prohibited from collecting any adjustments to rent only for the year in
which it failed to provide notice. No failure by State to adjust Annual Rent
pursuant to Subsection 4.5(a) shall affect the State's right to establish Annual Rent
for a subsequent lease year as if the missed or waived adjustment had been
implemented. The State may adjust, bill, and collect Annual Rent prospectively
as if any missed or waived adjustments had actually been implemented. This
includes the implementation of any inflation adjustment and any rent revaluations
that would have been authorized for previous lease years.
SECTION 5 OTHER EXPENSES
During the Term, Tenant shall pay the following additional expenses:
Form Date:May,2005 4 of 25 Commercial Lease 22-A90012
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5.1 Utilities. Tenant shall pay all fees charged for utilities in connection with the use and
occupancy of the Property, including but not limited to electricity, water, gas, and telephone
service.
5.2 Taxes and Assessments. Tenant shall pay all taxes (including leasehold excise taxes),
assessments, and other governmental charges, of any kind whatsoever, applicable or attributable
to the Property, Tenant's leasehold interest, the improvements, or Tenant's use and enjoyment of
the Property.
5.3 Right to Contest. Tenant may, in good faith, contest any tax or assessment at its sole
cost and expense. At the request of State, Tenant shall furnish reasonable protection in the form
of a bond or other security, satisfactory to State, against any loss or liability by reason of such
contest.
5.4 Proof of Payment. Tenant shall, if required by State, furnish to State receipts or other
appropriate evidence establishing the payment of any amounts required to be paid under the
terms of this Lease.
5.5 Failure to Pay. If Tenant fails to pay any of the amounts due under this Lease, State
may pay the amount due, and recover its cost in accordance with the provisions of Section 6.
SECTION 6 LATE PAYMENTS AND OTHER CHARGES
6.1 Late Charge. If any rental payment is not received by State within ten (10) days of the
date due, Tenant shall pay to State a late charge equal to four percent (4%) of the amount of the
payment or Fifty Dollars ($50), whichever is greater, to defray the overhead expenses of State
incident to the delay.
6.2 Interest Penalty for Past Due Rent and Other Sums Owed. If rent is not paid within
thirty (30) days of the date due, then Tenant shall, in addition to paying the late charges
determined under Subsection 6.1, above, pay interest on the amount outstanding at the rate of
one percent (1%) per month until paid. If State pays or advances any amounts for or on behalf of
Tenant, including but not limited to leasehold taxes, taxes, assessments, insurance premiums,
costs of removal and disposal of unauthorized materials pursuant to Section 2 above, costs of
removal and disposal of improvements pursuant to Section 7 below, or other amounts not paid
when due, Tenant shall reimburse State for the amount paid or advanced and shall pay interest on
that amount at the rate of one percent (1%) per month from the date State notifies Tenant of the
payment or advance.
6.3 No Accord and Satisfaction. If Tenant pays, or State otherwise receives, an amount less
than the full amount then due, State may apply such payment as it elects. In the absence of an
election, the payment or receipt shall be applied first to accrued taxes which State has advanced
or may be obligated to pay, then to other amounts advanced by State, then to late charges and
accrued interest, and then to the earliest rent due. State may accept any payment in any amount
without prejudice to State's right to recover the balance of the rent or pursue any other right or
remedy. No endorsement or statement on any check, any payment, or any letter accompanying
any check or payment shall constitute or be construed as accord and satisfaction.
Form Date:May,2005 5 of 25 Commercial Lease 22-A90012
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6.4 No Counterclaim, Setoff, or Abatement of Rent. Except as expressly set forth
elsewhere in this Lease, rent and all other sums payable by Tenant pursuant to this Lease shall be
paid without the requirement that State provide prior notice or demand, and shall not be subject
to any counterclaim, setoff, deduction, defense or abatement.
SECTION 7 IMPROVEMENTS
7.1 Existing Improvements. On the Commencement Date, the following improvements are
located on the Property: floating dock, and approximately six (6) galvanized steel pilings
("Existing Improvements"). The improvements are not owned by State.
7.2 Tenant-Owned Improvements. So long as this Lease remains in effect, Tenant shall
retain ownership of all Existing Improvements, and all authorized improvements and trade
fixtures it may place on the Property (collectively "Tenant-Owned Improvements"). Tenant-
Owned Improvements shall not include any construction, reconstruction, alteration, or addition
to any Unauthorized Improvements as defined in Subsection 7.5 below. No Tenant-Owned
Improvements shall be placed on the Property without State's prior written consent.
7.3 Construction. Prior to any construction, alteration, replacement, removal or major repair
of any improvements (whether State-Owned or Tenant-Owned), Tenant shall submit to State
plans and specifications which describe the proposed activity. Construction shall not commence
until State has approved those plans and specifications in writing and Tenant has obtained a
performance and payment bond in an amount equal to 125% of the estimated cost of
construction. The performance and payment bond shall be maintained until the costs of
construction, including all laborers and material persons, have been paid in full. State shall have
sixty (60) days in which to review the proposed plans and specifications. The plans and
specifications shall be deemed approved and the requirement for State's written consent shall be
treated as waived, unless State notifies Tenant otherwise within the sixty (60) days. Upon
completion of construction, Tenant shall promptly provide State with as-built plans and
specifications. State's consent and approval shall not be required for any routine maintenance or
repair of improvements made by the Tenant pursuant to its obligation to maintain the Property in
good order and repair that does not result in the construction, alteration, replacement, removal, or
major repair of any improvements on the Property.
7.4 Removal. Tenant-Owned Improvements shall be removed by Tenant by the Termination
Date unless State notifies Tenant that the Tenant-Owned Improvements may remain. If the State
elects for the Tenant-Owned Improvements to remain on the Property after the Termination
Date, they shall become the property of State without payment by State (if the provisions of
RCW 79.125.300 or RCW 79.130.040 apply, Tenant shall be entitled to the rights provided in
the statute). To the extent that Tenant-Owned Improvements include items of personal property
which may be removed from the leasehold premises without harming the Property, or
diminishing the value of the Property or the improvements, the State asserts no ownership
interest in these improvements unless the parties agree otherwise in writing upon termination of
this Lease. Any Tenant-Owned Improvements specifically identified as personal property in
Exhibit A or B shall be treated in accordance with this provision. Tenant shall notify State at
Form Date: May,2005 6 of 25 Commercia(Lease 22-A90012
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least one hundred eighty (180) days before the Termination Date if it intends to leave the Tenant-
Owned Improvements on the Property. State shall then have ninety (90) days in which to notify
Tenant that it wishes to have the Tenant-Owned Improvements removed or elects to have them
remain. Failure to notify Tenant shall be deemed an election by State that the Tenant-Owned
Improvements will remain on the Property. If the Tenant-Owned Improvements remain on the
Property after the Termination Date without State's actual or deemed consent, they still will
become the property of the State but the State may remove them and Tenant shall pay the costs
of removal and disposal upon State's demand.
7.5 Unauthorized Improvements. Improvements made on the Property without State's
prior consent pursuant to Subsection 7.3 or which are not in conformance with the plans
submitted to and approved by State ("Unauthorized Improvements") shall immediately become
the property of State, unless State elects otherwise. Regardless of ownership of Unauthorized
Improvements, State may, at its option, require Tenant to sever, remove, and dispose of them,
charge Tenant rent for the use of them, or both. If Tenant fails to remove an Unauthorized
Improvement upon request, State may remove it and charge Tenant for the cost of removal and
disposal.
