HomeMy WebLinkAboutLease Return Address:
City Clerk's Office
City of Renton
1055 South Grady Way, #728
Renton, WA 98057
20131001001297
PAGE-001 OF 032LE 102.00
10/01/2013 13:00
KING COUNTY, UM
Please print or type information WASHINGTON STATE RECORDER'S Cover Sheet (RCw 65.04)
Document Title(s)(or transactions contained therein):(all areas applicable to your document must be filled in)
1. Aquatic Lands Lease 2.
3. 4.
Reference Number(s) of Documents assigned or released:
Additional reference#'s on page of document
Grantor(s) Exactly as name(s)appear on document
1. Wa State Department of Natural Resources,
2.
Additional names on page of document.
Grantee(s) Exactly as name(s)appear on document
1. City of Renton
2.
Additional names on page of document.
Legal description(abbreviated: i.e. lot,block,plat or section,township,range)
That portion of the bed of Lake Washington,owned by the State of Washington, lying between the
inner&outer Harbor Lines,situated in front of,Government Lots 1,2,3,and 4 or adjacent to . . . . ..
Additional legal is on page 30 of document.
Assessor's Property Tax Parcel/Account Number
3344500775 & 0523059010
The Auditor/Recorder will rely on the information provided on this form. The staff will not read the document to verify the
accuracy or completeness of the indexing information provided herein.
"I am signing below and paying an additional$50 recording fee(as provided in RCW 36.18.010 and
referred to as an emergency nonstandard document),because this document does not meet margin and
formatting requirements.Furthermore,I hereby understand that the recording process may cover up or
otherwise obscure some part of the text of the original document as a result of this request."
signature of eqi sing Party
Note to submitter:Do not sign above nor pay additional$50 fee if the document meets margin/formatting requirements
LAG-13-004
When recorded,return to:
City of Renton
1055 S Grady Way
Renton, WA 98057-3232
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v
WASHINGTON STATE DEPARTMENT OF
Natural Resources
Peter Goldmark-Commissioner of Public Lands
AQUATIC LANDS LEASE
Lease No. 22-086143
Grantor: Washington State Department of Natural Resources
Grantee(s): City of Renton
Legal Description: Sections 5 and 6, Township 23 North, Range 5 East, W.M.
Assessor's Property Tax Parcel or Account Number: 012304HYDR and 052305HYDR
Assessor's Property Tax Parcel or Account Number for Upland parcel used in conjunction with
this Lease: 3344500775 and 0523059010
THIS LEASE is between the STATE OF WASHINGTON, acting through the Department of
Natural Resources ("State"), and 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. State has authority to enter Lease under
Chapter 43.12, Chapter 43.30 and Title 79 of the Revised Code of Washington(RCW).
THEREFORE, the Parties agree as follows:
Aquatic Lands Lease Page 1 of 31 Lease No.22-086143
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SECTION 1 PROPERTY
1.1 Property Defined.
(a) State leases to Tenant and Tenant leases from State the real property described in
Exhibit A together with all the rights of State, if any, to improvements on and
easements benefiting the Property, but subject to the exceptions and restrictions set
forth in this Lease (collectively the "Property").
(b) This Lease is subject to all valid interests of third parties noted in the records of
King County, or on file in the Office of the Commissioner of Public Lands,
Olympia, Washington; rights of the public under the Public Trust Doctrine or
federal navigation servitude; and treaty rights of Indian Tribes.
(c) This Lease does not include a right to harvest, collect or damage natural resources,
including aquatic life or living plants; water rights; mineral rights; or a right to
excavate or withdraw sand, gravel, or other valuable materials.
(d) State reserves the right to grant easements and other land uses on the Property to
others when the easement or other land uses will not interfere unreasonably with the
Permitted Use.
1.2 Survey and Property Descriptions.
(a) Tenant prepared Exhibit A, which describes the Property. Tenant warrants that
Exhibit A is a true and accurate description of the Lease boundaries and the
improvements to be constructed or already existing in the Lease area. Tenant's
obligation to provide a true and accurate description of the Property boundaries is
a material term of this Lease.
(b) State's acceptance of Exhibit A does not constitute agreement that Tenant's
property description accurately reflects the actual amount of land used by Tenant.
State reserves the right to retroactively adjust rent if at any time during the term of
the Lease State discovers a discrepancy between Tenant's property description
and the area actually used by Tenant.
1.3 Inspection. State makes no representation regarding the condition of the Property,
improvements located on the Property,the suitability of the Property for Tenant's Permitted Use,
compliance with governmental laws and regulations, availability of utility rights, access to the
Property, or the existence of hazardous substances on the Property. Tenant inspected the
Property and accepts it"AS IS."
SECTION 2 USE
2.1 Permitted Use. Tenant shall use the Property for the purpose of a City of Renton park, open
and maintained year round,providing public access to Lake Washington(the "Permitted Use"), and
for no other purpose. This is mixed use,with One Million Seven Hundred Seventy-seven Thousand,
Six Hundred Ninety-six (1,777,696) square feet of water-dependent use and Two Thousand One
Hundred Thirty-three (2,133) square feet of nonwater-dependent use. Exhibit B describes the
Permitted Use in detail. The Permitted Use is subject to additional obligations in Exhibit B.
Aquatic Lands Lease Page 2 of 31 Lease No.22-086143
2.2 Restrictions on Permitted Use and Operations. The following limitations apply to the
Property and adjacent state-owned aquatic land. Tenant's compliance with the following does
not limit Tenant's liability under any other provision of this Lease.
(a) Tenant shall not cause or permit:
(1) Damage to natural resources
(2) Waste, or
(3) Deposit of material,unless approved by State in writing. This prohibition
includes deposit of fill, rock, earth, ballast, wood waste, refuse, garbage,
waste matter,pollutants of any type, or other matter.
(b) Tenant shall not install fixed breakwaters.
(c) Unless approved by State in writing, Tenant shall not cause or permit dredging on
the Property. State will not approve dredging unless (1)required for flood control,
maintenance of existing vessel traffic lanes, or maintenance of water intakes and (2)
consistent with State's management plans, if any. Tenant shall maintain authorized
dredge basins in a manner that prevents internal deeper pockets.
2.3 Conformance with Laws. Tenant shall, at all times, keep current and comply with all
conditions and terms of permits, licenses, certificates, regulations, ordinances, statutes, and other
government rules and regulations regarding Tenant's use or occupancy of the Property.
2.4 Liens and Encumbrances. Unless expressly authorized by State in writing, Tenant shall
keep the Property free and clear of liens or encumbrances arising from the Permitted Use or
Tenant's occupancy of the Property.
SECTION 3 TERM
3.1 Term Defined. The term of this Lease is Thirty (30) years (the"Term"), beginning on
the 1 st day of July, 2013 (the "Commencement Date"), and ending on the 30th day of June, 2043
(the"Termination Date"), unless terminated sooner under the terms of this Lease.
3.2 Renewal of the Lease. This Lease does not provide a right of renewal. Tenant may
apply for a new lease, which State has discretion to grant. Tenant must apply for a new lease at
least one (1) year prior to Termination Date. State will notify Tenant within ninety (90) days of
its intent to approve or deny a new Lease.
3.3 End of Term.
(a) Upon the expiration or termination of this Lease, Tenant shall remove Improvements
in accordance with Section 7, Improvements, and surrender the Property to State in
the same or better condition as on the Commencement Date,reasonable wear and tear
excepted.
(b) Definition of Reasonable Wear and Tear.
(1) Reasonable wear and tear is deterioration resulting from the Permitted Use
that has occurred without neglect,negligence, carelessness, accident, or
abuse of the Property by Tenant or any other person on the premises with
the permission of Tenant.
Aquatic Lands Lease Page 3 of 31 Lease No.22-086143
(2) Reasonable wear and tear does not include unauthorized deposit of material
prohibited under Paragraph 2.2 regardless of whether the deposit is
incidental to or the byproduct of the Permitted Use.
(c) If Property is in worse condition, excepting for reasonable wear and tear, on the
surrender date than on the Commencement Date,the following provisions apply.
(1) State shall provide Tenant a reasonable time to take all steps necessary to
remedy the condition of the Property. State may require Tenant to enter into
a right-of-entry or other use authorization prior to the Tenant entering the
Property if the Lease has terminated.
(2) If Tenant fails to remedy the condition of the Property in a timely manner,
State may take steps reasonably necessary to remedy Tenant's failure. Upon
demand by State, Tenant shall pay all costs of State's remedy, including but
not limited to the costs of removing and disposing of material deposited
improperly on the Property, lost revenue resulting from the condition of the
Property, and administrative costs associated with the State's remedy.
