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HomeMy WebLinkAboutL16-066 - Original - Be the Ball, L.L.C - Scotch & Vine Restaurant @ Riverbend Golf Complex - 06/06/2016 I I . Recordsa =a�g fry t KENT Docu ment W A9XINGTON T�{T'�ti•if}�h AN r jED e�8t1r CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to City Clerks Office. All portions are to be completed. If you have questions, please contact City Clerk's Office. Vendor Name: Scotch and Vine, aka Be the Ball, L.L.C. Vendor Number: JD Edwards Number Contract Number: LIU- OULP This is assigned by City Clerk's Office Project Name: Scotch and Vine Restaurant at Riverbend Golf Complex Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment xContract ❑ Other: Contract Effective Date: Upon Signature Termination Date: 10 yrs plus one 5 year option Contract Renewal Notice (Days): Number of days required notice for termination or renewal or amendment Contract Manager: Jeff Watling Department: Parks Admin Contract Amount: Enterprise percentage based rev, variable and ranges from year to year. Refer to Page two of contract Approval Authority: (CIRCLE ONE) Department Director Mayor ; Cit Council Detail: (i.e. address, location, parcel number, tax id, etc.): As of: 08/27/14 RIVERBEND GOLF COMPLEX RESTAURANT LEASE Between THE CITY OF KENT, a Washington Municipal Corporation as Landlord, and Be the Ball, L.L.C., dlbla The Scotch and Vine, a Washington Limited Liability Company FJ TABLE OF CONTENTS SECTION 1 -BASIC LEASE PROVISIONS AND ENUMERATION OF EXHIBITS.....................................1 1.1 Basic Lease Provisions.......................................................................................................1 1.2 Significance of Basic Lease Provisions...............................................................................3 1.3 Enumeration of Exhibits. .....................................................................................................4 SECTION2- PREMISES ...............................................................................................I...........I.............I...4 2.1 Premises and Demise-Generally.........................................................................................4 2.2 Patio Area-Revocable License. ........................................................................................4 SECTION 3-TERM: LANDLORD'S AND TENANT'S WORK....................................................................5 3.1 Lease Term ...................................................................................................I.....................5 3.2 Landlord's and Tenant's Work.............................................................................................6 3.3 Statement as to Lease Term...............................................................................................6 SECTION4- RENT......................................................................................................................................7 4.1 Minimum Rent_..................................................................................................................7 4.2 Security Deposit. ......................................:..........................................................................7 4.3 Percentage Rent. ................................................................................................................7 4.4 Adjustments.........................................................................................................................8 4.5 No Offsets or Deductions/Place of Payment.....................................................................10 4.6 Late Charges.....................................................................................................................10 4.7 Interest; Insufficient Funds.....................................:....................................... ................... 10 SECTION5-USE.......................................................................................................................................10 i 5.1 Permitted Uses.................................................................................................I................10 5.2 Uses Prohibited.................................................................................................................11 5.3 Operation of Business..,......................... ................................................. . . .....................11 5.4 Compliance with Laws.............................................................................. . ... 12 5.5 Hazardous Material...........................................................................................................12 5.6 Representation and Warranty of Tenant. ...........................................................................13 SECTION6-UTILITIES AND HVAC.........................................................................................................14 6AUtilities......................................................................................................I........................14 6.2 Non-Liability of Landlord.......................-............................................................................14 SECTION 7-LEASEHOLD AND PERSONAL PROPERTY TAXES..........................................................15 7.1 Tenant's Obligations. .........................................................................................................15 SECTION8- LICENSE AND TAXES...................................................-.....................................................15 8.1 Tenant's Obligations. ...............................................................................................I.........15 SECTION9-ALTERATIONS......................................................................................................................15 9.1 Acceptance of Premises. ...................................................................................................15 9.2 Alterations by Tenant.........................................................................................................15 9.3 Disability Laws...................................................................................................................16 SECTION 10- MAINTENANCE OF PREMISES........................................................................................16 10.1 Maintenance and Repair by Tenant..................................................................................16 10.2 Failure to Maintain.............................................................................................................17 10.3 Repairs by Landlord..........................................................................................................17 10.4 Surrender of Premises. .....................................................................................................17 10.5 Entry..................................................................................................................................18 RL Kids,LLC dlb/a Scotch and Vine Riverbend Restaurant Lease I SECTION 11 -LIENS AND ENCUMBRANCES.........................................................................................18 11.1 Liens.................................................................................................................................. 18 11.2 Encumbrances. ................................................................................................................. 18 SECTION 12-ASSIGNMENT AND SUBLETTING...............................-...................................................18 12.1 Assignment or Sublease. ....................................................................................I.............18 12.2 Assignee Obligations.........................................................................................................19 12.3 Sublessee Obligations....................................................................................................... 19 12.4 Conditional Consents. .......................................................................................................19 12.5 Attorneys' Fees and Costs. ...............................................................................................19 12.6 Excess Rent. .....................................................................................................................19 12.7 Transfer of Landlord's Interest. .........................................................................................20 SECTION13 -COMMON AREAS..............................................................................................................20 13.1 Control of Common Areas.................................................................................................20 SECTION 14 -INSURANCE AND INDEMNITY.........................................................................................20 14.1 Indemnification........-.....:..................................................................................................20 14.2 Insurance. .........................................................................................................................21 14.3 Mutual Release and Waiver of Subrogation.......................................................................22 14.4 Acts of Others. .................................. ................................................................................22 14.5 Evidence of Coverage Prior to Entry..................................................................................23 SECTION15-EMINENT DOMAIN.............................................................................................................23 SECTION16 -TENANT'S DEFAULT.........................................................................................................23 16.1 Default. ..............................................................................................................................23 16.2 Remedies in Default........................................................................ ..............................243 16.3 Remedies Cumulative-Waiver...........................................................................................24 16.4 Acceptance of Payment. ...................................................................................................25 16.5 Waiver of Rights of Redemption. ......................................................................................25 16.6 Application of Rents. .........................................................................................................25 16.7 Bankruptcy.........................................................................................................................25 SECTION17- DEFAULT BY LANDLORD.................................................................................................26 17.1 Default by Landlord...........................................................................................................26 17.2 Tenant's Right to Damages...............................................................................................26 SECTION18- DESTRUCTION..................................................................................................................27 18.1 Damage or Destruction. .......................................................................................... SECTION19 -ACCESS BY LANDLORD...................................................................................................27 19.1 Right of Entry...........................................................................................................I—......27 19.2 Excavation.........................................................................................................................27 SECTION 20-SURRENDER OR ABANDONMENT OF PREMISES........................................................28 20.1 Surrender of Possession...................................................................................................28 20.2 Holding Over. ....................................................................................................................28 20.3 Voluntary Surrender. .........................................................................................................28 SECTION21 -QUIET ENJOYMENT.....................................................................................................:....28 21.1 Landlord Covenant............................................................................................................28 SECTION22 -AUTHORITY OF PARTIES.................................................................................................28 22.1 Authority. ...........................................................................................................................28 SECTION23-SIGNS.................................................................................................................................28 23.1 General..............................................................................................................................28 23.2 Tenant's Interior Signs. .....................................................................................................29 23.3 Sign Requirements............................................................................................................29 RL Kids,LLC d/b/a Scotch and Vine Riverbend Restaurant Lease II SECTION 24—DISPLAYS:AUCTIONS AND SALES ......................................................... .............29 24.1 Cleneral........................................................................................................ SECTION 25-MISCELLANEOUS...................................................................................................... .......29 25.1 Successors or Assigns......................................................................................................29 25.2 Tenant Defined.............................................................................. ...................................30 25.3 Broker's Commission. ...................... .. . .... . .... ...................... ............................ ...........30 .. . . . . . . 25.4 Partial Invalidity. ............................................. .......30 ................................................. ........... ............30 25.5 Recording...... ........... ...... .... ......... ...... . .. ...... 25.6 Notices.......................... ........ ......... .................................................................................30 . . . 25.7 Plats and Riders; Marginal Headings; Captions. ­­....... ...30 .............................................. 25.8 Waiver. ............................................................................. .............................I..................31 25.9 Joint Obligations......................................................................................... ......................31 25.10 Time... ............. .... .......................................................................................31 31 25.11 Inability to Perform. .... ......... . ............................. ............................................................ . 25.12 Choice of Law;Venue.................................................................................... .....I............31 25.13 Legal Expenses........ . ....... .... ...... ......... .... . .......... ........................................................31 . . . . . . . 25.14 Competition.......................................................................................................................31 25.15 Acceptance of Keys...........................................................................................................32 25.16 Landlord's Consent. ..........................................................................................................32 25.17 No Light,Air or View Easement. .......................................................................................32 . . . . . . . . 25.18 Name........................................................................ ........ . ........... .. ... ..... ........... ........ 32..................32 25.19 Submission of Lease................................................................................... ...25.20 Prior Agreements. .............................................................................................................32 25.22 Financial Statements._............................................................... .....................................32 25.21 Construction. .............. ,,,,..,.,,33 25.23 Effective Date..................................... ...................................................33 EXHIBITS Exhibit Premises Exhibit A-1 Depiction of Premises Exhibit B Landlord Improvements Exhibit C Tenant Improvements Exhibit D Insurance Requirements RL Kids,LLC dlb/a Scotch and Vine Riverbend Restaurant Lease III RETAIL LEASE THIS RETAIL LEASE is made by and between the city of Kent, a Washington municipal corporation (hereinafter referred to as the"Landlord"), and Be the Ball, L.L.C., d/b/a The Scotch and Vine, a Washington limited liability corporation (hereinafter referred to as the"Tenant"). WHEREAS, the Landlord is the owner of certain real property and improvements at the Riverbend Clubhouse, located at 2019 W. Meeker St., Kent, Washington, 98032, and Landlord intends to lease a portion of that property, including generally a restaurant dining area, banquet area, kitchen, walk- in coolers, back offices, and dry storage (the "Leased Premises' or the "Premises"). The Premises are more particularly described on Exhibit A, attached, and shown on the drawing on Exhibit A-1, attached. WHEREAS, Landlord desires to lease the Premises to Tenant under the terms of this Lease agreement and Tenant desires and agrees to take and lease the Premises. NOW THEREFORE, for and in consideration of the rents reserved and the terms and conditions in this Lease, the Landlord does rent, demise and lease to Tenant, and Tenant takes and leases from Landlord the Premises. SECTION 1 -BASIC LEASE PROVISIONS AND ENUMERATION OF EXHIBITS 1.1 Basic Lease Provisions. Landlord: The City of Kent,Washington Landlord's Address: 220 4"Ave, S. Kent, WA 98032 Phone: 263-856-5100 Fax: 253-856-6050 Email: iwatling(cDkentwa.gov Tenant: Be the Ball, L.L.C., d/b/a The Scotch and Vine at Riverbend Tenant's Address: 2019 W Meeker Street (For Notice Purposes) Kent WA 98032 Tenant's Address: Be the Ball, L.L.C., d/b/a The Scotch and Vine at Riverbend (At Leased Premises) 2019 W. Meeker St. Kent,WA 98032 Tenant's Permitted Be the Ball, L.L.C., dba The Scotch and Vine at Riverbend Trade Name: Leased Premises: See Exhibit and Exhibit A-1, attached Lease Term: Ten years plus one five-year option Possession Date: May 1, 2016 Commencement Date: June 1, 2016 Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a 9 e Termination Date: June 31, 2026, unless the Lease Term is extended pursuant to Section 3.1(c) below. Rent Abatement: Free Rent first 3 months from Rent Commencement Monthly Rent: Month Minimum Maximum Months Rent Monthly Rent (including escalators; 1-3 $0 $0 commencing at end of 4-12 $500D.00 $9000.00 90-day Abatement Period) 13-24 $5000.00 $12,000.00 25-120 $5000.00 Established by Percentage Rent Percentage Rent: Eight percent(8%) of gross sales (as defined in Subsection 4.3(c)) composed of: 4%true rent 2.5% utilities 1.5%triple net Utilities: Included in Rent, in part consideration of 8% Percentage Rent Leasehold Tax: Tenant to pay all leasehold tax due under state law, currently Estimated at 12 84% Security Deposit: $5.000.00, to be paid by December 31, 2016. First Month's Rent: $6,000.00. to be paid prior to September 1, 2016. and applied to Minimum Rent for Month four of the Lease Term. Landlord Improvements: Landlord will repair, refurbish, install or construct the items listed on the Landlord Work List attached as Exhibit B. Tenant Improvement: Tenant will install or construct improvements generally in accordance with the plan attached as Exhibit C at an estimated build-out cost of$300,000 to $360.000. Be the Bali,L.L.C.,d!b/a Scotch and Vine Rlverbend Restaurant Lease P a g a 12 I Permitted Uses: The Tenant will operate the Premises to complement and enhance the Riverbend Golf Complex golfer and client experience. Tenant will use the Premises for the operation of a casual sit down full service restaurant with a Class H liquor license and full bar serving breakfast, lunch, and dinner seven (7) days a week. Tenant will provide catering for golf tournaments and special events, and will provide a food and beverage cart service at a location and at times as required and approved by Landlord, which will be expanded during peak months of the golfing season so as to exceed golfer's expectations. Outdoor Seating: Tenant may, at no additional rent, establish outdoor seating on the patio area shown on Exhibit A-1 that is adjacent to the Premises, after first obtaining applicable federal, state, and local permits or approvals. Excluding any patio planters, Tenant, at its sole expense, will maintain the patio in clean, usable condition before, during, and after its use. Tenant will provide all restaurant amenities, including without limitation, tables, chairs, waste receptacles, wait stations, etc. Exclusive Use: During the initial Lease Term so long as Tenant is not in default under the Lease, and subject to Section 5.1(b) below, Landlord agrees that from and after that date Landlord will not enter into any future lease within the Riverbend Golf Complex with a tenant whose primary use is for food or restaurant services.as a full-service sit down restaurant or for on-site catering. "Full-service sit down" is defined as a sit down restaurant with table service and wait staff. Tenant acknowledges and agrees that the Exclusive Use will automatically terminate and be of no further effect without notice from Landlord in the event that (i) Tenant remains in default of the Lease beyond any applicable cure period, and Tenant is not allowed subsequently to cure the default; (ii) Tenant discontinues its operations in the Premises for more than thirty(30)consecutive days (except in connection with casualty, condemnation, force majeure, permitted assignment or subletting, periodic remodeling, or national holidays (collectively, "permitted closures'); or (iii) subject to the exceptions set forth in subsection (ii) hereof, Tenant does not operate the Premises for the use specifically set forth in Section 1.1. 