HomeMy WebLinkAbout2.64 Original Contract
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STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS LEASE
T ABLE OF CONTENTS
1. PROPERTy..........................................................................................................................1
1.1 , Property Defined.............................................................................................................. 1
1.2 Survey and Property Descriptions................................................................................. 2
1.3 Inspection.................................................................................................................... ..... 2
2. USE ........................................................................................................................................2
2.1 Permitted Use...... ................. ....... ........... ............... ............. ..... ...................... ................... 2
2.2 Restrictions on Use.......................................................................................................... 2
2.3 Conformance with Laws................................................................................................. 3
2.4 Liens and Encumbrances................................................................................................ 3
3. TERM....................................................................................................................................3
3.1 Term Defined................................................................................................................... 3
3.2 Renewal of the Lease....................................................................................................... 3
3.3 End of Term ......... ...................... ....... ........... .................. ................................ ..... ............. 3
3.4 Holdover...................................................................................................................... ..... 4
3.5 Adjustment of Term Resulting from Tenant's Possession........................................... 4
4. RENT .....................................................................................................................................5
4.1 Ann ual Rent..................................................................................................................... 5
4.2 Paymen t Place.................................................................................................................. 5
-4:3- Adjustment Based on Use............................................................................................... 5
4.4 Rent Adjustment Procedures......................................................................................... 5
4.5 Rent Adjustments for Nonwater-Dependent Uses........................................................ 5
5. OTHE R EXPE NS E S ............... ............................................................................................ 6
5.1 Utilities... ................. .................. ....... ............... ............. ....................... .............................. 6
5.2 Taxes and Assessments.................................................................................................... 6
5.3 Right to Contest............................................................................................................... 6
5.4 Proof of Payment............................................................................................................. 6
5.5 Failure to Pay................................................................................................................... 6
6. LATE PAYMENTS AND OTHER CHARGES ...............................................................6
6.1 Late Charge...................................................................................................................... 6
6.2 Interest Penalty for Past Due Rent and Other Sums Owed ........................................ 7
6.3 Referral to Collection Agency and Collection Agency Fees ........................................ 7
6.4 No Accord and Satisfaction ..................................................,......................................... 7
6.5 No Counterclaim, Setoff, or Abatement of Rent........................................................... 7
7. IMPROVE ME NTS .............................................................................................................. 7
7.1 Improvements Defined.................................................................................................... 7
7.2 Existing Improvements................................................................................................... 8
7.3 Construction, Alteration, Replacement, and Modification.......................................... 8
Form Date: 1/2007 Lease No. 22-081288
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7.4 Disposition and Removal of Tenant-Owned Improvements at End of Lease ............ 9
7.5 Disposition of Unauthorized Improvements ...............................................................10
7.6 Disposition of Personal Property.................................................................................. 10
7.7 Disposition of State-Owned Improvements................................................................. 11
8. ENVIRONMENT AL LIABILITY fRISK ALLOCATION ............................................11
8.1 Defin i ti 0 ns.. .. .. . .. .. .. .. .. . .. .. .. .. .. .. .. .. .. . .. .. .. .. .. . .. .. .. .. . .. .. . .. .. .. .. .. .. .. . .. .. .. .. . .. .. .. .. .. . .. .. .. .. .. .. .. .. . .. ... 11
8.2 General Conditions........................................................................................................ 11
8.3 Current Conditions and Duty to Investigate............................................................... 11
8.4 Use of Hazardous Substances....................................................................................... 12
8.5 Management of Contamination................................................................................... 12
8.6 Notification and Reporting........................................................................................... 12
8.7 Indemnification.............................................................................................................. 13
8.8 Reservation of Rights.................................................................................................... 14
8.9 Clean up........................................................................................................................... 14
8.10 Sampling by State, Reimbursement, and Split Samples ............................................ 14
9. ASSI GNMENT AND SUBLETTING ..............................................................................15
9.1 State Consent Required................................................................................................. 15
9.2 Rent Payments Following Assignment........................................................................ 16
9.3 Terms of Subleases........................................................................................................ 16
9.4 Short-Term Subleases of Moorage Slips..................................................................... 16
10. INDEMNITY , FINANCIAL SECURITY, INSURANCE..............................................16
10.1 Indemnity...................................................................................................................... . 16
10.2 Insurance Terms ........... ........ .................... ....... .......... ....... ..... ..... ......... ............ ....... ....... 17
10.3 Insurance Types and Limits ......................................................................................... 19
10.4 Financial Security.......................................................................................................... 20
11. MAINTENANCE AND REPAIR .....................................................................................21
11.1 State's Repairs................................................................................................................ 21
11.2 Tenant's Repairs, Alteration, Maintenance and Replacement.................................. 21
12 DAMAGE OR D ESTR U CTI ON ......................................................................................21
12.1 Notice and Repair.......................................................................................................... 21
12.2 State's Waiver of Claim................................................................................................ 22
12.3 Insurance Proceeds........................................................................................................ 22
12.4 Rent in the Event of Damage or Destruction ............................................................. 22
12.5 Default at the Time of Damage or Destruction ........................................................... 22
13. CO ND EMN A TI 0 N ...........................................................................................................2 2
13.1 Definitions....................................................................................................................... 22
13.2 Effect of Taking............................................................................................................. 22
13.3 Allocation of Award....................................................................................................... 23
14. DEFAULT AND REMEDIES ..........................................................................................23
14.1 Default Defined.............................................................................................................. 23
14.2 Tenant's Right to Cure.................................................................................................. 23
14.3 Remedies....................................................................................................................... .. 23
15. ENTRY BY STATE ...........................................................................................................24
16. DISCLAIMER OF QUIET ENJOYMENT .....................................................................24
16.1 No Guaranty or Warranty............................................................................................ 24
16.2 In the Event of Eviction by Third Party...................................................................... 24
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17. N OTI CE ............................................................ ~................................................................ .25
18. MIS CELLANEO US.......................................................................................................... 2 5.
18.1 Au th ority ........................................................................................................................ 25
18.2 Successors and Assigns........... ......... ............... ........ ................ .......... ..... ....... .......... ....... 25
18.3 Headings...................................................................................................................... ... 25
18.4 Entire Agreement .......... .................... ..................... ............................................ ........... 25
18.5 Waiver......................................................................................................................... .... 26
18.6 Cumulative Remedies.................................................................................................... 26
18.7 Time is of the Essence...............................................:.................................................... 26
18.8 Language........................................................................................................................ 26
18.9 Invalidity..................................................................................................................... .... 26
18.10 Applicable Law and Venue........................................................................................... 26
18.11 Recordation................................................................................................................... . 26
18.12 Modification................................................................................................................... 26
18.13 Survival........................................................................................................................ ... 27
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STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS LEASE
AQUATIC LANDS LEASE NO. 22-081288
THIS LEASE is made by and between the STATE OF WASHINGTON, acting through the
Department of Natural Resources ("State"), and CITY OF PORT ANGELES, a government entity
("Tenant").
BACKGROUND
Tenant desires to lease the aquatic lands commonly known as the Oak Street Waterfront, which is
a harbor area and tidelands located in Clallam 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.