3.4 Holdover.
(a) If Tenant remains in possession of the Property after the Termination Date, the
occupancy will not be an extension or renewal of the Term. The occupancy will
be a month-to-month tenancy, on terms identical to the terms of this Lease, which
either Party may terminate on thirty (3 0) days' written notice.
(1) The monthly rent during the holdover will be the same rent that would be
due if the Lease were still in effect and all adjustments in rent were made in
accordance with its terms.
(2) Payment of more than the monthly rent will not be construed to create a
periodic tenancy longer than month-to-month. If Tenant pays more than
the monthly rent and State provides notice to vacate the property, State
shall refund the amount of excess payment remaining after the Tenant
ceases occupation of the Property.
(b) If State notifies Tenant to vacate the Property and Tenant fails to do so within the
time set forth in the notice, Tenant will be a trespasser and shall owe the State all
amounts due under RCW 79.02.300 or other applicable law.
SECTION 4 RENT
4.1 Annual Rent.
(a) Until adjusted as set forth below, Tenant shall pay to State an annual rent consisting
of Zero Dollars ($0)related to the water-dependent use and Three Thousand Five
Hundred Twenty-eight Dollars and Seventy Cents ($3,528.70)related to the
nonwater-dependent use.
(b) The annual rent, as it currently exists or as adjusted or modified (the"Annual Rent"),
is due and payable in full on or before the Commencement Date and on or before the
same date of each year thereafter. Any payment not paid by State's close of business
on the date due is past due.
Aquatic Lands Lease Page 4 of 31 Lease No.22-086143
4.2 Payment Place. Tenant shall make payment to Financial Management Division, 1111
Washington St SE,PO Box 47041, Olympia, WA 98504-7041.
4.3 Adjustment Based on 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 Adjustment Procedures.
(a) Notice of Rent Adjustment. State shall provide notice of adjustments to the
Annual Rent allowed under Paragraphs 4.5(b) and 4.6(b)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. If the State fails to provide the
notice required in Paragraph 4.4(a), State shall not collect the adjustment amount
for the year in which State failed to provide notice. Upon providing notice of
adjustment, State may adjust and prospectively bill Annual Rent as if missed or
waived adjustments had been implemented at the proper interval. This includes
the implementation of any inflation adjustment.
4.5 Rent Adjustments for Water-Dependent Uses.
(a) Inflation Adjustment. State shall adjust water-dependent rent annually pursuant to
RCW 79.105.200-.360,except in those years in which State revalues the rent under
Paragraph 4.5(b)below. This adjustment will be effective on the anniversary of
the Commencement Date.
(b) Revaluation of Rent. At the end of the first four-year period of the Term, and at
the end of each subsequent four-year period, State shall revalue the
water-dependent Annual Rent in accordance with RCW 79.105.200-.360.
(c) Rent Cap. State shall increase rent incrementally in compliance with RCW
79.105.260 as follows: If application of the statutory rent formula for
water-dependent uses would result in an increase in the rent attributable to such
uses of more than fifty percent(50%) in any one year, State shall limit the actual
increase implemented in such year to fifty percent(50%) of the then-existing rent.
In subsequent, successive years, State shall increase the rental amount
incrementally until the State implements the full amount of increase as determined
by the statutory rent formula.
4.6 Rent Adjustments for Nonwater-Dependent Uses.
(a) Inflation Adjustment. Except in those years in which State revalues the rent under
Paragraph 4.6(b) below, State shall adjust nonwater-dependent rent annually on the
Commencement Date. Adjustment is based on the percentage rate of change in the
previous calendar year's Consumer Price Index published by the Bureau of Labor
Statistics of the United States Department of Commerce, for the Seattle-Tacoma-
Bremerton CMSA,All Urban Consumers, all items 1982-84= 100. If publication
of the Consumer Price Index is discontinued, State shall use a reliable
governmental or other nonpartisan publication evaluating the information used in
determining the Consumer Price Index.
Aquatic Lands Lease Page 5 of 31 Lease No.22-086143
(b) Revaluation of Rent.
(1) At the end of the first four-year period of the Term, and at the end of each
subsequent four-year period, State shall revalue the nonwater-dependent
Annual Rent to reflect the then-current fair market rent.
(2) If State and Tenant cannot reach agreement on the fair market rental value,
the Parties shall submit the valuation to a review board of appraisers. The
board must consist of three members, one selected by and at the cost of
Tenant; a second member selected by and at the cost of State; and a third
member selected by the other two members with the cost shared equally by
State and Tenant. The decision of the majority of the board binds the
Parties. Until the Parties agree to, or the review board establishes, the new
rent, Tenant shall pay rent in the same amount established for the preceding
year. If the board determines additional rent is required, Tenant shall pay
the additional rent within ten(10) days of the board's decision. If the board
determines a refund is required, State shall pay the refund within ten (10)
days of the board's decision.
SECTION 5 OTHER EXPENSES
5.1 Utilities. Tenant shall pay all fees charged for utilities required or needed by the
Permitted Use.
5.2 Taxes and Assessments. Tenant shall pay all taxes (including leasehold excise taxes),
assessments, and other governmental charges applicable or attributable to the Property, Tenant's
leasehold interest the improvements,s or Tenant's use and enjoyment of the Property-
5.3
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Right to Contest. If in good faith, Tenant may contest any tax or assessment at its sole
cost and expense. At the request of State, Tenant shall furnish reasonable protection in the form of
a bond or other security, satisfactory to State, against loss or liability resulting from such contest.
5.4 Proof of Payment. If required by State, Tenant shall furnish to State receipts or other
appropriate evidence establishing the payment of amounts this Lease requires Tenant to pay.
5.5 Failure to Pay. If Tenant fails to pay amounts due under this Lease, State may pay the
amount due, and recover its cost in accordance with Section 6.
SECTION 6 LATE PAYMENTS AND OTHER CHARGES
6.1 Failure to Pay Rent. Failure to pay rent is a default by the Tenant. State may seek
remedies under Section 14.as well as late charges and interest as provided in this Section 6.
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6.2 Late Charge. If State does not receive full rent payment within ten(10) days of the date
due, Tenant shall pay to State a late charge equal to four percent(4%) of the unpaid amount or Fifty
Dollars($50), whichever is greater,to defray the overhead expenses of State incident to the,delay.
Aquatic Lands Lease Page 6 of 31 Lease No. 22-086143
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6.3 Interest Penalty for Past Due Rent and Other Sums Owed.
(a) Tenant shall pay interest on the past due rent at the rate of one percent (1%)per
month until paid, in addition to paying the late charges determined under Paragraph
6.2. Rent not paid by the close of business on the due date will begin accruing
interest the day after the due date.
(b) If State pays or advances any amounts for or on behalf of Tenant, Tenant shall
reimburse State for the amount paid or advanced and shall pay interest on that
amount at the rate of one percent (1%)per month from the date State notifies
Tenant of the payment or advance. This includes, but is not limited to, State's
payment of taxes of any kind, assessments, insurance premiums, costs of removal
and disposal of materials or Improvements under any provision of this Lease, or
other amounts not paid when due.
6.4 Referral to Collection Agency and Collection Agency Fees. If State does not receive full
payment within thirty (30) days of the due date, State may refer the unpaid amount to a collection
agency as provided by RCW 19.16.500 or other applicable law. Upon referral, Tenant shall pay
collection agency fees in addition to the unpaid amount.
6.5 No Accord and Satisfaction. If Tenant pays, or State otherwise receives, an amount less
than the full amount then due, State may apply such payment as it elects. State may accept
payment in any amount without prejudice to State's right to recover the balance 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 constitutes accord and satisfaction.
6.6 No Counterclaim,Setoff,or Abatement of Rent. Except as expressly set forth elsewhere
in this Lease, Tenant shall pay rent and all other sums payable by Tenant without the requirement
that State provide prior notice or demand. Tenant's payment is not subject to counterclaim, setoff,
deduction, defense or abatement.
SECTION 7 IMPROVEMENTS
7.1 Improvements Defined.
(a) "Improvements,"consistent with RCW 79.105 through 79.145, are additions within,
upon, or attached to the land. This includes, but is not limited to, fill, structures,
bulkheads, docks,pilings, and other fixtures.
(b) "Personal Property"means items that can be removed from the Property without (1)
injury to the Property or Improvements or(2) diminishing the value or utility of the
Property or Improvements.
(c) "State-Owned Improvements"are Improvements made or owned by State. State-
Owned Improvements includes any construction, alteration, or addition to State-
Owned Improvements made by Tenant.
(d) "Tenant-Owned Improvements"are Improvements authorized by State and (1)
made by Tenant or(2) acquired by Tenant from the prior tenant.
Aquatic Lands Lease Page 7 of 31 Lease No.22-086143
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(e) "Unauthorized Improvements"are Improvements made on the Property without
State's prior consent or Improvements made by Tenant that do not conform to
plans submitted to and approved by the State.
