HomeMy WebLinkAbout22-110 - TForce Freight, Inc - Lease Extending Agreement: 11231 East Marginal Way SouthLEASE EXTENDING AGREEMENT made on August 29th , 2022.
BETWEEN:
AND
22-110
Council Approval 6/27/22
CITY OF TUKWILA a municipal corporation organized under the laws
of the State of Washington, having its registered office at 6200 Southcenter
Blvd, Tukwila, Washington, 98503, herein represented by Allan Ekberg,
Mayor, duly authorized as he so declares for the purposes hereof;
(the "Lessor")
TFORCE FREIGHT, INC., a Virginia corporation, having its principal
place of business at 8801 Trans -Canada I lwy, Suite 500, in Saint-Laurent,
Quebec H4S 1Z6, herein acting and represented by Norman Brazeau, Vice -
President, Real Estate, duly authorized as he so declares for the purposes
hereof;
(thc "Lessee")
WHEREAS by an industrial lease dated June 20th, 1996 (the "Initial Lease"), made between
Daniel H. Temkin and Temkin Property Company (collectively the "Initial Lessor") and Overnite
Transportation Company (the "Initial Lessee"), as amended by various agreements dated
September jhl, 1998, April 271h, 2005, August 17111, 2005, April 23, 2013, August 16th, 2016,
December 20111, 2017 and November 28'h, 2018 (collectively the "Lease"), the prior lessor known
as Amalfi Investments, LLC is presently leasing to the Lessee those certain premises located at
11231 East Marginal Way South, Tukwila, WA 98168 (the "Premises"), for a term expiring on
October 31', 2023 (the "Term"), the whole as more fully described in the Lease;
WHEREAS in virtue of multiple amalgamations and assignments, the Lessee is to this day,
TForce Freight, Inc.
WHEREAS in virtue of the Lessor exercising its right of Eminent Domain, the Lessor will be
taking ownership of the entirety of thc Premises effective November 1, 2023;
AND WHEREAS the I,essor and the Lessee have agreed to extend the Lease in accordance with
the terms and conditions set forth in this agreement;
NOW THEREFORE THIS AGREEMENT WITNESSETH that for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties covenant
and agree as follows:
1. Recitals: The parties hereby acknowledge, confirm and agree that the foregoing recitals
are true in substance and in fact and that such recitals form an integral part hereof.
2. Extended Term: 'I he rerm is hereby extended by an additional period commencing on
November 1°, 2023, and ending on April 30th, 2025 (the "Extended Term").
3. Modifications to Lease: During the Extended Term, all the terms and conditions of the
Lease as modified by the present agreement shall remain unchanged except for the
following:
a) Base Rent: The Base Rent payable by the Lessee as described in the Lease (the
"Base Rent") shall be as follows:
• From November 1°, 2023, to October 3111, 2024: equal and consecutive
monthly instalments of $68,450.20, on the first of the month;
• From November 10, 2024, to April 3001, 2025: equal and consecutive monthly
instalments of $70,161.45, on the first of the month.
0E112668351 DOCX,1/13175 000001/ } - 1 -
AMENDMENT T.FORCE TUKWILA FINAL (08.29-2022)docx
7f,
INIrIA
b) Additional Rent: The Lessee shall pay any Additional Rent or other additional
charges, fees, utilities, etc., in the manner set forth in the Lease.
c) Leasehold Tax: The Lessee shall remit Leasehold tax monthly to thc Lessor. The
current Leasehold Tax amount is 12.81% proportionally based on thc current Base
Rent and is subject to change if the leasehold tax is modified by the State of
Washington or any other governmental body.
d) Option to Terminate: Upon signature of the presents, the Lessee shall have the
option, at any time, upon six (6) months prior written notice to the Lessor, to
terminate this Lease, the whole without liability or penalty of any kind.
Notwithstanding the above, if notice to the Lessor is provided prior to November
151, 2023, Lessee shall pay to the Lessor an amount of 5410,701.20, representing
six (6) months of Base Rent, starting on November 1ti1, 2023. Payment shall be
made no more than 30 -days atter Lessee provides notice of termination to Lessor.
Payment shall be made regardless of whether Lessee chooses to occupy or vacate
the Premises For clarity, should the Lessee terminate the Lease at any time during
the Extended Term, it will continue to pay the Rent on a monthly basis and not in
advance until the expiry of the six (6) months prior written notice.
4. As -Is; Where-ls: The hereby Lessee accepts the Premises in "as -is; where -is" condition,
hereby declaring himself entirely satisfied with same and agreeing that the Lessor is not
obliged to conduct any improvements, renovations, repairs, replacements or other works
to same, in whole or in part. To the Lessee's knowledge, there are and have been no major
damages, malfunctions, conditions (including environmental conditions, spills,
contamination) adversely affecting the Premises.
5. Other Provisions Unchanged: The parties confirm that in all other respects, the terms,
covenants and conditions of the Lease remain unchanged, and in full force and effect,
except as modified by this agreement including, the Lease remaining net in favor of the
Lessor (who shall have no obligations in respect of building or property maintenance) and
the Lessee paying all utility costs. It is understood and agreed that all terms and expressions
when used in this agreement, unless a contrary intention is expressed herein, have the same
meaning as they have in the Lease.
6. Brokers: The parties hereto confirm that no broker or agent negotiated or was instrumental
in negotiating or consummating this agreement.
7. Enurement: This agreement shall enure to the benefit of and be binding upon the parties
hereto, the successors and assigns of the Lessor and the permitted successors and assigns
of the Lessee.
8. Governing Laws: The Lease and this agreement shall be governed by and construed in
accordance with the laws of the jurisdiction in which the Premises are located.
9. Electronic execution: A faxed or electronically transmitted copy (in .PDF or other
replicating format) of this agreement executed by a party shall be deemed to be an original
executed agreement for all intents and purposes.
10. Change in Notice Address. Section I6(b) of the Lease shall be amended to change the
names and addresses for notice to the Lessor and Lessee to be as follows.
Lessor:
Tukwila City 1-lall
City Clerk Office
6200 Southcenter Blvd.
Tukwila, WA 98188
CityClerkAll@Tukwi la WA.gov
266835
AMONDME'N "7" -FORCE TUK W ILA FINAL (08.29 .2022)
175.0066011} -2-
(206) 433-1800
With a copy to:
Tukwila City Hall
Office of Economic Development
6200 Southcenter Blvd.
Tukwila, WA 98188
Mayor@TukwilaWA,gov
(206) 433-1800
1,essec:
TForce Freight, Inc.
6600 chemin Si Francois, suite 100
Saint-Laurent, Quebec 1--14S 1[37
Attn: Real Estate Department
Email: noticesre(a)tliin11.com
[ SIGNATURES ON NEXT PAGE ]
)1E112668351 1)0CX,1/13175 000001/ - 3 -
AMENDMENT r -FORCE TI,KWILA MAL (08.29.2022) do(x
IN WITNESS WHEREOF the Lessor and the Lessee have executed this agreement on the date
first hereinabove mentioned.
Attest
By:
City Cler
Per:
TFORCE FREIGHT, INC., (Lessee)
Approved as to Form
By:
City Attorney's Office
Per:
- eau
Vice -P ent, Real Estate
1 have the authority to bind the company.
CITY OF TUKWILA (Lessor)
Allan Ekberg
Mayor
1 have the authority to bind the City
1J1/l-12668351 DOCX1/13175.000001/ - 4 -
AMENDMENT r -FORCE TUKWILA FINAL (08-29-2022) docx
STATE OF WASHINGTON )
) ss.
COUNTY OF KING
I certify that 1 know or have satisfactory evidence that Allan Ekberg is the person who appeared
before me, and said person acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as the Mayor of the City of Tukwila to bc thc
free and voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated thi ltS piethe-V, 2022.
AV> ....... ......
\,,OTARY
v
1StV alPUBLI]
f9e0‘4 Lg., :7•tS?9iy.ExP.f.`...;a0
STATE OF c,N1 -v)1,60,70"
S7C cr
COUN-TY )
) ss.
777foi (Print Name)
Rest ing at 71f4=11r7/<-ti G i.J4
My appointment expires /c7Zq-25 -
I certify that I know or have satisfactory evidence that Norman Brazcau is the person who appeared
before me, and said person acknowledged that she signed this instrument, on oath stated that she was
authorized to execute the instrument and acknowledged it the Vice President of TForce Freight Inc. to be the
free and voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated this30 Clay of PiA.AI,40,40- , 20 2.
[Stamp or Seal]
tIic
00
Josrane-Melanie Langlois
(Primed or 1.., Reggeriff40,41041.500, St -Laurent (6C) 4S 1Z6
Residing at 1 ire cd tlic)4x My appointment appointment expires: Ai ( 14-
0012668351 DOCX;1/13175.(X)0001/ j - 5 -
AMENDMENT TEORCE 1 IJKWILA FINAL (08-29.2022) docx
TO: City Clerk's Office
FROM: Brandon Miles '\\
DATE: September 8, 2022
RE: T -Force Lease (OId UPS Property)
On June 27, 2022, the City Council authorized the Mayor to enter into lease agreements for the property
at 11231 East Marginal Way South, which the City will assume ownership of on November 1, 2023. The
City has reached an agreement with T -Force for the City to assume the current lease and extend it when
the City takes ownership. Atached is the lease extension that needs to be signed, initialed, and
notarized.
Also, since the city is assuming an existing lease we will need to place the old lease documentsin the
Contract #22-110
Assumption of Prior Leases
1. 1996 - Industrial Lease - Daniel H. Temkin and Overnite Transportation
Company.
2. 2005 - First Amendment to Industrial Lease - Overnite Transportation
Company and Batavia Holdings, L.L.C.
3. 2013 — Second Amendment to Lease — Amalfi Investments, L.L.C., and UPS
Ground Freight, Inc.
4. 2016 — Third Amendment to Industrial Lease — Amalfi Investments, L.L.C.,
and UPS Ground Freight, Inc.
5. 2017 — Fourth Amendment to Industrial Lease — Amalfi Investments, L.L.C.,
and UPS Ground Freight, Inc.
6. 2018 — Fifth Amendment to Industrial Lease — Amalfi Investments, L.L.C.,
and UPS Ground Freight, Inc.
INDUSTRIAL LEASE
061996
This Lease is between the following parties:
Lessor: Daniel H. Temkin, an individual, and Temkin Property Company, a
general partnership
Lessee: Overnite Transportation Company, a Virginia corporation
1. SUBJECT MATTER. On the terms and conditions set forth herein, the Lessor leases to
the Lessee and the Lessee leases from the Lessor the real estate legally described on attached Exhibit A
("Premises"), located at 11231 East Marginal Way South, Tukwila, Washington. The Premises include
the land and all improvements thereon, and shall be deemed to include for parking purposes a
contiguous parcel owned by the City of Seattle so long as the Lessor has a legal right so to utilize that
parcel, as more fully described in Paragraph 4(c) below.
2. BUSINESS PURPOSE. The Lessee agrees: to use the Premises as a motor cargo
redistribution center and truck terminal and for related activities, but for no other purpose, without the
prior written consent of the Lessor, which will not be withheld or delayed unreasonably.
3. TERM. This Lease shall be for a term of ten (10) years and ten (10) days, commencing
July 22, 1996, and ending July 31, 2006 ("Lease Term"). The Lessee, its employees, agents and
contractors shall have the right to enter the Premises at any time prior to the commencement of the
Lease Term, upon reasonable notice to the existing tenant of the Premises, for the purpose of installing
data and telephone lines and preparing generally for occupancy; provided, that the Lessee shall cause as
little disruption to the business activities of the existing tenant as reasonably possible under the
circumstances. The exercise by the Lessee of its rights described in this paragraph shall not be
construed to shorten the Lease Term or impose on the Lessee the obligation of paying rent for periods
prior to the commencement date of the Lease Term, but all portions of Paragraph 9(a) of this Lease shall
apply to the Lessee if it enters the Premises prior to commencement of the Lease Term.
4. RENT. The Lessee agrees to pay the Lessor rent for the Premises, in advance on the
first day of each month of the Lease Term, as follows:
a. Beginning Rent for the Premises. The rent for the period commencing July 22,
1996, and continuing through and including January 31, 1999, shall be the sum of Thirty Thousand
Dollars ($30,000) per month. Prior to taking possession of the Premises, the Lessee shall pay to the
Lessor rent in the amount of $39,677.42, being the prorated rent for the period from July 22, 1996,
through July 31, 1996, in the amount of $9,677.42, plus the rent for the month of August, 1996, in the
amount of $30,000.
b. Rent Escalation. The rent shall be increased as of February 1, 1999, August 1,
2001, and February 1, 2004, in each case for the succeeding thirty months, by the proportion that the
U.S. City Average Consumer Price Index for All Urban Consumers (1982-84=100) published by the U.S.
Department of Labor, Bureau of Labor Statistics, has increased in the thirty months immediately
preceding each such rental adjustment date. If the consumer Price Index should be discontinued or
modified so that it no longer is availableor applicable for the intent and purpose of this Paragraph, the
parties agree to substitute, with appropriate adjustments, a comparable standard to determine rental
increases contemplated by this Paragraph. If the parties cannot agree on a comparable standard, the
parties agree that it shall be determined by binding arbitration. The arbitration shall be conducted by one
arbitrator, unless the parties are unable to agree on one arbitrator, in which event each party shall select
one arbitrator, the two so selected shall select a third, and the matter shall then be determined by a
majority of the three arbitrators. Each arbitrator shall be a commercial real estate salesman or broker
061996
who has been engaged in that occupation continuously for the ten years immediately preceding the
arbitration proceedings. The arbitration hearing shall be held within thirty (30) days after the demand
therefor by either party, and the arbitrator(s) shall render a decision within ten (10) days after the close of
the hearing. The fees of the arbitrator(s) shall be borne by the parties equally.
c. Parking Permit Fees. For several years, the occupant of the Premises has
enjoyed the use for parking purposes of a City of Seattle (City Light Department) transmission line right-
of-way which lies contiguous to the Lessor's property. That parcel has been occupied pursuant to
Temporary Permit No. P.M. #230410-2-412, issued to Yellow Freight System, Inc. The Lessor shall use
its reasonable best efforts either (i) to obtain an assignment to the Lessor of the existing permittee's
rights under the existing Temporary Permit, (ii) to obtain a permit running directly from the City of Seattle
to the Lessor, or (iii) to obtain a long-term lease of the parcel from the City of Seattle to the Lessor. In
any such event, so long as the Lessor has an enforceable right to utilize the City of Seattle parcel for
parking purposes, that parcel shall be deemed to be included in the Premises under this Lease, and the
Lessee shall pay the Lessor, as additional rent hereunder, monthly or at such other intervals as the same
may be due to the City of Seattle,.the amount which the Lessor is obligated to pay the City of Seattle
therefor (on a straight pass-through basis, without mark-up or profit to the Lessor) (the "City Fee"). The
City Fee is currently $535 per month plus a leasehold excise tax (currently at the rate of 12.84%). The
Lessor and Lessee agree that, in the event the City Fee is increased above a total amount of $700 per
month (plus the then -applicable leasehold excise tax, if any),.then (unless the Lessee shall have agreed
in writing to pay such higher amount) the Lessee shall have the right, upon giving written notice to
Lessor, to elect not to use such space for parking and, in such event, the Lessee shall have no liability
under the terms of this Lease to pay the Lessor the City Fee for any periods after the month in which
such notice from the Lessee to the Lessor became effective.