1.2 Significance of Basic Lease Provisions. Paragraph 1.1 represents a summary of the basic terms of this Lease. In the event of any inconsistency between the terms contained in Paragraph 1.1 and any specific provision in this Lease, the terms of the more specific provision will prevail. Be the Ball, L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 13 1.3 Enumeration of Exhibits. The exhibits enumerated in this Section 1.3 and attached to this Lease are incorporated herein by reference and are to be construed as a part of this Lease. Each party agrees to perform any obligation on its part stated in any and all exhibits: Exhibit A Premises Exhibit A-1 Depiction of Premises Exhibit B Landlord Improvements Exhibit C Tenant Improvements Exhibit D Insurance Requirements SECTION 2 - PREMISES 2.1 Premises and Demise-Generally. Landlord hereby leases, rents and demises to Tenant, and Tenant hereby accepts from Landlord, subject to and with the benefit of the terms and provisions of this Lease, the Premises described in Section 1.1 and generally depicted in Exhibit A-1. The Premises, and the Furniture, Fixtures & Equipment (FF&E) located therein on the date that the Premises are delivered to Tenant are delivered AS IS WHERE IS. Landlord warrants it is the owner of the FF&E, free of any claims of third parties. Tenant will pay all personal property taxes due going forward from the date of this Lease. In addition, Tenant will be required, at the end of the Lease Term, to leave any affixed FF&E in place (limited to 2 walk-in coolers, 1 walk-in freezer system, and all hoods and venting within the Premises) in the Premises at no cost to Landlord and in the same condition as at the time of delivery, reasonable wear and tear excepted. The Premises does not include the space above the suspended ceiling or below the surface of the floor slab; provided, however, commencing 60 days after the Commencement Date, Tenant will be solely responsible for the cost of maintaining all systems (such as electrical, lighting, heating and plumbing) or portions thereof that exclusively serve the Premises, but are located outside the Premises. Landlord warrants that those systems are in good working condition as of the Commencement Date. 2.2 Patio Area—Revocable License. Tenant is granted a revocable license to use an area identified as the crosshatched area on Exhibit A-1 (the "Patio Area") for the purpose of an outdoor seating area, provided that the Tenant's use does not violate any governmental rule or restriction, and provided further that Landlord will have the right to approve the location and design of the Patio Area (including but limited to the partitioning of the Patio Area), which approval will not be unreasonably withheld. Tenant will, at its sole cost and expense, comply with all relevant governmental rules, regulations or ordinances and obtain all necessary permits or licenses for the same. Tenant's use and occupancy of the Patio Area will be subject to all of the terms and provisions of this Lease as if the Patio Area were part of the Premises, including without limitation all of the insurance and indemnification provisions of the Lease; provided, however, Tenant will not be obligated to pay any additional Minimum Rent for the Patio Area(but all Gross Sales made from the Patio Area used by Tenant will be included in determining Tenant's Percentage Rent obligation under the Lease). Tenant will at all times when Tenant is using the Patio Area keep the Patio Area in a clean and neat condition consistent with the standards that would be expected in a first class golf complex. Landlord, however, will be responsible for landscaping and planters on the patio area, if any. Tenant will not allow any music or other noise or any odors to emanate from the Patio Area that would unreasonably disturb any users of the Riverbend Golf Complex or their clients or customers. If Tenant fails to comply with the requirements of this Section 2.2 after a reasonable written notice and opportunity to cure, Landlord will have the right to cure Tenant's default, and Tenant will reimburse Landlord for any costs incurred by Landlord as additional rent. Notwithstanding anything to the contrary set forth in this Section 2.2, in the event that Landlord provides Tenant with more than 2 notices of default, and those defaults are Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a 9 e 14 I uncured under this Section 2.2 in any calendar year, Landlord will have the right to revoke this revocable license on written notice to Tenant, which notice will be effective when received by Tenant. SECTION 3—TERM, LANDLORD'S AND TENANT'S WORK 3.1 Lease Term (a) Possession Date. The "Possession Date" will be the date Landlord delivers the Premises to Tenant with substantial completion of Landlord's Work (as defined in Section 3.2(a) below), which will be no earlier than May 1, 2016. (b) Commencement and Termination Date. This Lease will be for the term set forth in Section 1.1 above (hereinafter referred to as the"Term" or"Lease Term ") and will commence June 1, 2016, and the Lease Term will terminate at midnight of the Termination Date set forth in Section 1.1 above (hereinafter referred to as the "Termination Date"). If the Commencement Date occurs on any other day other than the 1s'day of a calendar month, then the Lease Term will be extended to include that portion of the calendar month necessary for the Termination Date to occur on the last day of that calendar month. If Tenant fails to surrender the Premises at the end of the Lease Term, or any renewal or extension, Tenant will be liable for, and will indemnify Landlord against, all claims and demands made by any succeeding tenants against Landlord founded upon delay by Landlord in delivering possession of the Premises to the succeeding tenant. (c) Option to Extend. Provided that no Event of Default exists at the time Tenant elects to exercise an option, Tenant may extend the Term of this Lease for one (1) period of five years. Tenant must exercise this right by delivering written notice of Tenant's exercise at least six, but not more than nine months prior to the expiration of the Term. The extension of the Term will be on the same terms, covenants and conditions as in this Lease, other than Minimum Rent. Increases to the Minimum Rent for the extension period will be based on regional CPI, not to exceed a 3% increase annually. (d) Landlord's Redevelopment Option. Tenant acknowledges and agrees that, beginning April 1, 2026. Landlord will have the right at any time upon twelve(12) months' prior written notice from Landlord to Tenant during the Option Period (i.e.. notice may be given as early as April 1, 2025) to redevelop all or any part of the Riverbend Golf Complex,which may include demolishing the Building and/or Premises and rearranging, contracting or expanding the location, size, dimensions and appearance of the Riverbend Golf Complex, including without limitation, the buildings, structures, other improvement areas and facilities, and the common areas (and their entranceways and exits), and/or combine the Premises with space adjacent to the Premises. If Landlord elects to redevelop the Riverbend Golf Complex that results in the demolition of Tenant's Premises, then Landlord or Tenant will have the right to terminate this Lease upon six(6) months written notice. (1) No Liability for Landlord. Notwithstanding anything contained in this Lease to the contrary, Tenant agrees that: (i) Landlord will have no liability, and Tenant will not be entitled to any compensation or a reduction or abate of Rent prior to termination, as a result of Landlord's exercise of its rights under Section 3.1(d)above; (ii) Tenant will not commence any action or proceeding seeking injunctive or declaratory relief in connection with any of the rights reserved to Landlord under Section 3.1(c) above. If Tenant intends to commence any action or proceeding, it will only seek monetary relief, provided that in no way will this be deemed a waiver or modification of subsection 3.1(d)(1)(i)above; and Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e (iii) If Landlord will prevail in any action or proceeding taken by Tenant, Tenant will pay to Landlord, as Additional Rent, a sum equal to all legal fees, costs and disbursements, incurred by Landlord in any way related to, or arising out of,that action or proceeding. 3.2 Landlord's and Tenant's Work. (a) Landlord's Work. Landlord will, at its sole cost and expense as soon as is reasonably possible, commence and pursue to completion the improvements to be constructed by Landlord to the extent shown on the attached Exhibit B ("Landlord's Work"). The term "substantial completion of the Landlord's Work" is defined as the date on which Landlord notifies Tenant in writing that the Premises are substantially complete to the extent of Landlord's Work, except work that Landlord cannot complete until Tenant performs necessary portions of its work. . In addition, Landlord will deliver the Premises to Tenant with all utilities (i.e. water, plumbing/sewer, electrical, grease interceptor, hood system, and all refrigeration/freezers in good working condition). Tenant will notify Landlord within 60 days of the Possession Date if any of these items are not in good working order and Landlord will be obligated to repair the same. (b) Tenant's Work. Tenant will commence the installation of fixtures, equipment and any other Tenant's Work promptly following the Possession Date and Tenant will diligently pursue its installation and work completion within the period set forth in Section 1.1 above. Tenant will pursue issuance of permits with due diligence and will pick up all permits within five days after receipt of notification from the Landlord that the permits are ready. Tenant's failure to complete Tenant's Work within the period set forth in Section 1.1 will be a material breach of this Lease. All of Tenant's Work will be at Tenant's sole cost and expense and will be pursuant to plans and specifications approved, in writing, by Landlord. Tenant's contractor will name Landlord as an additional insured on contractor's insurance policies. All Tenant's Work will be undertaken and completed in a good, workmanlike manner and Tenant will obtain all necessary governmental permits, licenses and approvals and will fully comply with all governmental statutes, ordinances, rules and regulations. Tenant covenants that no work by Tenant or Tenant's employees, agents or contractors will disrupt or cause a slowdown or stoppage of any work conducted by Landlord on the Premises or the Riverbend Golf Complex. Tenant's failure to comply with the terms and conditions of this provision will be a material breach of this Lease. If required by Landlord, Tenant will provide its own trash containers) as needed for containment and removal of construction debris from Tenant's Work, and Tenant will remove the trash containers prior to opening for business. The Landlord must first approve the location of the trash containers. Tenant and its contractor, if any, will keep adjoining Complex areas free of all construction and related debris. Prior to opening for business, Tenant will remove all construction and related debris from the Premises and adjacent areas, and all those areas will be clean and the adjacent areas will be returned to the condition they were in prior to commencement of Tenant's Work. (c) Delay. Tenant will have no claim whatsoever against Landlord for any damages arising out of Landlord's failure to achieve substantial completion of the Premises by the Possession Date; provided, however, if substantial completion is not achieved by June 30, 2016, then both Landlord and Tenant will have the right to terminate this Lease as their sole and exclusive remedy for Landlord not achieving substantial completion by sending 30 days prior written notice of its election hereunder to the other party However, if Tenant gives this termination notice to Landlord, the notice will be automatically deemed rescinded if Landlord achieves substantial completion prior to the expiration of the 30 day period. 