7.2 Existing Improvements. On the Commencement Date, the following Improvements are
located on the Property: treated wood pilings; concrete-filled steel pilings; floating concrete
docks;treated wood floating docks with six finger piers for transient moorage; treated wood
decking; fixed treated timber breakwater; floating treated log breakwater; floating metal tube
breakwater; Bird Island consisting of earthen fill with rip rap and metal mesh reinforcement
around perimeter; and a nearshore retail building housing Ivar's Restaurant. The Improvements
are Tenant-Owned Improvements.
7.3 Construction,Major Repair,Modification, and Demolition.
(a) This Paragraph 7.3 governs construction, alteration,replacement, major repair,
modification, demolition, and deconstruction of Improvements ("Work"). Section
11 governs routine maintenance and minor repair.
(b) All Work must conform to requirements under Paragraph 7.4. Paragraph 11.3,
which applies to routine maintenance and minor repair, also applies to all Work
under this Paragraph 7.3.
(c) Except in an emergency, Tenant shall not conduct Work, without State's prior
written consent, as follows:
(1) State may deny consent if State determines that denial is in the best
interests of the State or if proposed Work does not comply with
Paragraphs 7.4 and 11.3. State may impose additional conditions
reasonably intended to protect and preserve the Property. If Work is for
removal of Improvements at End of Term, State may waive removal of
some or all Improvements.
(2) Except in an emergency, Tenant shall submit to State plans and
specifications describing the proposed Work at least sixty (60) days before
submitting permit applications to regulatory authorities unless Tenant and
State otherwise agree to coordinate permit applications. At a minimum, or
if no permits are necessary, Tenant shall submit plans and specifications at
least ninety(90) days before commencement of Work.
(3) State waives the requirement for consent if State does not notify Tenant of
its grant or denial of consent within sixty(60)days of submittal.
(d) Tenant shall notify State of emergency Work within five (5)business days of the
start of such Work. Upon State's request, Tenant shall provide State with plans and
specifications or as-builts of emergency Work.
(e) Tenant shall not commence or authorize Work until Tenant has:
(1) Obtained a performance and payment bond in an amount equal to one
hundred twenty-five percent(125%) of the estimated cost of construction.
Tenant shall maintain the performance and payment bond until Tenant pays
in full the costs of the Work, including all laborers and material persons.
(2) Obtained all required permits.
Aquatic Lands Lease Page 8 of 31 Lease No.22-086143
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(f) Before completing Work, Tenant shall remove all debris and restore the Property to
an orderly and safe condition. If Work is intended for removal of Improvements at
End of Term, Tenant shall restore the Property in accordance with Paragraph 3.3,
End of Term.
(g) Upon completing work, Tenant shall promptly provide State with as-built plans
and specifications.
(h) State shall not charge rent for authorized Improvements installed by Tenant
during this Term of this Lease,but State may charge rent for such Improvements
when and if Tenant or successor obtains a subsequent use authorization for the
Property and State has waived the requirement for Improvements to be removed
as provided in Paragraph 7.5.
7.4 Standards for Work.
(a) Applicability of Standards for Work
(1) The standards for Work in Paragraph 7.4(b) apply to Work commenced in
the five year period following the Commencement Date.Work has
commenced if State has approved plans and specifications.
(2) If Tenant undertakes Work five years or more after the Commencement
Date, Tenant shall comply with State's then current standards for Work.
(3) At Tenant's option, Tenant may ascertain State's current standards for
Work as follows:
(i) Before submitting plans and specifications for State's approval as
required by Paragraph 7.3 of the Lease, Tenant shall request State
to provide Tenant with then current standards for Work on State-
owned Aquatic Lands.
(ii) Within thirty (30)days of receiving Tenant's request, State shall
provide Tenant with current standards for Work, which will be
effective for the purpose of State's approval of Tenant's proposed
Work provided Tenant submits plans and specifications for State's
approval within two (2) years of Tenant's request for standards.
(iii) If State does not timely provide current standards upon Tenant's
request,the standards under Paragraph 7.4(b) apply to Tenant's
Work provided Tenant submits plans and specifications as required
by Paragraph 7.3 within two (2) years of Tenant's request for
standards.
(iv) If Tenant fails to (1) make a request for current standards or(2)
timely submit plans and specifications to State after receiving current
standards, Tenant shall make changes in plans or Work necessary to
conform to current standards for Work upon State's demand.
(b) Standards for Work
(1) Tenant shall not install skirting on any overwater structure.
(2) Tenant shall not conduct in-water Work during time periods prohibited for
such work under WAC 220-110-271,Prohibited Work Times in Saltwater,
as amended, or as otherwise directed by the Washington Department of
Fish and Wildlife(WDFW).
Aquatic Lands Lease Page 9 of 31 Lease No. 22-086143
(3) Tenant shall install unobstructed grating over at least 50 percent of the
surface area of all new floats, piers, fingers, docks, and gangways; grating
material must have at least 60 percent unobstructed open space.
(4) Tenant shall site new or expanded Improvements to avoid impacts to
protected aquatic vegetation to include hornwort (Ceratophyllym sp.),
northern milfoil (Myriophyllum sibiricum), and tapegrass (Vallisneria
Americana)using the methods described in the Washington DNR
Technical Memorandum Aquatic Vegetation:Potential .f Covered Impacts o
P
Activities and Buffer Recommendations.
7.5 Tenant-Owned Improvements at End of Lease.
(a) Disposition
(1) Tenant shall remove Tenant-Owned Improvements in accordance with
Paragraph 7.3 upon the expiration,termination, or cancellation of the Lease
unless State waives the requirement for removal.
(2) Tenant-Owned Improvements remaining on the Property on the expiration,
termination or cancellation date shall become State-Owned Improvements
without payment by State,unless State elects otherwise. State may refuse
or waive ownership. If RCW 79.125.300 or 79.130.040 apply at the time
this Lease expires, Tenant could be entitled to payment by the new tenant
for Tenant-Owned Improvements.
(3) If Tenant-Owned Improvements remain on the Property after the
expiration,termination, or cancellation date without State's consent, State
may remove all Improvements and Tenant shall pay State's costs.
(b) Conditions Under Which State May Waive Removal of Tenant-Owned Improvements.
(1) State may waive removal of some or all Tenant-Owned Improvements
whenever State determines that it is in the best interests of the State and
regardless of whether Tenant re-leases the Property.
(2) If Tenant re-leases the Property, State may waive requirement to remove
Tenant-Owned Improvements. State also may consent to Tenant's
continued ownership of Tenant-Owned Improvements.
(3) If Tenant does not re-lease the Property, State may waive requirement to
remove Tenant-Owned Improvements upon consideration of a timely
request from Tenant, as follows:
(i) Tenant must notify State at least one(1) year before the
Termination Date of its request to leave Tenant-Owned
Improvements.
(ii) State, within ninety(90) days of receiving Tenant's notification, will
notify Tenant whether State consents to some or all Tenant-Owned
Improvements remaining. State has no obligation to grant consent.
(iii) State's failure to respond to Tenant's request to leave Improvements
within ninety(90) days is a denial of the request.
(c) Tenant's Obligations if State Waives Removal.
(1) Tenant shall not remove Improvements if State waives the requirement for
removal of some or all Tenant-Owned Improvements.
Aquatic Lands Lease Page 10 of 31 Lease No.22-086143
(2) Tenant shall maintain such Improvements in accordance with this Lease
until the expiration, termination, or cancellation date. Tenant is liable to
State for cost of repair if Tenant causes or allows damage to Improvements
State has designated to remain.
7.6 Disposition of Unauthorized Improvements.
(a) Unauthorized Improvements belong to State,unless State elects otherwise.
(b) State may either:
(1) Consent to Tenant ownership of the Improvements, or
(2) Charge rent for use of the Improvements from the time of installation or
construction and
(i) Require Tenant to remove the Improvements in accordance with
Paragraph 7.3, in which case Tenant shall pay rent for the
Improvements until removal, or
(ii) Consent to Improvements remaining and Tenant shall pay rent for
the use of the Improvements, or
(iii) Remove Improvements and Tenant shall pay for the cost of removal
and disposal, in which case Tenant shall pay rent for use of the
Improvements until removal and disposal.
7.7 Disposition of Personal Property.
(a) Tenant retains ownership of Personal Property unless Tenant and State agree
otherwise in writing.
(b) Tenant shall remove Personal Property from the Property by the Termination Date.
Tenant is liable for damage to the Property and Improvements resulting from
removal of Personal Property.
(c) State may sell or dispose of all Personal Property left on the Property after the
Termination Date.
(1) If State conducts a sale of Personal Property, State shall apply proceeds
first to the State's administrative costs in conducting the sale, second to
payment of amount that then may be due from the Tenant to the State.