5. SECURITY DEPOSIT.
a. Initial Cash Deposit. As security for the Lessee's full and faithful performance of
this Lease, upon execution hereof the Lessee shall deposit with the Lessor the sum of Thirty Thousand
Dollars ($30,000). If the Lessee fails to pay rent or other charges due hereunder, or otherwise defaults
with respect to any provisions of this Lease, the Lessor may use, apply or retain any portion of said
deposit for the payment of any such defaulted obligation. If the Lessor so uses or applies any portion of
the deposit, the Lessee shall, upon demand, deposit cash with the Lessor in an amount sufficient to
restore the deposit to the full amount herein specified, and the Lessee's failure to do so shall constitute a
material breach of this Lease. If the Lessee performs all of the Lessee's obligations hereunder, said
deposit, or so much thereof as has not theretofore been applied by the Lessor, shall be returned, without
interest, to the Lessee, at the expiration of the term hereof, and after the Lessee has vacated the
Premises.
b. Letter of Credit. As additional security for performance of its duties under this
Lease, prior to taking occupancy of the Premises the Lessee shall procure and deliver to the Lessor an
irrevocable letter of credit, issued by a National Bank reasonably acceptable to the Lessor ("Issuer"), in
the amount of Three Hundred Sixty Thousand Dollars ($360,000) (the "Security UC") which names the
Lessor as the beneficiary thereof and complies with the other provisions of this subparagraph. The
Security L/C shall be for a term of not less than one year, and it shall be renewed by the Lessee
continuously, without interruption in coverage, unless paid to the Lessor, until the Lessee shall have
demonstrated to the Lessor that the Lessee has concluded eight consecutive quarters in which it
experienced an operating profit, determined in accordance with generally accepted accounting principles,
consistently applied. The Security UC shall provide that itwill be renewed by the Issuer unless the
Issuer shall have given the Lessee and the beneficiary notice at least 30 days before the scheduled
expiration that the Security L/C will not be renewed. The Security L/C shall provide that the beneficiary
shall be entitled to payment thereof (i) if the beneficiary shall have certified to the Issuer in writing that
the Lessee is in material default under this Lease, and that the default has not been cured within five (5)
days after written notice from the beneficiary specifying the nature of the default or defaults and the
curative measures required, or (ii) if the Issuer has given notice that the Security L/C will not be renewed
and the beneficiary certifies to the Issuer in writing that the Lessee has not replaced the Security L/C with
Industrial Lease Page 2
061996
another letter of credit from a different issuer in conformity with the requirements of this subparagraph at
least fifteen (15) days prior to the scheduled expiration of the Security L/C. If the Security L/C has been
paid to the Lessor, the Lessor shall apply the proceeds so received to cure the then existing defaults and
the balance, if any, shall be held by the Lessor as an additional security deposit, subject to all of the
provisions of subparagraph 5(a) above. Payment of rent and other charges accruing under this Lease
shall not be excused or delayed on account of the increase in the security deposit. The Lessor shall pay
one-half of the annual fee to the Issuer for the Security L/C. At the present time, it is estimated that the
annual fee will be 3/10 of one percent, or $1,080 per year, in which case the Lessor's half would be $540.
The Lessor shall promptly reimburse the Lessee for the Lessor's half of such fee after the Lessee has
sent the Lessor a copy of the billing, and unless the Lessor shall fail to make reimbursement within thirty
(30) days after receipt of the billing from the Issuer, the Lessee shall not offset the Lessor's share of such
fee against sums payable to the Lessor hereunder.
6. TAXES.
a. Real Property Taxes. The Lessee shall pay before delinquency all real estate
taxes, general, special, ordinary or extraordinary, including any fees imposed upon the Premises by any
authority having the direct or indirect power to impose them (as, for example, but not by way of
limitation, any city, county, state, or any school, agricultural, sanitary, fire, street, drainage or other
improvement district) and those installments of special assessments (collectively, "Taxes") assessed
against the Premises during the Lease Term and promptly furnish proof of payment to the Lessor. To
insure payment of Taxes when due, the Lessor shall send a copy of all statements for Taxes to the
Lessee and may, at the Lessor's option, require that the Lessee send to the Lessor at least ten (10) days
before the delinquency date for such Taxes a check payable to the taxing authority for the amount of
such Taxes due, and the failure of the Lessee to comply with such a request shall constitute a default
hereunder. Taxes for periods extending partially outside the Lease Term shall be prorated based on the
number of days or months of the Lease Term falling within the tax period in question.
b. Right to Contest. Lessee shall have the right to contest, in good faith, the
amount or validity of any real estate taxes, in whole or in part, by appropriate administrative and legal
proceedings, either in its own name, Lessor's name or jointly with Lessor; provided that such proceedings
shall be without cost to Lessor. Lessee shall have the right to receive any refund of taxes paid resulting
from such contests (subject to appropriate prorations at the commencement and termination of this
Lease). Lessee may postpone payment of any such contested real estate taxes pending the prosecution
of such proceedings and any appeals so long as such proceedings operate to prevent the collection of
such real estatetaxes and the sale of the Property to satisfy any lien arising out of nonpayment of the
same, and provided that Lessee shall pay any interest and penalties imposed if the contest is not wholly
successful. Lessor shall execute and deliver to Lessee any documents necessary or proper to permit
Lessee so to contest any such real estate taxes or which may be necessary to secure payment of any
refund which may result from any such proceedings, and in the event Lessor unjustly or unreasonably
fails or refuses to execute such documents in a timely manner, Lessor hereby authorizes Lessee to
execute such documents as Lessor's attorney-in-fact.
c. Personal Property Taxes. The Lessee shall pay prior to delinquency all taxes
assessed against its trade fixtures, furnishings, equipment, inventory and other personal property.
Wherever possible, the Lessee shall cause its trade fixtures to be assessed and billed separately from
Lessor's real property.
d. Other Taxes. If any governmental agency shall in any manner levy a tax on the
rentals payable under this Lease or rentals accruing from the use of the Premises, or a tax in any form
against the Lessor because of or measured by income derived from the leasing or rental of the Premises,
then additional rent shall be paid equal to the amount of such tax attributable to rentals or income from
or use of the Premises, and shall be paid by the Lessee to the Lessor within ten days after the same is
paid by the Lessor and billed to the Lessee; provided, however, that this provision shall not be construed
to cover payment of any part of the Lessor's federal or state income tax. The Lessor shall furnish to the
Lessee copies of all documents relating to the determination and assessment of such other taxes.
Industrial Lease Page 3
061996
7. REPAIRS AND MAINTENANCE. . The Lessee accepts the Premisesin their present
condition, as -is, with all faults. The Lessee shall at all times keep the Premises neat, clean and -in a
sanitary condition; will replace any glass that is or becomes cracked or broken; and, except for damage
resulting from the negligence or willful misconduct of the Lessor or the Lessor's agents, employees,
contractors or invitees, reasonable wear not customarily repaired, and damage by fire or other
unavoidable casualty, the Lessee shall preserve and maintain the Premises in as good order and repair
as at the commencement of the Lease Term. The Lessee agrees that at the expiration or sooner
termination of this Lease, Lessee shall surrender the Premises, without notice, in a neat and clean
condition, and will deliver all keys used for the Premises to the Lessor.
8. UTILITIES. The Lessee agrees to pay all charges, including those installments falling
due during the Lease Term of special levies and assessments relating thereto, for heat, power, Tight,
telephone, water, garbage, sewer and any other utilities or services which are used in or charged against
the Premises during, and applicable to, the Lease Term. The Lessor shall not be liable for the failure or
interruption of any such services for any reason whatsoever, unless caused by the negligence or
deliberate act of the Lessor or the Lessor's agents, employees, contractors or invitees.
9. DAMAGES AND INSURANCE.
a. Tort Liability. All personal property on' the Premises shall be located there at the
risk of the Lessee. Unless (and then only to the extent) caused by the negligence or willful misconduct
of Lessor or Lessor's agents, employees, contractors or invitees, , the Lessor shall not be liable for any
damages of any kind in or about the Premises, either to persons or property, sustained by the Lessee or
others, that are caused by any defects now in the Premises or hereafter occurring therein, or that are due
to the building's becoming out of repair, or that are caused by fire or by the bursting or leaking of water,
gas, sewer or steam pipes, or that are the result of any act or neglect of employees, co -tenants, other
occupants or any other persons on the Premises, or that are due to the happening of any accident or
other occurrence, from whatsoever cause, in and about the Premises and under no circumstances shall
the Lessor be liable for consequential damages. The Lessee shall indemnify and hold the Lessor and the
Lessor's agents or employees harmless against any such claims, except such as shall result from the
sole negligence or willful misconduct of the Lessor, his employees, agents, contractors or invitees. To
insure the foregoing covenants and indemnification, the Lessee agrees that it will, at all times during the
Lease Term, provide and maintain at Lessee's expense a Commercial General Liability insurance policy,
written by a company or companies reasonably satisfactory to the Lessor, covering both the Lessor and
the Lessee as named insureds, with combined single limits of at least $3,000,000 for bodily injury or
property damage. The Lessee shall pay all premiums therefor as due and shall deliver satisfactory
evidence, with a copy of the policy endorsement showing Lessor as a named insured, to the Lessor
showing that the proper insurance coverage is being maintained. The Lessor shall indemnify and hold
the Lessee and the Lessee's agents or employees harmless from and against any and all losses,
damages, claims, suits or actions, judgments and costs (including without limitation reasonable attorneys'
fees and court costs) arising out of (a) negligent acts or omissions or willful misconduct of Lessor or its
employees, agents, licensees, invitees, unless the claim in question arose through the concurrent
negligence of the Lessee or the Lessee's employees or agents, or (b) any breach by Lessor of its
obligations under this Lease. The duties to indemnify by each party shall survive termination of this
Lease.
b. Property Insurance. The Lessee shall procure and at all times during the Lease
Term maintain in good standing an "all risk" policy of property insurance, naming the Lessor as the
insured or an additional insured, insuring the Premises to the full replacement cost thereof against loss or
damage from the perils of fire and other risks normally covered by such an "all risk" form of policy and
the additional risks of flood and earthquake. The limits of coverage shall in all cases be sufficient so as
not to expose the Lessor to risk of liability as a coinsurer under the applicable policies. The Lessee shall
also purchase for the Lessor's benefit a policy of insurance covering Lessor's loss of rental income if the
Premises are damaged by an insured peril. All such insurance shall be in companies and in form and
substance reasonably satisfactory to the Lessor and any lender to the Lessor who is secured by the
Premises.
Industrial Lease Page 4
061996
c. Waiver of Subrogation. The Lessor and the Lessee each release one another,
and waive their entire claims for recovery which either might have against the other at any time for loss
or damage of any kind arising out of occurrences insured against as provided above, unless such waiver
would have the effect of invalidating such insurance. The parties shall undertake reasonable efforts to
obtain the consents or endorsements, if any, required by their insurers to permit this waiver of
subrogation.
10. CARE OF PREMISES. The Premises shall at all times be kept and used in accordance
with all applicable laws, regulations and requirements of governmental agencies at the expense of the
Lessee. The Lessee shall have the right to contest by appropriate legal proceedings, provided doing so
entails no .cost or expense to Lessor, the validity of any law, ordinance, order, rule, regulation or
requirement of the nature herein described, and to postpone compliance with the same, provided that
Lessor shall not thereby suffer any civil, or be subjected to any criminal, penalties, or incur any expense
related thereto. The Lessor shall execute and deliver to the Lessee any documents necessary or proper
to permit the Lessee so to contest any such law, ordinance, order, rule, regulation or requirement and, in
the event the Lessor unjustly or unreasonably fails or refuses to execute such documents in a timely
manner, Lessor hereby authorizes Lessee to execute such documents as Lessor's attorney-in-fact. All
fees due a governmental agency on account of any inspection of the Premises shall be paid by the
Lessee. The Lessee shall not overload the Premises and shall permit no waste, damage or injury to the
Premises and, at the Lessee's expense, shall keep all drainage pipes and septic system tanks and drain
lines free and open and shall protect water, heating and other pipes so that they will not freeze or
become clogged, and shall repair all leaks, and all damages caused by leaks or by reason of the
Lessee's failure to protect and to keep free, open and unfrozen any of the pipes and plumbing on the
Premises. The Lessee shall be responsible for the removal of rubbish, debris, ice and snow from the
Premises. The Lessee shall not permit washing of trucks or trailers on the Premises, unless any soap,
chemicals and water used in the process are captured and treated appropriately in accordance with good
environmental procedures, so that they are neither left to percolate into or accumulate on the Premises
nor to migrate off site.
11. HAZARDOUS SUBSTANCES.
a. Disclosure of Environmental Report. The Lessor has furnished to the Lessee
copies of a document entitled "Phase I Environmental Site Assessment" prepared by AGRA Earth &
Environmental as its File No. 6-91M-11012, dated June, 1996.("Lessor's Phase I Report"). The Lessor
does not represent or warrant the completeness or accuracy of Lessor's Phase I Report. The Lessee
acknowledges and agrees that Lessor's Phase I Report has been furnished to the Lessee solely for the
Lessee's information, and the Lessee agrees that it will rely solely on the results of its own investigation
in assessing the condition of the Premises, including the environmental condition thereof.
b. Compliance With Laws and Indemnity. Lessee represents and Lessor
acknowledges that Lessee is a licensed hazardous materials hauler. Nevertheless, Lessee shall not
bring to or keep on the Premises, or suffer or permit others to do so, any substance which is regulated as
being dangerous, toxic, hazardous, or harmful to persons or to the environment by any federal, state or
local law or regulation, except in strictest compliance with all laws and regulations governing the storage,
handling and transportation thereof, and the Lessee shall in no event release or permit others to release
on the Premises any such substances. The Lessee shall be liable to the Lessor, and shall defend,
indemnify and hold the Lessor and the Lessor's successors in interest harmless from any loss, damage,
cost or expense incurred on account of the Lessee's breach of these covenants, to include, without
limitation, liability for inspection costs, cleanup costs, engineers' and consultants' fees, civil or criminal
fines, damages or penalties, and attorneys fees incurred in connection therewith or in enforcing this
indemnity. The Lessor shall defend, indemnify and hold the Lessee and the Lessee's successors in
interest harmless from any loss, damage, cost or expense incurred on account of environmental
contamination of the Premises which occurred prior to commencement of the Lease Term, or were
caused by the Lessor or its employees, agents, contractors or invitees, to include, without limitation,
liability for inspection costs, cleanup costs, engineers' and consultants' fees, civil or criminal fines,
damages or penalties, and attorneys fees incurred in connection therewith or in enforcing this indemnity.
Industrial Lease Page 5
061996
The duty of the Lessor and the Lessee to indemnify hereunder shall survive the expiration or termination
of this Lease.
12. LIENS AND INSOLVENCY. The Lessee shall keep the Premises free from any liens
arising out of any work performed, materials furnished or obligations incurred by the Lessee.
13. ASSIGNMENT AND SUBLETTING.
a. Consent Required. Without the prior written consent of the Lessor, which will not
be withheld or delayed unreasonably, the Lessee shall not assign this Lease or any part thereof and shall
not let or sublet the whole or any portion of the Premises. If the Lessee should desire to assign this
Lease or to sublet any portion of the Premises, the Lessee shall send the Lessor notice thereof,
accompanied by a copy of the proposed assignment or sublease, fully executed by Lessee and the
proposed sublessee, which shall be conditioned only on Lessor's consent thereto. This Lease shall not
be assignable by operation of law.
b. Lessee Not . Released. Any approved or attempted assignment of this Lease
shall not extinguish or diminish the liability of the Lessee hereunder unless the Lessor shall so agree in
writing at the time the Lessor consents to such assignment. If consent is once given by the Lessor to an
assignment or subletting, the Lessor shall not be barred from'afterward refusing to consent to any further
assignment or subletting.
14. ACCESS. The Lessee shall allow the Lessor access to the Premises, upon reasonable
prior notice, at all reasonable times, for the purposes of inspection, making repairs or of making
reasonable additions or alterations; provided, however, this right shall not be construed as an agreement
on the part of the Lessor to make any repairs, additions or alterations. Lessor shall not unreasonably
disturb or interfere with the operation of Lessee's business activities while on the Premises for such
purposes. The Lessor shall have the right to place and to maintain "For Rent" signs in conspicuous
places on the Premises for 180 days prior to the expiration of the Lease Term.