SECTION 8 ENVIRONMENTAL LIABILITY/RISK ALLOCATION
8.1 Definition. "Hazardous Substance" means any substance which now or in the future
becomes regulated or defined under any federal, state, or local statute, ordinance, rule,
regulation, or other law relating to human health, environmental protection, contamination or
cleanup, including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. 9601 et seq., and
Washington's Model Toxics Control Act ("MTCA"), RCW 70.1 O5D.010 et seq.
8.2 Use of Hazardous Substances. Tenant covenants and agrees that Hazardous Substances
will not be used, stored, generated, processed, transported, handled, released, or disposed of in,
on, under, or above the Property, except in accordance with all applicable laws.
8.3 Current Conditions, Duty of Utmost Care, and Duty to Investigate.
(a) State makes no representation about the condition of the Property. Hazardous
Substances may exist in, on, under, or above the Property. With regard to any
Hazardous Substances that may exist in, on, under, or above the Property, State
disclaims any and all responsibility to conduct investigations, to review any State
records, documents or files, or to obtain or supply any information to Tenant.
(b) Tenant shall exercise the utmost care with respect to both Hazardous Substances
in, on, under, or above the Property as of the Commencement Date, and any
Hazardous Substances that come to be located in, on, under, or above the Property
during the Term of this agreement, along with the foreseeable acts or omissions of
third parties affecting those Hazardous Substances, and the foreseeable
consequences of those acts or omissions. The obligation to exercise utmost care
under this Subsection 8.3 includes, but is not limited to, the following
requirements:
Form Date: May,2005 7 of 25 Commercial Lease 22-A90012
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(1) Tenant shall not undertake activities that will cause, contribute to, or
exacerbate contamination of the Property;
(2) Tenant shall not undertake activities that damage or interfere with the
operation of remedial or restoration activities on the Property or undertake
activities that result in human or environmental exposure to contaminated
sediments on the Property;
(3) Tenant shall not undertake any activities that result in the mechanical or
chemical disturbance of on-site habitat mitigation;
(4) If requested, Tenant shall allow reasonable access to the Property by
employees and authorized agents of the Environmental Protection Agency,
the Washington State Department of Ecology, or other similar
environmental agencies; and
(5) If requested, Tenant shall allow reasonable access to potentially liable or
responsible parties who are the subject of an order or consent decree
which requires access to the Property. Tenant's obligation to provide
access to potentially liable or responsible parties may be conditioned upon
the negotiation of an access agreement with such parties, provided that
such agreement shall not be unreasonably withheld.
(c) It shall be Tenant's obligation to gather sufficient information concerning the
Property and the existence, scope, and location of any Hazardous Substances on
the Property, or adjoining the Property, that allows Tenant to effectively meet its
obligations under this lease.
8.4 Notification and Reporting.
(a) Tenant shall immediately notify State if Tenant becomes aware of any of the
following:
(1) A release or threatened release of Hazardous Substances in, on, under, or
above the Property, any adjoining property, or any other property subject
to use by Tenant in conjunction with its use of the Property;
(2) Any problem or liability related to, or derived from, the presence of any
Hazardous Substance in, on, under, or above the Property, any adjoining
property, or any other property subject to use by Tenant in conjunction
with its use of the Property;
(3) Any actual or alleged violation of any federal, state, or local statute,
ordinance, rule, regulation, or other law pertaining to Hazardous
Substances with respect to the Property, any adjoining property, or any
other property subject to use by Tenant in conjunction with its use of the
Property;
Form Date:May,2005 8 of 25 Commercial Lease 22-A90012
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(4) Any lien or action with respect to any of the foregoing; or,
(5) Any notification from the US Environmental Protection Agency (EPA) or
the Washington State Department of Ecology (DOE) that remediation or
removal of Hazardous Substances is or may be required at the Property.
(b) Upon request, Tenant shall provide State with copies of any and all reports,
studies, or audits which pertain to environmental issues or concerns associated
with the Property, and which were prepared for Tenant and submitted to any
federal, state or local authorities pursuant to any federal, state or local permit,
license or law. These permits include, but are not limited to, any National
Pollution Discharge and Elimination System Permit, any Army Corps of
Engineers permit, any State Hydraulics permit, any State Water Quality
certification, or any Substantial Development permit.
8.5 Indemni�cation.
(a) Tenant shall fully indemnify, defend, and hold State harmless from and against
any and all claims, demands, damages, natural resource damages, response costs,
remedial costs, cleanup costs, losses, liens, liabilities, penalties, fines, lawsuits,
other proceedings, costs, and expenses (including attorneys' fees and
disbursements), that arise out of, or are in any way related to:
(1) The use, storage, generation, processing, transportation, handling, or
disposal of any Hazardous Substance by Tenant, its subtenants,
contractors, agents, employees, guests, invitees, or affiliates in, on, under,
or above the Property, any adjoining property, or any other property
subject to use by Tenant in conjunction with its use of the Property, during
the Term of this Lease or during any time when Tenant occupies or
occupied the Property or any such other property;
(2) The release or threatened release of any Hazardous Substance, or the
exacerbation of any Hazardous Substance contamination, in, on, under, or
above the Property, any adjoining property, or any
other property subject to use by Tenant in conjunction with its use of the
Property, which release, threatened release, or exacerbation occurs or
occurred during the Term of this Lease or during any time when Tenant
occupies or occupied the Property or any such other property, and as a
result of:
(i) Any act or omission of Tenant, its subtenants, contractors, agents,
employees, guests, invitees, or affiliates; or,
(ii) Any foreseeable act or omission of a third party unless Tenant
exercised the utmost care with respect to the foreseeable acts or
omissions of the third party and the foreseeable consequences of
those acts or omissions.
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(b) In addition to the indemnifications provided in Subsection 8.5(a), Tenant shall
fully indemnify State for any and all damages, liabilities, costs or expenses
(including attorneys' fees and disbursements) that arise out of or are in any way
related to Tenant's breach of the obligations of Subsection 8.3(b). This obligation
is not intended to duplicate the indemnity provided in Subsection 8.5(a) and
applies only to damages, liabilities, costs, or expenses that are associated with a
breach of Subsection 8.3(b) and which are not characterized as a release,
threatened release, or exacerbation of Hazardous Substances.
8.6 Cleanup. If a release of Hazardous Substances occurs in, on, under, or above the
Property, or other State-owned property, arising out of any action, inaction, or event described or
referred to in Subsection 8.5, above, Tenant shall, at its sole expense, promptly take all actions
necessary or advisable to clean up the Hazardous Substances. Cleanup actions shall include,
without limitation, removal, containment and remedial actions and shall be performed in
accordance with all applicable laws, rules, ordinances, and permits. Tenant's obligation to
undertake a cleanup under this Subsection 8.6 shall be limited to those instances where the
Hazardous Substances exist in amounts that exceed the threshold limits of any applicable
regulatory cleanup standards. Tenant shall also be solely responsible for all cleanup,
administrative, and enforcement costs of governmental agencies, including natural resource
damage claims, arising out of any action, inaction, or event described or referred to in Subsection
8.5, above. Tenant may undertake a cleanup pursuant to the Washington State Department of
Ecology's Voluntary Cleanup Program, provided that: (1) Any cleanup plans shall be submitted
to State (DNR) for review and comment at least thirty (30) days prior to implementation(except
in emergency situations), and (2) Tenant must not be in breach of this lease. Nothing in the
operation of this provision shall be construed as an agreement by State that the voluntary cleanup
complies with any laws or with the provisions of this Lease.