State shall pay the remainder, if any,to the Tenant.
(2) If State disposes of Personal Property, Tenant shall pay for the cost of
removal and disposal.
SECTION 8 ENVIRONMENTAL LIABILITY/RISK ALLOCATION
8.1 Definitions.
(a) "Hazardous Substance"means any substance that now or in the future becomes
regulated or defined under any federal, state, or local statute, ordinance, rule,
regulation, or other law relating to human health, environmental protection,
contamination,pollution,or cleanup.
(b) "Release or threatened release of Hazardous Substance"means a release or
threatened release as defined under any law described in Paragraph 8.1(a).
Aquatic Lands Lease Page 11 of 31 Lease No.22-086143
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(c) "Utmost care"means such a degree of care as would be exercised by a very
careful,prudent, and competent person under the same or similar circumstances;
the standard of care applicable under the Washington State Model Toxics Control
Act("MTCA"), Chapter 70.105 RCW, as amended.
(d) "Tenant and affiliates"when used in this Section 8 means Tenant or Tenant's
subtenants, contractors, agents, employees, guests, invitees, licensees, affiliates,
or any person on the Property with the Tenant's permission.
(e) "Liabilities"as used in this Section 8 means any claims, demands,proceedings,
lawsuits, damages, costs, expenses, fees(including attorneys' fees and
disbursements),penalties, or judgments.
8.2 General Conditions.
(a) Tenant's obligations under this Section 8 extend to the area in, on, under, or above
(1) The Property and
(2) Adjacent state-owned aquatic lands if affected by a release of Hazardous
Substances that occurs as a result of the Permitted Use.
(b) Standard of Care.
(1) Tenant shall exercise the utmost care with respect to Hazardous Substances.
(2) Tenant shall exercise utmost care for the foreseeable acts or omissions of
third parties with respect to Hazardous Substances, and the foreseeable
consequences of those acts or omissions, to the extent required to establish
a viable, third-party defense under the law.
8.3 Current Conditions and Duty to Investigate.
(a) State makes no representation about the condition of the Property. Hazardous
Substances may exist in, on, under, or above the Property.
(b) This Lease does not impose a duty on State to conduct investigations or supply
information to Tenant about Hazardous Substances.
(c) Tenant is responsible for conducting all appropriate inquiry and gathering
sufficient information about the existence, scope, and location of Hazardous
Substances on or near the Property necessary for Tenant to meet Tenant's
obligations under this Lease and utilize the Property for the Permitted Use.
8.4 Use of Hazardous Substances.
(a) Tenant and affiliates shall not use, store, generate, process,transport, handle, release,
or dispose of Hazardous Substances, except in accordance with all applicable laws.
(b) Tenant shall not undertake, or allow others to undertake by Tenant's permission,
acquiescence, or failure to act, activities that result in a release or threatened
release of Hazardous Substances.
(c) If use of Hazardous Substances related to Tenant's use or occupancy of the
Property results in violation of law:
(1) Tenant shall submit to State any plans for remedying the violations, and
(2) Tenant shall implement any remedial measures to restore the Property or
natural resources that State may require in addition to remedial measures
required by regulatory authorities.
Aquatic Lands Lease Page 12 of 31 Lease No.22-086143
(d) At a minimum,Tenant and affiliates shall observe the following Hazardous
Substances operational standards. If the Washington Department of Ecology, U.S.
Environmental Protection Agency or other regulatory agency establishes different
standards applicable to Tenant's activities under the Permitted Use, Tenant shall
meet the standard that provides greater protection to the environment.
(1) Tenant shall not allow work on overwater structures or vessels without
protective measures to prevent discharge of toxins to the water, including:
(i) Tenant shall not cause or allow underwater hull scraping and other
underwater removal of paints.
(ii) Tenant shall not cause or allow underwater refinishing work from
boats or temporary floats unless permitted by an industrial National
Pollution Discharge Elimination System (NPDES)permit.
(iii) Tenant shall not cause or allow above the waterline boat repairs or
refinishing in-water except if limited to decks and superstructures
and less than 25 percent of a boat is repaired or refinished in-water
per year.
(iv) Tenant shall use and require others to use tarps and other dust, drip
and spill containment measures when repairing or refinishing boats
in water.
(2) Tenant shall not store or allow others to store fuel tanks, petroleum
products, hydraulic fluid, machinery coolants, lubricants and chemicals
not in use in locations above the water surface.
(3) Tenant shall inspect all equipment using petroleum products, hydraulic
fluids,machinery coolants, chemicals, or other toxic or deleterious
materials on a monthly basis and immediately make all repairs necessary
to stop leakage. Tenant shall submit to State an annual report
documenting inspections and repair.
(4) Tenant shall maintain a supply of oil spill containment materials adequate
to contain a spill from the largest vessel in use on the Property.
(5) Tenant shall not use or allow use of a pressure washer at any location
above the water surface to clean any item that uses petroleum products.
8.5 Management of Contamination,if any.
(a) Tenant and affiliates shall not undertake activities that:
(1) Damage or interfere with the operation of remedial or restoration activities,
if any;
(2) Result in human or environmental exposure to contaminated sediments, if
any;
(3) Result in the mechanical or chemical disturbance of on-site habitat
mitigation, if any.
(b) If requested, Tenant shall allow reasonable access to:
(1) Employees and authorized agents of the Environmental Protection Agency,
the Washington State Department of Ecology, health department, or other
similar environmental agencies; and
Aquatic Lands Lease Page 13 of 31 Lease No.22-086143
(2) Potentially liable or responsible parties who are the subject of an order or
consent decree that requires access to the Property. Tenant may negotiate an
access agreement with such parties, but Tenant may not unreasonably
withhold such agreement.
8.6 Notification and Reporting.
(a) Tenant shall immediately notify State if Tenant becomes aware of any of the
following:
(1) A release or threatened release of Hazardous Substances;
(2) Any new discovery of or new information about a problem or liability
related to, or derived from,the presence of Hazardous Substances;
(3) Any lien or action arising from Hazardous Substances;
(4) Any actual or alleged violation of any federal, state, or local statute,
ordinance, rule, regulation, or other law pertaining to Hazardous Substances;
(5) Any notification from the 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) Tenant's duty to report under Paragraph 8.6(a) extends to lands described in
Paragraph 8.2(a) and to any other property used by Tenant in conjunction with the
Property if a release of Hazardous Substances on the other property could affect the
Property.
(c) Tenant shall provide State with copies of all documents Tenant submits to any
federal, state or local authorities concerning environmental impacts or proposals
relative to the Property. Documents subject to this requirement include, but are not
limited to, applications, reports, studies, or audits for National Pollution Discharge
and Elimination System Permits; Army Corps of Engineers permits; State
Hydraulic Project Approvals (HPA); State Water Quality certification; Substantial
Development permit; and any reporting necessary for the existence, location, and
storage of Hazardous Substances on the Property.
8.7 Indemnification.
(a) Tenant shall fully indemnify, defend, and hold State harmless from and against
Liabilities that arise out of, or relate to:
(1) The use, storage, generation,processing, transportation,handling, or
disposal of any Hazardous Substance by Tenant and affiliates occurring
whenever Tenant occupies or has occupied the Property;
(2) The release or threatened release of any Hazardous Substance resulting
from any act or omission of Tenant and affiliates occurring whenever
Tenant occupies or has occupied the Property.
(b) Tenant shall fully indemnify, defend, and hold State harmless for Liabilities that
arise out of or relate to Tenant's breach of obligations under Paragraph 8.5.
8.8 Reservation of Rights.
(a) For Liabilities not covered by the indemnification provisions of Paragraph 8.7, the
Parties expressly reserve and do not waive any rights, claims, immunities, causes
Aquatic Lands Lease Page 14 of 31 Lease No. 22-086143
of action, or defenses relating to Hazardous Substances that either Party may have
against the other under law.
(b) The Parties expressly reserve all rights, claims, immunities, and defenses either
Party may have against third parties.Nothing in this Section 8 benefits or creates
rights for third parties.
(c) The allocations of risks, Liabilities, and responsibilities set forth in this Section 8
do not release either Party from or affect the liability of either Party for Hazardous
Substances claims or actions by regulatory agencies.
8.9 Cleanup.
(a) If Tenant's act, omission, or breach of obligation under Paragraph 8.4 results in a
release of Hazardous Substances that exceeds the threshold limits of any applicable
regulatory standard, Tenant shall, at Tenant's sole expense,promptly take all
actions necessary or advisable to clean up the Hazardous Substances in accordance
with applicable law.