15. DAMAGE OR DESTRUCTION.
a. Mandatory Restoration. If the Premises are destroyed or damaged by fire,
earthquake or other casualty when two (2) years or more remain of the Lease Term, to such an extent as
to render the same untenantable in whole or in a substantial part, and if the damage can be expected to
be capable with reasonable diligence to be repaired within 180 days, the Lessor shall repair and restore
the damaged portion, unless the parties mutually agree in writing to terminate the Lease.
b. Optional Restoration. If the Premises are destroyed or damaged by fire,
earthquake or other casualty when less than two (2) years remain of the Lease Term, to such an extent
as to render the same untenantable in whole or in a substantial part, or if the damage cannot be
expected, with reasonable diligence, to be repaired within 180 days, it shall be optional with the Lessor to
restore the damagedportion.
c. Lessee's Limited Termination Rights. If the Premises are damaged at any time
during the Lease Term to. the extent described in the preceding two subparagraphs and cannot be
expected, with reasonable diligence, to be repaired within 180 days, or if such damage occurs at any
time when less than two years remain of the Lease Term, then in either such event Lessee shall have the
option, exercisable by notice given within 30 days after the date of the damage or destruction, to
terminate this Lease regardless of whether Lessor elects to restore the Premises; provided, that Lessee
shall not have a right of termination if the damage or destruction was caused by the intentional act of the
Lessee or some other person on behalf of Lessee.
d. Procedure. The Lessee shall give the Lessor immediate written notice of the
happening of any such event of damage or destruction. In the case of an optional restoration under
subparagraph 15b. above, the Lessor shall have fifteen (15) business days after the receipt of such
Industrial Lease Page 6
061996
notice to notify the Lessee in writing of the Lessor's intention either to restore or to terminate this Lease,
and in such case only, if no such notice is given by the Lessor, the Lessee can elect to terminate this
Lease, effective as of the date of such damage, by written notice to the Lessor of such election. If the
Lessor is either required or optionally elects to restore, the work shall be commenced and prosecuted as
promptly as is reasonable. During such period the rent for the Premises shall be equitably reduced in
proportion to the nature and area of the Premises rendered unfit for occupancy, from the time of damage
until the time the repair and restoration of the Premises are substantially complete.
16. NOTICES. Any notice required or permitted to be given in accordance with the terms of
this Lease shall delivered by one of the following three methods: (a) by hand delivery, (b) by a
recognized national courier service such as Federal Express, or (c) by facsimile transmission, so long as
confirmation of receipt is obtained by the sender's facsimile machine, and the original of the document(s)
sent by facsimile are delivered by one of the other methods herein authorized no later than 5:00 p.m.,
local time where delivered, on the next business day.
a. To Lessor. A notice from the Lessee to the Lessor shall be delivered or
addressed to:
Mr. Daniel H. Temkin
1080 Market Place Tower
2025 First Avenue
Seattle, Washington 98121
Phone: (206) 727-7777
Fax: (206) 727-2709
b. To Lessee. A notice from the Lessor to the Lessee shall be delivered or
addressed to:
Phillip R. Warren, Vice President - Facilities Management
Overnite Transportation Company
1000 Semmes Avenue
Richmond, Virginia 23224
Phone: (804) 231-8746
Fax: (804) 231-8154
c. When Effective. Notices sent by courier or hand delivered shall be effective
upon (i) actual receipt, or (ii) refusal of delivery, whichever shall occur first. Notices sent by facsimile
and followed by delivery by 5:00 p.m. by one of the other authorized methods the next business day shall
be effective on the day the facsimile was sent.
d. Change of Address. The address or addressee of either party may be changed
by notice to the other given in the manner provided in this Paragraph.
17. QUIET ENJOYMENT. The Lessor covenants that, so long as it is not in material default,
the Lessee shall peacefully and quietly have and hold the Premises during the Lease Term, without
hindrance on the part of Lessor or any party claiming by, through or under Lessor, and Lessor warrants
that it shall defend Lessee in such peaceful and quiet use and enjoyment and possession of the
Premises against any such claim.
18. SIGNS. Lessee shall not erect or allow any signs or symbols on the Premises except
such as relate to Lessee's business conducted on the Premises. Lessee shall at its expense obtain and
maintain in effect any permits required for such signs. Any signs placed on the Premises shall be so
placed upon the condition and agreement that the Lessee will remove them at the termination of the
tenancy herein created and will repair any damage or injury to the Premises caused thereby, and if not
so removed by the Lessee, then the Lessor may have the same so removed at the Lessee's expense.
Industrial Lease Page 7
061996
19. ALTERATIONS. The Lessee shall not make any alterations, additions or improvements
("Lessee Improvements") in or on the Premises without the prior written consent of the Lessor, which
consent shall not be withheld or delayed unreasonably; provided, that consent is hereby given to any
remodeling or improvements which do not require structural alterations to the Premises and which do not
decrease the value of the Premises. All Lessee Improvements which are made shall be at the expense
of the Lessee, shall become the property of the Lessor, and shall be surrendered to the Lessor and shall
not be removed at the termination of the tenancy unless the Lessor shall specify at the time of giving his
consent to making Lessee Improvements that they shall be removed at termination; provided, however,
that nothing contained herein shall be deemed to limit Lessee's right to remove its Personal Property as
defined and as provided in Paragraph 23 of this Lease. If the Lessee makes Lessee Improvements,
Lessee agrees to comply with all laws, regulations and requirements of governmental agencies. The
Lessee will indemnify and hold the Lessor harmless from damage, liability, loss or expense arising out of
Lessee Improvements.
20. DEFAULT AND REENTRY. If any rent is not paid within ten (10) days after written notice
from the Lessor that it is past due, or if the Lessee breaches any other provision hereof and fails to cure
the breach within thirty (30) days after written notice thereof (or if the nature of the breach is such that it
cannot reasonably be cured within 30 days, if Lessee fails to commence a cure within such 30 -day period
or fails thereafter to prosecute the cure diligently to completion), the Lessor may cancel this Lease upon
giving the notice required by law, and may reenter the Premises; provided, however, the Lessor shall not
be required to give written notice of nonpayment or breach more than two times in any 12 -month period
prior to exercising such right of cancellation. Notwithstanding any such reentry by the Lessor, the liability
of the Lessee for the rent shall not be extinguished for the balance of the Lease Term, and the Lessee
agrees to pay any deficiencies and expenses arising from a reentry and reletting of the Premises each
month as the amount thereof is ascertained by the Lessor. No receipt of money by the Lessor from or on
behalf of the Lessee after the termination of the tenancy or after the giving of any notice shall reinstate,
continue or extend the tenancy or affect any notice given to the Lessee prior to the receipt of such
money. The foregoing remedy of the Lessor shall not be exclusive; it shall be cumulative and in addition
to all remedies now or hereafter allowed by law or elsewhere provided herein.
21. JURISDICTION, FEES, COSTS AND EXPENSES. Any action instituted to enforce any
provision of this Lease may be brought in the court of general jurisdiction in the county where the
Premises are located. In any such action, the prevailing party shall be entitled to recover from the other
such sums as the court may adjudge reasonable as attorneys fees, costs and expenses.
22. NONWAIVER OF BREACH. The failure of either party to insist upon strict performance
of any covenant of this Lease, or to exercise any right or election, shall not be construed to be a future
waiver or relinquishment of any such covenant, or a waiver or relinquishment of any other covenant, and
the same shall remain in full force and effect.
23. REMOVAL OF PERSONAL PROPERTY. During the Lease Term and upon any
termination of the tenancy, all equipment, trade fixtures, signs and other items of personal property
("Personal Property") constructed, installed or placed on the Premises by the Lessee, or by others at the
Lessee's request, shall be and remain the property of the Lessee or other owner thereof, and the Lessee
shall have the right to remove any or all of the same from the Premises prior to the termination of this
Lease. Prior to termination of the Lease or within 30 days thereafter, the Lessor may give the Lessee
notice requiring the removal of all or part of the Personal Property before the effective date of the
termination (if the notice is given at least 5 days prior to such termination) or within 5 days after the
notice (if the notice is given within 5 days prior to the termination or after the termination). Whether
requested by the Lessor or not, the Lessee shall repair any damage caused by such removal. The
Lessor also shall have the right, but not the obligation, to remove any Personal Property located in the
Premises that is not removed by the Lessee and to store the same in any place selected by the Lessor,
including the Premises, at the expense and risk of the owners thereof, with the right to sell it in a
commercially reasonable manner, without notice, after it has been stored for a period of 30 days. The
proceeds of such a sale shall be applied first to the costs of sale and to the storage charges, then to the
Industrial Lease Page 8
061996
payment of any other sums which may be due from the Lessee to the Lessor, and the balance, if any,
shall be paid to the Lessee.
24. HOLD -OVER. Any hold -over by the Lessee with the written consent of the Lessor, after
any termination of this Lease, shall create a month-to-month tenancy on all the applicable terms and
conditions of this Lease, including the payment of rent.
25. EMINENT DOMAIN.
a. Substantial Taking. If the entire Premises (or so substantial a portion thereof as
to make the balance unsuitable for the Lessee's needs) are condemned, or purchased in lieu thereof, by
any authorized agency ("Condemnor'), either party hereto, after at least 15 business days' written notice
to the other, may terminate this Lease as of the date of the actual taking of possession by the
Condemnor. Irrespective of whether this Lease is so terminated, the entire amount received for such
taking, including the leasehold and any severance damages, and whether received by settlement, by
purchase in lieu of condemnation, or by formal court action, shall belong to and shall be payable to the
Lessor. The Lessee shall not participate therein (except as to any damages or relocation expenses
which the Lessee is separately entitled to receive from the Condemnor for its relocation or loss of
business). If this Lease is terminated, the Lessee's liability for the rent shall cease as of the date of
taking of possession by the Condemnor. If this Lease is not terminated despite any such taking, Lessor
shall at its expense take such steps as are reasonable to restore the functionality of the portion of the
Premises remaining after the partial taking, and the rent accruing after the date the Lessee is deprived of
possession of a portion of the Premises shall be reduced equitably, considering the nature and extent of
the portion taken.
b. Dispute Resolution. If the parties cannot agree on whether the taking was so
substantial as to render the balance unsuitable for the Lessee's needs, or on the amount by which the
rent should be reduced following a partial taking, the matter shall be decided by arbitration, as provided
herein. The parties shall employ one arbitrator, unless the parties are unable to agree on one arbitrator,
in which event each party shall select one arbitrator, the two so selected shall select a third, and the
matter shall then be determined by a majority of the three arbitrators. Each arbitrator shall be a
commercial real estate salesman or broker who has been engaged in that occupation continuously for
the ten years immediately preceding the arbitration proceedings. The arbitration hearing shall be held
within 30 days after the demand therefor by either party, and the arbitrators shall render a decision within
10 days after close of the hearing. The fees of the arbitrators shall be borne equally by the parties.
26. LESSOR FINANCING OR TRANSFERS.
a. Subordination. This Lease shall be junior and subordinate to all ground leases,
mortgages, deeds of trust and other security instruments affecting the Premises now or at
commencement of the Lease Term. At the option of the Lessor, this Lease shall also be junior and
subordinate to any future such liens or encumbrances, provided that the secured party shall agree to
recognize this Lease and not to disturb the Lessee's possession and occupancy in the event of
foreclosure if the Lessee is not in default. The Lessee agrees to execute, acknowledge and deliver to the
Lessor on demand such further written instruments, in a form reasonably satisfactory to Lessee,
evidencing such subordination in compliance with this Subparagraph as may be reasonably requested by
the Lessor. The failure of the Lessee so to deliver such instruments shall constitute a default by the
Lessee under this Lease.
b. Attornment. In the event of a sale or other transfer of the Premises, whether by
foreclosure or otherwise, the Lessee agrees to attorn to the new owner and to recognize such owner as
the Lessor under this Lease, provided that the new owner shall have agreed to the Lessee's occupancy
and right to quiet possession of the Premises.
c. Estoppel Certificates. Within 10 days after receipt of a written request from the
Lessor, the Lessee shall execute, acknowledge and deliver to the Lessor a certificate, reasonable in
Industrial Lease Page 9
061996
form, which certifies that this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating the modifications), and the
dates to which the rent and other charges have been paid in advance, if any, and stating whether or not,
to the best knowledge of the Lessee, the Lessor is in default in the performance of any covenant,
agreement or condition of this Lease and, if so, specifying each such default of which the Lessee may
have knowledge, and containing such other statements as a prospective lender or purchaser may
customarily require in estoppel certificates in similar transactions from tenants similar to Lessee. Any
such statement delivered pursuant to this Subparagraph may be relied upon by any prospective
purchaser or lender or any assignee of either. The Lessee's failure so to deliver such certificate shall, at
the option of the Lessor, either: (i) be conclusive upon the Lessee that this Lease is in full force and
effect, without modification except as may be represented by the Lessor, that there are no uncured
defaults in the Lessor's performance hereunder, that the Lessee has no rental offsets or claims against
the Lessor hereunder, and that not more than one month's rent has been paid in advance, or (ii)
constitute a material default by the Lessee under this Lease. The Lessee shall have a reciprocal right to
ask and receive estoppel certificates from Lessor on all of the same terms and conditions as set forth in
this Paragraph, substituting in the foregoing Paragraph for that purpose the word "Lessor" for "Lessee,"
and vice versa.
d. Sales. if the Lessor sells or conveys the Premises, the transfer shall operate to
release the Lessor from any future liability under this Lease. The Lessee's right to quiet possession shall
be undisturbed so long as the Lessee is not in default hereunder and the Lease remains in effect by its
terms. If any deposits have been made by the Lessee, the Lessor shall transfer any remaining unapplied
balances to the transferee, and thereupon the Lessor shall be discharged from any further liability in
reference thereto.
27. FINANCIAL STATEMENTS. Upon request by the Lessor, which may not be made more
frequently than once in any 12 -month period, the Lessee shall provide the Lessor with a copy of the most
recent audited (or if audited statements are not prepared for the period in question, reviewed) annual
financial statements, to include, at a minimum, a balance sheet, income statement and statement of
cash flows for both the Lessee and its corporate parent who is a guarantor of the Lessee's obligations
under this Lease.
28. PURCHASE OPTION. In consideration of the payment by the Lessee to the Lessor
concurrently with the execution of this Lease of the sum of Twenty-five Thousand Dollars ($25,000) as
an option fee, the Lessor hereby grants the Lessee an option to purchase the Premises on the terms set
forth herein and in the Purchase and Sale Agreement, which is attached hereto as Exhibit C and
incorporated herein by reference. The purchase option is strictly personal to the Lessee, and may not be
assigned to any other party whatsoever, whether voluntarily or involuntarily, and whether as part of this
Lease or otherwise, and any attempted assignment shall be void and of no effect. To exercise the option
effectively, the Lessee must not be in material default under this Lease and must execute fully three (3)
copies of the Purchase and Sale Agreement and deliver them to the Lessor, together with a notice of
exercise of the purchase option, at any time between August 1, 1998, and July 31, 2000, both inclusive.
If the Lessee is not then in material default under this Lease, the Lessor shall fully execute all three
copies of the Purchase and Sale Agreement, shall return one fully executed copy to the Lessee, and
shall send one fully executed copy to the Escrow Agent named therein. The option fee shall be
applicable to the purchase price of the Premises if the Lessee effectively exercises the purchase option,
but shall not be refundable except as otherwise provided in the Purchase and Sale Agreement attached
hereto as Exhibit C.