8.7 Sampling by State, Reimbursement, and Split Samples.
(a) State may conduct sampling, tests, audits, surveys, or investigations ("Tests") of
the Property at any time to determine the existence, scope, or effects of Hazardous
Substances on the Property, any adjoining property, any other property subject to
use by Tenant in conjunction with its use of the Property, or any natural resources.
If such Tests, along with any other information, demonstrates the existence,
release, or threatened release of Hazardous Substances arising out of any action,
inaction, or event described or referred to in Subsection 8.5, above, Tenant shall
promptly reimburse State for all costs associated with such Tests.
(b) State's ability to seek reimbursement for any Tests under this Subsection shall be
conditioned upon State providing Tenant written notice of its intent to conduct
any Tests at least thirty (30) calendar days prior to undertaking such Tests, unless
such Tests are performed in response to an emergency situation in which case
State shall only be required to give such notice as is reasonably practical.
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(c) Tenant shall be entitled to obtain split samples of any Test samples obtained by
State, but only if Tenant provides State with written notice requesting such
samples within twenty (20) calendar days of the date Tenant is deemed to have
received notice of State's intent to conduct any non-emergency Tests. The
additional cost, if any, of split samples shall be borne solely by Tenant. Any
additional costs State incurs by virtue of Tenant's split sampling shall be
reimbursed to State within thirty (30) calendar days after a bill with
documentation for such costs is sent to Tenant.
(d) Within thirty (30) calendar days of a written request (unless otherwise required
pursuant to Subsection 8.4(b), above), either party to this Lease shall provide the
other party with validated final data, quality assurance/quality control
information, and chain of custody information, associated with any Tests of the
Property performed by or on behalf of State or Tenant. There is no obligation to
provide any analytical summaries or expert opinion work product.
8.8 Reservation of Rights. The parties have agreed to allocate certain environmental risks,
liabilities, and responsibilities by the terms of Section 8. With respect to those environmental
liabilities covered by the indemnification provisions of Subsection 8.5, that subsection shall
exclusively govern the allocation of those liabilities. With respect to any environmental risks,
liabilities, or responsibilities not covered by Subsection 8.5, the parties expressly reserve and do
not waive or relinquish any rights, claims, immunities, causes of action, or defenses relating to
the presence, release, or threatened release of Hazardous Substances in, on, under, or above the
Property, any adjoining property, or any other property subject to use by Tenant in conjunction
with its use of the Property, that either party may have against the other under federal, state, or
local laws, including but not limited to, CERCLA, MTCA, and the common law. No right,
claim, immunity, or defense either party may have against third parties is affected by this Lease
and the parties expressly reserve all such rights, claims, immunities, and defenses. The
allocations of risks, liabilities, and responsibilities set forth above do not release either party
from, or affect either party's liability for, claims or actions by federal, state, or local regulatory
agencies concerning Hazardous Substances.
SECTION 9 ASSIGNMENT AND SUBLETTING
9.1 State Consent Required. Tenant shall not sell, convey, mortgage, assign, pledge, sublet,
or otherwise transfer or encumber all or any part of Tenant's interest in this Lease or the Property
without State's prior written consent, which shall not be unreasonably conditioned or withheld.
(a) In determining whether to consent, State may consider, among other items, the
proposed transferee's financial condition, business reputation and experience,the
nature of the proposed transferee's business, the then-current value of the
Property, and such other factors as may reasonably bear upon the suitability of the
transferee as a tenant of the Property. Tenant shall submit information regarding
any proposed transferee to State at least thirty (30) days prior to the date of the
proposed transfer.
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(b) State reserves the right to condition its consent upon: (1) changes in the terms
and conditions of this Lease, including the Annual Rent and other terms; and/or
(2) the agreement of Tenant or transferee to conduct Tests for Hazardous
Substances on the Property or on other property owned or occupied by Tenant or
the transferee.
(c) Each permitted transferee shall assume all obligations under this Lease, including
the payment of rent. No assignment, sublet, or transfer shall release, discharge, or
otherwise affect the liability of Tenant.
9.2 Event of Assignment. If Tenant is a corporation, a dissolution of the corporation or a
transfer (by one or more transactions) of a majority of the voting stock of Tenant shall be
deemed to be an assignment of this Lease. If Tenant is a partnership, a dissolution of the
partnership or a transfer (by one or more transactions) of the controlling interest in Tenant shall
be deemed an assignment of this Lease.
9.3 Rent Payments Following Assignment. The acceptance by State of the payment of rent
following an assignment or other transfer shall not constitute consent to any assignment or
transfer.
9.4 Terms of Subleases. All subleases shall be submitted to State for approval and shall
meet the following requirements:
(a) The sublease shall be consistent with and subject to all the terms and conditions of
this Lease;
(b) The sublease shall confirm that if the terms of the sublease conflict with the terms
of this Lease, this Lease shall control;
(c) The term of the sublease (including any period of time covered by a renewal
option) shall end before the Termination Date of the initial Term or any renewal
term;
(d) The sublease shall terminate if this Lease terminates, whether upon expiration of
the Term, failure to exercise an option to renew, cancellation by State, surrender
or for any other reason;
(e) The subtenant shall receive and acknowledge receipt of a copy of this Lease;
(� The sublease shall prohibit the prepayment to Tenant by the subtenant of more
than one month's rent;
(g) The sublease shall identify the rental amount to be paid to Tenant by the
subtenant;
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(h) The sublease shall confirm that there is no privity of contract between the
subtenant and State;
(i) The sublease shall require removal of the subtenant's improvements and trade
fixtures upon termination of the sublease; and,
(j) The subtenant's permitted use shall be within the Permitted Use authorized by this
Lease.
9.5 Routine Subleasing of Moorage Slips. In the case of routine subleasing of moorage
slips to recreational and commercial vessel owners for a term of one year or less, Tenant shall
not be required to obtain State's written consent or approval pursuant to Subsection 9.1 or
Subsection 9.4. Tenant shall be obligated to ensure that these moorage agreements conform to
the sublease requirements in Subsection 9.4.
SECTION 10 INDEMNITY, FINANCIAL SECURITY, INSURANCE
10.1 Indemnity. Tenant shall indemnify, defend, and hold harmless State, its employees,
officers, and agents from any and all liability, damages (including bodily injury, personal injury
and damages to land, aquatic life, and other natural resources), expenses, causes of action, suits,
claims, costs, fees (including attorneys' fees), penalties, or judgments, of any nature whatsoever,
arising out of the use, occupation, or control of the Property by Tenant, its subtenants, invitees,
agents, employees, licensees, or permittees, except as may arise solely out of the willful or
negligent act of State or State's elected officials, employees, or agents. To the extent that
RCW 4.24.115 applies, Tenant shall not be required to indemnify, defend, and hold State
harmless from State's sole or concurrent negligence. Tenant's liability to State for hazardous
substances, and its obligation to indemnify, defend, and hold the State harmless for hazardous
substances, shall be governed exclusively by Section 8.