3.3 Statement as to Lease Term. When the Commencement Date and Termination Date of the Lease Term have been determined as provided in Section 3.1, at Landlord's request, the Tenant will execute, acknowledge and deliver to the Landlord, a written statement in recordable form specifying the Commencement Date and Termination Date of the Lease Term, and those dates will be deemed inserted in Section 1.1 and 3.1 above. Be the Ball, L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P 2 g e 16 SECTION 4 - RENT 4.1 Minimum Rent. Tenant will pay to Landlord, without notice or demand and without any set-off deduction whatsoever, as fixed Minimum Rent the monthly sums set forth in Section 1.1 above (the "Minimum Rent"). Tenant will pay the Minimum Rent in advance on or before the first day of each calendar month of the Lease Term commencing with the Commencement Date of this Lease. The Minimum Rent will be delinquent if not paid on or before the first day of each month. If the Lease Term commences or expires on a day other than the last day of a calendar month, the Minimum Rent for that month will be a prorated portion of the monthly Minimum Rent, based upon a 30 day month. The Tenant must have deposited with Landlord the first month's Minimum Rent upon the execution of this Lease. 4.2 Security Deposit. Upon the execution of this Lease. Tenant must have deposited with Landlord as a "Security Deposit" the sum shown in Section 1.1 above. The Landlord will hold this sum as security for the faithful performance by Tenant of all the terms, covenants and conditions of this Lease during the entire Term. If Tenant defaults with respect to any provision of this Lease, including, but not limited to, the provisions relating to the payment of Minimum Rent, Percentage Rent, Adjustments or other charges or sums due under this Lease, Landlord may (but will not be required to) use, apply or retain all or any part of the Security Deposit for (a) the payment of any Minimum Rent, Percentage Rent, Adjustment or other charges or sums due under this Lease or any sum in default, (b) for the payment of any amount that Landlord may spend or become obligated to spend by reason of Tenant's default, or (c) to compensate Landlord for any other loss, damage, cost or expense (including attorneys' fees) that Landlord may suffer or incur by reasons of Tenant's default. If any portion of the Security Deposit is so used or applied, Tenant will, within five days after receiving Landlord's written demand, deposit a certified or cashier's check with Landlord in an amount sufficient to restore the Security Deposit. If Tenant fails to restore the Security Deposit within this five day time period or if Tenant makes at least three consecutive late payments of any sum required under this Lease, Landlord will have the option to require Tenant to increase the amount of the Security Deposit by one hundred percent (100%), which increased sum will be retained by Landlord and may be applied by Landlord as provided in this section. If Tenant fully and faithfully performs every provision of this Lease, the Security Deposit or any balance remaining after deduction by Landlord will be returned to Tenant (or, at Landlord's option to the last assignee of Tenant's interest) within 30 days following expiration of the Lease Term; provided, that in the event this Lease is terminated by or upon the default of the Tenant, the Landlord will retain the Security Deposit and all of Tenant's interest in the Security Deposit will terminate. In the event of termination of Landlord's interest in this Lease, Landlord will transfer the Security Deposit to Landlord's successor in interest. 4.3 Percentage Rent. (a) Tenant's Obligation. Tenant will pay to Landlord additional percentage rent in an amount equal to eight percent (8%) per month, comprised of four percent (4%) true rent, two and one-half percent (2.5%) to pay for Tenant's share of utilities, and one and one-half percent (1.5%) triple net, ("Percentage Rent"). The Percentage Rent will be calculated on the Tenant's gross sales made in, upon and/or from the Premises, less Minimum Rent paid by Tenant, all as more fully set forth below. (b) Monthly Statements, Within 30 days after the end of each calendar month of the Lease Term, commencing with the 30th day of the month following the month in which the Commencement Date commences, and ending with the 30th day of the month next succeeding the last month of the Lease Term, Tenant will furnish to Landlord a written statement certified by Tenant to be correct, showing the total gross sales made in, upon and/or from the Premises during the preceding calendar month. Tenant will include with each statement a payment to Landlord equal to the stated percentage of the total monthly gross Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 17 sales made in, upon, or from the Premises during that calendar month, less the Minimum Rent for that calendar month, if previously paid. Notwithstanding any other provision of this Lease, if the Tenant fails or refuses to submit the monthly statement within the 30 day time period, and Tenant's failure continues for ten days after written demand by Landlord to Tenant, then it will be deemed that the gross sales for that month are double that necessary for the payment of the Minimum Rent, and that amount will be immediately due and payable. (c) Definition. The term "gross sales', as used herein, means the same as Gross Sales reported by Tenant to the State of Washington, Department of Revenue, for purposes of sales, use and excise tax reporting. (d) Records. The Tenant will keep full, complete and proper books, records and accounts in accord with generally accepted accounting principles of its daily gross sales, both for cash and on credit, of each separate department, subtenant, and concessionaire at any time operated in the Premises. The Landlord and its agents and employees will have the right at any reasonable time during regular business hours to examine and inspect all Tenant's books and records, including any sales tax reports, pertaining to the business of the Tenant conducted in, upon, and/or from the Premises, for the purpose of investigating and verifying the accuracy of any statement of gross sales. Tenant will keep all these records for at least three years. Tenant will maintain all records on the Premises, or otherwise keep them readily available. Once in any calendar year, Landlord may cause an audit of the business of Tenant for any or all years for which records are retained, which audit will be made by an accountant of Landlord's selection, and if the statement of gross sales previously made to Landlord is found to be inaccurate, then there will be an adjustment and the Tenant will pay the Landlord on demand the sums necessary to settle in full the accurate amount of Percentage Rent that should have been paid to Landlord for the period or periods covered by the inaccurate statement or statements. If the audit discloses an inaccuracy of greater than a three percent (3%) error with respect to the amount of gross sales reported by Tenant for the reporting period, then, in addition to any adjustment, the Tenant will immediately pay the Landlord's reasonable cost of the audit; otherwise,the Landlord will pay the audit cost. (a) No Partnership. It is understood that the fixing of a portion of the rental on a percentage of the gross sales of the business does not create a partnership or joint venture relationship between the parties, that Landlord assumes no liability for the Tenant's business operation, and that these rent provisions are for the sole purpose of fixing and determining the total rents to be paid by Tenant to Landlord. (f) Waiver. The acceptance by Landlord of any monies paid to Landlord by Tenant pursuant to this Section 4.3 will not be deemed an admission by Landlord of the accuracy of any monthly statement furnished by Tenant during the time period reported or of the sufficiency of the amount of any payment, and without impairing the Landlord's right to inspect the books and records of Tenant and receive any additional sums due from Tenant disclosed by any audit or inspection, as described above. 4.4 Adjustments. (a) Taxes Assessments and Insurance. (1) In addition to the Minimum Rent provided in Section 4.1 above, and commencing on the Commencement Date, Tenant will pay to Landlord in monthly installments, the Tenant's pro rata share for all leasehold taxes, if required by law, at the rate established by the State of Washington. The current rate is 12.84% as established by Chapter 82.29A, Revised Code of Washington. (2) The Tenant will pay its proportionate share of all assessments, whether special or general and including any road improvement districts, local improvement districts, water improvement districts, if any, and any other utility installation hookup, connection, tie in or similar charges Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e Is or assessments that are levied upon and/or assessed against the Premises or the Riverbend Golf Complex that become payable during the Lease Term, plus the cost of professional consultants and/or counsel to analyze tax bills and prosecute any protest, refunds and appeals. (3) The Tenant will obtain all types of insurance with limits as referenced in Section 1.1 and as more particularly described in Exhibit D. (b) Common Area Maintenance and Charges. (1) The terms "common areas" or"Common Areas" refer to all areas within the exterior boundaries of the Riverbend Golf Complex and all internal areas within the Riverbend Golf Complex that are not included as part of the Premises that are now or subsequently become available for general use, convenience and benefit of Landlord and other persons entitled to occupy space in the Riverbend Golf Complex, which areas will include but not be limited to, parking areas, roofs (including roof structures and membranes), driveways, sidewalks, cart paths, landscaped and planted areas (including tees, fairways, greens, and other golf course amenities), streets or roadways, passageways, service corridors, loading platforms, delivery areas, public bathrooms, directory and wayfinding signage, common lighting facilities, drainage areas, drinking fountains, public meeting rooms, and all furniture, decorations and fixtures. (2) In consideration of the Landlord not imposing a common area maintenance charge, Landlord reserves the right to: (i) change the name of the Riverbend Golf Complex, and its subsidiary parts, (ii) install, maintain, alter and remove signs on, in or about the Riverbend Golf Complex, except Tenant's signage, without Tenant's prior written consent, (Ili) add land, easements or other interests to or eliminate the same from the Riverbend Golf Complex, and grant easements and