29. CONTINGENCIES TO EFFECTIVENESS OF THIS LEASE. This Lease and the obligations
of the parties hereunder are contingent upon the occurrence of each of the following before the
commencement of the Lease Term:
a. Acquisition of the Premises. The Lessor has entered into a contract to acquire
the Premises but, as of the date this Lease is entered by the parties, the Lessor's purchase of the
Premises has not closed. If for any reason the Lessor has not become the owner of the Premises by
Industrial Lease Page 10
061996
August 31, 1996, Lessor shall not be subject to any liability therefor, but in such case either the Lessor or
the Lessee may terminate this Lease by notice to the other, in which event the Lessor shall return any
monies previously deposited by the Lessee, and the parties shall have no further rights or liabilities to
each other hereunder. If the Lessor shall cause title to the Premises to be taken in a legal entity in which
Daniel H. Temkin is a principal, such entity shall automatically be substituted as Lessor under this Lease,
and the Lessee shall upon receipt of notice thereof recognize such entity as Lessor under this Lease for
all purposes.
b. Delay in Commencement of Lease Term. If for any reason the Lessor cannot
deliver possession of the Premises to the Lessee at the date specified for commencement of the Lease
Term, the Lessor shall not be subject to any liability therefor, nor shall any such failure affect the validity
of this Lease or the obligations of the Lessee, but in such case the Lessee shall not be obligated to pay
rent until possession of the Premises is tendered to the Lessee; provided, however, that if the Lessor
shall not have delivered possession of the Premises by September 1, 1996, the Lessee may, by notice to
the Lessor, cancel this Lease, in which event this Leaseshall terminate, the Lessor shall return any
monies previously deposited by the Lessee, and the parties shall have no further rights or liabilities to
each other with respect thereto. The Lessor shall give the Lessee not Tess than fifteen (15) days notice if
the Premises will not be available for the Lessee's occupancy on July 22, 1996, and, if the
commencement of the Lease Term is delayed, shall give the. Lessee not less than fifteen (15) days prior
notice when the Premises will be available for the Lessee's occupancy; and if the Premises are then so
ready, the Lease Term shall commence upon the date so specified. If by application of this Paragraph,
the Lease Term commences other than on the first day of a calendar month, rent for the first month shall
be prorated, based on the number of days in the month in question. Delay in commencement of the
Lease Term shall not delay or otherwise affect any other dates or deadlines specified in this Lease,
including without limitation the end of the Lease Term, the rent escalation dates or the dates specified in.
Paragraph 28 (Purchase Option).
c. Termination of Existing Sublease. The Lessee shall have obtained a binding
agreement terminating its obligations under that certain Standard Industrial Sublease dated November
15, 1991, between NW Transport Service, Inc., as sublessor, and Lessee, as sublessee of the property
located at 12855 - 48th Avenue South, Tukwila, Washington, on terms reasonably satisfactory to Lessee.
30. LESSEE'S RIGHT TO TERMINATE. The Lessee shall have the right to terminate this
Lease, upon written notice to the Lessor, if, following the date hereof but prior to acquisition of title to the
Premises by the Lessee, it should become unlawful or illegal to operate a motor cargo redistribution
center and truck terminal and essential related activities (the intended Uses") on the Premises, or on
any portion of the Premises so substantial as to render the. remainder thereof not suitable for the
Intended Uses by the Lessee, unless the Intended Uses became unlawful or illegal because of any action
or failure to take action by the Lessee or because the Lessee abandoned vested rights to continue those
uses on the Premises.
31. INTEGRATION. This Lease, including, its exhibits and attachments, sets forth the entire
agreement and understanding between the parties, and supersedes and replaces all previous
correspondence, agreements, understandings, promises, terms and conditions, written or oral, between
the parties. Any amendments or modifications of this Lease or its exhibits and attachments shall be
invalid unless in writing and signed by the parties.
32. HEADINGS; TIME. The paragraph and section headings set forth herein are for
reference and convenience only and are not considered a part or a term or condition of this Lease. Time
is of the essence in the performance of the terms and provisions of this Lease.
33. SUCCESSORS. Subject to the provisions pertaining to assignment and subletting, the
covenants and agreements of this Lease shall be binding upon the successors and assigns of the parties
hereto.
Industrial Lease Page 11
061996
34. COUNTERPARTS. This Lease may be executed in counterparts, each of which shall be
deemed an original, and all of which, taken together, shall constitute but a single agreement.
35. GOVERNING LAW. This Lease shall be governed by and construed in accordance with
the laws of the State of Washington, without regard to choice of law principles.
Dated for reference as of June ,2i.9 , 1996.
LESSOR:
an= ndividual
Temkin Property Co
By
y
kin, e = neral
N
artner
LESSEE:
Overnite Transportation Company
By
Its
Industrial Lease Page 12
STATE OF WASHINGTON
) ss.
COUNTY OF KING
I certify that I know or have satisfactory evidence that Daniel H. Temkin is the
person who appeared before me, and said person acknowledged that he signed this
instrument as a general partner of Temkin Property Company, a California general
partnership, and he acknowledged it to be the free and voluntary act and deed of said
partnership for the uses and purposes stated therein, and on oath stated that he was
authorized to execute said instrument
on behalf of said partnership.
Dated /l/ti
Printed namergee ((T/'Pl71- 01:(..ie,
NOTARY PUBLIC, State of Washin
� ngto
My appointment expires /
-' 77
STATE OF WASHINGTON
COUNTY OF KING
LESSOR'S ACKNOWLEDGMENT
)
)
)
ss.
061996
I certify that I know or have satisfactory evidence that Daniel H. Temkin is the person who
appeared before me, and said person acknowledged that he signed this instrument and acknowledged it
to be his free and voluntary act for the uses and purposes stated therein.
Dated
COMMONWEALTH OF VIRGINIA
CITY OF RICHMOND
OTARY PUBLIC, State of Washin on
Printed Name `fit f C! ((d:vP�C
My appointment expires ll—ZC3 —7 �7
LESSEE'S ACKNOWLEDGMENT
)
)
)
ss.
I certify that I know or have satisfactory evidence that )' • ,G► .0) is the
person who appeared before me, and said person acknowledged that he signed this ins`friment, on oath
s1 . ted hat he , wa authorized �to execute the instrument and acknowledged it as the
i / _,��-�i of Overnite Transportation Company to be the free and voluntary act of
such party for the useInd purposes stated therein.
Dated -70, /9 9 ' .
NOTARY PUBLIC, Commo e th of Virginia
Printed Name eimifia rC ob-Ail
My appointment expires 4.,(,df .T// J 9 7
Industrial Lease
Page 13
061996
EXHIBIT A
LEGAL DESCRIPTION
ALL THAT PORTION OF GOVERNMENT LOT 1, SECTION 10, TOWNSHIP 23
NORTH, RANGE 4 EAST W.M., LYING NORTH OF THE DUWAMISH RIVER OR
NORTH OF GOVERNMENT MEANDER LINE ALONG THE NORTH BANK OF SAID
RIVER AND WEST OF THE WESTERLY LINE OF EAST MARGINAL WAY;
EXCEPT THAT PORTION AS CONDEMNED BY KING COUNTY SUPERIOR COURT
CAUSE NO. 469557 FOR TRANSMISSION LINES;
AND EXCEPT ALL EXISTING COUNTY ROADS;
AND EXCEPT THAT PORTION THEREOF DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WEST LINE OF SAID GOVERNMENT LOT 1,
LYING SOUTH 00°32'40" WEST 636.35 FEET FROM THE NORTHWEST CORNER
THEREOF;
THENCE SOURTH 88°51'20" EAST PARALLEL WITH THE NORTH LINE OF SAID
GOVERNMENT LOT 1, 208.79 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 69°47'10" EAST 514 FEET, MORE OR LESS, TO THE
WESTERLY LINE OF EAST MARGINAL WAY;
THENCE SOUTH 16°48'50" EAST ALONG SAID WESTERLY LINE TO THE
DUWAMISH RIVER;
THENCE WESTERLY ALONG THE DUWAMISH RIVER TO A POINT WHICH BEARS
SOUTH 20°12' 50" EAST FROM THE TRUE POINT OF BEGINNING;
THENCE NORTH 20°12'50" WEST TO THE TRUE POINT OF BEGINNING;
SITUATE IN THE CITY OF TUKWILA, COUNTY OF KING, STATE OF
WASHINGTON.
Industrial Lease Page 14
EXHIBIT B
INTENTIONALLY OMITTED
P
Assignment of Lease
his ASSIGNMENT of LEASE ("Assignment") is made as of the / day
of , 1998 by and between DANIEL H. TEMKIN, an individual AND TEMKIN
PROPERTY COMPANY, a California general Partnership (collectively "Assignor") and
BATAVIA HOLDINGS, L.L.C., a Washington Limited Liability Company ("Assignee).
WHEREAS, in connection with Assignee's acquisition of the improved real estate
commonly known as 11231 E. Marginal Way, Tukwila, WA ("Property") as more
particularly described in Exhibit A, attached hereto and incorporated herein by reference
interest in and to the lease affecting the Property by and between Assignor as Lessor and
Overnite Transportation Company, a Virginia corporation, as Lessee, dated as of June 20,
1996 ("Lease").
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Assignment and Assumption of Lease
a. Assignment of Lease Assignor hereby assigns and transfers to
Assignee all of Assignor's right, title and interest in and to the Lease, and
Assignee hereby accepts the assignment and transfer, upon the terms and
conditions set forth herein.
b. Assumption of Lease Assignee hereby assumes and agrees to keep,
perform, and fulfill all of the terms, covenants, conditions, obligations,
duties, responsibilities and liabilities of Assignor accruing or arising under
Lease from and after the date thereof.
2 . Indemnities
a. Assignor's Indemnification Effective as of the date hereof, if any
suit, arbitration, or claim arises from, or is alleged to arise from, any act or
omission of Assignor, or its employees or agents with respect to the
Lease, which act or omission occurred prior to the date hereof, then
Assignor shall, at its own expense, hold Assignee harmless and provide
a defense for any suit, arbitration, or claim, pending or hereafter instituted
against Assignee, and shall indemnify and hold Assignee harmless from all
losses, costs, damages or expenses, including reasonable attorney's fees
and court costs which may be sustained by Assignee on account of, or in
connection with, such suit, arbitration or claim.
b. Assignees Indemnification Effective as of the date hereof, if any
suit, arbitration, or claim arises from, or is alleged to arise from, any act or
omission of Assignee, or its employees or agents with respect to the
Lease, which act or omission occurred prior to the date hereof, then
Assignee shall, at its own expense, hold Assignor harmless and provide
a defense for any suit, arbitration, or claim, pending or hereafter instituted
against Assignor, and shall indemnify and hold Assignor harmless from all
losses, costs, damages or expenses, including reasonable attorney's fees
and court costs which may be sustained by Assignor on account of, or in
connection with, such suit, arbitration or claim.
3 . Attorney's Fees. In the event of any litigation regarding the rights and
obligations under this Assignment, the prevailing party shall be entitled to recover from the
other party reasonable attorney's fees and court costs incurred therein.
4 . Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the successors and assigns of both parties hereto.
5 . Governing Law. This Assignment shall be governed by and construed
in accordance with the laws of the State of Washington.
6 . Counterparts. This Assignment may be executed in two or more
counterparts. each of which shall be deemed an original and all of which, taken together,
shall constitute one in the same document.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Assignment as of the day and year first above written.
ASSIGNORS:
Temkin operty Co pang,
By:
Its: r"Gwr�'ce�ri
Daniel H. Temkin
ASSIGNEE:
Batavia oldings, L.L.
By:
Its:
ASSIGNOR'S ACKNOWLEDGEMENT
STATE OF WASHINGTON )
COUNTY OF KING )
ss.
I certify that I know or have satisfactory evidence that DANIEL H. TEMKIN
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 a GENERAL PARTNER of Temkin Property Company to be a free
and voluntary act of such party for the useds and purposes stated therein.
Dated lit t �4. R
•0 E. .04
4,..4 � ssioNEN 8.
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; • •
NOTARY PUBLIC, State of Washington
Printed name: ear -01E LA) tI\t.ct,wt.S
My appointment expires 11 • a5.9 q
ASSIGNEE'S ACKNOWLEDGEMENT
STATE OF WASHINGTON )
COUNTY OF KING )
ss.
I certify that I know or have satisfactory evidence that DANIEL H. TEMKIN
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 MEMBER of BATAVIA HOLDINGS, L.L.C. to be a free and
voluntary act of such party for the useds and purposes stated therein.
•o k 14
00AA W
NOTARY PUBLIC, State of Washington
Printed Name: c_OdrnI e titJ tAU a_V1/ts
My appointment expires l I • a-5 9
FIRST AMENDMENT TO
INDUSTRIAL LEASE
THIS FIRST AMENDMENT TO INDUSTRIAL LEASE (this "First Amendment") is dated
for reference purposes as of April 23— , 2005 (the "Effective Date") by and between Overnite
Transportation Company, a Virginia corporation ("Lessee") and Batavia Holdings, L.L.C., a
Washington limited liability company ("Lessor").
Recitals
A. Batavia Holdings, L.L.C., as the successor in interest to Daniel H. Temkin and
Temkin Property Company is the "Lessor" and Ovemite Transportation Company is the
"Lessee" under that certain Industrial Lease dated June 20, 1996 for that certain real property
and improvements commonly known as 11231 East Marginal Way South, Tukwila, Washington
(the "Original Lease"). Any term not defined in this First Amendment is .defined by reference to
the Original Lease. Collectively, the Original Lease and this First Amendment are referred to as
the "Lease."
B. A portion of the Premises is the subject of an eminent domain action by the
Central Puget Sound Regional Transit Authority (aka "Sound Transit") (the "Sound Transit
Action"). As a result, the Premises must be reconfigured to accommodate Lessee's use. In
addition, Lessor and Lessee wish to extend the Lease Term and make certain other revisions as
reflected below. Except to the extent expressly stated herein, Lessor and Lessee agree the
Original Lease remains in full force and effect.
Agreement
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Lessor and Lessee hereby agree as follows:
1. Recitals. This First Amendment's recitals stated above are incorporated as part
of the parties' agreement.
2. Extension of Lease Term. The first sentence of the Original Lease at Section 3
is.hereby amended to state that the Lease Term shall not end until July 31, 2013.
3. Change in Base Rent. Section 4 is modified to be consistent with the following:
3.1 The base rent for the Premises is currently $37,779.00 per month.
3.2 From and after the Effective Date of this First Amendment, Lease Section
4(b) is deleted. In its place, Lessor and Lessee hereby agree that base monthly rent for the
balance of the Lease Term shall be increased as follows:
(a) August 1, 2006 -July 31, 2008: $39,600.00/month
(b) On August 1, 2008: 5% increase over immediately prior base rent
(c) On August 1, 2010: 5%. increase over immediately prior base rent
(d) On August 1, 2012: 5% increase over immediately prior base rent
(e) In addition, if the Lease Term is extended pursuant to Section 7.4 below,
then on August 1, 2014, and thereafter for each additional two year period during which the
SEATTLE AM 1 041105
1
Lease Term is extended, the base monthly rent shall increase by five percent (5%) over the
immediately prior base monthly rent amount.
3.3 Lease Section 4(c) is modified to be consistent with the following:
(a) The current base monthly rent stated in Section 3.1 of this First
Amendment includes reimbursement for Lessor cost for leasing the Seattle City Light parking lot
(the "SCL Lot"). The base month rent stated above in Section 2.1 from and after August 1, 2006
does not include reimbursement for the SCL Lot rent; and Lessee agrees that from and after
August 1, 2006, in addition to base rent and other amounts due Lessor under the Lease, to
reimburse Lessor the current actual charge for the SCL Lot. At present, the current actual
charge for the SCL Lot is $823.73, and is subject to annual adjustments.
(b) Lessee acknowledges that Lessor is renting the SCL Lot pursuant
to a license which may be terminated at any time by SCL, and that if such license is terminated
then Lessor shall have no further obligation under Lease Section 4(c). Lessee agrees that it
has no right to discontinue the use of the SCL Lot or to stop payments due Lessor relating
thereto, prior to the earlier of the termination of the Lease or the SCL Lot license to Lessor.
4. Change in Notice Address. The Lessor's notice address in Lease Section
16(a) is changed to the following:
Batavia Holdings, L.L.C.