10.2 Financial Security.
(a) At its own expense, Tenant shall procure and maintain a corporate surety bond or
provide other financial security satisfactory to State (the `Bond") in an amount
equal to Five Hundred Dollars ($500), which shall secure Tenant's full
performance of its obligations under this Lease, with the exception of the
obligations under Section 8 (Environmental Liability/Risk Allocation) above.
The Bond shall be in a form and issued by a surety company acceptable to State.
State may require an adjustinent in the amount of the Bond:
(1) At the same time as revaluation of the Annual Rent;
(2) As a condition of approval of assignment or sublease of this Lease;
(3) Upon a material change in the condition of any improvements; or,
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(4) Upon a change in the Permitted Use.
A new or modified Bond shall be delivered to State within thirty (30) days after
adjustment of the amount of the Bond has been required by State.
(b) Upon any default by Tenant in its obligations under this Lease, State may collect
on the Bond to offset the liability of Tenant to State. Collection on the Bond shall
not relieve Tenant of liability, shall not limit any of State's other remedies, and
shall not reinstate or cure the default or prevent termination of the Lease because
of the default.
10.3 Insurance. At its own expense, Tenant shall procure and maintain during the Term of
this Lease, the insurance coverages and limits described in Subsections 10.3(a) and (b) below.
This insurance shall be issued by an insurance company or companies admitted and licensed by
the Insurance Commissioner to do business in the State of Washington. Insurers must have a
rating of B+ or better by "Best's Insurance Reports," or a comparable rating by another rating
company acceptable to State. If non-admitted or non-rated carriers are used, the policies must
comply with Chapter 48.15 RCW.
(a) Types of Required Insurance.
(1) Commercial General Liability Insurance. Tenant shall procure and
maintain Commercial General Liability insurance and, if applicable,
Marina Operators Legal Liability insurance covering claims for bodily
injury, personal injury, or property damage arising on the Property and/or
arising out of Tenant's operations. If necessary, commercial umbrella
insurance covering claiins for these risks shall be procured and
maintained. Insurance must include liability coverage with limits not less
than those specified below:
Description
Each Occurrence $1,000,000
General Aggregate Limit $2,000,000
State may impose changes in the limits of liability:
(i) As a condition of approval of assignment or sublease of this Lease;
(ii) Upon any breach of Section 8, above;
(iii) Upon a material change in the condition of the Property or any
improvements; or,
(iv) Upon a change in the Permitted Use.
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New or modified insurance coverage shall be in place within thirty (30)
days after changes in the limits of liability are required by State.
(2) Property Insurance. Tenant shall procure and maintain property insurance
covering all real property located on or constituting a part of the Property
in an amount equal to the replacement value of all improvements on the
Property. Such insurance may have commercially reasonable deductibles.
(3) Worker's Compensation/Employer's Liability Insurance. Tenant shall
procure and maintain:
(i) State of Washington Worker's Compensation coverage, as
applicable, with respect to any work by Tenant's employees on or
about the Property and on any improvements;
(ii) Employers Liability or "Stop Gap" insurance coverage with limits
not less than those specified below. Insurance must include bodily
injury coverage with limits not less than those specified below:
Each Employee Policy Limit
Bv Accident Bv Disease Bv Disease
$1,000,000 $1,000,000 $1,000,000
(iii) Longshore and Harbor Worker's Act and Jones Act coverage, as
applicable, with respect to any work by Tenant's employees on or
about the Property and on any improvements.
(4) Builder's Risk Insurance. As applicable, Tenant shall procure and
maintain builder's risk insurance in an amount reasonably satisfactory to
State during construction, replacement, or material alteration of the
Property or improvements on the Property. Coverage shall be in place
until such work is completed and evidence of completion is provided to
State.
(5) Business Auto Policy Insurance. As applicable, Tenant shall procure and
maintain a business auto policy. The insurance must include liability
coverage with limits not less than those specified below:
Descriptioi� Each Accident
Bodily Injury and Property Damage $1,000,000
(6) Aviation Liability Insurance. Tenant shall procure and maintain insurance
covering liability arising from ownership, maintenance or use of aircraft,
including liability assumed under an insurance contract. The insurance
must include liability coverage with limits not less than those specified
below:
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General
Description Per Seat A��re�ate
Bodily Injury and Property Damage $1,000,000 $5,000,000
(b) Terms of Insurance. The policies required under Subsection 10.3 shall name the
State of Washington, Department of Natural Resources as an additional insured
(except for State of Washington Worker's Compensation coverage, and Federal
Jones' Act and Longshore and Harbor Worker's Act coverages). Furthermore, all
policies of insurance described in Subsection10.3 shall meet the following
requirements:
(1) Policies shall be written as primary policies not contributing with and not
in excess of coverage that State may carry;
(2) Policies shall expressly provide that such insurance may not be canceled
or nonrenewed with respect to State except upon forty-five (45) days prior
written notice from the insurance company to State;
(3) To the extent of State's insurable interest, property coverage shall
expressly provide that all proceeds shall be paid jointly to State and
Tenant;
(4) All liability policies must provide coverage on an occurrence basis; and
(5) Liability policies shall not include exclusions for cross liability.
(c) Proof of Insurance. Tenant shall furnish evidence of insurance in the form of a
Certificate of Insurance satisfactory to the State accompanied by a checklist of
coverages provided by State, executed by a duly authorized representative of each
insurer showing compliance with the insurance requirements described in section
10, and, if requested, copies of policies to State. The Certificate of Insurance
shall reference the State of Washington, Department of Natural Resources and the
lease number. Receipt of such certificates or policies by State does not constitute
approval by State of the terms of such policies. Tenant acknowledges that the
coverage requirements set forth herein are the minimum limits of insurance the
Tenant must purchase to enter into this agreement. These limits may not be
sufficient to cover all liability losses and related claim settlement expenses.
Purchase of these limits of coverage does not relieve the Tenant from liability for
losses and settlement expenses greater than these amounts.
10.4 State's Acquisition of Insurance. If Tenant fails to procure and maintain the insurance
described above within fifteen (15) days after Tenant receives a notice to comply from State,
State shall have the right to procure and maintain comparable substitute insurance and to pay the
premiums. Tenant shall pay to State upon deinand the full amount paid by State, together with
interest at the rate provided in Subsection 6.2 from the date of State's notice of the expenditure
until Tenant's repayment.
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10.5 Self Insurance. Tenant warrants that it has the capacity to self insure for the risks and
coverages specified in Section 10. Tenant's obligations under Section 10 may be met by
providing evidence of self insurance that is acceptable to State. Any acceptance of Tenant's
proof of self insurance by State must be obtained in writing. The decision to accept, or reject,
Tenant's proof of self insurance is within the sole discretion of the State. Tenant must provide
State with proof of continuing ability to provide self insurance within thirty (30) days of any
written request by State for such proo£ Tenant shall also provide State with written notice
within seven (7) days of any material change in its ability to self insure, or to its program of self
insurance. If Tenant elects to discontinue its program of self insurance, or if State provides
written notice withdrawing its acceptance of Tenant's proof of self insurance, Tenant shall be
subjected to the requirements of Section 10. Tenant shall be in compliance with the
requirements of Section 10 prior to exercising an election to terminate self insurance coverage
and shall comply with those requirements within thirty (30) days of receipt of any notice from
State withdrawing its consent to self insurance. All sublease agreements must comply with the
provisions of Section 10.