other interests and rights in the Riverbend Golf Complex to other parties, (iv) add, alter, expand, reduce, eliminate, relocate or change the shape, size, location, character, design, appearance, use, number or height of any permanent or temporary buildings, structures, improvements, surface parking, kiosks, carts, planters, pools, waterfalls, parking areas, driveways, landscaped areas (including tees, fairways, greens, and other golf course amenities), and other Common Areas, change the striping of parking areas and direction and flow of traffic, and convert Common Areas to leasable areas and leasable areas to Common Areas; provided, that Landlord will not change the size, layout or dimensions of the Premises, nor materially alter the existing access or visibility of the Premises, to the general public, (v) grant licenses for use of portions of the Common Areas, (vi) enclose any other area, or remove any enclosure, or add one or more additional levels or stories to all or part of any building in the Riverbend Golf Complex, whether or not the Premises are part of the affected structure, and add structural support columns that may be required, and (vii) in connection with the foregoing matters outlined in Subsections (1) — (vi) above, or with any other inspections, repairs, maintenance, improvements or alterations in or about the Riverbend Golf Complex, or as a result of any casualty, incident, strike, condemnation, act of God, law or governmental requirement or request, or any other cause, erect scaffolding, barricades, and other structures reasonably required in, or otherwise close to, Common Areas or portions thereof, including but not limited to public walkways and areas, restrooms, and stairways. Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e I a However, in connection with exercising these section 4.4(b) rights, Landlord will insure that: (A) reasonable steps are taken to minimize or avoid any denial of access to the Premises except when necessary on a temporary basis, (13) reasonable steps are taken to avoid materially changing the configuration or reducing the square footage of the Premises, unless required by laws or other causes beyond Landlord's reasonable control (and in the event of any permanent material reduction, the Rent, breakpoint, and taxes charge will be proportionately reduced), and (C) at Landlord's expense, move Tenant's entrance doorway if access is materially impaired. (3) Landlord will keep the Common Areas in a neat, clean, and orderly condition, properly lighted and landscaped, and will repair any damage to the facilities. 4.5 No Offsets or Deductions/Place of Payment. All Minimum Rent, Percentage Rent, other charges will be paid in lawful money of the United States of America and will be paid without offset or deduction. Landlord will have the right to designate, from time to time, the place or places at which Tenant will tender all Minimum Rent, Percentage Rent, and other charge payments. 4.6 Late Charges. Tenant hereby acknowledges that late payment by Tenant to Landlord in rent or other sums due will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. These costs include, but are not limited to, processing and accounting charges, and late charges that may be imposed upon Landlord by terms of any bond or loan covering the Premises or Riverbend Golf Complex. Accordingly, if the Landlord does not receive from Tenant any installment of Minimum Rent, Percentage Rent, or other charge that becomes due on within five days of the due date (for Minimum Rent and Percentage Rent, the 5th day of each month), then Tenant will pay to Landlord a late charge equal to the greater of three percent (3%) of the amount past due or One Hundred Fifty and No/100 Dollars ($150.00), plus any attorneys' fees that may be incurred by Landlord. The parties have reviewed this amount and acknowledge that these late charges represent a fair and reasonable estimate of the cost that Landlord will incur by reason of the late payment by Tenant. Landlord's acceptance of this late charge will in no event constitute a waiver of Tenant's default with respect to the overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted in this Lease. This late charge will apply individually to each payment past due without any daily pro rata adjustment to any charge. 4.7 Interest Insufficient Funds. Whenever in this Lease any sum (except late charges imposed pursuant to Section 4.6) payable to Landlord is not paid when due, the same will, at Landlord's option, bear interest from the date due until paid at the rate of eight percent (8%) per annum. Any payment of any kind returned for insufficient funds will be subject to a handling fee of$50.00 in addition to any late charge or interest. SECTION 5 - USE 5.1 Permitted Uses. (a) General Use. Tenant will not use, permit or suffer the use of the Premises for any business or purpose other than those specifically set forth in Section 1.1 above and will not engage in any use that violates or interferes with Riverbend Golf Complex operations or any other exclusive use granted by Landlord to other tenants. Landlord warrants that the use set forth in Section 1.1 does not violate any other exclusive use granted by Landlord within the Riverbend Golf Complex. Further, Tenant Be the Ball,L.L.C.,dib/a Scotch and Vine Riverbend Restaurant Lease Page 110 I will not conduct any business in the Premises under any trade name other than the Permitted Trade Name set forth in Section 1.1 above. Landlord makes no representation or warranty and has given no assurance, express or implied, as to the availability or continued availability of Tenant's Permitted Trade Name. Tenant will indemnify, defend and hold Landlord harmless from any and all losses, claims, causes of action, judgments and liabilities (including but not limited to attorneys' fees and costs) arising out of or relating to Tenant's use of its Permitted Trade Name, including but not limited to trademark and service mark infringement and dilution claims. (b) Exclusive Use. Notwithstanding anything to the contrary set forth herein—but with the exception of any portion of the Riverbend Golf Complex that is sold or leased for redevelopment, so long as Tenant is not in default under the Lease, Landlord agrees that from and after the date hereof Landlord will not enter into any future lease within the Riverbend Golf Complex with a tenant whose primary use is as a full service sit down restaurant with on-site catering services. For purposes of this Section, "primary use" is defined as activities that generate at least 20% or more of the tenant's gross sales. "Full service sit down' is defined as a sit down restaurant with table service and wait staff. Tenant acknowledges and agrees that this Exclusive Use will automatically terminate and be of no further force and effect without further notice from Landlord in the event that (i) Tenant remains in default of the Lease beyond any applicable cure period; or (ii) Tenant discontinues its operations in the Premises for more than 30 consecutive days (except in connection with casualty, condemnation, force majeure, permitted assignment or subletting, periodic remodeling, periodic taking of inventory, or national holidays; collectively, "permitted closures"), Tenant does not operate the Premises for the use specifically set forth in Section 1.1. 5.2 Uses Prohibited. (a) Generally. Tenant will not do or permit anything to be done in or about the Premises nor bring or keep anything there that will in any way increase the existing rate of, or affect any, fire or other insurance upon the Premises, the building (the "Building") of which the Premises is a part, or the Riverbend Golf Complex, nor will Tenant cause a cancellation of any insurance policy covering all or any part of the Premises, Building, Riverbend Golf Complex, or any of its contents. Tenant will take all reasonably necessary action to prevent excessive odors, emissions, fumes, liquids or other substances or excessive noise from escaping or extending beyond the Premises, and Tenant will not use or allow the Premises to be used for any improper, immoral, unlawful or objectionable or offensive purpose, nor will Tenant cause, maintain, or suffer or permit any nuisance in, on or about the Premises. Tenant will not commit or allow to be committed any waste in or upon the Premises and will refrain from using or permitting the use of the Premises or any portion thereof as living quarters, sleeping quarters or for lodging purposes. If the Landlord reasonably determines that the Tenant is creating or causing any of these prohibited uses, then Tenant will be responsible for installing, providing for and maintaining, at Tenant's sole cost and expense, measures to mitigate the nuisance or potential nuisance. The Landlord must first approve the Tenant's type and adequacy of mitigating measures as well as the time allowed to complete the measures. The construction, installation, maintenance and repair of the mitigating measures will be accomplished in accordance with the requirements set forth in Sections 9 and 10 below. If Tenant fails to complete the mitigating measures as required by Landlord or if Tenant fails to complete the mitigating measures within the time allowed. Landlord may terminate the Lease upon giving 30 days prior written notice. Notwithstanding anything to the contrary herein and in addition to all other remedies available to Landlord, Tenant will indemnify Landlord for all damages, costs and fees (including attorney's fees and costs) incurred by Landlord as a result of Tenant's breach of this Section 5.2. 5.3 Operation of Business. (a) General. (1) Conduct of Business. Tenant will conduct its business on the Premises during the entire Lease Term with diligence and efficiency to produce all of the Gross Sales that may be Be the Bali,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 111 produced by Tenant's operation, unless prevented from doing so by causes beyond Tenant's control. Tenant will keep in stock on the Premises a full and ample line of cookware, serving ware, and food stuffs for the purpose of operating its business and will maintain staffing sufficient to maximize Tenant's operations. Subject to the provisions of this Lease, Tenant will continuously conduct and carry on Tenant's business in the Premises without interruption and will keep the Premises open for business and cause Tenant's business to be conducted during the days and hours designated from time to time by Landlord, which at the time of the execution of this Lease Landlord designates to be: Landlord and Tenant will determine from time to time, in writing, the schedule for Tenant's operating hours. If no written schedule is in effect or if Landlord and Tenant cannot agree on an operating schedule, Monday through Sunday minimum hours of operation will be as follows: Breakfast 6:30 a.m. to 10:30 a.m. Lunch 11:30 a.m. to 3:00 p.m. Dinner 4:30 p.m. to 10:00 p.m. Cart service on golf course 10:00 a.m. to 4:00 p.m., March — October (unless otherwise agreed between Landlord and Tenant) This provision will not apply if the business of Tenant is temporarily discontinued on account of strikes, lockouts or similar causes beyond Tenant's reasonable control. (b) Failure to Operate. If Tenant should fail to be open to the public on a fully- operational basis during all hours required under this Lease, in addition to being in material breach of this Lease. Tenant will immediately pay to Landlord, for each day or portion of any day that Tenant fails to open a"Failure to Open" charge of Two Hundred Dollars ($200.00). 