Attention: Daniel H. Temkin
1002 Tower Building
1809 Seventh Avenue, Suite 1002
Seattle, Washington 98101
Phone: (206) 515-0505
Fax: (206) 515-2995
The Lessee's notice address in Lease Section 16(b) is changed to the following:
Ovemite Transportation Company
Attn: Rob Pardon
1000 Semmes Avenue
Richmond, Virginia 23224
Phone: (804) 231-8178
Fax: (804) 231-8600
5. Quiet Enjoyment. In connection with the Sound Transit Action, Sound Transit
required Lessor to (a) grant a temporary access easement across the Premises to the adjacent
property, located to the south of the Premises, which easement would be limited to only that
period of time when Grantee's access to its property from the public street would be blocked
entirely due to Sound Transit's initial construction activities; provided, that in no event will such
temporary easement be used more than twice, for no more than seven (7) days each time, and
provided, further, that Lessor will deliver advance notice to Lessee of Grantee's intended
exercise of such easement; and (b) grant Sound Transit a license to use a portion of the
Premises as a temporary staging area for construction materials during Sound Transit's
construction only. Lessee agrees that the grants described in subsections 5(a) and 5(b) above,
and the grantees' exercise thereof, shall not constitute a breach of the covenant of quiet
enjoyment, otherwise be a breach of Lessor's obligations under the Lease or give rise to any
claim for damages or rent reduction.
SEA rn.E AMI 041105
2
6. Eminent Domain. The Sound Transit Action is a taking pursuant to Lease
Section 25(a) and Sound Transit is the "Condemnor" thereunder. Lessee agrees that the
following action by Lessor shall satisfy the Lease requirement to restore the functionality of the
portion of the Premises remaining after the Sound Transit Action, and that there shall be no
adjustment to the rent relating thereto or to any other provision in the Lease:
6.1 Lessor agrees, at Lessor's sole expense, that it will undertake the
reconfiguration of the Premises (except for the additional loading positions which are the subject
of Section 7.1 below) as reflected in the plans attached as Exhibit A (the "Plans"), and to make
such other alterations to the Premises as are reasonably required to the extent related to Sound
Transit's construction of the aerial guideway. Lessor further agrees to use commercially
reasonably efforts to do such work at times and in a manner which will minimize disruption to
Lessee's vehicle maintenance operation.
7. New Construction. The Lease is supplemented with this new section as
follows:
7.1 Lessee has a one time right, which must be exercised by delivering
written notice of such exercise to Lessor not later than July 31, 2011, to request Lessor
construct an addition to the freight dock at Lessor's sole expense, as shown on the Plans
attached as Exhibit A. It is understood that the result will be a "net" addition of the requested
loading positions, as the dock addition will eliminate the end loading positions currently located
at the west end of the freight dock.
7.2 Upon receipt of Lessee's exercise notice, Lessor shall use commercially
reasonable efforts to secure the permits necessary for such work. If Lessor is unable to procure
such permits, despite using commercially reasonable efforts, then Lessor agrees to work with
Lessee to develop an alternative plan acceptable to permitting agencies, but in no event shall
Lessor be required to build an addition that results in an increase of less than six (6) net
additional loading positions. If such permits still cannot be procured, then Lessee's rights under
7.1 shall be invalid and of no further force and effect. In no event shall Lessee have the right to
terminate the Lease, or to any rent adjustment or claim against Lessor for breach of the Lease if
Lessor fails to procure the necessary permits and construct the additional loading positions.
7.3 If Lessor is able to procure the necessary permits and constructs the
additional loading positions, then from and after substantial completion of each such loading
position, the monthly base rent under the Lease shall increase by $500 per each net additional
increase in the number of loading positions at the Premises.
7.4 If at the time Lessor substantially completes construction of all of the
additional loading positions there is less than five (5) years remaining in the Lease Term, the
Lease Term shall be deemed extended to expire on the last day of the month following fifth
anniversary of such substantial completion; and In such event the base monthly rent shall
increase as set forth in this First Amendment's Section 3.2(e) above.
8. Inapplicable Lease Sections. Lessor and Lessee agree that Lease Sections
28, 29 and 30 are no longer applicable and are deemed deleted entirely.
9. Ratification and integration. Together, the Original Lease and this First
Amendment comprise the entire agreement between Lessor and Lessee concerning the
Premises; and such agreement may only be modified by a subsequent writing executed by both
Lessor and Lessee. Lessor and Lessee hereby ratify the Lease, as amended herein.
SEATTLEAMI 041105
3
IN WITNESS WHEREOF, the parties execute this First Amendment effective as of the
date set forth above.
"Landlord" "Tenant"
BATAVIA HOLDINGS, L.L.C. OVERNITE TRANSPORTATION
a Washington limited liability company COMPANY
/ a Virginia corporation
By:
Na e. L O H. SUG
Title: CE
By:
aniel emkin, its Manager
STATE OF WASHINGTON
COUNTY OF KI (r
) ss.
I certify that I know or have satisfactory evidence that DANIEL H. TEMKIN 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 a the M AGER of BATAVIA
HOLDINGS, LLC, a Washington limited liability Company, to be the fre- and vo f -ry act of such party
for the uses and purposes mentioned in this instrument.
DATED. -
s SgtON A II
r .• I
������QTAgy�N'A /,'�o
r
1
to,‘,.PUB1.�G •2
(1
. -Ihgc
STATE OF liNOON
COUNTY OF gmr c
) ss.
reo�• _ry.
(Prints. Name o otary Public)
My Appointment expires t
I certify that I know or have satisfactory evidence that 4 SIJ S is the person
who appeared before me, and said person acknowledged that he/she igned this instrument, on oath
stated that he/she was authorized to execute the instrument and acknowledged it as the
G6e of OVERNITE TRANSPORTATION COMPANY, a Virginia
corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in this
instrument.
DATED:
ets/If
SEATTLE Am 041105
(Signature of Notary Public)
(Printed Name off�Notary Public)
My AppotMt CO/Aezplr$e ION EiPIRES NOW 31'
20013
4
Exhibit A
to First Amendment to Industrial Lease
The Plans
[attached]
SEATTLE AM1 041105
SITE PLAN
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Extithit A-1
DATE
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OVERALL FLOOR PLAN
Exhibt
DATE
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OVERALL FLOOR PLAN
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LESSEE
DATE
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this "Second Amendment") is
made as of the45 i*Cla.y of April, 2013 by and between. AMALH INVESTMENTS.,
L.L.C. as successor in interest. to Batavia .Holdings, L.LC. ("Lessor"), and UPS
GROUND FREIGHT, INC. (OH) ("Lessee").
Recitals
A. Daniel H. Temkin and Temkin Property Company ("Temkin"),
predecessor -in -interest to Lessor and Overnite Transportation Company ("Overnite"),
predecessor -in -interest to Lessee, entered into that certain Industrial Lease dated June 20,
1996 as amended by the First Amendinent-dated April 27, 2005 (the "Lease"), wherein
Temkin leased to Overnite and Overnite leased from Temkin certain premises located at.
11231 East Marginal Way South, Tukwila, WA (the "Premises"), which Premises as such
property is further described in the Lease, The current term of the Lease is to expire on
July 31, 2013.
B. Lessor leases a parking lot adjacent to the Premises from the Seattle City
Light ("SCI,, Lot") for the sole purpose of Lessee's sole and exclusive use. The SCL Lot
constitutes a portion of the Premises. The use of the SCL Lot is critical for the operations
of Lessee.
C. Lessee wishes to extend the term of the Lease and Lessor wishes to extend
the term attic Lease by an additional sixty (60) months.
D. Lessor and Lessee wish to set forth their agreement to extend the term of
the Lease in this Second Amendment.
Agi-eertient
NOW, THEREFORE, in consideration of the covenants herein contained, and
other good and valuable consideration, the receipt and/or sufficiency of which are hereby
acknowledged, Lessor and Lessee agree as follows:
1.
Recitals. The hereinabove recitals are true and correct.
2. Definitions. Unless defined otherwise in this Second Amendment, all
defined terms used in this Second Amendment shall have the same meaning and
definition as given them in the Lease.
3. Extension of the Term. Notwithstanding anything to the contrary in the
Lease, the term of the Lease shall hereby be extended for an additional sixty (60) months
such that the term of the 1,ease shall hereby expire on June 30, 2018.
4. Rent. All of the terms and conditions of the Lease shall remain in full
force and effect during such extension period except that the Monthly Base Rent shall be
as follows:
Period
Rent includes Premises and SCL
Premises/mo
8/1/2013-7/31/2014
$44,000.00
8/1/2014-7/31/2015
$44,880.00
8/1/2015-7/31/2016
$45,777.60
8/1/2016-7/31/2017
$46,693.15
8/1/2017-7/31/2018
$47,627.02
The base monthly rent set forth in this Section 4 includes reimbursement for
Lessor's cost for leasing the SCL Lot.
5. SCL Lot. Notwithstanding anything to the contrary contained in the
Lease as amended, in the event that Lessee's right to use all or any portion of the SCL
Lot is terminated or interrupted than (1) the monthly rent shall be reduced by $3,800 per
month or (2) Lessee, at its option, may terminate this Lease upon ninety (90) days
advance written notice to the Lessor.
6. Security Deposit. Within five days after the execution of this Second
Amendment, Lessor shall return the Security Deposit held by Lessor to Lessee pursuant
to Section 5 of the Lease and release Lessee from the obligation of maintaining a Letter
of Credit and shall provide such documents as may be necessary to secure such release
within five days after demand from Lessee. Section 5 of the Lease shall be deleted in its
entirety.
7. Notice. Section 16 (b) of the Lease shall be amended such that "All
notices to be sent to Lessee shall be sent to Lessee as follows:
UPS Ground Freight, Inc.
858 Meridian Lake Drive, Suite A
Aurora, IL 60504
Attn: Mr. Robert Harder
With a copy to:
UPS Ground Freight, Inc.
55 Glenlake Parkway, NE
Atlanta, GA 30328
Attn: Real Estate Department"
The word "Federal Express" is deleted from Section 16 and replaced with United Parcel
Service.
8. Effect. Except as expressly set forth in this Second Amendment, all terms
and conditions of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the day and year first above written.
LESSOR:
AMALFI I STMENTS, L.L.C.
By:
Its:
ate:
LESSEE:
UPS GROUND FREIGHT, INC.
By:
Its: Vice President
Date:
STATE OF WASHINGTON'
) ss:
COUNTY OF KING
I certify that I know or have satisfactory evidence that Daniel, H. Temkin 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 MEMBER of ALFALFI INVESTMENTS, L.L.C. to be a free and
voluntary act of such party for the uses and purposes stated therein.
Dated
i
...
otaT. ....
puttAc :.
•
c•
"....
0 ....
.,..„ 09.14,/
i`o
of VOS
STATE 01: GEOR6PA"1"‘
) ss:
COUNTY OF' FULTON)
ry Public
ted Name:
My appointmet
I certify that I know or have satisfactory evidence that P. Charles Altitnari, Vice
President of UPS Ground Freight, Inc., 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 VICE PRESIDENT of UPS GROUND
FREIGHT, INC_ to be a free and voluntary act of such party for the uses and purposes
stated therein.
Dated
Notary Public, State of Georgia
Printed Name:
My appointment expires
8. Effect. Except as expressly set forth in this Second Amendment, all erms
and conditions of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the day and year first above written.
LESSOR:
AMALFI INVESTMENTS, L.L.C.
By:
Its:
Date:
LESSEE:
UPS
By:
D FREIGHT, INC.
Its: Vice President
Date: V - 2- 3 -1-S,
STATE OF WASHINGTON
) ss:
COUNTY OF KING
I certify that I know or have satisfactory evidence that Daniel H. Temkin 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 MEMBER of ALFALFI INVESTMENTS, L.L.C. to be a free and
voluntary act of such party for the uses and purposes stated therein.
Dated
STATE OF GEORGIA
) ss:
COUNTY OF FULTON
Notary Public, State of Washington
Printed Name:
My appointment expires
I certify that I know or have satisfactory evidence that P. Charles Altimari, Vice
President of UPS Ground Freight, Inc., 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 VICE PRESIDENT of UPS GROUND
FREIGHT, INC.. to be a free and voluntary act of such party for the uses and purposes
stated therein.
Dated ti -c2 3
Public, State of Georgia
Name:
My appointment expires
geaNgsw.
UPS Ground Freight, Inc.
55 Glenlake Parkway, NE
Atlanta, GA 30328
404 828-7128
Via UPS NEXT DAY AIR®
May 1, 2013
Amalfi Investments, L.L. C.
3417 Hunts Point Road
Hunts Point , VA 98004-1117
Attn: Mr. Carl Monson
RE: 11231 E. Marginal Way South, Tukwila, WA
Dear Mr. Monson:
Please find a fully executed original of the Second Amendment to Lease for the aforementioned property.
Please note that the Amendments are signed in counterpart.
Thank you for your courtesy and cooperation.
Very truly yours,
UPS GROUND FREIGHT, IN
Margaret M. Haggerty
THIRD AMENDMENT TO INDUSTRIAL LEASE
this T1IIR D A EN DM EN T LEASE (the -Third Amendment) dated as of • 2016
(the "AmPlidtuentPate) is by and between AMALFI INVESTMENTS. L.L.C.. a Wash' Two limited
liability company (-Lessor-) and tiPS (ROlINI) FRIAGH 1N(„ a Virginia corporation ("1„essse-)„
BACKGROUND
A. Lessor's predecessor -in -interest Maniel 11. Temkin and 'lernkin Property Company, a
California general partnership (collectively, "Former Lessor-)) and Lessee's predecessor -in -interest
(Overnite iransportation ('ompany, a Virginia corporation) entered into that certain Industrial Lease
dated as of June 20. 1996. as amended by that certain First Amendment to Industrial 1,ease dated April
27. 2005 and by that certain Second Amendinent to Lease dated April 23, 2013 (collectively. the -Lease-)
for lease of that certain real estate located at 11231 East Marginal Way South in Tukwila. Washington as
legally described m Exhibit A attached hereto (the -ExistitigPreinises-). Any capitali/ed term used but
not defined in this Third Amendment shall have the meaning assigned to such term in the 1.ease.
13. Lessor and Lessee desire to reduce the size of the Premises by approximately 13.216
square feei of unimproved land (Surrendered Premises-) legally described in Exhibit 1.3 attached hereto
and depicted with cross marks on the map set forth in Exhibit C attached hereto, and, accordingly, L essor
and Lessee desire to amend the Lease pursuant to the terms and conditions set limit below:
AGREEMENT'
NOW. THEREFORE. lir good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged. the parties hereto agree as follows:
1. Premises.. 1.essee hereby leases the Premises pursuant to the terms and conditions of the
Lease. as amended by this Third Amendment. From and after the Amendment Date, all references in the
Lease to the "'Premises- shall he deemed to mean the Existing Premises less the Surrendered Premises,
except to the extent that the .terms and conditions in this Third Amendment are specifically stated to be
applicable only to the Surrendered Premises.
2, Surrender. Upon the Amendment Date, Lessee shall immediately vacate and surrender
possession ot the Surrendered Premises to Lessor in .good order, repair and condition. except for ordinary.,
wear and tear and damage due to casualty Any, items of Lessee's property left at, or remaining in the
Premises after the Effective Date (the -Abandoned Property-) shall be conclusively deemed to have been
abandoned by Lessee and may he stored, sold, destroyed or otherwise disposed of by Lessor without
further notice to or demand upon I...essee, and without liability or obligation to account to or compensate
Lessee. In the event that the Abandoned Property is the property of someone other than 1..,essee, Lessee
shall indemnify. defend and hold Lessor harmless from any and all claims, damages, suits. liability, loss,
cost or expenses in connection therewith or incident to such removal, exercise or disposition of such
Abandoned Property by Lessor,
3. Brokers. 1.,,essor and 1....„.essee each represents to the other that it has had no dealings.
negotiations. or consultations with any broker, representative. employee, agent or other intermediary in
connection with this "F hird Amendment. Lessor and 1,essee agree that each will indemnitY, defend and
hold the other free and harmless from the claims (including reasonable attorneys- fees and expenses) of
any broker(s)... representative( s), ernployee(s), agent(s) or other intermediary(ies) claiming to have
represented Lessor or Lessee, respectively. or otherwise to be entitled to compensation in connection with
this Third Amendment. The provisions of this paragraph shall survive the expiration or sooner
termination of the Lease.