(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 subj ect to all valid interests of third parties noted in the records of
Clallam 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) 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.
Form Date: 1/2007
Lease No. 22-081288
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(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 unreasonably interfere with
Tenant's 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.
(b) Tenant shall not rely on any written legal descriptions, surveys, plats, or diagrams
("property description") provided by State. Tenant shall not rely on State's
approval or acceptance of Exhibit A or any other Tenant-provided property
description as affirmation or agreement that Exhibit A or other property description
is true and accurate. Tenant's obligation to provide a true and accurate description
of the Property boundaries shall be a material term of this Lease.
(c) State agrees to accept a preliminary Exhibit A upon the Commencement Date of
this Lease. Tenant shall submit a final Exhibit A for State's approval within One
Thousand Ninety Five (1095) days of the Commencement Date. Upon State's
written approval, the final Exhibit A shall supersede the preliminary Exhibit A.
Until superseded, the preliminary Exhibit A shall have full legal effect.
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 govemmentallaws 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 a waterfront enjoyment area, promenade,
intermittent and permanent parking (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. This is a mixed use, with
40,000 square feet of non water-dependent and approximately 87,120 square feet of public use.
2.2 Restrictions on Use.
(a) Tenant shall not cause or permit any damage to natural resources on the Property.
(b) Tenant shall also not cause or permit any filling activity to occur on the Property or
adjacent state-owned aquatic land. This prohibition includes any deposit of rock,
earth, ballast, wood waste, 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.
(c) Tenant shall neither commit nor allow waste to be committed to or on the Property
or adjacent state-owned aquatic land.
(d) Failure to Comply with Restrictions on Use.
Form Date: 1/2007
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Lease No. 22-081288
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(1) If State gains actual knowledge of Tenant's failure to comply with any of
the restrictions set out in this Subsection 2.2, State may notify Tenant and
provide Tenant a reasonable time to take all steps necessary to remedy the
failure and restore the Property to the condition before the failure occurred.
(2) If Tenant fails to restore the Property in a timely manner, then State may
take any steps reasonably necessary to restore the Property. Upon demand
by State, Tenant shall pay all costs of any remedial action, including but not
limited to the costs of removing and disposing of any material deposited
improperly on the Property.
(e) State's failure to notify Tenant of Tenant's failure to comply with all or any of the
restrictions set out in this Subsection 2.2 does not constitute a waiver of any
remedies available to State.
(f) This section shall not in any way limit Tenant's liability under Section 8, below.
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 keep 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 Fifteen (15) years (the "Term"), beginning on the
I st day of July, 2007 (the "Commencement Date"), and ending on the 30th day of June, 2022 (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.
3.3 End of Term.
(a) Upon the expiration or termination of this Lease, Tenant shall 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 defined as deterioration resulting from the
intended use of the leasehold that has occurred without neglect, negligence,
carelessness, accident, or abuse of the premises by Tenant or any other
person on the premises with the permission of Tenant.
(2) Reasonable wear and tear shall not include any deposit of rock, earth,
ballast, wood waste, refuse, garbage, waste matter (including chemical,
biological or toxic wastes), hydrocarbons, any other pollutants, or other
matter in or on the Property that State has not expressly approved of in
Form Date: 1/2007
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Lease No. 22-081288
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writing regardless of whether the deposit is incidental to or the byproduct of
the intended use of the leasehold.
(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, at its option, may require
Tenant to enter into a right-of-entry or other use authorization prior to the
Tenant entering the Property to remedy any breach of this Subsection 3.3.
(2) If Tenant fails to remedy the condition of the Property in a timely manner,
then State may take any steps reasonably necessary to remedy Tenant's
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, lost rent resulting from
the condition of the Property prior to and during remedial action, and any
administrative costs associated with the remedial action.
3.4 Holdover.
(a) 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.
(1) The monthly rent during the holdover shall 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 shall 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 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 79.02.300 or other applicable law.
3.5 Adjustment of Term Resulting from Tenant's Possession.
(a) If, for any reason whatsoever, State 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.
(b) 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.
Form Date: 1/2007
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Lease No. 22-081288
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SECTION 4 RENT
4.1 Annual Rent.
(a) Until adjusted as set forth below, Tenant shall pay to State an annual rent of
Seventeen Thousand Eight Hundred Sixty Three Dollars and 62/100 ($17,863.62),
consisting of Seventeen Thousand Eight Hundred Sixty Three Dollars and 62/100
($17,863.62) related to the nonwater-dependent use.
(b) 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.
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. Notice of any adjustments to the Annual Rent that are
allowed by Paragraphs 4.5(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 Paragraph 4.4(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 Paragraph 4.4(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.
4.5 Rent Adjustments for Non-water-Dependent Uses.
(a) Inflation Adjustment. Except in those years in which the rent is revalued under
Paragraph 4.5( b), below, State shall adjust the non-water-dependent rent annually
on the anniversary of the Commencement Date by an amount equal to the
percentage increase in the most recently published Consumer Price Index, All
Urban Consumers, for the Seattle-Everett SMSA, over the Consumer Price Index
for the preceding anniversary of the Commencement Date. All items 1982-84 =
100, as published by the US Department of Labor, Bureau of Labor Statistics. If
publication of the Consumer Price Index is discontinued, a reliable governmental or
other nonpartisan publication evaluating the information used in determining the
Consumer Price Index shall be used.
(b) Revaluation of Rent.
Form Date: 1/2007
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Lease No. 22-081288
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(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) In the event that agreement cannot be reached between State and Tenant on
the fair market rental value, the valuation shall be submitted to a review
board of appraisers. The board shall 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 shall be binding on both parties. Until the new rent is established by
agreement or by the review board, Tenant shall pay rent in the same amount
established for the preceding year. If additional rent is required as a result
of this review, Tenant shall pay the additional rent within ten (10) days of
the board's decision. If a refund is required as a result of this review, 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 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. If required by State, Tenant shall 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 State does not receive any rental payment within ten (10) days of the date
due, Tenant shall pay to State a late charge equal to four percent (4%) of the amount ofthe
payment or Fifty Dollars ($50), whichever is greater, to defray the overhead expenses of State
incident to the delay. Failure to pay rent constitutes a default by the Tenant and State may seek
remedies under Section 14 as well as late charges and interest as provided in this section.
Form Date: 1/2007
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Lease No. 22-081288
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6.2 Interest Penalty for Past-Due Rent and Other Sums Owed.
(a) If State does not receive rent within thirty (30) days of the date due, then Tenant
shall pay interest on the amount outstanding at the rate of one percent (1 %) per
month until paid, in addition to paying the late charges determined under
Subsection 6.1, above.
(b) 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 Subsection 2.2 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 Referral to Collection Agency and Collection Agency Fees. If State does not receive
payment within thirty (30) days of the due date, State has discretion to 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. Under RCW 19.16.500, a
collection agency fee of up to fifty percent (50%) of the first One Hundred Thousand Dollars
($100,000) of unpaid debt and up to thirty-five percent (35%) of unpaid debt over One Hundred
Thousand Dollars ($100,000) is reasonable.
6.4 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.
6.5 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 Improvements Defined.