5.4 Compliance with Laws. Tenant will, at its sole cost and expense, promptly comply with all local, state or federal laws, statutes, ordinances and governmental rules, regulations or requirements now in force or that may subsequently be in force with respect to Tenant's use and occupancy of the Premises and Tenant's business. Tenant will also, at its sole cost and expense, comply with the requirements of any board of fire underwriters or other similar bodies now or hereafter constituted relating to or affecting the condition, use or occupancy of the Premises (excluding structural changes not related to or affected by Tenant's improvements or acts). Landlord represents that the Premises comply with all local, state or federal laws, statutes, ordinances and governmental rules, regulations or requirements now in force as of the Possession Date. The judgment of any court of competent jurisdiction or the admission of Tenant in any action against Tenant, whether or not Landlord is a party, that Tenant has violated any law, statute, ordinance or governmental rule, regulation or requirement, will be conclusive of that fact as between the Landlord and Tenant. The Tenant will be solely responsible for and pay, and will indemnify and hold Landlord harmless from and against all costs, expenses (including attorneys' fees), fines, damages, penalties, and surcharges incurred or arising by reason of Tenant's failure to promptly and completely perform the Tenant's obligations under this Section 5.4. 5.5 Hazardous Material. Tenant will not cause or permit any Hazardous Material, as defined below, to be brought upon, kept or used in or about the Premises by Tenant, its agents, employees, contractors or invitees, except in accordance with all applicable laws, rules and regulations. If Tenant breaches the obligations stated in the preceding sentence, or if the presence of any Hazardous Material caused or permitted by Tenant results in contamination of the Premises or any part of the Riverbed Golf complex or any other property, or if contamination of the Premises or any part of the Riverbend Golf Complex or other property by any Be the Ball,L.L.C.,dibla Scotch and Vine Riverbend Restaurant Lease P a g e 112 i i i Hazardous Material otherwise occurs for which Tenant may be legally liable to Landlord for the resulting damage, then Tenant will indemnify, defend and hold Landlord harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including without limitation, diminution in value of the property, damages for the loss or restriction on use of rentable or usable space, damages arising from any adverse impact on marketing or use of the Riverbend Golf Complex, damages to any other property, and amounts paid in settlement of claims, attorneys'fees, consultant fees and expert fees) that arise during or after the Lease Term as a result of the contamination. Without limiting the foregoing, this indemnification includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil or ground water on or under the Premises or any part of the Riverbend Golf Complex or other property, if the presence of any Hazardous Material caused or permitted by Tenant results in any contamination of the Premises or any part of the Riverbend Golf Complex or other property. Tenant will promptly take all actions at its sole expense as are necessary to return the Premises or the Riverbend Golf Complex or other property to the condition existing prior to the introduction of any Hazardous Material; provided that Tenant will first obtain Landlord's approval of that action, which approval will not be unreasonably withheld so long as Tenant's actions would not potentially have any material adverse long-term or short-term effect on the Premises or the Riverbend Golf Complex or other property. As used in this Section 5.5, the term "Hazardous Material" means any hazardous, dangerous, toxic or harmful substance, material or waste which is or becomes regulated by any local governmental authority, the State of Washington or the United States Government, but will not mean minimal amounts of cleaning supplies customary for the restaurant industry. To the best of Landlord's knowledge, Landlord has not used, generated, manufactured, produced, stored, released, discharged or disposed of on, under, or about the Premises (or off-site of the Premises that might affect the Premises) or transferred to or from the Premises, any Hazardous Material or allowed any other person or entity to do so. 5.6 Representation and Warranty of Tenant. Tenant (and, if Tenant is a corporation, partnership, limited liability company or other legal entity, that corporation, partnership, limited liability company or entity) makes the following representations and warranties, each of which is material and relied upon by Landlord, is true in all respects as of the date of this Lease, and will survive the expiration or termination of the Lease. Tenant will re-certify these representations to Landlord periodically, upon Landlord's reasonable request: (a) to the best of its knowledge, Tenant is not in violation of any Anti-Terrorism Law; (b) to the best of its knowledge, Tenant is not, as of the date hereof; (1) conducting any business or engaging in any transaction or dealing with any Prohibited Person, including the making or receiving of any contribution of funds, goods or services to or for the benefit of any Prohibited Person; (2) dealing in, or otherwise engaging in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224; or (3) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate any of the prohibitions set forth in, any Anti-Terrorism Law; and Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 113 (c) to the best of its knowledge, neither Tenant nor any of its affiliates, officers, directors, shareholders, members or lease guarantor, as applicable, is a Prohibited Person. If at any time any of these representations become false, then it will be considered a material default under this Lease. As used herein, "Anti-Terrorism Lay" is defined as any law relating to terrorism, anti-terrorism, money-laundering or anti-money laundering activities, including without limitation the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, Executive Order No. 13224, and Title 3 of the USA Patriot Act, and any regulations promulgated under any of them. As used herein "Executive Order No. 13224" is defined as Executive Order No. 13224 on Terrorist Financing effective September 24, 2001, and relating to "Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism", as may be amended from time to time. "Prohibited Person" is defined as (i) a person or entity that is listed in the Annex to Executive Order No. 13224, or a person or entity owned or controlled by an entity that is listed in the Annex to Executive Order No. 13224; (ii) a person or entity with whom Landlord is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; or (iii) a person or entity that is named as a "specially designated national and blocked person" on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, htti)71/www.treas.gov/ofac/tl 1 sdn.odf or at any replacement website or other official publication of this list. "USA Patriot Act" is defined as the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001" (Public Law 107- 56), as may be amended from time to time. SECTION 6— UTILITIES AND HVAC 6.1 Utilities. (a) City water, sewer, and storm water use charges, electricity use charges, and gas use charges are included in Tenant's monthly rent, in part consideration (two and one-half percent (2.5%)) of the 8% Percentage Rent. (b) Tenant is responsible for all telephone, data, and cable TV costs. (c) Tenant is responsible to pay any change in size or location to meters, piping, or other utility facilities, if caused or required by Tenant. (d) Tenant is responsible to pay Landlord $180.00 per month of Landlord's solid waste utility charges incurred for all solid waste receptacles used for the Premises and the building of which the Premises is a part. (e) Landlord will pay to operate and maintain the existing alarm system in the building, but Tenant will be responsible for all costs incurred to modify that system to the extent caused or required by Tenant's operations or by Tenant's alterations, additions, or improvements. (f) Landlord will pay to operate and maintain the existing heating, ventilation, and air conditioning (HVAC) system in the building, but Tenant will be responsible for all costs incurred to modify that system to the extent caused or required by Tenant's alterations, additions, or improvements. 6.2 Non-Liability of Landlord. Landlord will not be liable or deemed to be in default, nor will there be any abatement of Rent for any interruption, reduction or failure in the supply of any utilities (including telephone service) to the Premises or the Riverbend Golf Complex unless caused by the gross negligence or willful act of Landlord. Be the Ball,L.L.C.,d!b/a Scotch and Vine Riverbend Restaurant Lease P a o e 114 No interruption or failure in the supply of any utilities or services will be deemed an eviction or disturbance of Tenant or relieve Tenant from the full and complete performance of all of Tenant's obligations under this Lease. SECTION 7—LEASEHOLD AND PERSONAL PROPERTY TAXES 7.1 Tenant's Obligations. Tenant will pay, or cause to be paid, effective as of the Commencement Date, and before delinquency, all leasehold tax if required by law, at a rate established by the State of Washington, currently estimated at 12.84%. Tenant will also pay, or cause to be paid, effective as of the Possession Date, and before delinquency, any and all taxes levied, assessed and/or that become payable during the Lease Term upon all or any part of Tenant's leasehold improvements, equipment, furniture, fixtures, and any other personal property located in the Premises. In the event any or all of the Tenant's leasehold improvements, equipment, furniture, fixtures and other personal property will be assessed and taxed with the real property, Tenant will pay to Landlord its share of those taxes within ten days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of those taxes applicable to Tenant's property. SECTION 8 - LICENSE AND TAXES 8.1 Tenant's Obligations. Tenant will be liable for, effective as of the date of full execution of this Lease, and will pay throughout the Lease Term, all license and excise fees and occupation taxes covering the business conducted on the Premises. If any governmental authority or unit under any present or future law effective at any time during the Lease Term will in any manner levy a tax on Rents payable under Lease or rents accruing from use of the Premises or a tax in any form against Landlord because of, or measured by, income derived from the leasing or rental of the Premises, Tenant will pay that tax, either directly or through Landlord, and upon Tenant's default, Landlord will have the same remedies as upon failure to pay Minimum Rent. SECTION 9 -ALTERATIONS 9.1 Acceptance of Premises. Upon delivery of the Premises to Tenant,Tenant will acknowledge to Landlord in writing within three days of delivery of possession of the Premises to Tenant that Tenant has inspected