4. Limitation of Liability. The obligations of Lessor and Lessee under the Lease as
amended by this Third Amendment do not constitute personal obligations of the individual partners,
members. directors. officers, shareholders. trustees or beneficiaries of Lessor. Former Lessor. Batavia
Holdings. L.L.C., a Washington limited liability company ("Batavia") or Lessee, and Lessor and Lessee
shall not seek recourse against the partners, members, directors, officers, shareholders. trustees or
beneficiaries of Lessor. Former Lessor. Batavia or Lessee. or any of their personal assets for satisfaction
of any liability with respect to the Lease as amended by this Third Amendment. In the event of any
default by Lessor under the Lease as amended by this Amendment. Lessee's sole and exclusive remedy
shall be against Lessor's interest in the Premises and the real property on which it is located. The
provisions of this paragraph are not designed to relieve Lessor or Lessee from the performance of any of
its obligations hereunder. but rather to limit Lessor's and Lessee's liability in the case of the recovery of a
judgment against either. as aforesaid, nor shall any of the provisions of this paragraph be deemed to limit
or otherwise affect Lessor's or Lessee's right to obtain injunctive relief or specific performance or
availability of any other right or remedy which may be accorded Lessee by law or the Lease. In the event
of sale or other transfer of Lessor's right. title and interest in the Building. Lessor shall be released from
all liability and obligations thereafter accruing under the Lease as amended by this Third Amendment:
provided, that this paragraph shall inure to the benefit of any such purchaser or transferee.
5. Attorneys' Fees. In the event that (a) either party requires the services of an attorney in
connection with enforcing the terms of the Lease (as amended by this Third Amendment), (b) suit is
brought for the enforcement of the Lease (as amended by this Third Amendment) or the exercise of rights
and remedies afforded by the Lease or under law. or (c) proceedings are held in bankruptcy. then the
substantially prevailing party shall be entitled to a reasonable sum for attorneys' and paralegal's fees.
expenses and court costs, including those relating to any appeal.
6. Ratification. Except as modified in this Third Amendment. the Lease is hereby ratified
and affirmed in all respects. Any references to the "Lease" in the Lease shall mean the Lease as modified
by this Third Amendment.
7. Entire Agreement. This Third Amendment constitutes the sole and only agreement of the
parties hereto with respect to the subject matter hereof (other than the Lease. as amended hereby) and
supersedes any prior understandings or written or oral agreements between the parties respecting the
subject matter hereof and cannot be changed except by their written consent.
8. Counterparts. This Third Amendment may be executed in counterparts, which together
shall constitute one agreement. For purposes of determining the enforceability of this Third Amendment,
facsimile or PDF signatures shall be deemed originals.
9. Rule of Construction. The parties hereto acknowledge that the parties and their
respective counsel have each reviewed and revised this Third Amendment, and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Third Amendment or any exhibits hereto.
[Signature page fold ws. ]
IN WITNESS VHEkEOF. the parties have executed this Third Amendment as of the date first
set forth above.
LESSOR:
AMALFI INVESTMENTS, L.L.C., a Washi tgton
litnited Iiabi1v company
LESSEE:
UPS GROUN FREIGHT, INC.„ a Virginia
corporati'
13‘:
Name:
Its:
EXHIBIT A
LEGAL DESCRIPTION OF EXISTING PREMISES
ALL THAT PORTION OF GOVERNMENT LOT 1, SECTION 10, TOWNSHIP 23
NORTH, RANGE 4 EAST W.M.; LYING NORTH OF THE"DUWAMISH RIVER OR
NORTH OF GOVERNMENT MEANDER LINE ALONG THE NORTH BANK OF SAID
RIVER AND WEST OF THE WESTERLY LINE OF EAST MARGINAL WAY;
EXCEPT THAT PORTION AS CONDEMNED BY KING COUNTY SUPERIOR COURT
CAUSE NO. 469557 FOR TRANSMISSION LINES;
AND EXCEPT ALL EXISTING COUNTY ROADS;
AND EXCEPT THAT PORTION THEREOF DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WEST LINE OF SAID GOVERNMENT LOT 1,
LYING SOUTH 00°32'40" WEST 636.35 FEET FROM THE NORTHWEST CORNER
THEREOF;
THENCE SOURTH 88°51'20" EAST PARALLEL WITH THE NORTH LINE OF SAID
GOVERNMENT LOT 1, 208.79 FEET TO THE TRUE POINT OF BEGINNING;
THENCE NORTH 69°47'10" EAST 514 FEET, MORE OR LESS, TO THE
WESTERLY LINE OF EAST MARGINAL WAY;
THENCE SOUTH 16°48'50" EAST ALONG SAID WESTERLY LINE TO THE
DUWAMISH RIVER;
THENCE WESTERLY ALONG THE DUWAMISH RIVER TO A POINT WHICH BEARS
SOUTH 20°12' 50" EAST FROM THE TRUE POINT OF BEGINNING;
THENCE NORTH 20°12'50" WEST TO. THE.. TRUE POINT OF BEGINNING;
SITUATE IN THE CITY OF TUKWILA, COUNTY OF KING, STATE OF
WASHINGTON.
Exhibit A
EXHIBIT B
LEGAL DESCRIPTION OF SURRENDERED PREMISES
REPLACEMENT PROPERTY
(TRANSFER FROM LOT 1 TO LOOT 2 DESCRIPTION):
THAT PORTION OF GOVERNMENT LOT 1, SECTION 10, TOWNSHIP 23 NORTH, RANGE 4
EAST, W. M. IN KING COUNTY, WASHINGTON, LYING WESTERLY OF EAST MARGINAL WAY
SOUTH, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF SAID GOVERNMENT LOT 1, SECTION 10,
TOWNSHIP 23 -NORTH, RANGE 4 EAST;
THENCE SOUTH 01°44'33" WEST ALONG THE WEST LINE OF SAID GOVERNMENT LOT 1 A
DISTANCE OF 740.69 FEET TO THE POINT OF BEGINNING;
THENCE NORTH 81°27'27" EAST A•DISTANCE OF 235.29 -FEET;
THENCE SOUTH 18°59'50" EAST A DISTANCE OF 55.88 TO THE SOUTHERLY LINE OF SAID
GOVERNMENT LOT 1, BEING THE LINE OF VEGETATION ALONG THE RIGHT BANK OF THE
DUWAMISH RIVER;
THENCE WESTERLY ALONG SAID SOUTHERLY LINE THE FOLLOWING COURSES:
NORTH 84°20'10" WEST A DISTANCE OF 24.07 FEET;
SOUTH 78°03'34" WEST A DISTANCE OF 52.98 FEET;
SOUTH 82°43'36" WEST A DISTANCE OF 82.77 FEET;
SOUTH 72°34'44" WEST A DISTANCE OF 41.39 FEET;
SOUTH 74°10'39" WEST A DISTANCE OF 57.64 FEET TO THE WEST LINE OF SAID
GOVERNMENT LOT 1;
THENCE NORTH 01°44'33" EAST ALONG THE WEST LINE OF SAID GOVERNMENT LOT 1 A
DISTANCE OF 65.09 FEET TO THE POINT OF BEGINNING;
CONTAINING AN AREA OF 13,126 SQUARE FEET (0.30 ACRES), MORE OR LESS;
SITUATE IN THE CITY OF TUKWILA, KING COUNTY, WASHINGTON.
Exhibit B
EXHIBIT C
DEPICTION OF SURRENDERED PREMISES
Exhibit C
2724-001 fg225e09kv.001 2016-07-26
FOURTH AMENDMENT TO INDUSTRIAL LEASE
This FOURTH AMENDMENT TO INDUSTRIAL LEASE (the "Fourth Amendment") dated as
of December 20 , 2017 (the "Fourth Amendment Date") is by and between AMALFI
INVESTMENTS, L.L.C., a Washington limited liability company ("Landlord") and UPS GROUND
FREIGHT, INC., a Virginia corporation ("Tenant").
BACKGROUND
A. Landlord's predecessor -in -interest (Daniel H. Temkin and Temkin Property Company, a
California general partnership (collectively, "Former Landlord")) and Tenant's predecessor -in -interest
(Overnite Transportation Company, a Virginia corporation) entered into that certain Industrial Lease
dated as of June 20, 1996 (the "Original Lease"), as amended by that certain First Amendment to
Industrial Lease dated April 27, 2005 (the "First Amendment"), as amended by that certain Second
Amendment to Lease dated April 23, 2013 (the "Second Amendment"), and as further amended by that
certain Third Amendment to Industrial Lease dated August 16, 2016 (the "Third Amendment")
(collectively, the "Lease") for lease of that certain real estate located at 11231 East Marginal Way South
in Tukwila, Washington (the "Premises").
B. Landlord has the right to access and use a parking lot and garage adjacent to the Premises
(the "SCL Lot") for parking purposes pursuant to (1) that certain Easement Agreement with the City of
Seattle, a Washington municipal corporation, acting by and through its City Light Department (the
"City") dated as of November 1, 2011 by and between Landlord and City, and (2) that certain Easement
Agreement dated as of June 18, 2013 by and between Landlord and City (collectively, the"Easement
Agreements").
C. Pursuant to the Lease, the Lease Term shall expire on June 30, 2018. Landlord and
Tenant have agreed to amend and extend the current Lease Term based on the terms and conditions set
forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Term: Landlord and Tenant desire to amend the Lease Term to extend sixty (60) months,
commencing on August 1, 2018 (the "Extension Commencement Date") and expiring on July 31, 2023
(the "Extended Term"). "Lease Term" as used in this Amendment shall mean both the initial Lease Term
and the Extended Term.
2. Rent During the Extended Term: All of the terms and conditions of the Lease shall
remain in full force and effect during the Extended Term except that Monthly Base Rent shall be as
follows:
Period
Rent per mo. (includes
Premises and SCL Lot)
August 1, 2018 -July 31, 2019
$60,500.00
August 1, 2019 -July 31, 2020
$62,012.50
August 1, 2020 -July 31, 2021
$63,562.81
August 1, 2021 -July 31, 2022
$65,151.88
August 1, 2022 -July 31, 2023
$66,780.68
3. SCL Lot. The SCL Lot constitutes a portion of the Premises. The use of the SCL Lot is
critical to the operations of Tenant. Notwithstanding anything to the contrary in the Lease, Tenant's right
to lease, use and occupy the portion of the Premises covered by the easement is subject to the terms and
conditions of the Easement Agreements.
4. Brokers. Landlord and Tenant each represents to the other that it has had no dealings,
negotiations, or consultations with any broker, representative, employee, agent or other intermediary in
connection with this Fourth Amendment. Landlord and Tenant agree that each will indemnify, defend
and hold the other free and harmless from the claims (including reasonable attorneys' fees and expenses)
of any broker(s), representative(s), employee(s), agent(s) or other intermediary(ies) claiming to have
represented Landlord or Tenant, respectively, or otherwise to be entitled to compensation in connection
with this Fourth Amendment. The provisions of this paragraph shall survive the expiration or sooner
termination of the Lease.
5. Ratification. Except as modified in this Fourth Amendment, the Lease is hereby ratified
and affirmed. Any references to the "Lease" in the Lease shall mean the Lease as modified by this Fourth
Amendment.
6. Entire Agreement. This Fourth Amendment constitutes the sole and only agreement of
the parties hereto with respect to the subject matter hereof (other than the Lease, as amended hereby) and
supersedes any• prior understandings or written or oral agreements between the parties respecting the
subject matter hereof and cannot be changed except by their written consent.
7. Counterparts. This Fourth Amendment may be executed in counterparts, which together
shall constitute one agreement. For purposes of determining the enforceability of this Fourth
Amendment, facsimile or PDF signatures shall be deemed originals.
8. Rule of Construction. The parties hereto acknowledge that the parties and their
respective counsel have each reviewed and revised this Fourth Amendment, and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Fourth Amendment.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have executed this Fourth Amendment as of the date set forth
above.
LANDLORD:
AMALFI INVESTMENTS, L.L.C., a Washington
limited liability company
By:
Daniel H. Temkin, Managing Member
TENANT:
UPS GROUND FREIGHT, INC., a Virginia
corporation
By:
D5444 nob.., r. woo
Robert P. Harder^.
N. 2017.1240 I011A3 asov
Name:Robert P. Harder
Title: Global Real Estate Manager
IN WITNESS WHEREOF, the parties have executed this Fourth Amendment as of the date set forth
above.
LANDLORD: TENANT:
AMALFI INVESTMENTS, L.L.C., a Washington UPS GROUND PREIGHT, INC., a Virginia
limited liability company corporation
. Ten kin, Managing Member
By:
Name:
Title:
STATE OF
COUNTY OF i(
LANDLORD ACKNOWLEDGE ENT
) ss.
On this day of e,Ce4iA6c,r— , 2017, before me personally appeared DANIEL H.
TEMKIN,to me known to be the Managing Member of AMALFI INVESTMENTS, L.L.C., a
Washington limited liability company, that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said limited liability company,
for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year first above written.
ON J
i NOTARY
PUBLIC
•••••••••••
p.W PtS
[NOTARIAL TIM
/
Name: Corvq,,..c...—,rr
NOTARY PUBLIC in and for the State of
residing at l'Ibn iVE •
My appointment expires:
cf-\ —
FIFTH AMENDMENT TO INDUSTRIAL LEASE
This FIFTH AMENDMENT TO INDUSTRIAL LEASE (the "Fifth Amendment") dated as of
November 28, , 2018 (the "Fifth Amendment Date") is by and between AMALFI INVESTMENTS,
L.L.C., a Washington limited liability company ("Lessor") and UPS GROUND FREIGHT, INC., a Virginia
corporation ("Lessee").
BACKGROUND
A. Lessor's original predecessor -in -interest (Daniel H. Temkin and Temkin Property
Company, a California general partnership (collectively, "Original Lessor")) and Lessee's predecessor -in -
interest (Overnite Transportation Company, a Virginia corporation, "Original Lessee") entered into that
certain Industrial Lease dated as of June 20, 1996 (the "Original Lease"), for lease of that certain real estate
located at 11231 East Marginal Way South in Tukwila, Washington (the "Premises"), as amended by that
certain First Amendment to Industrial Lease dated as of April 27, 2005, by and between Batavia Holdings,
L.L.C., a Washington limited liability company, as Original Lessor's successor -in -interest ("Former
Lessor"), and Original Lessee (the "First Amendment"), as amended by that certain Second Amendment to
Lease dated as of April 23, 2013, by and between Lessor and Lessee (the "Second Amendment"), as further
amended by that certain Third Amendment to Industrial Lease dated as of August 16,2016, by and between
Lessor and Lessee (the "Third Amendment"), and as further amended by that certain Fourth Amendment
to Industrial Lease dated as of December 20, 2017,, by and between Lessor and Lessee (the "Fourth
Amendment"). The Original Lease, as amended by the First Amendment, Second Amendment, Third
Amendment, and Fourth Amendment, shall be referred to herein as the "Existing Lease." The Existing
Lease, as amended by this Fifth Amendment, shall be referred to herein as the "Lease." Any capitalized
term used but not defined herein shall have the meaning assigned to it in the Existing Lease.
B. The Premises is subject to an eminent domain taking (the "Taking") by the City of Tukwila
(the "City") that will take effect at the, expiration of the Lease.
C. In light of such Taking, Lessor and Lessee have agreed to amend the Lease as set forth
below.