(b) Tenant may undertake a cleanup of the Property pursuant to the Washington State
Department of Ecology's Voluntary Cleanup Program,provided that Tenant
cooperates with the Department of Natural Resources in development of cleanup
plans. Tenant shall not proceed with Voluntary Cleanup without the Department
of Natural Resources approval of final plans. Nothing in the operation of this
provision is an agreement by the Department of Natural Resources that the
Voluntary Cleanup complies with any laws or with the provisions of this Lease.
Tenant's completion of a Voluntary Cleanup is not a release from or waiver of any
obligation for Hazardous Substances under this Lease.
8.10 Sampling by State,Reimbursement, and Split Samples.
(a) State may enter the Property and conduct sampling, tests, audits, surveys, or
investigations ("Tests") of the Property at any time to determine the existence,
scope, or effects of Hazardous Substances.
(b) If such Tests, along with any other information, demonstrate a breach of Tenant's
obligations regarding Hazardous Substances under this Lease, Tenant shall
promptly reimburse State for all costs associated with the Tests,provided State
gave Tenant thirty(30) calendar days advance notice in non-emergencies and
reasonably practical notice in emergencies.
(c) In non-emergencies, Tenant is entitled to obtain split samples of Test samples,
provided Tenant gives State written notice requesting split samples at least ten (10)
calendar days before State conducts Tests. Upon demand, Tenant shall promptly
reimburse State for additional cost, if any, of split samples.
(d) If either Party conducts Tests on the Property, the conducting Party shall provide
the other with validated final data and quality assurance/quality control/chain of
custody information about the Tests within sixty(60) calendar days of a written
request by the other party,unless Tests are part of a submittal under Paragraph
8.6(c) in which case Tenant shall submit data and information to State without
written request by State. Neither party is obligated to provide any analytical
summaries or the work product of experts.
Aquatic Lands Lease Page 15 of 31 Lease No.22-086143
SECTION 9 ASSIGNMENT AND SUBLETTING
9.1 State Consent Required. Tenant shall not convey, transfer, or encumber any part of
Tenant's interest in this Lease or the Property without State's prior written consent, which State
shall not unreasonably condition or withhold.
(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. State may refuse its consent to any
conveyance, transfer, or encumbrance if it will result in a subdivision of the
leasehold. Tenant shall submit information regarding any proposed transferee to
State at least thirty (30) days prior to the date of the proposed transfer.
(b) State reserves the right to condition its consent upon:
(1) changes in the terms and conditions of this Lease, including, but not
limited to,the Annual Rent; and/or
(2) the agreement of Tenant or transferee to conduct Tests for Hazardous
Substances on the Property or on other property owned or occupied by
Tenant or the transferee.
(c) Each permitted transferee shall assume all obligations under this Lease, including
the payment of rent. No assignment, sublet, or transfer shall release, discharge, or
otherwise affect the liability of Tenant.
(d) State's consent under this Paragraph 9.1 does not constitute a waiver of any
claims against Tenant for the violation of any term of this Lease.
9.2 Rent Payments Following Assignment. The acceptance by State of the payment of rent
following an assignment or other transfer does not constitute consent to any assignment or transfer.
9.3 Terms of Subleases.
(a) Tenant shall submit the terms of all subleases to State for approval.
(b) Tenant shall incorporate the following requirements in all subleases:
(1) The sublease must be consistent with and subject to.all the terms and
conditions of this Lease;
(2) The sublease must provide that this Lease controls if the terms of the
sublease conflict with the terms of this Lease;
(3) The term of the sublease (including any period of time covered by a
renewal option)must end before the Termination Date of the initial Term
or any renewal term;
(4) The sublease must terminate if this Lease terminates for any reason;
(5) The subtenant must receive and acknowledge receipt of a copy of this Lease;
(6) The sublease must prohibit the prepayment to Tenant by the subtenant of
more than the annual rent;
(7) The sublease must identify the rental amount subtenant is to pay to Tenant;
(8) The sublease must provide that there is no privity of contract between the
subtenant and State;
Aquatic Lands Lease Page 16 of 31 Lease No.22-086143
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(9) The sublease must require removal of the subtenant's Improvements and
Personal Property upon termination of the sublease;
(10) The subtenant's permitted use must be within the scope of the Permitted
Use; and
(11) The sublease must require the subtenant to meet all obligations of Tenant
under Section 10, Indemnification,Financial Security, and Insurance.
9.4 Short-Term Subleases of Moorage Slips. Short-term subleasing of moorage slips for a
term of less than one year does not require State's written consent or approval pursuant to
Paragraphs 9.1 or 9.3. Tenant shall conform moorage sublease agreements to the sublease
requirements in Paragraph 9.3.
SECTION 10 INDEMNITY,FINANCIAL SECURITY, INSURANCE
10.1 Indemnity.
(a) Tenant shall indemnify, defend, and hold State, its employees, officers, and agents
harmless from Claims arising out of the use, occupation, or control of the Property
by Tenant, its subtenants, contractors, agents, invitees, guests, employees, affiliates,
licensees, or permittees.
(b) "Claim"as used in this Paragraph 10.1 means any financial loss, claim, suit, action,
damages, expenses, fees (including attorneys' fees),penalties, or judgments
attributable to bodily injury, sickness, disease, death, and damages to tangible
property, including, but not limited to, land, aquatic life, and other natural
resources. "Damages to tangible property"includes, but is not limited to,physical
injury to the Property and damages resulting from loss of use of the Property.
(c) State shall not require Tenant to indemnify, defend, and hold State harmless for
claims that arise solely out of the willful or negligent act of State or State's elected
officials, employees, or agents.
(d) Tenant waives its immunity under Title 51 RCW to the extent it is required to
indemnify, defend, and hold State and its agencies, officials, agents, or employees
harmless.
(e) Section 8, Environmental Liability/Risk Allocation, exclusively shall govern
Tenant's liability to State for Hazardous Substances and its obligation to indemnify,
defend, and hold State harmless for Hazardous Substances.
10.2 Insurance Terms.
(a) Insurance Required.
(1) Alternative for Self-Insured. Tenant certifies that it is self-insured for all the
liability exposures, its self-insurance plan satisfies all State requirements,
and its self-insurance plan provides coverage equal to that required in this
Paragraph 10.2 and by Paragraph 10.3, Insurance Types and Limits. Tenant
shall provide to State evidence of its status as a self-insured entity. Upon
request by State, Tenant shall provide a written description of its financial
condition and/or the self-insured funding mechanism. Tenant shall provide
Aquatic Lands Lease Page 17 of 31 Lease No.22-086143
State with at least thirty(30) days' written notice prior to any material
changes to Tenant's self-insured funding mechanism.
(2) Unless State agrees to an exception, Tenant shall provide insurance issued
by an insurance company or companies admitted to do business in the
State of Washington and have a rating of A- or better by the most recently
published edition of Best's Reports. Tenant may submit a request to the
risk manager for the Department of Natural Resources to approve an
exception to this requirement. If an insurer is not admitted, the insurance
policies and procedures for issuing the insurance policies shall comply
with Chapter 48.15 RCW and 284-15.WAC.
(3) All general liability, excess,umbrella,property,builder's risk, and
pollution legal liability insurance policies must name the State of
Washington, the Department of Natural Resources, its elected and
appointed officials, agents, and employees as an additional insured.
(4) All insurance provided in'compliance with this Lease must be primary as
to any other insurance or self-insurance programs afforded to or
maintained by State.
(b) Waiver.
(1) Tenant waives all rights against State for recovery of damages to the
extent insurance maintained pursuant to this Lease covers these damages.
(2) Except as prohibited by law, Tenant waives all rights of subrogation
against State for recovery of damages to the extent that they are covered
by insurance maintained pursuant to this lease.
(c) Proof of Insurance.
(1) Tenant shall provide State with a certificate(s) of insurance executed by a
duly authorized representative of each insurer, showing compliance with
insurance requirements specified in this Lease and, if requested, copies of
policies to State.
(2) The.certificate(s) of insurance must reference additional insureds and the
Lease number.
(3) Receipt of such certificates or policies by State does not constitute
approval by State of the terms of such policies.
(d) State must receive written notice before cancellation or non-renewal of any
insurance required by this Lease, as follows:
(1) Insurers subject to RCW 48.18 (admitted and regulated by the Insurance
Commissioner): If cancellation is due to non-payment of premium,provide
State ten(10) days' advance notice of cancellation; otherwise, provide State
forty-five (45)days' advance notice of cancellation or non-renewal.
(2) Insurers subject to RCW 48.15 (surplus lines): If cancellation is due to
non-payment of premium,provide State ten (10) days' advance notice of
cancellation; otherwise, provide State thirty(30) days' advance notice of
cancellation or non-renewal.
(e) Adjustments in Insurance Coverage.
(1). State may impose changes in the limits of liability for all types of
insurance as State deems necessary.