(a) Improvements. Consistent with RCW 79.105 through 79.145, Improvements 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. Personal property is defined as 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.
Form Date: 1/2007
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Lease No. 22-081288
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(c) State-Owned Improvements. 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. Tenant-Owned Improvements are Improvements
made by Tenant with State's consent or acquired by Tenant from former tenant in
accordance with RCW 79.125.300 or 79.130.040.
(e) Unauthorized Improvements. Unauthorized Improvements are Improvements made
on the Property without State's prior consent or Improvements made by Tenant that
are not in conformance with plans submitted to and approved by the State.
7.2 Existing Improvements. On the Commencement Date, the following Improvements are
located on the Property: Riprap breakwater and graveled parking area are State Owned
Improvements. The public kiosk and viewing tower are Tenant Owned Improvements.
7.3 Construction, Alteration, Replacement, and Modification.
(a) Tenant shall not place, construct, remove, or demolish Improvements without
State's prior written consent. State may deny consent if State determines that denial
is in the best interests of the State. State's consent is not required for routine
maintenance or repair to Improvements made by the Tenant pursuant to its
obligation to maintain the Property in good order and repair. Routine maintenance
or repair does not include alteration, replacement, removal, or major repair of any
Improvements on the Property. Subsection 7.4 shall govern removal of
Improvements at end of Lease.
(b) Prior to any placement, construction, alteration, replacement, removal, or major
repair of any Improvements (whether State-Owned or Tenant-Owned), Tenant shall
submit to State plans and specifications that describe the proposed activity. If State
does not notify Tenant of its grant or denial of consent within sixty (60) days of
submittal, State waives the requirement for State's written consent with regards to
Tenant's proposed plans or activity.
(c) Construction shall not commence until Tenant has obtained a performance and
payment bond in an amount equal to one hundred twenty-five percent (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.
(d) Upon completion of construction, Tenant shall promptly provide State with as-built
plans and specifications.
(e) State shall not charge rent for authorized Improvements installed by Tenant during
this Lease, but State may charge rent for such Improvements when and if the
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
Subsection 7.4.
Form Date: 1/2007
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Lease No. 22-081288
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7.4 Disposition and Removal of Tenant-Owned Improvements at End of Lease.
(a) Disposition
(1) Tenant shall remove Tenant-Owned Improvements 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. IfRCW 79.125.300 or 79.130.040 apply at the time this
Lease expires, Tenant may 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 actual or deemed consent,
Tenant-Owned Improvements, State may remove all Improvements and
Tenant shall pay the costs of removal and disposal.
(b) Conditions Under Which State May Waive Removal of Tenant-Owned
Improvements.
(1) State has option to waive removal of any or all Tenant-Owned
Improvements whenever State determines that it is in the best interests of
the State and regardless of whether Tenant re-Ieases the Property.
(2) If Tenant re-Ieases the Property, State may waive requirement 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 has option to 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, shall notify Tenant whether State
consents to any 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 shall be deemed a denial of the request.
(c) Removal.
(1) Tenant shall not remove or demolish Tenant-Owned Improvements without
State's prior written consent.
(2) At least ninety (90) days prior to planned removal and/or demolition, Tenant
shall submit to State plans and specifications that describe the proposed
activity. If regulatory permits are required for removal and/or demolition of
Improvements, Tenant shall submit plans and specifications at least sixty
(60) days before submitting permit applications to the regulatory agencies
unless Tenant and State otherwise agree to coordinate permit applications.
(3) Within sixty (60) days of receiving Tenant's plans and specifications, State
shall notify Tenant that States grants consent for removal and/or demolition
as proposed. State may impose additional conditions reasonably intended to
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protect and preserve the Property. State also may waive removal of any or
all Improvements.
(4) State's failure to respond to Tenant's submittal within sixty (60) days shall
be a waiver of the requirement for State's consent and Tenant may
commence with the proposed activity.
(d) Tenant's Obligations if State Waives Removal.
(1) Tenant shall not remove Improvements if State waives the requirement for
removal of any or all Tenant-Owned Improvements.
(2) Tenant shall maintain such Improvements in accordance with this Lease
until the expiration, termination, or cancellation date. Tenant shall be liable
to State for cost of repair if Tenant causes or allows damage to
Improvements State has designated to remain.
7.5 Disposition of Unauthorized Improvements.
(a) Unauthorized Improvements shall be the property of State, unless State elects
otherwise.
(b) State, at its option, 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 which case Tenant
shall pay rent for the Improvements until removal,
(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.
7.6 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 shall be liable for any and all damage to the Property and any Improvements
that may result from removal of Personal Property.
(c) State, at its option, 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, and 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.
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7.7 Disposition of State-Owned Improvement.
(a) Tenant shall remove State-Owned Improvements by the expiration, termination, or
cancellation date of this Lease unless State waives the requirement for removal.
(b) If Tenant re-Ieases the Property, State has option to waive requirement for Tenant to
remove State-Owned Improvements.
(c) If Tenant fails to remove State-Owned Improvements, State may remove all
Improvements and Tenant shall pay the costs of removal and disposal
(d) The procedure for removal and/or demolition of State-owned Improvements shall
be the same as for removal of Tenant-Owned Improvements in Paragraph 7.4(c).
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, including, but not limited to, the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.c. 6901 et. seq., as amended;
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), 42 U.S.c. 9601 et seq., as amended; Washington's Model Toxics
Control Act ("MTCA"), Chapter 70.105 RCW, as amended; and Washington's
Sediment Management Standards, WAC Chapter 173-204.
(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) or any
similar event defined under any such law.
(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 established under MTCA, RCW 70.1 05D.040.
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 where a release or the presence of
Hazardous Substances arises from Tenant's use of the Property.
(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 affecting 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, including - but not limited to -
RCW 70.105D.040.
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.
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(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 concerning the Property and the existence, scope, and location of any
Hazardous Substances on the Property, or adjacent to the Property, that allows
Tenant to meet Tenant's obligations under this Lease.
8.4 Use of Hazardous Substances.
(a) Tenant, its subtenants, contractors, agents, employees, guests, invitees, or 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:
(1) Result in a release or threatened release of Hazardous Substances, or
(2) Cause, contribute to, or exacerbate any contamination exceeding regulatory
cleanup standards whether the regulatory authority requires cleanup before,
during, or after Tenant's occupancy of the Property.
8.5 Management of Contamination.
(a) Tenant shall not undertake activities that:
(1) Damage or interfere with the operation of remedial or restoration activities;
(2) Result in human or environmental exposure to contaminated sediments;
(3) Result in the mechanical or chemical disturbance of on-site habitat
mitigation.
(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
(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 any Hazardous Substance;
(3) Any lien or action arising from the foregoing;
(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.
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(b) Tenant's duty to report under Paragraph 8.6(a) extends to the Property, adjacent
state-owned aquatic lands where a release or the presence of Hazardous Substances
could arise from the Tenant's use of the Property, and any other property used by
Tenant in conjunction with Tenant's use ofthe Property where a release or the
presence of Hazardous Substances on the other property would affect the Property.