D. In addition, Lessor, Lessee, and the City have agreed to execute a Settlement Agreement,
which is attached hereto as Appendix A.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Extension of Lease Term: The Lease Term is extended ninety (90) days, commencing on
August 1, 2023 (the "Extension Commencement Date") and expiring on October 31, 2023 (the "Extended
Term"). "Lease Term" as used in this Fifth Amendment shall mean the Initial Term as extended by the
Extension Term. Monthly base rent during the Extended Term shall be Sixty -Six Thousand Seven Hundred
Eighty and 68/100 Dollars ($66,780.68).
1
2. Damage or Destruction: Effective as of the Fifth Amendment Date, Section 15b through
15d of the Original Lease shall be deleted in its entirety and replaced with the following:
b. If the Premises are destroyed or damaged by an insured casualty during the
remaining term of the Lease Term, then Lessee, in its sole discretion, has the option
to repair, restore or replace the Premises to Lessee's specifications which
specifications shall not be subject to the approval of Lessor. Lessee shall have no
obligation to take any action whatsoever in the event of any casualty.
Notwithstanding any provision to the contrary in the Lease, Lessee shall be entitled
to 100% of the insurance proceeds for such casualty, regardless of whether or not
Lessee chooses to repair, restore/replace the Premises. ; If Lessee chooses not to
restore the premises, then Lessee agrees to remove debris and to put the premises
in a safe condition. "Safe condition" shall mean capping or removal of exposed
electrical wires.
c. Lessee will be obligated to pay rent through the entire Lease Term even if a
casualty occurs and the improvements are not rebuilt.
Section 15a of the Original Lease is hereby deleted.
2A. Repairs and Maintenance. Notwithstanding any provision to the contrary in the Lease,
Landlord shall not have any further obligation or responsibility, monetary or otherwise, for any repairs,
replacements, or maintenance in any way related to the Property or the improvements thereon. Provided,
however, Landlord shall be responsible for any damage caused by the negligence or willful misconduct of
Lessor, Lessor's agents, employees, contractors or invitees, to the extent such damage is not covered by
insurance.
3. Brokers. Lessor and Lessee each represents to the other that it has had no dealings,
negotiations, or consultations with any broker, representative, employee, agent or other intermediary in
connection with this Fifth Amendment. Lessor and Lessee agree that each will indemnify, defend and hold
the other free and harmless from the claims (including reasonable attorneys' fees and expenses) of any
broker(s), representative(s), employee(s), agent(s) or other intermediary(ies) claiming to have represented
Lessor or Lessee, respectively, or otherwise to be entitled to compensation in connection with this Fifth
Amendment. The provisions of this paragraph shall survive the expiration or sooner termination of the
Lease.
4. Ratification. Except as modified in this Fifth Amendment, the Lease is hereby ratified and
affirmed. Any references to the "Lease" in the Lease shall mean the Lease as modified by this Fifth
Amendment.
5. Entire Agreement. This Fifth Amendment constitutes the sole and only agreement of the
parties hereto with respect to the subject matter hereof (other than the Lease, as amended hereby) and
supersedes any• prior understandings or written or oral agreements between the parties respecting the subject
matter hereof and cannot be changed except by their written consent.
2
6. Counterparts. This Fifth Amendment may be executed in counterparts, which together
shall constitute one agreement. For purposes of determining the enforceability of this Fourth Amendment,
facsimile or PDF signatures shall be deemed originals.
7. Rule of Construction. The parties hereto acknowledge that the parties and their respective
counsel have each reviewed and revised this Fourth Amendment, and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Fourth Amendment.
[Signature Pages Follow]
3
IN WITNESS WHEREOF, the parties have executed this Fifth Amendment as of the date set forth above,
LESSOR:
LESSEE:
AMALFI INVESTMENTS, L.L.C., a Washington UPS GROUND FREIGHT, INC., a Virginia
corporation
limited liabilit c mpany
By:
emkin, Managing Member
By:
Name:
Title:
4
IN WITNESS WHEREOF, the parties have executed this Fifth Amendment as of the date set forth above.
LESSOR: LESSEE:
AMALFI INVESTMENTS, L.L.C., a Washington UPS GROUND FREIGHT, INC., a Virginia
corporation
limited liability company
By:
By:
Name:
Daniel H. Temkin, Managing Mcmbcr Title: NI
4
LESSOR ACKNOWLEDGEMENT
STATE OF r /(s`— (6.40)
COUNTY OF 1 S T
On this day of NOVV7/.36(/— , 2018, before me personally appeared DANIEL H.
TEMKIN, to me known to be the Managing Member of AMALFI INVESTMENTS, L.L.C., a Washington
limited liability company, that executed the within and foregoing instrument, and acknowledged said
instrument to be the free and voluntary act and deed of said limited liability company, for the uses and
purposes therein mentioned, and on oath stated that he was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year first abo`zc,l
DE ' 4��
r y?%%%%%%°°01.
°li �
la/ OT 1- x
ti� PUBUCr•
•°��; �. p.1� S residing at k�"� 04,11- 1 -Lr •
�• °°N•.; My appoin , ent expires:
Name: -Q 6,/? -`C. y f -I
NOTARY PUBLIC in and for the State of
[NOTARIAL SEAL]
5
STATE OF
LESSEE ACKNOWLEDGEMENT
) ss.
COUNTY OF
On this 0 day of Ah1/6113ef-- , 2018, before me personally appeared
aritig-/ P.L 5LiF-t. to me known to be the Vic Ree.i/bErirof UPS GROUND
FREIGHT, INC., a Virginia corporation, that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses
and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year first above written.
[NOTARIAL SEAL]
ante:
NOTARY UBLIC in and for the State of
Afg
residing at /177,09A17-14
My apprt ent xpires:
6
APPENDIX A (Settlement Agreement)
7
SETTLEMENT AGREEMENT
This Agreement, dated for reference purposes this 28th day of November , 2018, between
the CITY OF TUKWILA, a subdivision of the State of Washington (the "City"), and AMALFI
INVESTMENTS, L.L.C. ("Amalfi"), and UPS GROUND FREIGHT, INC. ("UPS") is made
with reference to the following facts:
A. The City has filed a condemnation action under King County Superior Court No. 17-2-
32714-0 KNT against Amalfi, and Amalfi's tenant UPS which occupies the property per the terms
of a lease agreement as amended (the "Lease"), for the purpose of appropriating their interest in
the property known as King County Tax Parcel No. 102304-9059. The City also intends to acquire
their interest in the easements granted by the City of Seattle and recorded under King County Nos.
20111101001242 and 20130703002280. The property andproperty rights to be acquired by the
City are collectively referenced herein as the "Subject Property," and are legally described on
Exhibit "A" to the document attached as Exhibit No. 1.
B. The parties have agreed to resolve the condemnation action in accordance with the
terms and conditions herein.
Based upon the foregoing, and for good and valuable consideration the parties hereby agree as
follows:
1. AGREED JUDGMENT AND DECREE OF APPROPRIATION. The parties, in
conjunction with the execution of this Agreement, shall sign an Agreed Judgment and Decree of
Appropriation ("Judgment") in the form attached as Exhibit No. 1. By its terms, the Judgement
shall not convey ownership interest to the City until November 1, 2023. The terms of the Judgment
are incorporated herein by reference. The material provisions of the Judgment include, but are not
limited to, the following:
1.1 The City shall deposit its just compensation offer of Twelve Million Two Hundred
Fifty Thousand and 00/100 Dollars ($12,250,000.00) into the court registry no later than January
4, 2019, except that Amalfi may elect to have the deposit made sooner in which case said deposit
shall be made no later than thirty (30) days after an e-mail request is sent to the following by
Amalfi or its counsel:
City Clerk Christy O'Flaherty: Christy.OFlaherty@tukwilaWA.gov; and
City Attorney Rachel Turpin: Rachel.Turpin@tukwilaWA.gov
Amalfi shall thereafter have the right to immediately seek entry of a court order providing for the
disbursement of said funds, provided the Judgment has been entered by the Court.
1.2 The Judgment shall permit the City, with two days advance written notice to Amalfi
and UPS, to access the Subject Property for the purposes of project planning, surveying, design,
testing, and site inspections. Such access shall not unreasonably disrupt the Subject Property or
its current business operations and use. The City shall not acquire title to the Subject Property
1
141557106,1
until November 1, 2023 (the "Delivery Date"). Until that time Amalfi shall have the right to
manage the Subject Property, and to collect and retain all rents generated therefrom, subject to the
provisions in 3.1 below. UPS shall be entitled to the quiet possession of the Subject Property and
to fully operate on the Property pursuant to its Lease with Amalfi until the expiration of such Lease
without any unreasonable interference by City. Without limitation, the following shall be deemed
unreasonable interference: (i) any blockage of egress and ingress to the Subject Property; (ii) any
obstruction of ingress and egress to the Building; (iii) any disruption in the utility usage; (iv)
disrupt any of UPS' employees in the performance of their work including without limitation the
making of any inquiries; use of more than five (5) parking spaces. The City shall indemnify and
hold Amalfi and UPS harmless from any and all claims arising from the City exercising it's right
of entry and activities for planning, surveying, design, testing, and site inspection activities, except
to the extent caused by the willful misconduct or negligent act of Amalfi or UPS.
Written e-mail notice for purposes of this provision shall be delivered as follows:
To Amalfi: dan@temkinproperty.com; dtemkin@icloud.com; gabe@burrtemkin.com
To UPS: Robert Harder: bharder@ups.com and Chris Bearden: cbearden@ups.com
1.3 Amalfi shall not grant any current tenant, any replacement tenant or tenants, or any
other third party, any rights in the Subject Property unless said rights terminate no later than 11:59
pm on October 31, 2023. Amalfi shall deliver the Subject Property to the City on or before the
Delivery Date free and clear of all tenants, and UPS agrees to vacate by that date. The date for the
Delivery of the Subject Property shall not be accelerated without the written consent of all parties.
1.4 UPS hereby acknowledges and agrees that it is not entitled to receive any relocation
benefits from the City.
1.5 Amalfi shall keep the Subject Property free and clear of all liens or other 3rd party
encumbrances prior to the Delivery Date.
1.6 On the Delivery Date, Amalfi shall deliver the Subject Property to the City free and
clear of all third -party interests except those listed in Exhibit No. 2.
1.7 Amalfi and UPS, shall not keep, use, or dispose of, and Amalfi UPS shall not permit
anyone else to keep, use, or dispose of, whether permanently or temporarily, any hazardous waste
or materials or substances on the Subject Property prior to the Delivery Date other than in the
ordinary course of its business and in strict compliance with all applicable laws and regulations.
1.8 The Judgment, which will be recorded with the King County Recorder's office by the
City, shall run with the land, shall be binding upon and shall inure to the benefit of the Parties and
their respective successors and assigns.
1.9 Risk of loss of or damage to the improvements on the Subject Property shall be borne
by the City until the Delivery Date. In the event of material loss of or damage to the Property prior
2
141557106.1
to the Delivery Date, UPS, subject to the rights under the Lease, shall have the right but not the
obligation to restore or repair the Subject Property. If UPS chooses to restore or repair the Subject
Property, it shall be to UPS's specifications alone and may be limited to temporary structures.
UPS is under no obligation to restore the premises to its prior condition. If the Subject Property is
not restored or repaired, then the proceeds of any policy of insurance maintained by UPS covering
any loss or damage to the Subject Property occurring prior to the Delivery Date shall be retained
by UPS as provided in the Lease. City waives any claim to any insurance proceeds.
2. ENVIRONMENTAL
2.1. The City and Amalfi have agreed on the scope of Phase II environmental testing on
the Subject Property, and said testing has occurred. The Phase II testing did not establish the
existence of any contamination beyond legally established clean-up levels. All costs and expenses
in any way related to the Phase I and Phase II work and reports shall be at the sole cost and expense
of the City without any future right to seek reimbursement from Amalfi for such expenses.
2.2 Nothing in this Agreement shall be construed to preclude any party from exercising
any rights or remedies allowed under state or federal law (i) to establish the liability of the parties,
or third parties, in the event contamination beyond clean-up levels for soil as provided in WAC §
173-340-745 is later discovered, or (ii) in the event a third party commences such an action.
Notwithstanding the foregoing, the City waives any rights it might have under applicable law to
make any claim against Amalfi and UPS for any costs or liability in any way associated with
contamination on the Subject Property that originated from an offsite source.
2.3 In the event it is later determined that the Subject Property has contamination that
originated from the Subject Property at a level beyond the industrial cleanup standards for soil as
provided in WAC § 173-340-745, then the City shall be responsible for payment of the first
$100,000 of actual third -party hard remediation costs incurred for the clean-up of said
contamination.
3. RENT.
3.1 In consideration of the City agreeing to extend the Delivery Date, Amalfi shall pay the
City one-half of the rent collected from tenant(s) occupying the Subject Property for the months
of August through October 2023. Amalfi agrees to use it best efforts and all legal means available
to it to collect said rents from tenant(s).
3.2 Amalfi shall provide the City with the following documents: all leases for the Subject
Property within 10 days of execution of this Agreement; any addendum to same within ten days
of execution of the addendum, and any new leases for the Subject Property within ten days of their
execution.
3.3 In no event shall the rent paid to the City by Amalfi under this section be less than
$30,000 per month.
3
141557106.1
4. MUTUAL DRAFTING / ATTORNEYS' FEES. The Parties agree that they participated fully
in the negotiating and drafting of this Agreement and the rules of construction of ambiguities
against the drafter shall not apply. In the event of litigation, the Party that substantially prevails
shall be entitled to attorneysfees and all necessary litigation expenses incurred in obtaining relief,
including any appeal arising out of the litigation.
5. ASSIGNMENT. This Agreement shall bind and inure to the benefit of the Parties and their
respective successors and assigns.
6. AMENDMENT. This Agreement may only be amended in writing, signed by all Parties.
7. SEVERABILITY. In the event any term, covenant, condition, or provision contained in this
Agreement is determined to be invalid, voided or otherwise unenforceable, by any court of
competent jurisdiction, such determination shall in no way affect the validity or enforceability of
any other term, covenant, condition, or provision contained in this Agreement.
8. AUTHORITY TO SIGN. The signatories to this Agreement represent that they have the full
authority of their respective entities to commit to all of the terms of this Agreement, to perform
the obligations hereunder and to execute the sarrie.
9. EXECUTION. This Agreement may be executed in counterparts and/or transmitted
electronically, and copies so executed or transmitted shall be deemed originals.
10. ENTIRE AGREEMENT. This Agreement, together with all Attachments hereto and the
Judgement and Decree, constitutes the entire agreement between the Parties with respect to the
subject matter of this Agreement. This Agreement is specifically intended by the Parties to
supersede all prior agreements whether written or oral.
CITY OF TUKWILA
By: iteir ,
AMALFI INVESTMENTS, L.L.C.
By:
Title: A i it
. .
Name':
...
Date: ft
Vtle:„ / , ;
Date:
UPS GROUND FREIGHT, INC.,
a Virginia corporation
By:
Name:
Title:
Date:
4
141557106.1
4. MUTUAL DRAFTING / ATTORNEYS' FEES. The Parties agree that they participated fully
in the negotiating and drafting of this Agreement and the rules of construction of ambiguities
against the drafter shall not apply. In the event of litigation, the Party that substantially prevails
shall be entitled to attorneys' fees and all necessary litigation expenses incurred in obtaining relief,
including any appeal arising out of the litigation.
5. ASSIGNMENT. This Agreement shall bind and inure to the benefit of the Parties and their
respective successors and assigns.
6. AMENDMENT, This Agreement may only be amended in writing, signed by all Parties.
7. SEVERABILITY. In the event any term, covenant, condition, or provision contained in this
Agreement is determined to be invalid, voided or otherwise unenforceable, by any court of
competent jurisdiction, such determination shall in no way affect the validity or enforceability of
any other term, covenant, condition, or provision contained in this Agreement.
8. AUTHORITY TO SIGN. The signatories to this Agreement represent that they have the full
authority of their respective entities to commit to all of the terms of this Agreement, to perform
the obligations hereunder and to execute the same.