Aquatic Lands Lease Page 18 of 31 Lease No.22-086143
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(2) Tenant shall secure new or modified insurance coverage within thirty (30)
days after State requires changes in the limits of liability.
(f) If Tenant fails to procure and maintain the insurance described above within fifteen
(15) days after Tenant receives a notice to comply from State, State may either:
(1) Deem the failure an Event of Default under Section 14, or
(2) Procure and maintain comparable substitute insurance and pay the
premiums. Upon demand, Tenant shall pay to State the full amount paid by
State,together with interest at the rate provided in Paragraph 6.2 from the
date of State's notice of the expenditure until Tenant's repayment.
(g) General Terms.
(1) State does not represent that coverage and limits required under this Lease
are adequate to protect Tenant.
(2) Coverage and limits do not limit Tenant's liability for indemnification and
reimbursements granted to State under this Lease.
(3) The Parties shall use any insurance proceeds payable by reason of damage
or destruction to property first to restore the real property covered by this
Lease,then to pay the cost of the reconstruction,then to pay the State any
sums in arrears, and then to Tenant.
10.3 Insurance Types and Limits.
(a) General Liability Insurance.
(1) Tenant shall maintain commercial general liability insurance (CGL) or
marine general liability(MGL)covering claims for bodily injury,personal
injury, or property damage arising on the Property and/or arising out of
Tenant's use, occupation, or control of the Property and, if necessary,
commercial umbrella insurance with a limit of not less than Two Million
Dollars ($2,000,000)per each occurrence. If such CGL or MGL insurance
contains aggregate limits,the general aggregate limit must be at least twice
the"each occurrence" limit. CGL or MGL insurance must have products-
completed operations aggregate limit of at least two times the"each
occurrence"limit.
(2). CGL insurance must be written on Insurance Services Office(ISO)
Occurrence Form CG 00 01 (or a substitute form providing equivalent
coverage). All insurance must cover liability arising out of premises,
operations, independent contractors,products completed operations,
personal injury and advertising injury, and liability assumed under an
insured contract(including the tort liability of another party assumed in a
business contract) and contain separation of insured(cross-liability)
condition.
(3) MGL insurance must have no exclusions for non-owned watercraft.
(b) Workers' Compensation.
(1) State of Washington Workers' Compensation.
(i) Tenant shall comply with all State of Washington workers'
compensation statutes and regulations. Tenant shall provide
workers' compensation coverage for all employees of Tenant.
Aquatic Lands Lease Page 19 of 31 Lease No.22-086143
Coverage must include bodily injury (including death) by accident
or disease,which arises out of or in connection with Tenant's use,
occupation, and control of the Property.
(ii) If Tenant fails to comply with all State of Washington workers'
compensation statutes and regulations and State incurs fines or is
required by law to provide benefits to or obtain coverage for such
employees,Tenant shall indemnify State. Indemnity shall include
all fines; payment of benefits to Tenant, employees, or their heirs
or legal representatives; and the cost of effecting coverage on
behalf of such employees.
(2) Longshore and Harbor Workers' and Jones Acts. Longshore and Harbor
Workers' Act(33 U.S.C. Section 901 et seq.) and/or the Jones Act(46
U.S.C. Section 688)may require Tenant to provide insurance coverage in
some circumstances. Tenant shall ascertain if such insurance is required
and, if required, shall maintain insurance in compliance with law. Tenant
is responsible for all civil and criminal liability arising from failure to
maintain such coverage.
(c) Employers' Liability Insurance. Tenant shall procure employers' liability insurance,
and, if necessary, commercial umbrella liability insurance with limits not less than
One Million Dollars ($1,000,000) each accident for bodily injury by accident or One
Million Dollars ($1,000,000) each employee for bodily injury by disease.
10.4 Financial Security.
(a) At its own expense, Tenant shall procure and maintain during the Term of this
Lease a corporate security bond or provide other financial security that State, at its
option,may approve ("Security"). Tenant shall provide Security in an amount
equal to Five Hundred Dollars ($500), which is consistent with RCW 79.105.330,
and secures Tenant's performance of its obligations under this Lease, with the
exception of the obligations under Section 8, Environmental Liability/Risk
Allocation. Tenant's failure to maintain the Security in the required amount during
the Term constitutes a breach of this Lease.
(b) All Security must be in a form acceptable to the State.
(1) Bonds must be issued by companies admitted to do business within the
State of Washington and have a rating of A-, Class VII or better, in the
most recently published edition of Best's Reports, unless State approves an
exception. Tenant may submit a request to the risk manager for the
Department of Natural Resources for an exception to this requirement.
(2) Letters of credit, if approved by State, must be irrevocable, allow State to
draw funds at will,provide for automatic renewal, and comply with
RCW 62A.5-101, et. seq.
(3) Savings account assignments, if approved by State, must allow State to
draw funds at will.
(c) Adjustment in Amount of Security.
(1) State may require an adjustment in the Security amount:
(i) At the same time as revaluation of the Annual Rent,
(ii) As a condition of approval of assignment or sublease of this Lease,
Aquatic Lands Lease Page 20 of 31 Lease No.22-086143
(iii) Upon a material change in the condition or disposition of any
Improvements, or
(iv) Upon a change in the Permitted Use.
(2) Tenant shall deliver a new or modified form of Security to State within
thirty(30) days after State has required adjustment of the amount of the
Security.
(d) Upon any default by Tenant in its obligations under this Lease, State may collect
on the Security to offset the liability of Tenant to State. Collection on the
Security does not(1)relieve Tenant of liability, (2)limit any of State's other
remedies, (3)reinstate or cure the default or(4)prevent termination of the Lease
because of the default.
SECTION 11 ROUTINE MAINTENANCE AND REPAIR
11.1 State's Repairs. This Lease does not obligate State to make any alterations,
maintenance, replacements, or repairs in, on, or about the Property, or any part thereof, during
the Term.
11.2 Tenants Repairs and Maintenance.
(a) Routine maintenance and repair are acts intended to prevent a decline, lapse or,
cessation of the Permitted Use and associated Improvements. Routine
maintenance or repair is the type of work that does not require regulatory permits.
(b) At Tenant's own expense, Tenant shall keep and maintain the Property and all
Improvements in good order and repair and in a safe condition. State's consent is
not required for routine maintenance or repair.
(c) At Tenant's own expense, Tenant shall make any additions, repairs, alterations,
maintenance, replacements, or changes to the Property or to any Improvements on
the Property that any public authority may require. If a public authority requires
work beyond the scope of routine maintenance and repair, Tenant shall comply
with Section 7 of this Lease.
11.3 Limitations. The following limitations apply whenever Tenant conducts maintenance,
repair or replacement.
(a) Tenant shall not use or install treated wood at any location above or below water,
except that Tenant may use treated wood for above water structural framing.
(b) Tenant shall not use or install tires (for example, floatation or fenders) at any
location above or below water.
(c) Tenant shall install only floatation material encapsulated in a shell resistant to
ultraviolet radiation and abrasion. The shell must be capable of preventing
breakup and loss of flotation material into the water.
(d) Tenant shall orient night lighting to minimize the amount of light shining directly
on the water.
Aquatic Lands Lease Page 21 of 31 Lease No.22-086143
•
SECTION 12 DAMAGE OR DESTRUCTION
12.1 Notice and Repair.
(a) In the event of damage to or destruction of the Property or Improvements,Tenant
shall promptly give written notice to State. State does not have actual knowledge
of the damage or destruction without Tenant's written notice.
(b) Unless otherwise agreed in writing, Tenant shall promptly reconstruct,repair, or
replace the Property and Improvements as nearly as possible to its condition
immediately prior to the damage or destruction in accordance with Paragraph 7.3,
Construction, Major Repair, Modification, and Demolition and Tenant's
additional obligations in Exhibit B, if any.
12.2 State's Waiver of Claim. State does not waive any claims for damage or destruction of
the Property unless State provides written notice to Tenant of each specific claim waived.
12.3 Insurance Proceeds. Tenant's duty to reconstruct,repair, or replace any damage or
destruction of the Property or any Improvements on the Property is not conditioned upon the
availability of any insurance proceeds to Tenant from which the cost of repairs may be paid. The
Parties shall use insurance proceeds in accordance with Paragraph 10.2(g)(3).
12.4 Rent in the Event of Damage or Destruction. Unless the Parties agree to terminate this
Lease,there is no abatement or reduction in rent during such reconstruction,repair, and replacement.
12.5 Default at the Time of Damage or Destruction. If Tenant is in default under the terms
of this Lease at the time damage or destruction occurs, State may elect to terminate the Lease and
State then shall have the right to retain any insurance proceeds payable as a result of the damage
or destruction.