(c) Tenant shall provide State with copies of all documents concerning environmental
issues associated with the Property, and submitted by Tenant to any federal, state or
local authorities. 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 (HP A); 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) "Liabilities" as used in this Subsection 8.7 means any claims, demands,
proceedings, lawsuits, damages, costs, expenses, fees (including attorneys' fees and
disbursements), penalties, or judgments.
(b) Tenant shall fully indemnify, defend, and hold State harmless from and against any
liabilities that arise out of, or are related to:
(1) The use, storage, generation, processing, transportation, handling, or
disposal of any Hazardous Substance by Tenant, its subtenants, contractors,
agents, invitees, guests, employees, affiliates, licensees, or permittees
regardless of whether the act occurs before, during, or after the Term ofthis
Lease;
(2) The release or threatened release of any Hazardous Substance, or the
exacerbation of any Hazardous Substance contamination resulting from any
act or omission of Tenant, its subtenants, contractors, agents, employees,
guests, invitees, or affiliates regardless of whether the release, threatened
release, or exacerbation occurs before, during, or after the Term of this
Lease.
(c) Tenant shall fully indemnify, defend, and hold State harmless for any and all
liabilities that arise out of or are in any way related to Tenant's breach of
obligations under Subsection 8.5.
(d) Third Parties.
(1) Tenant has no duty to indemnify State for acts or omissions of third parties
unless Tenant fails to exercise utmost care with respect to the foreseeable
acts or omissions of the third party and the foreseeable consequences of
those acts or omissions to the extent required to establish a viable third-party
defense under the law, including - but not limited to - RCW 70.1 05D.040.
Tenant's third-party indemnification duty arises under the conditions
described in Subparagraph 8.7(d)(2).
(2) If an administrative or legal proceeding arising from a release or threatened
release of Hazardous Substances finds or holds that Tenant failed to exercise
care as described in Subparagraph 8.7(d)(1), Tenant shall fully indemnify,
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defend, and hold State harmless from and against any liabilities arising from
the acts or omissions of third parties in relation to the release or threatened
release of Hazardous Substances. This shall include any liabilities arising
before the finding or holding in the proceeding.
8.8 Reservation of Rights.
(a) For any environmental liabilities not covered by the indemnification provisions of
Subsection 8.7, 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 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.
(b) This Lease affects no right, claim, immunity, or defense either party may have
against third parties, and the parties expressly reserve all such rights, claims,
immunities, and defenses.
(c) The provisions under this Section 8 do not benefit, or create rights for, third parties.
(d) The allocations of risks, liabilities, and responsibilities set forth above do not
release either party from, or affect the liability of either party for, claims or actions
by federal, state, or local regulatory agencies concerning Hazardous Substances.
8.9 Cleanup.
(a) If Tenant's act, omission, or breach of obligation under Subsection 8.4 results in a
release of Hazardous Substances, 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. Cleanup actions shall include, without limitation,
removal, containment, and remedial actions.
(b) Tenant's obligation to undertake a cleanup under Section 8 shall be limited to those
instances where the Hazardous Substances exist in amounts that exceed the
threshold limits of any applicable regulatory cleanup standards.
(c) At the State's discretion, Tenant may undertake a cleanup ofthe Property pursuant
to the Washington State Department of Ecology' s Voluntary Cleanup Program,
provided that Tenant cooperates with State (DNR) in development of cleanup plans.
Tenant shall not proceed with Voluntary Cleanup without State (DNR) approval of
final plans. Nothing in the operation of this provision shall be construed as an
agreement by State (DNR) that the Voluntary Cleanup complies with any laws or
with the provisions ofthis Lease. Tenant's completion of a Voluntary Cleanup
shall not be 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 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 the existence, release,
or threatened release of Hazardous Substances arising out of any action, inaction, or
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event described or referred to in Subsection 8.4, above, Tenant shall promptly
reimburse State for all costs associated with such Tests.
(c) State shall not seek reimbursement for any Tests under this Subsection 8.10 unless
State provides Tenant written notice of its intent to conduct any Tests at least thirty
(30) calendar days prior to undertaking such Tests, except when such Tests are in
response to an emergency. Tenant shall reimburse State for Tests performed in
response to an emergency if State has provided such notice as is reasonably
practical.
(d) 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. Tenant solely shall
bear the additional cost, if any, of split samples. Tenant shall reimburse State for
any additional costs caused by split sampling within thirty (30) calendar days after
State sends Tenant a bill with documentation for such costs.
(e) Within sixty (60) calendar days ofa written request (unless otherwise required
pursuant to Paragraph 8.6(c), 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.
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 ofthe 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 sale, conveyance,
mortgage, assignment, pledge, sublet, or other transfer or encumbrance if said
transfer 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.
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(d) State's consent under this Subsection 9.1 does not constitute a waiver of any claims
against Tenant for the violation of any term ofthis Lease.
9.2 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.
9.3 Terms of Subleases.
(a) Tenant shall submit the terms of all subleases to State for approval.
(b) All subleases shall meet the following requirements:
(1) The sublease shall be consistent with and subject to all the terms and
conditions of this Lease;
(2) The sublease shall confirm that this Lease shall control if the terms of the
sublease conflict with the terms of this Lease;
(3) The term of the sublease (including any period oftime covered by a renewal
option) shall end before the Termination Date of the initial Term or any
renewal term;
(4) 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;
(5) The subtenant shall receive and acknowledge receipt of a copy of this Lease;
(6) The sublease shall prohibit the prepayment to Tenant by the subtenant of
more than the annual rent;
(7) The sublease shall identify the rental amount to be paid to Tenant by the
subtenant;
(8) The sublease shall confirm that there is no privity of contract between the
subtenant and State;
(9) The sublease shall require removal of the subtenant's Improvements and
trade fixtures upon termination of the sublease;
(10) The subtenant's permitted use shall be within the Permitted Use authorized
by this Lease; and
(11) The sublease shall require the subtenant to meet all obligations of Tenant
under Section 10, Indemnification, Financial Security Insurance.
9.4 Short-Term Subleases of Moorage Slips. Short-term subleasing of moorage slips for a
term ofless than one year does not require State's written consent or approval pursuant to
Subsections 9.1 or 9.3. Tenant shall conform moorage sublease agreements to the sublease
requirements in Subsection 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 any and all claims arising out ofthe use, occupation, or control of
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the Property by Tenant, its subtenants, contractors, agents, invitees, guests,
employees, affiliates, licensees, or permittees.
(b) "Claim" as used in this Subsection 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) 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 Subsection 10.2 and by
Subsection 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. In any case, Tenant shall provide State with at
least thirty (30) days' written notice prior to any material changes to
Tenant's self-insured funding mechanism.
(2) All insurance should be 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. State's risk
manager shall review and approve any exception before acceptance by
State. 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) The State of Washington, the Department of Natural Resources, its elected
and appointed officials, agents, and employees shall be named as an
additional insured on all general liability, excess, umbrella, property,
builder's risk, and pollution legal liability insurance policies.
(4) All insurance provided in compliance with this Lease shall be primary as to
any other insurance or self-insurance programs afforded to or maintained by
State.
(b) Waiver.