SECTION ll MAINTENANCE AND REPAIR
11.1 State's Repairs. State shall not be required to make any alterations, maintenance,
replacements, or repairs in, on, or about the Property, or any part thereof, during the Term.
11.2 Tenant's Repairs, Alteration, Maintenance and Replacement.
(a) Tenant shall, at its sole cost and expense, keep and maintain the Property and all
improvements (regardless of ownership) in good order and repair, in a clean,
attractive, and safe condition.
(b) Tenant shall, at its sole cost and expense, make any and all additions, repairs,
alterations, maintenance, replacements, or changes to the Property or to any
improvements on the Property which may be required by any public authority.
(c) All additions, repairs, alterations, replacements or changes to the Property and to
any improvements on the Property shall be made in accordance with, and
ownership shall be governed by, Section 7, above.
SECTION 12 DAMAGE OR DESTRUCTION
(a) In the event of any damage to or destruction of the Property or any improvements,
Tenant shall promptly give written notice to State. Unless otherwise agreed in
writing, Tenant shall promptly reconstruct, repair, or replace the Property and any
improvements as nearly as possible to its condition immediately prior to the
damage or destruction.
(b) Tenant's duty to reconstruct, repair, or replace any damage or destruction of the
Property or any improvements on the Property shall not be conditioned upon the
availability of any insurance proceeds to Tenant from which the cost of repairs
may be paid.
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(c) Unless this Lease is terminated by mutual agreement, there shall be no abatement
or reduction in rent during such reconstruction, repair, and replacement.
(d) Any insurance proceeds payable by reason of damage or destruction shall be first
used to restore the real property covered by this Lease, then to pay the cost of the
reconstruction, then to pay the State any sums in arrears, and then to Tenant.
(e) In the event Tenant is in default under the terms of this Lease at the time damage
or destruction occurs, State may elect to terminate the Lease and State shall then
have the right to retain any and all insurance proceeds payable as a result of the
damage or destruction.
SECTION 13 CONDEMNATION
13.1 Definitions.
(a) Taking. The term "talcing," as used in this Lease, means the taking of all or any
portion of the Property and any improvements thereon under the power of
eminent domain, either by judgment or settlement in lieu of judgment. Taking
also means the talcing of all or a portion of the Property and any improvements
thereon to the extent that the Permitted Use is prevented or, in the judgment of
State, the Property is rendered impractical for the Permitted Use. A total taking
occurs when the entire Property is taken. A partial taking occurs when the taking
does not constitute a total taking as defined above.
(b) Voluntary Conveyance. The terms "total taking" and "partial taking" shall
include a voluntary conveyance, in lieu of formal court proceedings, to any
agency, authority, public utility, person, or corporate entity empowered to
condemn property.
(c) Date of Taking. The term "date of taking" shall mean the date upon which title to
the Property or a portion of the Property passes to and vests in the condemnor or
the effective date of any order for possession if issued prior to the date title vests
in the condemnor.
13.2 Effect of Taking. If during the Term there shall be a total taking, the leasehold estate of
Tenant in the Property shall terminate as of the date of taking. If this Lease is terminated, in
whole or in part, all rentals and other charges payable by Tenant to State and attributable to the
Property taken shall be paid by Tenant up to the date of talcing. If Tenant has pre-paid rent,
Tenant will be entitled to a refund of the pro rata share of the pre-paid rent attributable to the
period after the date of taking. In the event of a partial taking, there shall be a partial abatement
of rent from the date of taking in a percentage equal to the percentage of Property taken.
13.3 Allocation of Award. State and Tenant agree that in the event of any condemnation, the
award shall be allocated between State and Tenant based upon the ratio of the fair market value
of Tenant's leasehold estate and Tenant-O�vned Improvements on the Property and State's
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interest (a) in the Property, (b) in the reversionary interest in Tenant-Owned Improvements, and
(c) in State-Owned Improvements. In the event of a partial taking, this ratio will be computed on
the basis of the portion of Property or improvements taken. If Tenant and State are unable to
agree on the allocation, it shall be submitted to binding arbitration in accordance with the rules of
the American Arbitration Association.
SECTION 14 DEFAULT AND REMEDIES
(a) Tenant shall be in default of this Lease on the occurrence of any of the following:
(1) Failure to pay Annual Rent or other expenses when due;
(2) Failure to comply with any law, regulation, policy, or order of any lawful
governmental authority;
(3) Failure to comply with any other provision of this Lease;
(4) Two or more defaults over a period of time, or a single serious default,
that demonstrates a reasonable likelihood of future defaults in the absence
of corrective action by Tenant; or
(5) Proceedings are commenced by or against Tenant under any bankruptcy
act or for the appointment of a trustee or receiver of Tenants'property.
(b) A default shall become an event of default ("Event of Default") if Tenant fails to
cure the default within si�ty (60) days after State provides Tenant with written
notice of default, which specifies the nature of the default.
(c) Upon an Event of Default, State may terminate this Lease and remove Tenant by
summary proceedings or otherwise. State may also, without terminating this
Lease, relet the Property on any terms and conditions as State in its sole discretion
may decide are appropriate. If State elects to relet, rent received by it shall be
applied: (1) to the payment of any indebtedness other than rent due from Tenant
to State; (2) to the payment of any cost of such reletting; (3) to the payment of the
cost of any alterations and repairs to the Property; and, (4) to the payment of rent
and leasehold excise tax due and unpaid under this Lease. Any balance shall be
held by State and applied to Tenant's future rent as it becomes due. Tenant shall
be responsible for any deticiency created by the reletting during any month and
shall pay the deficiency monthly. State's reentry or repossession of the Property
under this subsection shall not be construed as an election to terminate this Lease
or cause a forfeiture of rents or other charges to be paid during the balance of the
Term, unless State gives a written notice of termination to Tenant ar termination
is decreed by legal proceedings. State may at any time after reletting elect to
terminate this Lease for the previous Event of Default.
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SECTION 15 ENTRY BY STATE
State shall have the right to enter the Property at any reasonable hour to inspect for compliance
with the terms of this Lease.
SECTION 16 DISCLAIMER OF QUIET ENJOYMENT
As indicated in Section 1.1, this Lease is subject to all valid recorded interests of third parties, as
well as rights of the public under the Public Trust Doctrine or federal navigation servitude, and
treaty rights of Indian Tribes. State believes that its grant of the Lease is consistent with the
Public Trust Doctrine and that none of the identified interests of third parties will materially and
adversely affect Tenant's right of possession and use of the Property as set forth herein, but
makes no guaranty or warranty to that effect. Tenant and State expressly agree that Tenant shall
be responsible for determining the extent of its right to possession and for defending its leasehold
interest. Consequently, State expressly disclaims and Tenant expressly releases State from any
claim for breach of any implied covenant of quiet enjoyment with respect to the possession of the
Property. This disclaimer includes, but is not limited to, interference arising from or in
connection with access or other use rights of adjacent property owners ar the public over the
water surface or in or under the water column, including rights under the Public Trust Doctrine;
rights held by Indian Tribes; and the general power and authority of State and the United States
with respect to aquatic lands, navigable waters, bedlands, tidelands, and shorelands. In the event
Tenant is evicted from the Property by reason of successful assertion of any of these rights, this
Lease shall terminate as of the date of the eviction. In the event of a partial eviction, Tenant's
rent obligations shall abate as of the date of the partial eviction, in direct proportion to the extent
of the eviction, but in all other respects, this Lease shall remain in full force and effect.