SECTION 13 CONDEMNATION
13.1 Definitions.
(a) "Taking"means that an entity authorized by law exercises the power of eminent
domain, either by judgment, settlement in lieu of judgment, or voluntary
conveyance in lieu of formal court proceedings, over all or any portion of the
Property and Improvements. This includes any exercise of eminent domain on any
portion of the Property and Improvements that, in the judgment of the State,
prevents or renders impractical the Permitted Use.
(b) "Date of Taking"means the date upon which title to the Property or a portion of the
Property passes to and vests in the condemner or the effective date of any order for
possession if issued prior to the date title vests in the condemner.
13.2 Effect of Taking. If there is a taking,the Lease terminates proportionate to the extent of
the taking. If this Lease terminates in whole or in part, Tenant shall make all payments due and
attributable to the taken Property up to the date of taking. If Tenant has pre-paid rent and Tenant
Aquatic Lands Lease Page 22 of 31 Lease No.22-086143
is not in default of the Lease, State shall refund Tenant the pro rata share of the pre-paid rent
attributable to the period after the date of taking.
13.3 Allocation of Award.
(a) The Parties shall allocate the condemnation award based upon the ratio of the fair
market value of(1) Tenant's leasehold estate and Tenant-Owned Improvements
and(2) State's interest in the Property;the reversionary interest in Tenant-Owned
Improvements, if any; and State-Owned Improvements, if any.
(b) If Tenant and State are unable to agree on the allocation,the Parties shall submit
the dispute to binding arbitration in accordance with the rules of the American
Arbitration Association.
SECTION 14 DEFAULT AND REMEDIES
14.1 Default Defined. Tenant is in default of this Lease on the occurrence of any of the
following:
(a) Failure to pay rent or other expenses when due;
(b) Failure to comply with any law,regulation,policy, or order of any lawful
governmental authority;
(c) Failure to comply with any other provision of this Lease;
(d) Commencement of bankruptcy proceedings by or against Tenant or the
appointment of a trustee or receiver of Tenant's property.
14.2 Tenant's Right to Cure.
(a) A default becomes an"Event of Default"if Tenant fails to cure the default within
the applicable cure period following State's written notice of default. Upon an
Event of Default, State may seek remedies under Paragraph 14.3.
(b) Unless expressly provided elsewhere in this Lease, the cure period is sixty(60)
days.
(c) For nonmonetary defaults not capable of cure within sixty (60)days, State will
not unreasonably withhold approval of a reasonable alternative cure
schedule. Tenant must submit a cure schedule within thirty(30) days of a notice
of default. The default is not.an Event of Default if State approves the schedule
and Tenant works diligently and in good faith to execute the cure. The default is
an Event of Default if Tenant fails to timely submit a schedule or fails to cure in
accordance with an approved schedule.
(d) State may elect to deem a default by Tenant as an Event of Default if the default
occurs within six(6)months after a default by Tenant for which State has
provided notice and opportunity to cure and regardless of whether the first and
subsequent defaults are of the same nature.
14.3 Remedies.
(a) Upon an Event of Default, State may terminate this Lease and remove Tenant by
summary proceedings or otherwise.
Aquatic Lands Lease Page 23 of 31 Lease No.22-086143
(b) If the Event of Default(1) arises from Tenant's failure to comply with restrictions
on Permitted Use and operations under Paragraph 2.2 or(2)results in damage to
natural resources or the Property, State may enter the Property without
terminating this Lease to (1)restore the natural resources or Property and charge
Tenant restoration costs and/or(2) charge Tenant for damages. On demand by
State, Tenant shall pay all costs and/or damages.
(c) Without terminating this Lease, State may relet the Property on any terms and
conditions as State may decide are appropriate.
(1) State shall apply rent received by reletting: (1)to the payment of any
indebtedness other than rent due from Tenant to State; (2) to the payment of
any cost of such reletting; (3)to the payment of the cost of any alterations
and repairs to the Property; and(4)to the payment of rent and leasehold
excise tax due and unpaid under this Lease. State shall hold and apply any
balance to Tenant's future rent as it becomes due.
(2) Tenant is responsible for any deficiency created by the reletting during any
month and shall pay the deficiency monthly.
(3) At any time after reletting, State may elect to terminate this Lease for the
previous Event of Default.
(d) State's reentry or repossession of the Property under Paragraph 14.3 is not an
election to terminate this Lease or cause a forfeiture of rents or other charges Tenant
is obligated to pay during the balance of the Term, unless (1) State gives Tenant
written notice of termination or(2) a legal proceeding decrees termination.
(e) The remedies specified under this Paragraph 14.3 are not exclusive of any other
remedies or,means of redress to which the State is lawfully entitled for Tenant's
breach or threatened breach of any provision of this Lease.
SECTION 15 ENTRY BY STATE
State may enter the Property at any reasonable hour to inspect for compliance with the terms of this
Lease,to monitor impacts to habitat, or survey habitat and species. Tenant grants State permission
to cross Tenant's upland and aquatic land property to access the Property. State will inspect the
Property annually. State may coordinate the site inspection with Washington State Department of
Ecology or other regulatory authorities, if appropriate. Provision for periodic inspection does not
preclude State's option to inspect at other times. State's failure to inspect the Property does not
constitute a waiver of any rights or remedies under this Lease.
SECTION 16 DISCLAIMER OF QUIET ENJOYMENT
16.1 No Guaranty or Warranty.
(a) State believes that this Lease is consistent with the Public Trust Doctrine and that
none of the third-party interests identified in Paragraph 1.1(b) will materially or
adversely affect Tenant's right of possession and use of the Property, but State
makes no guaranty or warranty to that effect.
Aquatic Lands Lease Page 24 of 31 Lease No.22-086143
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(b) State disclaims and Tenant releases State from any claim for breach of any implied
covenant of quiet enjoyment. This disclaimer and release includes, but is not limited
to, interference arising from exercise of rights under the Public Trust Doctrine;
Treaty rights held by Indian Tribes; and the general power and authority of State and
the United States with respect to aquatic lands and navigable waters.
(c) Tenant is responsible for determining the extent of Tenant's right to possession and
for defending Tenant's leasehold interest.
16.2 Eviction by Third-Party. If a third-parry evicts Tenant, this Lease terminates as of the
date of the eviction. In the event of a partial eviction, Tenant's rent obligations abate as of the
date of the partial eviction, in direct proportion to the extent of the eviction; this Lease shall
remain in full force and effect in all other respects.
SECTION 17 NOTICE AND SUBMITTALS
Following are the locations for delivery of notice and submittals required or permitted under this
Lease. Any Party may change the place of delivery upon ten(10) days written notice to the other.
State: DEPARTMENT OF NATURAL RESOURCES
Shoreline District Aquatics
950 Farman Ave N
Enumclaw, WA 98022-9282
Tenant: CITY OF RENTON
1055 S Grady Way
Renton, WA 98057-3232
The Parties may deliver any notice in person, by facsimile machine, or by certified mail.
Depending on the method of delivery,notice is effective upon personal delivery, upon receipt of a
confirmation report if delivered by facsimile machine, or three (3) days after mailing. All notices
must identify the Lease number. On notices transmitted by facsimile machine,the Parties.shall
state the number of pages contained in the notice, including the transmittal page, if any.
SECTION 18 MISCELLANEOUS
18.1 Authority. Tenant and the person or persons executing this Lease on behalf of Tenant
represent that Tenant is qualified to do business in the State of Washington, that Tenant has full
right and authority to enter into this Lease, and that each and every person signing on behalf of
Tenant is authorized to do so. Upon State's request, Tenant shall provide evidence satisfactory to
State confirming these representations.
18.2 Successors and Assigns. This Lease binds and inures to the benefit of the Parties, their
successors, and assigns.
Aquatic Lands Lease Page 25 of 31 Lease No.22-086143
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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 Parties. This Lease merges all prior and contemporaneous agreements,
promises,representations, and statements relating to this transaction or to the Property.
18.5 Waiver.
(a) The waiver of any breach or default of any term, covenant, or condition of this
Lease is not a waiver of such term, covenant, or condition; of any subsequent
breach or default of the same; or of any other term, covenant, or condition of this
Lease. State's acceptance of a rental payment is not a waiver of any preceding or
existing breach other than the failure to pay the particular rental payment that was
accepted.
(b) The renewal of the Lease, extension of the Lease, or the issuance of a new lease to
Tenant, does not waive State's ability to pursue any rights or remedies under the
Lease.
18.6 Cumulative Remedies. The rights and remedies under this Lease are cumulative and in
addition to all other rights and remedies afforded by law or equity or otherwise.
18.7 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of
this Lease.
18.8 Language. The word "Tenant" as used in this Lease applies to one or more persons and
regardless of gender, as the case may be. If there is more than one Tenant,their obligations are
joint and several. The word"persons,"whenever used, shall include individuals, firms,
associations, and corporations. The word"Parties"means State and Tenant in the collective. The
word"Parry"means either or both State and Tenant, depending on the context.