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(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 shall 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 shall be provided written notice before cancellation or non-renewal of any
insurance required by this Lease, in accordance with the following:
(1) Insurers subject to RCW 48.18 (admitted and regulated by the Insurance
Commissioner): If cancellation is due to non-payment of premium, State
shall be given ten (10) days' advance notice of cancellation; otherwise, State
shall be provided 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, State shall be given ten (10) days' advance notice of
cancellation; otherwise, State shall be provided forty-five (45) 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 it deems necessary.
(2) New or modified insurance coverage shall be in place 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, at its option, State
shall either:
(1) Deem the failure an Event of Default under Section 14, or
(2) State shall have the right to procure and maintain comparable substitute
insurance and to pay the premiums. Upon demand, Tenant shall pay to
State 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.
(g) General Terms.
(1) State does not represent that coverage and limits required under this Lease
will be adequate to protect Tenant.
(2) Coverage and limits shall not limit Tenant's liability for indemnification and
reimbursements granted to State under this Lease.
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(3) Any insurance proceeds payable by reason of damage or destruction to
property 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.
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 ofthe Property and, if necessary,
commercial umbrella insurance with a limit of not less than One Million
Dollars ($1,000,000.00) per each occurrence. If such CGL or MGL
insurance contains aggregate limits, the general aggregate limit shall be at
least twice the "each occurrence" limit. CGL or MGL insurance shall have
products-completed operations aggregate limit of at least two times the
"each occurrence" limit.
(2) CGL insurance shall be written on Insurance Services Office (ISO)
Occurrence Form CG 00 01 (or a substitute form providing equivalent
coverage). All insurance shall 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 shall 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. Workers' compensation
coverage shall be provided for all employees of Tenant. Coverage
shall 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 Worker's Act. Certain work or services under this
Lease may require insurance coverage for longshore and harbor workers
other than seaman as provided in the Longshore and Harbor Worker's
Compensation Act (33 U.S.C. Section 901 et. seq.). Failure to obtain
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coverage in the amount required by law may result in civil and criminal
liabilities. Tenant is fully responsible for ascertaining if such insurance is
required and shall maintain insurance in compliance with this Act. Tenant
is responsible for all civil and criminal liability arising from failure to
maintain such coverage.
(3) Jones Act. Certain work or services under this Lease may require insurance
coverage for seamen injured during employment resulting from negligence
of the owner, master, or fellow crew members as provided in 46 US.c.
Section 688. Failure to obtain coverage in the amount required by law may
result in civil and criminal liabilities. Tenant is fully responsible for
ascertaining if such insurance is required and shall maintain insurance in
compliance with this Act. Tenant is responsible for all civil and criminal
liability arising from failure to maintain such coverage.
(c) Employer's Liability Insurance. Tenant shall procure employer's liability
insurance, and, if necessary, commercial umbrella liability insurance with limits not
less than One Million Dollars ($1,000,000.00) each accident for bodily injury by
accident or One Million Dollars ($1,000,000.00) each employee for bodily injury
by disease.
(d) Business Auto Policy Insurance.
(1) Tenant shall maintain business auto liability insurance and, if necessary,
commercial umbrella liability insurance with a limit not less than One
Million Dollars ($1,000,000.00) per accident. Such insurance shall cover
liability arising out of "Any Auto.
(2) Business auto coverage shall be written on ISO Form CA 00 01, or
substitute liability form providing equivalent coverage. Ifnecessary, the
policy shall be endorsed to provide contractual liability coverages and cover
a "covered pollution cost or expense" as provided in the 1990 or later
editions of CA 00 01.
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"). The Security shall be in an amount equal to Zero
Dollars ($0.00), which is consistent with RCW 79.105.330, and shall secure
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 in force at all times during
the Term of this Lease shall constitute a breach of this Lease.
(b) All Security shall be in a form acceptable to the State.
(1) Bonds should 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. State's risk manager shall
review and approve any exception before acceptance by State.
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(2) Letters of credit, if approved by State, shall 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, shall allow State to draw
funds at will.
(c) Adjustment in Amount of Security.
(1) State may require an adjustment in the amount of Security:
(i) At the same time as revaluation of the Annual Rent,
(ii) As a condition of approval of assignment or sublease of this Lease,
(iii) Upon a material change in the condition or disposition of any
Innprovements, 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
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.
SECTION 11 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 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. Tenant's obligations under this Subsection 11.2 shall
be in addition to Tenant's obligations under Subsections 2.2 and 3.3 of this Lease.
(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) Tenant shall make all additions, repairs, alterations, replacements, or changes to the
Property and to any Improvements on the Property in accordance with Section 7,
Improvements, above. Section 7 shall govern ownership.
SECTION 12 DAMAGE OR DESTRUCTION
12.1 Notice and Repair.
(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
Form Date: 1/2007
21
Lease No. 22-081288
, ",~ f# ,
Improvements as nearly as possible to its condition immediately prior to the
damage or destruction.
(b) State shall not be deemed to have actual knowledge of the damage or destruction of
the Property or any Improvements without Tenant's written notice.
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 claim waived. No claim is
waived unless State waives with specificity.
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 shall not be 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 Subparagraph 10.2(g)(3).
12.4 Rent in the Event of Damage or Destruction. Unless this Lease is terminated by mutual
agreement, there shall be no abatement or reduction in rent during such reconstruction, repair, and
replacement.
12.5 Default at the Time of Damage or Destruction. 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 "taking," as used in this Lease, means that an entity authorized
by law exercises the power of eminent domain, either by judgment or settlement in
lieu of judgment, over all or any portion of the Property and any Improvements.
Taking 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. 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 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 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
Form Date: 1/2007
22
Lease No. 22-081288
L ~,~ ~ 'J
\ '
taken shall be paid by Tenant up to the date of taking. 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.
(a) 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(l) Tenant's leasehold estate
and Tenant-Owned Improvements on the Property and (2) State's interest in the
Property; the reversionary interest in Tenant-Owned Improvements, if any; and
State-Owned Improvements.
(b) In the event of a partial taking, this ratio will be computed on the basis of the
portion of Property or Improvements taken.
(c) 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
14.1 Default Defined. Tenant shall be in default of this Lease on the occurrence of any of the
following:
(a)
(b)
(c)
(d)
Failure to pay Annual Rent or other expenses when due;
Failure to comply with any law, regulation, policy, or order of any lawful
governmental authority;
Failure to comply with any other provision of this Lease;
Proceedings are commenced by or against Tenant under any bankruptcy act or for
the appointment of a trustee or receiver of Tenant's property.
14.2 Tenant's Right to Cure.
(a) A default shall become an event of default ("Event of Default") if Tenant fails to
cure the default within the applicable cure period after State provides Tenant with
written notice of default, which specifies the nature ofthe default.
(b) The cure period shall be sixty (60) days.
(c) 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. This Paragraph 14.2 is effective 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.
(b) Without terminating this Lease, State may also relet the Property on any terms and
conditions as State in its sole discretion may decide are appropriate.
(1) 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
Form Date: 1/2007
23
Lease No. 22-081288
j "1 '.
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 shall be 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.
( c) State's reentry or repossession of the Property under Paragraph 14.3(b) 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 or termination is decreed by legal proceedings.
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. State's failure to inspect the Property shall 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.