SECTION 17 NOTICE
Any notices required or permitted under this Lease may be personally delivered, delivered by
facsimile machine, or mailed by certified inail, return receipt requested, to the following
addresses or to such other places as the parties may direct in writing from time to time:
State: DEPARTMENT OF NATURAL RESOURCES
Shoreline District Aquatics Region
950 Farman Avenue North
Enumclaw, WA 98022-9282
Tenant: CITY OF RENTON
616 West Perimeter Road
Renton, WA 98022
A notice shall be deemed given and delivered upon personal delivery, upon receipt of a
confirmation report if delivered by facsimile machine, or three (3) days after being mailed as set
forth above, whichever is applicable.
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SECTION 18 MISCELLANEOUS
18.1 Authority. Tenant and the person or persons executing this Lease on behalf of Tenant
represent that Tenant is qualified to do business in the State of Washington, that Tenant has full
right and authority to enter into this Lease, and that each and every person signing on behalf of
Tenant is authorized to do so. Upon State's request, Tenant will provide evidence satisfactory to
State confirming these representations. This Lease is entered into by State pursuant to the
authority granted it in Chapters 79.105 to 79.145 RCW and the Constitution of the State of
Washington.
18.2 Successors and Assigns. This Lease shall be binding upon and inure to the benefit of the
parties, their successors and assigns.
18.3 Headings. The headings used in this Lease are for convenience only and in no way
define, limit, or extend the scope of this Lease or the intent of any provision.
18.4 Entire Agreement. This Lease, including the exhibits and addenda, if any, contains the
entire agreement of the pai-ties. All prior and contemporaneous agreements, promises,
representations, and statements relating to this transaction or to the Property, if any, are merged
into this Lease.
18.5 Waiver. The waiver by State of any breach or default of any term, covenant, or
condition of this Lease shall not be deemed to be a waiver of such term, covenant, or condition;
of any subsequent breach or default of the same; or of any other term, covenant, or condition of
this Lease. State's acceptance of a rental payment shall not be construed to be a waiver of any
preceding or existing breach other than the failure to pay the particular rental payment that was
accepted.
18.6 Cumulative Remedies. The rights and remedies of State under this Lease are
cumulative and in addition to all other rights and remedies afforded to State by law or equity or
otherwise.
18.7 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of
this Lease.
18.8 Language. The word "Tenant" as used in this Lease shall be applicable to one or more
persons, as the case may be. The singular shall include the plural, and the neuter shall include
the masculine and feminine. If there is more than one Tenant, their obligations shall be joint and
severaL The word "persons," whenever used, shall include individuals, firms, associations, and
corporations.
18.9 Invalidity. If any provision of this Lease shall prove to be invalid, void, or illegal, it
shall in no way affect, impair, or invalidate any other provision of this Lease.
Form Date:May,2005 21 of 25 Commercial Lease 22-A90012
� �
18.10 Applicable Law and Venue. This Lease shall be interpreted and construed in
accordance with the laws of the State of Washington. Any reference to a statute shall mean that
statute as presently enacted or hereafter amended or superseded. Venue for any action arising
out of or in connection with this Lease shall be in the Superior Court for Thurston County,
Washington.
18.11 Recordation. Tenant shall record this Lease or a memorandum documenting the
existence of this Lease in the county in which the Property is located, at Tenant's sole expense.
The memorandum shall, at a minimum, contain the Property description, the names of the parties
to the Lease, the State's lease number, and the duration of the Lease. Tenant shall provide State
with recording information, including the date of recordation and file number. Tenant shall have
thirty (30) days from the date of delivery of the final executed agreement to comply with the
requirements of this subsection. If Tenant fails to record this Lease, State may record it and
Tenant shall pay the costs of recording upon State's demand.
18.12 Modi�cation. Any modification of this Lease must be in writing and signed by the
parties. State shall not be bound by any oral representations or statements.
Form Date: May,2005 22 of 25 Commercial Lease 22-A90012
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THIS AGREEMENT requires the signature of all parties and is executed as of the date of the last
signature below.
Tenant: CITY OF RENTON
Dated: By: ���%� /
K�HY KEOLKER
Title: Mayor
Address: 1055 S. Grady Way
Renton, WA 98055
Attest: �j�� �. ��Z�
Bonnie I. Walton, City Clerk
STATE OF WASHINGTON
DEPARTMENT F NATU RESOURCES
Dated: � � By: rl' �
� � OUG SUT ERLAND
�SIO �h
�•.����.....�po��h Title: Commissioner of Public Lands
s��• 'ti�,��#
~:�'� , 'tt�'s Address: Shoreline District Aquatics Region
;_,e ,���. . �,
;��o �;� ' ?�� � 950 Farman Avenue North
. .
�"'`�� ,� , ��i Enumclaw, WA 98022-9282
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Approved as to Form May, 2005
by Joe Panesko $;, . .-- -,
Assistant Attorney General �
State of Washington
Form Date: May,2005 23 of 25 Commercial Lease 22-A90012
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REPRESENTATIVE ACKNOWLEDGMENT
STATE OF )
) ss
County of �.:,; .c .� )
I certify that I know or have satisfactory evidence that KATHY KEOLKER is the person who
appeared before me, and said person acicnowledged that she signed this instrument, on oath
stated that she was authorized to execute the instrument and acknowledged it as the Mayor of the
City of Renton to be the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
,�
'� / " ;:, � / i .-' `�``,�
Dated: r �C i. C��. �-,�r. � - ,� r,�
! � (Sig ature)
w'yo'�'W'\�4t.��;�; , :
ti��::,r�; �, `�,-;�.�fr��� �t- �r���r �`i� ��'"YC-�
";ti` ';��;t "'_ '`° (Print Name)
-�,„ �`�`'r -:�
, .;.> .,,
,
ca;�; �,
;` „ � Notary Public in and for the State of
:; ��; . - �.
,� , ;:�� _�r�r Washington, residing at
�°�`�`'•': ,. -��_:, `:'a�,,;_ �=!'6� t c.,�-'�
��' �„i;���.;�"""l;,>;i,�.�
Atr��&��R�";�`,,�@";a,6p
My appointment expires ,�� ' �,%-�:'e��i;j
Form Date:May,2005 24 of 25 Commercial Lease 22-A90012
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STATE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss
County of
`TJI���F��t-c�v� )
I certify that I know or have satisfactory evidence that DOUG SUTHERLAND is the person who
appeared before me, and said person acknowledged that he signed this instrument, on oath stated
that he was authorized to execute the instrument and acknowledged it as the Commissioner of
Public Lands, and ex officio administrator of the Department of Natural Resources of the State of
Washington to be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
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Dated: �� �`v C) Cr.' . .Q�"1'L-t..�"-��- �� �-�.1-�.C�l
(Signature)
�j c�c� c ��� � �---�� �.-(.�
���oR' y�� (Print Name)
0 ��`'' �'Oi,9 �
���N,�TA�Y �N Notary Public in and for the State of
�� �Vg�� � �� ' gton, residir�g at
9� F P�'�� � �-T_r�_.