the Premises and accepts it in its then condition or else, within that three day period, will notify Landlord in writing of any patent deficiencies then apparent; provided, that a failure by Tenant to provide the above written notices to Landlord within the three day period will be deemed acceptance of the Premises in their then condition, except for latent defects. The Landlord's obligation and/or liability to Tenant for deficiencies will be strictly limited to the correction of the noted deficiencies, which correction will be made only to the extent of compliance with the Landlord's Work as set forth herein and in"Exhibit B." 9.2 Alterations by Tenant. Tenant will not make any alterations, additions or improvements in or to the Premises, including without limitation any penetration to the roof, without the prior written consent of Landlord, which consent to nonstructural alterations will not be unreasonably withheld, conditioned or delayed, and as to structural alterations may be conditioned by Landlord as Landlord may deem appropriate; provided, that Tenant may make minor non-structural alterations, additions or improvements to the Premises that in the aggregate do not exceed a cost of $5,000 per calendar year without the Landlord's prior written consent. Any alterations, additions or improvements consented to by Landlord, including roof penetration, will be Be the Ball, L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 115 made at Tenant's sole cost and expense. Tenant will provide its own trash container and/or container for construction debris; will provide its own portable toilets; will promptly remove all construction and related debris from all Common Areas,will return the Common Areas to the condition they were in immediately prior to construction immediately following completion of construction; will repair and restore any portions of the Common Areas harmed as result of the construction activities to the condition they were in immediately prior to construction; will use service entrances to the Premises, if any; will conduct no core drillings during business hours; and will disrupt Riverbend Golf Complex users as little as possible, and will pay to Landlord the amount of any and all damage to the roof caused by Tenant's penetration, and the amount of any and all damages to the Riverbend Golf Complex as a result of roof leaks caused by the penetration. Tenant will secure any and all governmental permits, approvals, or authorizations required in connection with this work, and will hold Landlord harmless from any and all liability, costs, damages, expenses (including attorneys' fees) and any and all liens resulting therefrom. Except trade fixtures, appliances and equipment that do not become a part of the Premises, all alterations, additions and improvements (expressly including all light fixtures and floor covering), will immediately become the property of the Landlord without any obligation to pay for them. Upon completion of Tenant's alterations, additions, or improvements, Tenant will provide Landlord a complete and accurate set of as-built drawings showing, in detail, the exact location and extent of each of Tenants alterations, additions, and improvements. Byway of explanation and without limitation, these drawings would include location of wiring, conduit, and other facilities installed within the roofs, walls, and floors. 9.3 Disability Laws. Notwithstanding anything in this Lease to the contrary, if Tenant constructs, makes or installs or causes to be constructed, made or installed any alteration, addition, or improvement in or to the Premises or surrounding areas, Tenant will be solely responsible for ensuring that those alterations, additions, or improvements do not violate any provision in any local, state or federal law or regulation relating to accessibility for handicapped persons or the removal of architectural or communication barriers to accessibility ("Disability Law"), including but not limited to RCW Chapter 70.92 and The Americans with Disabilities Act. Any approval by Landlord of Tenant's plans or specifications for any alterations, additions or improvements will not be a representation or warranty, express or implied, by Landlord that the plans will comply with any Disability Law. If any claim under any Disability Law relates directly or indirectly to any alterations, additions, or improvements installed, made, or constructed, directly or indirectly, by or for Tenant in or to the Premises or relates directly or indirectly to any trade fixture or personal property item used by Tenant in the Premises, Tenant will defend, indemnify and hold Landlord harmless from and against the claim and any and all charges, liabilities, obligations, penalties, damages, judgments, costs and expenses (including attorneys' fees) arising or incurred against or suffered, directly or indirectly, by Landlord relating to those claims. If it should be determined that any alterations, additions, or improvements constructed, made or installed in or to the Premises, directly or indirectly, by or for Tenant or any trade fixture or personal property item used by Tenant in the Premises is an illegal architectural or communication barrier under any Disability Law, Tenant will immediately, at its sole cost and expense, remove the barrier or, to the extent allowed by the Disability Law, provide alternatives to the barrier to make the Premises accessible to disabled persons. No alteration or improvement in the Premises will be approved by Landlord if it will require that barriers outside the Premises be removed under any Disability Law. Tenant will not have any basis for objecting to Landlord's judgment regarding the probable application of any Disability Law, provided Landlord does not act arbitrarily. SECTION 10 - MAINTENANCE OF PREMISES 10.1 Maintenance and Repair by Tenant. Tenant will at all times throughout the Lease Term at its sole cost and expense keep the Premises (including exterior doors and entrances, all windows, moldings and trim of all doors and windows, and the Patio Area, if applicable) and all partitions, door surfaces, fixtures, grease receptacles, equipment and appurtenances (including lighting, heating and plumbing fixtures and any air conditioning system) in good order, condition and repair (including damage from burglary or attempted burglary of the Be the Ball,L.L.C.,dlb/a Scotch and Vine Riverbend Restaurant Lease P a g e 116 Premises). The costs of these repairs will be billed directly to, and paid by, Tenant. Landlord will operate, maintain and pay for the system used for heating, ventilating and air conditioning ("HVAC") serving the Premises, but Tenant agrees to pay for any modifications to the system caused or required by Tenant's alterations, additions, or improvements to the Premises during the Lease term. Tenant will keep the glass of all windows, doors, and showcases clean and presentable; immediately replace all broken glass in the Premises; at reasonable intervals paint or refinish the interior of the Premises, including entrances as determined by Landlord; make any necessary repairs to, or replacements of, all door closure apparatuses and mechanisms; keep all plumbing clean and in good state of repair including pipes, drains, toilets, basins and those portions of the heating system within the walls of the Premises; keep sidewalks and service areas adjacent to the Premises clear of dirt, rubbish, snow, ice and excess moisture or water; store all trash, refuse and recyclable materials in appropriate containers within the Premises or the Riverbend Golf Complex, as applicable, and attend to the daily disposal in a manner approved by Landlord (and if Tenant fails to do so, Landlord may arrange for disposal, and Tenant will reimburse the cost for that disposal upon demand, plus a handling charge of Fifty Dollars ($50.00) per invoice, all of which will be additional rent under this Lease); and keep all utilities within the Premises in a good state of repair. 10.2 Failure to Maintain. If Tenant fails to keep and preserve the Premises as set forth in Section 10.1 above, Landlord may, at its option, upon reasonable notice to Tenant and opportunity to cure, put or cause the same to be put in the condition and state of repair agreed upon, and in that case, upon receipt of written statements from Landlord, Tenant will promptly pay the entire cost as additional rent. Landlord will have the right, without liability, to enter the Premises for the purpose of making those repairs upon Tenant's failure to do so. 10.3 Repairs by Landlord. Landlord will keep the structure of the roof, exterior walls, foundations and building structure of the Premises in a good state of repair, and will accomplish those repairs as may be needed promptly after receipt of written notice from Tenant and said repairs will be at the sole cost of Landlord. Landlord will replace the roof when Landlord determines in its reasonable discretion that replacement is necessary. Landlord will also paint the exterior portion of the Premises as reasonably needed. Should any painting or repairs be required by reason of Tenant's negligent acts or failure to act, Tenant will promptly pay Landlord for that cost as additional rent. Tenant will immediately inform Landlord of any necessary repairs and Tenant will make none of those repairs without Landlord's prior written consent. Landlord will not be liable for any failure to make any repairs or to perform any maintenance required of Landlord unless the failure persists for an unreasonable time after Tenant has given written notice of the need for those repairs to Landlord. Except as otherwise specifically provided in this Lease, there will be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant's business arising from the making of any repairs, alterations or improvements in or to any portion of the Premises or Premises building or in or to their fixtures, appurtenances and equipment. 10.4 Surrender of Premises. At the expiration or sooner termination of this Lease, Tenant will return the Premises to Landlord in the same condition in which received (or, if altered by Landlord or by Tenant with the Landlord's consent, then the Premises will be returned in the altered condition), reasonable wear and tear and damage by casualty excepted. Tenant will remove all trade fixtures, appliances and equipment (where removal will not require structural changes to the Premises) which do not become a part of the Premises and alterations which Landlord designates to be removed pursuant to Section 9.2 above, and will restore the Premises to the condition they were in prior to the installation of said items. In addition, Tenant will be required, at the end of the Lease Term, to leave any affixed FF&E in place(including, but not limited to, two walk-in coolers, one walk-in freezer system, and all hoods and venting within the Premises) in the Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 117 I, Premises at no cost to Landlord and in the same condition as originally delivered by Landlord, reasonable wear and tear excepted. Tenant's obligation to perform this covenant will survive the expiration or termination of this Lease. 