(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 shall be responsible for determining the extent of its right to possession and
for defending its leasehold interest.
16.2 In the Event of Eviction by Third Party. In the event Tenant is evicted from the
Property by reason of successful assertion of any of the rights of any third party, 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.
Form Date: 1/2007
24
Lease No. 22-081288
ii, .- .
SECTION 17 NOTICE
Any notices required or permitted under this Lease may be personally delivered, delivered by
facsimile machine, or mailed by certified mail, 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
Aquatics Program
919 N Township Street
Sedro Woolley, W A 98284
Tenant:
CITY OF PORT ANGELES
PO Box 1150
1;>ort Angeles, W A 98362
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. All notices must identify the lease number to which the
notice pertains. Notices transmitted by facsimile machine 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 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 79.135 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 parties. All prior and contemporaneous agreements, promises,
representations, and statements relating to this transaction or to the Property, if any, are merged
into this Lease.
Form Date: 1/2007
25
Lease No. 22-081288
"
.
18.5 Waiver.
(a) The waiver by State of any breach or default of any term, covenant, or condition of
this Lease shall not be deemed 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.
(b) The renewal of the Lease, extension of the Lease, or the issuance of a new lease to
Tenant, shall not constitute waiver of State's ability to pursue any rights or
remedies under the Lease.
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.
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 contain, at a minimum, 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 18.11. 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 Modification. Any modification of this Lease must be in writing and signed by the parties.
Oral representations or statements shall not bind either party.
Form Date: 1/2007
26
Lease No. 22-081288
'~I ~".
. .
18.13 Survival. Any obligations of Tenant which are not fully performed upon termination of
this Lease shall not cease, but shall continue as obligations until fully performed.
THIS AGREEMENT requires the signature of all parties and is executed as of the date ofthe last
signature below.
Dated:
1/ nl07
CITY OF PORT ANGELES,
aGove~ ~
By: GLENN A. CUTLER
Title:
Address:
Director of Public Works and Utilities
PO Box 1150
Port Angeles, W A 98362
Dated: '7 I ,~ / 0 7
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
~~ U:;;;;-
By: DAVID ROBERTS
Title:
Address:
Assistant Region Manager
919 N Township Street
Sedro Woolley, W A 98284
Standard Aquatic Lands Lease
Approved as to Form on January 19,2007
By: Janis Snoey
Assistant Attorney General
State of Washington
Form Date: 1/2007
27
Lease No. 22-081288
1 ,'~ 1 '. #' .
,I,
REPRESENTATIVE ACKNOWLEDGMENT
STATE OF WASHINGTON)
) ss
County of )
I certify that I know or have satisfactory evidence that GLENN A. CUTLER 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 Director of Public
Works and Utilities of the City of Port Angeles to be the free and voluntary act of such party for
- the uses and purposes mentioned in the instrument.
Dated: Y;?jJ7 ~a~)hCV'1d~h/
! (Signature) 'i)
(Seal~~'I"III~ 7Yj/!1. ~~ --KWcols
~~ e. o.~ ~ (Print Name)
I ti '.. ~ \ NotaryPu " in an
~ 0.0 ".. ~ residing at-
i ~ m: ~ i My appointment expires
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~.b~P WAS'f." ~~ STATE ACKNOWLEDGMENT
"WI11lI....."\\\\~
STATE OF WASHINGTON)
County oN ~(J'lt l 58
I certify that I know or have satisfactory evidence that DAVID ROBERTS 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 Aquatic Lands
Assistant Region Manager of the Department of Natural Resources, to be the free and voluntary
act of such party for the uses and purposes mentioned in the instrument.
Dated: :::::::s- ~ 13' afX)7 ~CHM CL ~ ~~ ~
...,,"',....1...'\, (Signature) /) !
(Seal or stamp) .:----~~~:.e~~lllll /... (;) RAJA ^. ELA N EV
.: O~'~SSiON'"i", '/f,I'~"1 (Print Name)
f ~'-;'~...\OTAL"> :.rt....:L \ Notary Pub!" in and for the State ofWaSh~"n ton,
:: ;() \~ "7y rn~ ~ "d" -
~ : _._ (f): ~ reSI mg at l:)
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~ (fl~. PUBLIC :: My appomtment expIres
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Form Date: 1/2007
28
Lease No. 22-081288
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Exhibit A
June 26, 2007
The City of Port Angeles will be developing a new survey to encompass the area they
have requested to lease on the Port Angeles waterfront. The City of Port Angeles will
provide an updated survey for the new lease area within three (3) years of the effective
date of the lease. It will include the following areas:
1. The property formerly covered under #20-074165 (Pier Group LLC) also
known as the Oak Street property (as they have noted in their application),
2. The area to the north of#20-074l65 on the attached boundary line adjustment
survey map that denotes an eighteen (18) foot public pedestrian trail for the
waterfront trail denoted as 2000-1056420. It was an easement between the
Port and the City of Port Angeles when the entire area was still under a PMA
and now is back into Department of Natural Resources management. It is all
in the harbor area. (This is noted in their application),
3. The old Brockmeier Lease area (22-074157). (This will be in addition to the
area covered in their application),
4. All the State owned aquatic land between the former Brockmeier building and
the Oak Street property. (This will be in addition to the area covered in their
application)
It won't replace the lease that the Department of Natural Resources has with the port in
this area (22-074157), but will have some overlap with this lease until final plans and
lease boundary adjustments are finalized between the port, City of Port Angeles and the
Department of Natural Resources.
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2002 1089187
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THE SUR'!EYED PARCEl U4Y tIC SUSJ(CT ro EASEJJENTS OR
OTHER ENCUMBRANCES DTHER. RECORDED OR UNRecoRDED
NOT SHOWN HEREON. THIS SURva HAS NOT /JF:TERJi!NED THE"
lXISTENCC" or ALL SUCH' EASEMENTS OR ENCtJUBfW.ICES DR
THOR EFFECT ON THE S~ PARCEL CXCCP1 AS'
~y SHOWN HEREON.
1HtS RECoRD OF S~ MAY DCPICT EXJ$7'JHG FENCE L/Nf'S
NID OTHER OCCUPA7JOH4L INDICATORS IN ACCORDANCE WITH
WAC. Cli'PTCR JJ2.IJO. THESC OCCUPAT1ONAL INDlCA.TDRS
UAY /NO/CAT( A POTF:WTIAL FOR CLAJJIS OF UNWRiTTEN rmc.
LEGAL OWNERSHIP EMSlD UPON UNWRFTTE:N TInE CLAIMS HA\.IE'
NOT BEEN, RfSOL\ofD BY TH1S SURK'Y.
BLA 02-05
Boundary Line Adjustment
of Block 2 and Block A, Pori Angeles Tide Lands West
of Laurel street, in front of the City of Pori Angeles,
CIa 110m County, Washington
THJS -sURveY IS BASED ON THE WASHINCTON COORDINATE
S\'S7l1( NORTH -ZONE NAD 8J(gl) PER \()U.IAIE' J4 OF
stJRVEY.S'; MGE 22. AU BEARINGS ARC RElA1M' 1D SAID
CRJD. AU. OISTNK;ES ARE RUJUCED TO S4ID CRm USING A
CCNmINCD ~ FACTOR OF o.9gS9<f.