W My appointment expires 5 " /� ` ��
Form Date: May,2005 25 of 25 Commercial Lease 22-A90012
I�---------------------------------------------------------------------------------------------.______________________—____________,
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E�ibit A Page 1 of 1 Lease Na. 22-A90012
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EXHIBIT B
PLAN OF DEVELOPMENT, OPERATION, AND
MAINTENANCE
Lease No. 22-A90012
City of Renton
616 West Perimeter Rd.
Site Description and Present Use
The City of Renton lease is located on the southern shore of Lake Washington,just west of the
mouth of the Cedar River. The waters of Lalce Washington are used for recreational purposes
such as boating, swimming, and fishing. The following fish are found in Lake Washington;
sockeye salmon (Oncorhynchus nerka), coho salmon (D. kisutch) , steelhead salmon (O. mykiss),
chinook salmon (O. tshawytscha), and trout. The Boeing Company is located to the east of the
leasehold and a small boat moorage facility is located to the west of the leasehold.
The City of Renton runs a seaplane base at this site. The floating dock is made of untreated
wood with metal grating on the walkway allowing light to penetrate to the lake bottom. The
dock is lined with tires to prolong its life.
Future Use and Condition
The City of Renton may expand their floating dock in the future. Tenant must notify the State of
any plans for changes to their leasehold and the State must approve these changes. Any
expansion or decrease in the leasehold area will require an amendment to the lease.
SECTION 2 USE
2.1 Permitted Use. Tenant is permitted to use the 15,006 square foot leasehold for seaplane
moorage, which includes a floating dock that rises and falls with the lake level on approximately
six galvanized steel pilings.
All seaplanes must be moored in a manner that ensures that they are located within the leasehold
area. The area needed for ingress and egress from the leased premises is included in the
leasehold area.
Exhibit B 1 of 2 Lease No.22-A90012
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SECTION 7 IMPROVEMENTS
7.2 Tenant-Owned Improvements. The "Tenant-Owned Improvements" currently located
on the site include: floating dock and approaimately six galvanized steel pilings.
SECTION 11 MAINTENANCE AND REPAIR
11.2 Tenant's Repairs, Alteration, Maintenance and Replacement. Maintenance of the
floating dock includes periodic structural and safety inspections. Routine maintenance of the
tires, wood planks, metal grating, cleaning (including power washing), and repair of all portions
of the dock occur at periodic intervals or when necessary to assure the safe operation of the dock.
Over water seaplane maintenance such as washing and engine maintenance is not permitted.
SECTION 15 ENTRY BY STATE
SITE INSPECTION
Monica Durkin, of the Washington State Department of Natural Resources (DNR), conducted an
inventory and a site inspection of the dock on July 7, 2005.
SECTION 16 DISCLAIMER OF QUIET ENJOYMENT
For purposes of abatement of rent in Section 16 of this lease, the phrases "date of eviction" and
"date of partial eviction" shall mean that date Tenant is stopped from all use of the property by
reason of an assertion of the rights described in Section 16 of this lease.
SECTION 17 NOTICE
The City of Renton shall designate a contact person for the Department of Natural Resources.
This person has the responsibility of notifying the DNR of the status of the lease. The current
contact person is:
Bruce Fisher
City of Renton Airport
616 West Perimeter Rd.
Renton, WA 98055
(425) 430-7471
The current contact for the Department of Natural Resources is:
Snoqualmie Land Manager
950 Farman Avenue North
Enumclaw, WA 98022
(360) 825-1631
Exhibit B 2 of 2 Lease No.22-A90012
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Return Address:
� �► � z00�122000 �
095z
�b (,i} CITY OF RENTON TLE 39.00
�.� . ��� d �� 12 2002008 3 085�
, KING COUNTY, WA
Please print or type information WASHINGTON STATE RECORDER'S Cover Sheet (RCW 6�04)
DOCUrilOrit TIt1e�S�(or transactions contained therein):(all areas applicable to your document must be filled in)
�. L.Qr,�s� 7"�w���!-,�, uo. aa-�aq��-
3. 4.
Reference Number(s) of Documents assigned or released:
Additional reference#'s on page � of document
Grantor s) (Last name,first name,initials)
l. ' CS
2. ,
Additional names on page � of document.
Gr�tge(s)_(�ast m1�hen first name and initials)
1. rf"G( pT ,
2 v •
Additional names on page of document.
Legal descri tlon(abbreviated: i.e.lot,block,plat or secti n,townshi}' ran e)
1,�(,c�ab�. ,,��/2��� iti �vr� e�'�t s/�e.K�f�^ �J�Oo�����
A/� o� � )1/E'/�l a� �'e�.�aaH d7. Toc.�n6G�„o a� s
�a.6t, W r11, !�►�t o�(1�G�t.1�, k'�,�q C'ec.�x•t-� , s,�'t o�' �i�.s�i;�*�
Assessor's Property Tax Parcel/Account Number ❑Assessor Tax#not yet
assigned
��a�ds�oa�
The Auditor/Recorder will rely on the information provided on the form. The staff will not read the document to
verify the accuracy or completeness of the indexing information provided herein.
I am requesting an emergency nonstandard recording for an additional fee as provided in RCW
36.18.010. I understand that the recording processing requirements may cover up or otherwise
obscure some part of the text of the original document.
Signature of Requesting Party
� � ,
LAG-06-019
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
NOTICE OF AND AGREEMENT TO TERMINATE LEASE
TABLE OF CONTENTS
SECTION PAGE
BACKGROUND ...........................................................................................................................1
1. TERMINATION DATE ....................................................................................................1
2. IMPROVEMENTS............................................................................................................1
3. WARRANTIES .................................................................................................................1
4. APPLICABLE LAW.AND VENUE .................................................................................2
5. RECORDATION...............................................................................................................2
6. MODIFICATION...............................................................................................................2
Form Date: 10/2003 i Agreement No.22-090012
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STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
NOTICE OF AND AGREEMENT TO TERMINATE LEASE
LEASE TERMINATION NO. 22-090012
THIS AGREEMENT is made by and between the STATE OF WASHINGTON, acting through
the Department of Natural Resources ("State"), and the CITY OF RENTON, a governemnt
agency/entity, whose address is 616 West Perimeter Road, Renton, WA 98055 ("Lessee").
BACKGROUND
A. Lessee and State have entered into, and are bound by, the terms and conditions of
Lease No. 22-090012, recorded with the King County Auditor's Office under
recording number N/A, including any amendments thereto (the "Lease").
B. Lessee desires to terminate this Lease, and State agrees that such lease may be
terminated.
THEREFORE, the parties agree as follows:
SECTION 1 TERMINATION DATE
The Termination Date of the Lease shall be accelerated to March 31, 2006.
SECTION 2 IMPROVEMENTS
The"Lessee" -owned Improvements described in Exhibit A shall be authorized under lease
number 22-A90012.