9. EXECUTION. This Agreement may be executed in counterparts and/or transmitted
electronically, arid copies so executed or transmitted shall be deemed originals.
10. ENTIRE AGREEMENT. This Agreement, together with all Attachments hereto and the
Judgement and Decree, constitutes the entire agreement between the Parties with respect to the
subject matter of this Agreement. This Agreement is specifically intended by the Parties to
supersede all prior agreements whether written or oral.
CITY OF TUKWILA
jelleriiir
By Ora' , „„„mgor
AMALFI INVESTMENTS, L.L.C.
By:
Title:
Date:
4 1 I.
Name:
/ Artg.t) tqs 1
Title:
,de
Date:
UPS GROUND FREIGHT, INC.,
a Virginia corporation
By: 2
.
Name: "Sty..k—t„ rtA, l,
Title: \4.,. Le_
Date: 4,1 -2_T-1 c(
4
141557106.1
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Hon. Andrea Darvas
SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
CITY OF TUKWILA, a Washington
municipal corporation,
vs.
Petitioner,
AMALFI INVESTMENTS, L.L.C., a
Washington limited liability company; UPS
GROUND FREIGHT, INC., dba UPS
FREIGHT, a Virginia corporation; PUGET
SOUND ENERGY, INC., a Washington
public utility corporation, as successor in
interest to PUGET SOUND POWER AND
LIGHT COMPANY, INC.;" and KING
COUNTY,
NO. 17-2-32714-0 KNT
AGREED JUDGMENT AND
DECREE OF APPROPRIATION
AND ORDER GRANTING
IMMEDIATE POSSESSION AND
USE
(Clerk's Action Required)
ondents.
JUDGMENT SUMMARY
1. Judgment Creditors:
2. Judgment Debtor
3. Total Judgment:
4. Attorneys for Judgment Creditors:
5. Attorneys for Judgment Debtor:
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 1
EX. 1-1
Amalfi Investments, L.L.C.
City of Tukwila
$12,250,000.00
Daryl A. Deutsch
Rogers Deutsch & Turner, PLLC
Rachel B. Turpin
Kenyon Disend, PLLC
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
11 Front Street South
Issaquah, WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
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IL AGREED JUDGMENT AND DECREE OF APPROPRIATION AND
ORDER GRANTING IMMEDIATE POSSESSION AND USE
The Court, having reviewed the records, files, and pleadings herein, it is now,
therefore;
ORDERED, ADJUDGED AND DECREED that:
1. The Take Property is legally described in Exhibit A and depicted in Exhibit B,
attached hereto.
2. On June 5, 2017, the City Council of the City of Tukwila adopted Ordinance
No. 2540 authorizing the acquisition of a strip of land on the Take Property for construction
of additional riparian habitat along the < Duwamish River and to provide a physical
connection between the Duwamish Gardens and Chinook Wind projects.
3. On November 6, 2017, the Tukwila City Council adopted Ordinance No. 2554,
exercising its power of eminent domain for the purpose of constructing a combined Public
Works Shops facility building ("Public Works Shops"), to be located on the Take Property,
commonly known as 11210 and 11234 Tukwila International Boulevard, Tukwila,
Washington. The Public Works Shops represent one component of the Public Safety Plan
Project ("Project"), which also includes a Justice Center to house the City's Municipal
Court, Emergency Operations Center, and Police Department and three fire stations. An
Order Adjudicating Public Use and Necessity was entered on May 25, 2018.
4. Through adoption of Ordinance Nos. 2540 and 2554, the Tukwila City Council
established that the acquisition of the Take Property and other property rights of
Respondent fee simple owner Amalfi Investments, L.L.C., ("Amalfi") whose property is
known as King County Parcel No. 102304-9059, is necessary for a public purpose.
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 2
EX. 1-2
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
II Front Street South
Issaquah,WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
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5. The City of Tukwila ("City") is acquiring the Take Property for the public use
of constructing the Public Works Shops component of the Project. The Take Property is
necessary for construction of this component of the Project. The City shall pay a total of
Twelve Million Two Hundred Fifty Thousand and No/100 Dollars ($12,250,000.00) as
full and final Just Compensation for the appropriation of the Take Property by eminent
domain ("Just Compensation").
6. UPS Ground Freight, Inc., dba UPS Freight ("UPS") leases a portion of the
Take Property from Amalfi pursuant to a lease agreement, as amended ("Lease"). The
Lease expires on October 31, 2023. UPS hereby acknowledges and agrees that it is not
entitled to receive any relocation benefits from the City or any portion of the Just
Compensation.
7. Puget Sound Energy, Inc., successor in interest to Puget Sound Power and Light
Company, Inc., holds an interest in an easement for electric transmission and/or
distribution system, recorded March 29, 1929. A Stipulation and Order of Dismissal of
Respondent Puget Sound Energy, Inc., was entered November 8, 2018.
8. Respondent King County holds an interest in general and special taxes and
charges on the Take Property, which interest shall be addressed and satisfied by the parties
within the order providing for the disbursement of the Just Compensation funds
("Disbursement Order"). The Disbursement Order shall disburse to King County any and
all property taxes then owing on the Take Property. Should it be determined by a court of
competent jurisdiction or the Washington State Auditor's Office or the King County
Assessor's Office that RCW 84.60.050 does not apply, any additional property tax or
leasehold excise tax determined to be owing through October 31, 2023 shall be paid by
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 3
EX. 1-3
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
I I Front Street South
Issaquah,WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392.7071
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Amalfi within thirty (30) days of the Court, City, King County, or State of Washington's
written demand or order for such.
9. Respondent Amalfi is entitled to the entire award of Just Compensation.
10. This Agreed Judgment and Decree of Appropriation and Order Granting
Immediate Possession and Use ("Agreed Judgment"), shall be effective upon its entry by
the Court ("Effective Date"); provided, the Take Property shall not be conveyed to the City
until November 1, 2023 ("Delivery Date"). The rights of the parties to use and occupy the
Take Property until this date are set forth in a Settlement Agreetnent executed by the parties
and the Lease, both of which shall survive entry of this Judgment and Decree.
11. The City shall deposit the Ju
st Compensation sum
of $12,250,000.00 (USD),
plus the Clerk's ten -dollar ($10.00) handling feeinto thecourt registry no later than
January 4, 2019, except that Amalfi may elect to have the deposit made sooner m which
case said deposit shall be made no later than thirty (30) days after an e-mail request is sent
to the appropriate parties as set forth in the Settlement Agreement entered into by and
between the City, Amalfi, and UPS ("Settlement Agreement"). Amalfi shall thereafter
have the right to immediately seek entry of a court order providing for the disbursement of
said funds, provided this Agreed Judgment has been entered by the Court. After entry of
this Agreed Judgment, this matter may be removed from the Court's trial calendar. Entry
of this Agreed Judgment fully resolves all claims in this matter with respect to the Take
Property. The City's sole remaining obligation in this matter is to make the deposit
specified above. The City disclaims any remaining interest in the Just Compensation
following entry of this Agreed Judgment.
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 4
EL 1-4
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
11 Front Street South
Issaquah,WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
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12. The parties agree that upon the Effective Date the City shall acquire immediate
possession and use ("Possession and Use") of the Property, and said Possession and Use
by the City shall continue through October 31, 2023, subject to the terms of the Settlement
Agreement and the Lease.
13. On the Delivery Date, November 1, 2023, all right, title and interest of Amalfi
in and to the Take Property are conveyed to and vested in the City of Tukwila. The City
shall take title to and be vested in fee simple absolute to the Take Property as legally
described and depicted in Exhibits A and B, respectively, subject to the encumbrances
listed in Exhibit C attached hereto. Prior: to the Delivery Date, Amalfi shall keep the Take
Property free and clear of all liens or other third -party encumbrances not listed in Exhibit
C and shall be responsible for payment of all utilities (including, but not limited to, water,
sewer, garbage, surface, stormwater fees,, etc.) through October 31, 2023.
14. The City shall record a certified copy of this Agreed Judgment in the Office of
the King County Recorder.
DATED this day of 2018.
Presented by:
JUDGE/COURT COMMISSIONER
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 5
EX. 1-5
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
I I Front Street South
Issaquah,WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
KENYON DISEND, PLLC
By:
Rachel B. Turpin
WSBA No. 40007
Kendra R. Comeau
WSBA No. 44581
Attorneys for Tukwila
Copy Received; Approved for Entry;
And Notice of Presentation Waived:
RODGERS DEUTSCH & TURNER,
PLLC
By:
Daryl A. Deutsch
WSBA No. 11003
Attorneys for Amalfi Investmer>ts,
L.L.C.
PERKINS COLE
DANIEL T. SATTERBERG
King County Prosecuting Attorney
By
By Jenifer C. Merkel'
Donna L. Barnett WSBA No. 34472
WSBA No. 36794 Senior Deputy Prosecuting Attorney
Ryan C. Thomas
WSBA No. 49739
Attorneys for UPS Ground Freight,
Inc.
1 Respondent King County has indicated that it will not be participating in this case. The County's interest
is in the collection of taxes and fees, which will be accommodated within the final judgment and decree.
Kenyon Disend, PLLC
The Municipal Law Firm
KENYON 11 Front Street South
AGREED JUDGMENT AND DECREE OF DISEND Issaquah, WA 98027-3820
APPROPRIATION - 6 Tel: (425) 392-7090
Fax: (425) 392-7071
EX. 1-6
EXHIBIT A
LEGAL DESCRIPTION:
ALL THAT PORTION OF GOVERNMENT LOT 1,
SECTION 10, TOWNSHIP 23 NORTH, RANGE 4 EAST,
W.M., IN KING COUNTY, WASHINGTON, LYING
NORTH OF THE DUWAMISH RIVER OR NORTH OF
THE GOVERNMENT MEANDER LINE ALONG THE
NORTH BANK OF SAID RIVER AND WEST OF THE
WESTERLY LINE OF EAST MARGINAL WAY;
EXCEPT THAT PORTION AS CONDEMNED BY KING
COUNTY SUPERIOR COURT CAUSE NO. 469557 FOR
TRANSMISSION LINES; ALSO EXCEPT ALL
EXISTING COUNTY ROADS ALSO EXCEPT THAT
PORTION THEREOF DESCRIBED AS FOLLOWS:
COMMENCING. AT A POINT ON THE WEST LINE OF
SAID GOVERNMENT LOT 1, LYING SOUTH 00°32'40"
WEST 636.35 FEET FROM THE NORTHWEST CORNER
THEREOF;
THENCE SOUTH 88°51'20" EAST PARALLEL WITH
THE NORTH LINE OF SAID GOVERNMENT LOT 1,
208.79 FEET TO THE TRUE PONT OF BEGINNING;
THENCE NORTH 69°47'10" EAST 514 FEET, MORE OR
LESS, TO THE WESTERLY LINE OF EAST MARGINAL
WAY;
THENCE SOUTH 16°48'50" EAST ALONG SAID
WESTERLY LINE TO THE DUWAMISH RIVER;
THENCE WESTERLY ALONG THE DUWAMISH
RIVER TO A POINT WHICH BEARS SOUTH 20°12'50"
EAST FROM THE TRUE POINT OF BEGINNING;
THENCE NORTH 20°12'50" WEST TO THE TRUE
POINT OF BEGINNING.
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 7
EX. 1-7
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
I I Front Street South
Issaquah,WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
EXHIBIT B
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 8
EX. 1-8
KENYON
RIND
Kenyon Disend,PLLC
The Municipal Law Firm
I I Front Street South
Issaquah,WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
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EXHIBIT C
1. Any question that may arise due to the shifting and/or changing in the course of Duwamish River.
2. Right of the State of Washington in and to that portion, if any, of the property herein described
which lies below the line of ordinary high water of Duwamish River.
3. Rights of the general public to the unrestricted use of all the waters of a navigable body of water
not only for the primary purpose -of navigation, but also for corollary purposes; including (but not
limited to) fishing, boating, bathing, swimming, water skiing and other related recreational
purposes, as those waters may affect the tidelands, shorelands or adjoining uplands and whether the
level of the water has been raised naturally or artificially to a maintained or fluctuating level, all as
further defined by the decisional law of this state. (Affects all of the premises subject to such
submergence)
4. Easement, including terms and provisions contained therein:
Recording Information: March 29, 1929 as Recording No. 2527136
In Favor of: Puget Sound Power & Light Company, a
Washington corporation
For: Electric transmission and/or distribution system
5. Easement, including terms and provisions contained therein:
Recording Information: July 9, 1962 as Recording No. 5449765
In Favor of: Adjacent property owner
For: Utilities
6. Easement, including terms and provisions contained therein:
Recording Information: August 27, 1964 as Recording No. 5779418
In Favor of: The City of Seattle
For: Electric transmission and/or distribution system
7. Easement, including terms and provisions contained therein, as disclosed by Statutory Warranty
Deed:
Recording Information:
In Favor of:
For:
8. Easement, including terms
Recording Information:
In Favor of:
For:
March 1, 1973 as Recording No. 7303010134
(not disclosed)
Water lines
and provisions contained therein:
August 1, 2005 as Recording No. 20050801002014
Central Puget Sound Regional Transit Authority, a
Washington regional transit authority
Guideway, underground electric distribution facilities,
guy pole, wires and anchors
The terms and provisions contained in the document entitled "Assignment of Utility
Easements" recorded September 17, 2012 as Recording No. 20120917000734 of Official
Records.
Assignee: The City of Seattle
9. The terms and provisions contained in the document entitled "Memorandum Regarding Ordinary
High Water Mark" recorded June 6, 2017 as Recording No. 20170606000265 of Official Records.
AGREED JUDGMENT AND DECREE OF
APPROPRIATION - 9
EX. 1-9
KENYON
DISEND
Kenyon Disend, PLLC
The Municipal Law Firm
11 Front Street South
Issaquah, WA 98027-3820
Tel: (425) 392-7090
Fax: (425) 392-7071
EXHIBIT 2
1. Any question that may arise due to the shifting and/or changing in the course of Duwamish River.
2. Right of the State of Washington in and to that portion, if any, of the property herein described which
lies below the line of ordinary high water of Duwamish River.
3. Rights of the general public to the unrestricted use of all the waters of a navigable body of water not
only for the primary purpose of navigation, but also for corollary purposes; including (but not limited
to) fishing, boating, bathing, swimming, water skiing and other related recreational purposes, as those
waters may affect the tidelands, shorelands or adjoining uplands and whether the level of the water has
been raised naturally or artificially to a maintained or fluctuating level, all as further defined by the
decisional law of this state. (Affects all of the premises subject to such submergence)
4. Easement, including terms and provisions contained therein
Recording Information: March 29, 1929 as Recording No. 2527136
In Favor of: Puget Sound Power & Light Company, a
Washington corporation
For: Electric transmission' and/or distribution system
5. Easement, including terms and provisions contained therein:
Recording Information: July 9, 1962 as Recording No. 5449765.
In Favor of Adjacent property owner
For: Utilities
6. Easement, including terms and provisions contained therein:
Recording Information: August 27, 1964 as Recording. No. 5779418
In Favor of: The City of Seattle
For: Electric transmission and/or distribution system
7. Easement, including terms and provisions contained therein, as disclosed by Statutory Warranty
Deed:
Recording Information: March 1, 1973 as Recording No. 7303010134
In Favor of: (not disclosed)
For: Water lines
8. Easement, including terns and provisions contained therein:
Recording Information: August 1, 2005 as Recording No. 20050801002014
In Favor of: Central Puget Sound Regional Transit Authority, a
Washington regional transit authority
For: Guideway, underground electric distribution facilities,
guy pole, wires and anchors
The terms and provisions contained in the document entitled "Assignment of Utility Easements"
recorded September 17, 2012 as Recording No. 20120917000734 of Official Records.
Assignee: The City of Seattle
9. The terms and provisions contained in the document entitled "Memorandum Regarding Ordinary High
Water Mark" recorded June 6, 2017 as Recording No. 20170606000265 of Official Records.
EX. 2-1