THIS SLNWfY WAS' ACCOUPlJSHED If'( F1EL/) T1M~
~~US11:b ';.,l~ =l;:Sc:,~ DEVICE
WITH SOME IJiS1AHCCS MEASURED IW1H A srca TAPe.
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BEFORe BOlJHOARY UNC ADJIJSTJ,lO{T -
TlDE LmD BLocK A OF PORT N1CnES TIDe LANDS WE'ST OF" LAURa STREIT. AS RECORDED IN
VOLUMe 12 OF PLATS. A4CC 14 ~ O! CLALlAM COUHTt, WASHINGTON.
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AFTER BOUNtJARY UNC NJJlJSTUF:NT -
7HA.T POR1JON OF' VA~7E'D CHERRY STREET NID BLOCK 2 AND BLOCK A OF TIDE LANDS WEST OF
!ALma STREeT; DESCRJBl1) AS FOLLOWS:
BEG/NN/NC AT THE SOUTHWESTERLY CORNrR or SAID Vl'CATEl) CHCRRy' STREF:T, SAID CORNER 8EJNG
UARKEf) BY A LEAf) AND TACK AS SHOWN ON SlJRYEY RECOROeD FEBRUARY 4.2002 UNDER
AUDnOR"S FlLE NUMBERZOO2- r07B$9a AND FUD IN \lCLWE 48 OF sum.ns', PAG€ 80, RECORDS
OF CLAJ.1AJ,I COUNTY, WASHINGTON; THENCE NoRTH 3J<22'2.J- CAST. ALONG ~ ltES'Wi'Ly UNE OF
S4ID V.wuEl) STRu:r. A DISTANCC OF 251.gs FCEf 10 AN ANGLE POI,.". IN TH~ , ggt INNER
HARBOR LINt. SAJD POnIT BFJNC T1t! NORTHWCSTERLY CORNER OF' SAJD BLOCK A AND IS I,IARKED.
BY A 5ft-INCH RCSAR wrTH A RED PU.snc SURYCY CAP STmPCD -NTl'JOHNSTON PLS J7M,. AS
SHOWN ON SAID ~ THENCE SOUTH ~4.24'og. f)(ST. ALONG SAJD 1692 INNER H4RBOR UNC A
DlSTANa OF' 575.'J FEET'TO AN ANGLE POINT IN THE 1PP2 INNER HARBOR UN€. SAID POiNT BE1NG
mr N?R1HEASTERLY CORNER OF' SNO BLOCK A AND IS JMRKCD BY A SIMILAR REBAR AND CAP;
'THOIC: SOVTH 33"2''V'' WEST, ALONG THE CASTERLY.UN! or SNtJ BLOCK ^ A OfSTANCC OF
'4J.08 FEEr;
THENCE NORTH 56"J7'03- wm. PARALl.EZ. WfTH THE SOUTHERtY UN[ OF SIVD BLOCK ^ II 0IST,wcc
or 457.51 FFIT.. .
THENCESOtRH JJ22"2J- WEST. PARALLEL WfTH SAID W5TERLY UNE. A DISTANCE OF 166.(1' FCET
ro TH: SOtITHERLY LINE OF' SNDBLOCK .2: rHENCE NORTH 56"J'7'OJ. WlST. ALONG SAIO
soun:ERLY UNE. A DISTANCE or 1'2.J2 FEET TO 1HE TRUE POIIff or BEGINNING.
ALL e:ARfNCS AND DlSTAN""...ES ARC 8ASfD ON THE WASHINGTON COORDlNArF SYS'TEIol. NORTH ZONE,
W.O 8J(9') AS' SHOWN ON SURl-[Y RECORDED U4Y J. 2002 UNDER ct.Al.t.AM .COUNTY AUtJ/TDR'S
nLE 111MB0f 2002-10lU-4$2 AND F'/LB) IN VOUJUE 49 OF' suR\of1'S, FWJr 50.
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~O;:;;;:FYorTHA-;;='KNOW Tt::Z:::::m,ACTOIrf EVtOCNC~ ~TLorf" n l;t,v/\ IS THE PCRSON WHO
APPEARED BEFORE ME. Nm SAID PERSON ACKNO.Wl.EDCED BEFORE liE. AND SAID PERSON ACKNOWf..EDGED
"' TO BC HIS FREE AND \tOLUNTARY ACT FOR mE USES AND PURPOSES UfNTJONEJJ IN THIS
a<rm Ilu4w2- ~~l~~
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APPf).RfD BERJR( ME. ANO SAJO PmsoN ACKNOWI..fDG!D 8EFOR( Ite. AND SAID FiRSON ACKNOW1.CDGED
",1!fS FRrr AND \otILUNTARYl FOf.l 7Hi usn AND PURPOSES I/ENTJONfD IN ~",(<<B~
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2. TIDE ~ BLOCK A AS'SIfOWN HEREON IS lJASED ON THEDNR 1992 stJPPW,/lNT'AL IlAP
OF PORT ANGELES 7lDE WlDS RECORDED IN VOLUMf 12 OF'PLATS. PAGE 76. TI-IC THRff
SUR\fl'S RUCRENCCD HEREON ALL /NCORMCTLY$HOW tJHTERENT' BLOCK D~T1ONS. FOR
CORREC11ONS. SfI AFFIDAVITS OF NlNOR CORRECTION OF ~ RCCORDfD UNDER AFN.
2002-1087200 AND AFN 2002-10872;01. \ttJt.UUr 2SOF ~ PACE 42 ALSO SHOWS
INCORRCCT BLOCK DESlGNAT10HS AND IS HOT A VAUD LAHD DMS/ON Of STArr OWNCD WiD.
SEE.THE A80'f' IlENT10NCD DHR J,g.p FOR APPROVrD OMSIOHS OF s~rr OWNED [AH()5.
PARCEl. 2 DESCRIPTION
SUORC lIOt.JNDAIf't LiNE NJJilSTAIDlT .,.
T1l1E lAND 8l.DCK 2 OF PORT ANCEl.ES 71~ WUJS WE3'T OF LAURS. smm. ASSHOWH ON
TH~ SUPPLENENTAL IMP or ARST CLASS TIDE iJW{)S FIlED IN THE 0FF1C! OF THE SOMD or
STATC.WHJ COJJUISSIONS ON THE 'grn OAY or WtRCH, '894, TOCl:THDt KmI \MCA1l'D
CHERFrr STREff.