SECTION 3 WARRANTIES
Lessee represents and warrants to State that
(i) Lessee is not in default or breach of the Lease;
(ii) Lessee has no causes of action, claims, offsets, or defenses associated with the
Lease;
Form Date: 10/2003 1 Of 5 Agreement No.22-090012
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(iii) Rents due subsequent to this Termination have not been paid in advance by
Lessee or have been fully refunded by State;
(iv) All subleases of the Property will terminate and all sublessees will have vacated
the Property prior to the Termination Date of the Lease;
(v) No other person or entity has any interest in this lease that would be affected by its
termination; and
(vi) To the best of Lessee's knowledge, the property is in full compliance with all
applicable federal, state, and local governmental permits, rules, ordinances, and
laws. Lessee shall defend, indemnify and hold State harmless from any claims,
known or unknown, of the Lessee, and for any breach of the foregoing warranties.
State expressly reserves all rights against Lessee for any claims it may have for
damage to the Property or associated natural resources.
SECTION 4 APPLICABLE LAW AND VENUE
This Agreement shall be interpreted and construed in accordance with the laws of the State of
Washington. Venue for any action arising out of or in connection with this Lease shall be in the
Superior Court for Thurston County, Washington.
SECTION 5 RECORDATION
Lessee shall record this Lease Termination or a memorandum documenting the existence of this
Lease in the county in which the Property is located, at Lessee's sole expense. The memorandum
shall, at a minimum, contain the Property description, the names of the parties to the Lease,the
State's lease number, and the duration of the Lease. Lessee shall provide State with recording
information, including the date of recordation and file number. Lessee shall have thirty(30) days
from the date of delivery of the final executed Termination agreement to comply with the
requirements of this subsection. If Lessee fails to record this Lease Termination, State may
record it and Lessee shall pay the costs of recording upon State's demand.
SECTION 6 MODIFICATION
Any modification of this Agreement must be in writing and signed by the parties. State shall not
be bound by any oral representations or statements.
Form Date: 10/2003 2 Of 5 Agreement No.22-090012
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THIS AGREEMENT requires the signature of all parties and is executed as of the date of the last
signature below.
Tenant: CITY OF RENTON
Dated: �2 9, 200!v By: `,�'�� �
U � �ATHY KEOLKER
rq ,
Title: Mayor
� Address: 1055 S. Grady Way
'�� � Renton, WA 98055
Attest: �����1' �. �����
Bonnie I. Walton, City Clerk
STATE OF WASHINGTON
DEPARTMENT F NATU RESOURCES
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Dated: 9 4 By: GlG�7' �1l
� OUG SUTI�ERLAND
���y��+P� Title: Commissioner of Public Lands
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; Address: Shoreline District Aquatics Region
� �' 950 Farman Avenue North
��i� ��9 � Enumclaw, WA 98022-9282
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Approved as to Form May, 2005
by Joe Panesko
Assistant Attorney General p��Fi�
State of Washington �-''
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,_ ,..�...
Form Date: 10/2003 3 Of 5 Agreement No.22-090012
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REPRESENTATIVE ACKNOWLEDGMENT
STATE OF )
) ss
County of �;_ ; .;�, )
I certify that I know or have satisfactory evidence that KATHY KEOLKER is the person who
appeared before me, and said person acknowledged that she signed this instrument, on oath
stated that she was authorized to execute the instrument and acknowledged it as the Mayor of the
City of Renton to be the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
Dated: �� �� �i � L�'��%�� �'�/. ; ,-? �� � �! ��;
��.. � �.,�` -—
' (Si�nature)
.�+,�,��°ae�W�{�
�w�;Lr'� �' ',���go �. ,
,.,,,..r E,,� -� ��(�..� ��, ,a . _�° -t �1
~`�"-��s`':��i,�.���=.,��°� ��i (Print Name)
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�� `�= � Notary Public in and for the State of
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�r<.,h�' �,;�� ��= Washington residing at
y�8��+� {,'`��\ �yC„il�� /�.�'4� 1 L d (
'�`���9�`�,*�1'.''.°?,��''''."°`�
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My appointment expires f. - Z �j��.�.� �;�
Form Date: 10/2003 4 of 5 Agreement No.22-090012
. �, �, • .
STATE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss
County of ���r���y� )
I certify that I know or have satisfactory evidence that DOUG SUTHERLAND is the person who
appeared before me, and said person acknowledged that he signed this instrument, on oath stated
that he was authorized to execute the instrument and acknowledged it as the Commissioner of
Public Lands, and ex officio administrator of the Department of Natural Resources of the State of
Washington to be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Dated: C� � ��`.�i � �i' ��7��'111�Gt.., � ��-�(_.�l
�
(Signature)
� ��"�"C�6�t t �r� l'�. �`_�1 �L
� ���SioN��'i� (Print Name)
� N`OTARY 9�� Notary Public in and for the State of
� P(J�,�C a Washi�gtqn, residing.at
5-19-p9`��4 �,t�-y�L/�.-�_�-
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My appointment expires 5 �� � � �/
Form Date: 10/2003 5 Of 5 Agreement No.22-090012
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WATER-DEPEIr'DENT RENT CALCULATION�YORKSHEET ' ' �
T.Use� 8.Acres v
1.Lease Number 22-090012 S.UBI / ! / Seavtane Moora�e 15,006 Sctuare Feet
2.Name Citv of Renton 6.DNR / / / Alternate Pazve17 No
3.Camty Kin� ---
4.Previous Rent NA
9.G�nrent Revaluation Assessment Date Anril 1.2006
10.Cowity 11.Upland 12.Acres( 13.Upland 14.Aquatic 15.Aquatic 16.Lease 17.Rent
Parcel No. Value Sa"Ft• ValudAcre Value C�30% Lease Acres Area Value 5.06%
1. 0723059007 72_910J00 7.291.073 510.00 S3.00 15.006 45.018 52277.91 �
2.
3.
4.
Remar]cs: ;s the new water-dependent reat more than a 50 pen�eut in�ase from the previous rent? Yes No
If yes,do n��t increase annual rents by more than 50 percent cach year. .
PPI Adiustments(Used onlv
for Revaluations and PPI TRUST DIST.
Adiustment Ye�rsl 96 OF RENT
. 90-91+4.958'/01.04958 NAV.
91-92+3.654%1.03654 IS %_S
92-93+0.170'/01.00170 .
93-94+0.601%1.00601 FC Tide/Shore
94-95+1.450'/0 1.01450 � '�_S
95-96+1.262'/01.01262
96-97+3.571%1.03571 ����re
97-98+2326°/.1.02326 21 % S
98-99- 0.235°/. .99765
99-00=2508'/. .97492 Harbor Area [
00-01+ .884%1.W884 2S % S � �
Ol-02+5.657°/.1.05657
02-03+1.13°/. 1.0113 �
03-04 -231% 0.9769
04-OS +534°/. l.0534
OS-06 +6.15% 1.06227
Date gi�
1) If os�is log rtonye.the rcat is 5374.62 per aare ta'July I.2005 q hmc 30.Z006. No parcd numbas m ueeded. JJAS�ocy/DNR DOCSlAQR DOCJGenaal Pamsl'W FY 2006"
updated 4r20/1005
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