18.9 Invalidity. The invalidity, voidness, or illegality of any provision of this Lease does not
affect, impair, or invalidate any other provision of this Lease.
18.10 Applicable Law and Venue. This Lease is to be interpreted and construed in accordance
with the laws of the State of Washington. Venue for any action arising out of or in connection
with this Lease is in the Superior Court for Thurston County, Washington.
18.11 Statutory Reference.Any reference to a statute means that statute as presently enacted
or hereafter amended or superseded.
18.12 Recordation. At Tenant's expense and no later than thirty(30) days after receiving the
fully-executed Lease, Tenant shall record this Lease in the county in which the Property is located.
Tenant shall include the parcel number of the upland property used in conjunction with the
Property, if any. Tenant shall provide State with recording information, including the date of
recordation and file number. If Tenant fails to record this Lease, State may record it and Tenant
shall pay the costs of recording upon State's demand.
Aquatic Lands Lease Page 26 of 31 Lease No.22-086143
18.13 Modification. No modification of this Lease is effective unless in writing and signed by
both Parties. Oral representations or statements do not bind either Party.
18.14 Survival. Any obligations of Tenant not fully performed upon termination of this Lease
do not cease, but continue as obligations of the Tenant until fully performed.
18.15 Exhibits. All referenced exhibits are incorporated in the Lease unless expressly
identified as unincorporated.
THIS AGREEMENT requires the signature of all Parties and is effective on the date of the last
signature below.
CITY OF NTON
Dated: 2 7 , 20 /3
By: DENIS LAW
Title: Mayor, City of Renton
Address: 1055 S Grady Way
Renton, WA 98057-3232
Phone: 425-430-6500
Attest:
Bonnie I . Walton, City Clerk
Ir hhu{h,l
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
Dated: ,� , 20
.�
lgsIONE� By: P E GOLDMARK
G .0
w Title: Commissioner of Public Lands
F .rr
lip
n
Address: 1111 Washington St SE
�s
WAS So Olympia, WA 98504
Approved as to form this
12 day of March,2010
Janis Snoey, Assistant Attorney General
Aquatic Lands Lease Page 27 of 31 Lease No.22-086143
• 0
REPRESENTATIVE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss
County of )
I
I certify that I know or have satisfactory evidence that DENIS LAW is the person who appeared
before me, and said person acknowledged that he signed this instrument, on oath stated that he
was authorized to execute the instrument and acknowledged it as the MAYOR of CITY OF
RENTON to be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Dated:, 20J3
(Signa e)
(Seal fo jAog.B�,��+
A4Q...
%
y� 1�2 t u\
"C)l AR Y 9��i (Print Name) \
<o
PUB o Notary Public in and for the State of
-27 Was n,residing at ^` \
My appointment expires
Aquatic Lands Lease Page 28 of 31 Lease No.22-086143
STATE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss
County of
I certify that I know or have satisfactory evidence that PETER GOLDMARK 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: `'( 20
(Si e)
(Seal or stam��
��` �► • SgION f�'P•E,9 ��� 1
'* (Print Name)
Notary Public in and forte State of _
Puef`�o Washington,residing at
1VIy appointment expires
t
Aquatic Lands Lease Page 29 of 31 Lease No. 22-086143
• 0
EXHIBIT A
SURVEY AND PROPERTY DESCRIPTION
AGREEMENT NUMBER:
Aquatic Lands Lease No. 22-086143
STATE APPROVED RECORD OF SURVEY:
King County Recording Number 20120619900002
LEGAL DESCRIPTION OF THE PROPERTY:
THAT PORTION OF THE BED OF LAKE WASHINGTON, OWNED BY THE STATE OF
WASHINGTON, LYING BETWEEN THE INNER AND OUTER HARBOR LINES,
SITUATE IN FRONT OF, GOVERNMENT LOTS 1, 2, 3 AND 4 OR ADJACENT TO, OR
ABUTTING UPON THE COURT COMMISSIONERS PLAT, CAUSE NO. 156371
LOCATED IN GOVERNMENT LOTS 1, 2, 3 AND 4,ALL IN SECTION 5, TOWNSHIP 23
NORTH, RANGE 5 EAST, W.M. AND IN FRONT OF GOVERNMENT LOT 1 OF SECTION
6, TOWNSHIP 23 NORTH, RANGE 5 EAST, W.M., LYING NORTH OF THE FOLLOWING
DESCRIBED LINE:
COMMENCING AT THE SOUTH QUARTER CORNER FOR SECTION 5, TOWNSHIP 23
NORTH, RANGE 5 EAST, W.M.; THENCE NORTH 88°50'37" WEST ALONG THE
SOUTHERLY LINE OF SAID SECTION 5 FOR A DISTANCE OF 903.16 FEET, MORE OR
LESS, TO THE MEANDER CORNER; THENCE CONTINUING NORTH 88°50'37" WEST
826.80 FEET; THENCE NORTH 43 007'55" WEST, 679.46 FEET TO THE INNER HARBOR
LINE, SAID POINT IS MARKED WITH A 1-1/4"BRASS DISK WITH A PUNCH SET IN
CONCRETE AND THE TRUE POINT OF BEGINNING; THENCE SOUTH 46 052'53" WEST,
ALONG SAID INNER HABOR LINE, 76.42 FEET; THENCE NORTH 43°07'07" WEST,
850.96 FEET, TO THE OUTER HARBOR LINE AND TERMINUS; AND LYING SOUTH OF
THE FOLLOWING DESCRIBED LINE: COMMENCING AT THE NORTHEAST SECTION
CORNER FOR SECTION 6, TOWNSHIP 23 NORTH, RANGE 5 EAST, W.M.; THENCE
SOUTH 89 050'57" WEST ALONG THE NORTHERLY LINE OF SAID SECTION 6, FOR A
DISTANCE OF 354.87 FEET, MORE OR LESS, TO THE MEANDER CORNER; THENCE
SOUTH 53 027'l 0" WEST, 295.21 FEET TO THE INNER HARBOR LINE AND THE POINT
OF BEGINNING OF THIS LINE; THENCE CONTINUING SOUTH 53027'10" WEST, 200.26
FEET TO THE OUTER HARBOR LINE AND THE TERMINUS. CONTAINING 1,779,829
SQUARE FEET OR 40.859 ACRES, MORE OR LESS.
SQUARE FOOTAGE OF EACH USE CLASSIFICATION:
Water-dependent: 1,777,696 Square Feet
Nonwater-dependent: 2,133 Square Feet
Public Access: 1,777,696
Total square footage: 1,779,829 Square Feet
Aquatic Lands Lease Page 30 of 31 Lease No.22-086143
EXHIBIT B
PLAN OF OPERATIONS
1. DESCRIPTION OF PERMITTED USE
1.1 Existing Facilities.A community facility, Gene Coulon Memorial Beach Park,
provides public access to Lake Washington in King County, Washington. Park amenities
include: Bird Island, water walk, floating picnic pads, transient day moorage and Ivar's
Restaurant. The park is open and maintained year round. Existing improvements include:
treated wood pilings; concrete-filled steel pilings; floating concrete docks; treated wood
floating dock with six finger piers for transient moorage; treated wood decking; fixed
treated timber breakwater; floating treated log breakwater, floating metal tube breakwater;
Bird Island consisting of earthen fill with rip rap and metal mesh reinforcement around
perimeter; and a nearshore retail building housing Ivar's Restaurant.
1.2 Proposed Facilities. Tenant proposes no new facilities.
2. OTHER OBLIGATIONS
2.1 Replace Wood. Tenant shall replace existing treated wood, (decking, timbers,pilings,
etc.)with non-toxic materials such as untreated wood, steel, concrete, or recycled plastic,
or encased in a manner that prevents leaching of contaminants into surface water. Tenant
may use non-creosote treated wood to replace above water structural framing. Replacement
may occur under an ordinary maintenance or repair schedule,but all treated wood must be
replaced by the 1St day of July, 2028.
2.2 Replace Flotation Material. Tenant shall replace existing unencapsulated floatation
materials with encapsulated floatation materials. Replacement may occur under an
ordinary maintenance or repair schedule,but all unencapsulated flotation material must be
replaced by the 1St day of July, 2018.
2.3 Replace Grating. Tenant shall renovate or replace existing docks, rafts, floats,
wharves and piers to provide 50 percent grated surface; grating material must have at least
60 percent functional open space. Replacement may occur under an ordinary maintenance
or repair schedule, but replacement must be complete by the 1St day of July, 2028.
2.4 Remove Skirting. Tenant shall remove existing skirting from docks wharves and
piers by the 1 st day of July, 2018.
Aquatic Lands Lease Page 31 of 31 Lease No.22-086143