AFTER BDI.JNDARY LINE NJ.JUSTMENT -
THAT PORTION OF BLOCK 2 AND BLOCK A. TIDE wm.s WEST OF lAUREl. srRar. CI.AUAM
COUNTY. . WASHINGTON DeSCRIBED AS rou.Ows:
BEGINNING AT ~ SOUTHE:4STCRLY CORNER or SAID Bl..0CK ,2, SAlDCORNER BDNG U4RKED
BY A. LEAD AND TACK AS SHOWN C?N SURVrr RECORDED FEBRUARY S, 2002 UNDER AtJDITOR'S
F7LE NlIMBER 2002-107l1598 AND nLCD IN K1L/JUE -f~ OF SUR\ot"l'S, PAGf so, RECORDS OF
Cl.A1.1.A/II CfJUNT'(', .WASHfNGTDN; THENCE NORTH 55"J7'(U. IIDT. ALONG THe SOI.IlHtRt.Y L.IHE
OF S41D BLOCK 2. A. DISTANCe OF' 457.62 FEIr:
THENCE NORTH J.J"22'2:J" ,EAST. PARAl.LEL Wf1H THE WES7ERLY !ME of S4ID BUJCK 2. A
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ALL SJ:ARINCS AND DJSTANCES ARE S4SED ON 'THE VIASHJNGTON COORDINA1E' S'I'STEiI, NORTH
ZONE. HAD ~J(g,) AS SHOWN ON SURVEY RECORDCD u.y .1.2002 UNDER aALtAU COlJN(Y
AUDITOR'$ F1LE NlJM8Ef1 2002- '~44.52 ANO ALtD IN \aUWE'" 4g OF SU~ PAGt-.so.
AReAS
PARCEl. 1 - PARCEl 2 -
I.B4 ACRES BEFOR~ ADJUSTlrlfNT J,Ra ACR!S Fk.'7"ORC JDJUS'I'1IIENT
I.B4 ACRES A.FTER AD.JIJSTUENT 1,96 ACRfS AFTrR ADJUSTMENT
SURVE:YOR'S CrRT1F7CATE:
THIS MAP. CORRCCn.Y RfPRESOfTS A Stm\IEY UADC BY 1.1( OR.tJN{)(R MY OIRtcrrDN IN
~w.,za-~ J:,~.SUfMY R~PCl~.T rt;r: OF THf ~h;Joz,
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RECORDING CrRT1f1CATE:
FiLED FOR RCCORD AT TH( RCOUESTOF NORTHWESTERN TCRRfTORIES. INC., tms ~ .ll4Y. OF
.Tu(j . 2M2 A.1l. .AT.2. J/INUITS PAir 1L O'CLIJCII.;A, li."AND R(CCIIlJrn IN
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Boundarx Line Adjustment. EE-,Onds ~
BLA 02-05 . 1
in front of the City of Pori Angeles ..... 2 ~
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, stforeJj1Te, Aerial Photos: Photo CLA0192
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Sboreline Aerml Photos_
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Exhibit B
OAK STREET - DNR PROPERlY OPERATIONS PLAN
All incorporatedfigures are preliminary conceptual drawings only
and should not be construed as approved drawings.
Project Details
The City will be utilizing the property to create a waterfront enjoyment area with
amenities including: promenade/walkways, enhancement of the Olympic Discovery Trail,
seating and landscaping that enable public access and enjoyment. Throughout the project
the primary use will be public access. Incorporation of the Olympic Discovery Trail
through the site will be an improvement of regional significance. The City will be
developing the property in a phased approach. The City has an existing I8-foot easement
over the northern portion of the property that was provided by the Port of Port Angeles.
As part of the phased approach the City will provide an updated survey for the new lease
area within three (3) years of the effective date of the lease.
Phase I
Phase I will incorporate public access via the existing 18' easement that runs along the
existing bulkhead (identified as EasementlPublic Access in Figure 1 below) and will
incorporate public parking to the south (identified as intermittent parking in Figure 1
below). The public access will allow for continued access to the fish processing dock and
the continued parking for this facility. Existing ecology blocks will be relocated and
temporary parking will be provided to facilitate parking for public access. Phase I also
incorporates minimal sidewalk and landscaping improvements along railroad in the
location that previously contained the Pink Building. The western portion of the site
(identified as Public Access in Figure 1) will remain as uninhibited public access.
H'l)'HSt
Legend
I ~ City ROWtPublicAccess
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Easement'Pu blic Access
. ~ Intermittent Parking
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Figure 1. Concept outline for Phase I of the project
Page 1
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Exhibit B
OAK STREET - DNR PROPERTY OPERATIONS PLAN
Phase II
The second phase of the project will incorporate the paving of the Olympic Discovery
Trail providing for a connection to the existing route along marine drive. This phase of
the project will incorporate designs derived from the downtown visioning process, which
resulted in the development of Port Angeles International Waterfront Promenade
conceptual designs as mentioned above. Phase II will incorporate a high degree of
-landscaping, lighting and faci-litation of public access. All relevant parties win work with
the Port of Port Angeles and DNR to ensure that continued access and parking for the fish
processing dock (which is leased to the Port from DNR - #22-074165) is maintained.
Figures 2-5 provide concepts not final plans that will be used as part of the visioning
process.
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Figure 2. Promenade concept as
derived during Downtown Visioning.
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Figure 4. Railroad Viewpoint between
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Figure 3. Oak/Railroad intersection as
derived during Downtown Visioning.
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Figure 5. Trailhead Center
conceptualized at the Pink Building site.
Page 2
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Exhibit B
OAK STREET - DNR PROPERTY OPERATIONS PLAN
Phase III
The Port Angeles City Council has resolved to undertake a harbor planning effort in
conjunction with local stakeholders and with the assistance ,ofthe -Department of
Ecology. As part of this effort a new visioning effort will be conducted resulting in the
development of a new plan and approach for the Port Angeles Harbor. Phase III will
work to incorporate the plan derived from this 'process.
The overall result of efforts on site will improve public access and work towards a harbor
shoreline beautification. This site is one of the few remaining undeveloped waterfront
properties in the downtown area. The lease will ensure that the site remains dedicated for
public use and enjoyment.
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Figure 6. Potential concept drawing for Phase HI. Based on public input and the
harbor planning process additional improvements may be required. The footprint of
the Black -Diamond Harbor Plaza is also identified -in the drawing.
Page 3
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,
Exhibit B
OAK STREET - DNR PROPERlY OPERATIONS PLAN
Operation Details for Phase I
As indicated in Exhibit A, Phase I will incorporate temporary public parking.
Accommodation for public parking will be necessary from June to October 2007 and
again from May to September 2008. This required time frame may change depending on
Gateway construction progress. During this time the City anticipates on average
approximately 1 00 cars will utilize the site for parking. This will result at an average
40,000 sq.ft. of the site utilized for parking for the above mentioned time frames. The
existing paved area will also be utilized and will accommodate 6 handicapped parking
spaces.
The parking area will not contain any permanent infrastructure. Utility poles will be
placed onsite to layout the temporary parking area Spaces will be demarcated on the
utility poles. From November 2007 through April of 2008, utility poles will be removed
or relocated to ensure that parking does not occur during this time period and to ensure
that use is limited to public access. At the end of September 2008 the site will
permanently revert to public access to allow for the incorporation of Phase II of the
project. As noted above, these dates may change.
In addition to parking related operations, the City will develop measures for site clean up
and maintenance. In doing so, the City will ensure that vegetated areas on site are
maintained and that garbage is picked up on a regular basis.
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Figure 7. Area designated for intermittent parking.
Table 1. Estimated parking
needs (may change as a result
of construction progress).
June-07
July-07
August-07
September-07
October-07
May-DB
June-DB
July-DB
August-DB
September-DB
Page 4