10.5 Entry. By entry on the Possession Date, Tenant will be deemed to have accepted the Premises as being in good and sanitary order, condition and repair. SECTION 11 - LIENS AND ENCUMBRANCES 11.1 Liens. Tenant will promptly file and/or record, as applicable, all notices of completion provided for by law, and will pay and discharge all claims for work or labor done, supplies furnished or services rendered at the request of Tenant or at the request of Landlord on behalf of Tenant, and will keep the Premises and Riverbend Golf Complex free and clear of all mechanics' and materialmen's liens in connection with that work, labor, supplies, or services. In the event any material or labor lien is recorded, Tenant will cause the lien to be removed within ten days after receipt of written notice from Landlord, or will provide a bond or other security in the amount of 150% of the lien within that ten day period. 11.2 Encumbrances. The Tenant will not cause or suffer to be placed, filed or recorded against the title to the Premises, the Premises building, the Riverbend Golf Complex, or any part thereof, any mortgage, deed of trust, security agreement, financing statement, or other encumbrance. The form of any mortgage, deed of trust or other security agreement or financing statement that includes a legal description of the Premises, or the Premises building, or the Riverbend Golf Complex or its address, or any part thereof,will be subject to Landlord's prior written approval, which approval may be conditioned as the Landlord deems appropriate. SECTION 12 -ASSIGNMENT AND SUBLETTING 12.1 Assignment or Sublease. Tenant will not assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest in this Lease, nor sublet the whole or any part of the Premises, nor will this Lease or any interest in this Lease be assignable or transferable by operation of law or by any process or proceeding of any court, or otherwise, without the prior written consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed. Any of these transactions undertaken without Landlord's prior written consent will be null and void. (a) Change in Ownership. No assignment, sublease or other transfer will relieve Tenant of any liability under this Lease. The prohibition set forth in this Section 12 includes, without limitation (and the following will be deemed to be"assignments'): (1) a consolidation or merger of Tenant; (2) a change in the ownership or voting rights of more than fifty percent (50%) of the issued and outstanding stock, units or membership interest of any corporate or limited liability company tenant; (3) any sublease, assignment or transfer which would otherwise occur by operation of law, merger, consolidation, reorganization, transfer or other significant change in corporate, proprietary or limited liability company structure; (4) the sale, assignment or transfer of all or substantially all of the assets of Tenant, with or without the specific assignment of this Lease; and (5) a change in control in any Tenant. Be the Ball,L.L.C.,dibla Scotch and Vine Riverbend Restaurant Lease P a g e 118 (b) No Waiver. The acceptance by Landlord of any amounts following any transaction prohibited in this Section 12.1 will not be deemed to be consent by Landlord nor will it be deemed a waiver of any right or remedy by Landlord. Consent to any assignment, sublease or other transfer will not operate as a waiver of the necessity for consent to any subsequent assignment, sublease or transfer. (c) Documentation. In connection with any approved sublease, assignment or transfer, Tenant will promptly provide Landlord with fully executed copies of all assignment, sublease, transfer and assumption instruments. 12.2 Assignee Obligations. As a condition to Landlord's consent, any potential assignee or transferee otherwise approved by Landlord will expressly assume all existing and future obligations of Tenant under this Lease and will be jointly and severally liable with Tenant for the payment of Minimum Rent, Percentage Rent, Adjustments, additional rent, and the performance of all terms, covenants and conditions of this Lease. Tenant will not be relieved from any liability under the Lease. 12.3 Sublessee Obligations. As a condition to Landlord's consent, any potential sublessee otherwise approved by Landlord will expressly assume all existing and future obligations of Tenant under the Lease during the term of the sublease and will be jointly and severally liable with Tenant for the payment of Minimum Rent, Percentage Rent, Adjustments, additional rent, and the performance of all terms, covenants, and conditions of this Lease. Tenant will not be relieved from any liability under the Lease. 12.4 Conditional Consents. Any consent by Landlord to any assignment, sublease or other transfer may be subject to any terms or conditions as Landlord will reasonably determine appropriate (including but not limited to requiring that any and all guarantors of the Lease agree to continue to guarantee the Lease obligations after the assignment) and those terms and conditions will be binding upon any person_holding by, under or through Tenant. 12.5 Attorneys' Fees and Costs. Tenant and any assignee, sublessee or transferee will reimburse Landlord for Landlord's reasonable attorneys' fees and costs incurred in conjunction with the processing and documentation of any requested transfer, assignment, sublease or similar encumbrance. Notwithstanding the foregoing, the maximum charge to Tenant in connection with that assignment, sublease or transfer will be One Thousand Five Hundred Dollars ($1,500.00). 12.6 Excess Rent. As a condition to Landlord's consent, Tenant will deliver to Landlord any "excess rent" within 30 days of Tenant's receipt pursuant to that assignment, sublease or transfer. As used herein, "excess rent" will mean any sums or economic consideration received by Tenant pursuant to an assignment, sublease or transfer in excess of the amount of the Minimum Rent of the Premises (or the applicable portion thereof) payable by Tenant under the Lease. Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 119 12.7 Transfer of Landlord's Interest. In the event of any transfers of Landlord's interest in the Premises or the Premises building, other than a transfer for security purposes only, the transferor will be automatically relieved of any and all obligations and liabilities on the part of Landlord accruing from and after the date of the transfer and Tenant agrees to attorn to the transferee. SECTION 13 - COMMON AREAS 13.1 Control of Common Areas. The Landlord will manage the Common Areas of the Riverbend Golf Complex. The Common Areas will include but not be limited to all automobile parking areas, access roads, driveways, entrances, retaining walls and exits, truck ways, loading docks or loading areas, package pick-up stations, washrooms, courts, sidewalks and ramps, landscaped areas, exterior stairways, and other areas, improvements, facilities and special services provided by Landlord for the general use of all employees, invitees and customers of the Riverbend Golf Complex. With respect to the Common Areas, Landlord will have the right to cause from time to time to establish, modify and enforce reasonable rules and regulations; construct, maintain and operate lighting facilities; police the Common Areas and facilities; from time to time to change the area, level, location and arrangement of parking areas and other facilities within the Common Areas; and to do, perform or cause to be performed other acts in and to the Common Areas as, in the use of good business judgment, Landlord determines to be advisable with a view to the improvement of the convenience and use of the Riverbend Golf Complex by its employees, invitees and customers. SECTION 14 - INSURANCE AND INDEMNITY 14.1 Indemnification. (a) Generally. Landlord will not be liable for the loss of or damage to any property (including property of Tenant and others) occurring in or about the Premises or for injury to any person occurring in or about the Premises except and to the extent the damage or injury is caused by Landlord's negligence. Except to the extent an injury to any person is caused by Landlord's negligence, Tenant will defend, indemnify and hold Landlord harmless from and against any and all claims, charges, liabilities, obligations, penalties, damages, costs and expenses (including attorneys' fees) arising, claimed, charged or incurred against or suffered, directly or indirectly, by Landlord from any matter or thing arising from Tenant's use of the Premises, the conduct of its business or from any activity, work, or other things done or permitted by Tenant in or about the Premises, and Tenant will further defend, indemnify and hold Landlord harmless from and against any and all claims arising, directly or indirectly, from any breach or default in the performance of any obligation of or to be performed by Tenant under the terms of this Lease, or arising from any act or omission of Tenant, or any officer, agent, employee, guest, or invitee of Tenant, and from all costs, attorneys' fees, and liabilities incurred in or about the defense of any claim or any action or proceeding brought on that basis. If any action or proceeding is brought against Landlord by reason of a claim, Tenant, upon notice from Landlord, will defend the same at Tenant's expense by legal counsel reasonably satisfactory to Landlord. (b) Concurrent Negligence of Landlord and Tenant Relating to Construction, Repair and Maintenance Activities. Notwithstanding Section 14.1 (a) above, in the event of the concurrent negligence of Tenant, its agents, employees, sublessees, invitees, licensees or contractors on the one hand, and that of Landlord, its agents, employees or contractors on the other hand, which concurrent negligence results in injury or damage to persons or property and relates to the construction, alteration, repair, addition to, subtraction from, improvement to or maintenance of the Premises or the Riverbend Golf Complex, Tenant's obligation to indemnify Landlord as set forth in this Section 14.1 will be limited to Be the Ball, L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 120 the extent of Tenant's negligence, and that of its agents, employees, sublessees, invitees, licensees or contractors, including Tenant's proportional share of costs, and attorneys' fees and expenses incurred in connection with any claim, action or proceeding brought with respect to that injury or damage. (c) Waiver of Workers' Compensation Immunity. THE LANDLORD AND TENANT SPECIFICALLY AGREE THAT THE PROVISIONS OF THIS SECTION 14 ALSO APPLY TO ANY CLAIM OF INJURY OR DAMAGE TO THE PERSONS OR PROPERTY OF THE TENANT'S EMPLOYEES, AND TENANT ACKNOWLEDGES AND AGREES THAT AS TO THOSE CLAIMS, TENANT, WITH RESPECT TO LANDLORD, DOES HEREBY WAIVE ANY RIGHT OF IMMUNITY WHICH TENANT MAY HAVE UNDER INDUSTRIAL INSURANCE (TITLE 51 RCW AS AMENDED AND UNDER ANY SUBSTITUTE OR REPLACEMENT STATUTE). THIS WAIVER AND AGREEMENT WAS SPECIFICALLY NEGOTIATED BY LANDLORD AND TENANT AND IS SOLELY FOR THE BENEFIT OF LANDLORD AND TENANT AND THEIR SUCCESSORS AND ASSIGNS AND IS NOT INTENDED AS A WAIVER OF TENANT'S RIGHTS OF IMMUNITY UNDER SAID INDUSTRIAL INSURANCE FOR ANY OTHER PURPOSE. Date: 2016 Date: 4 2016 -Landlords I .T `r Tenant U f f �� 4b� 12016 , `' L_zf Tenant 14.2 Insurance. (a) Tenant will, as of the date of full execution of this Lease and at its own cost and expense, keep and maintain in full force and effect during the Lease Term, insurance policies of the types and in the amounts required as described in Exhibit D. (b) Tenant will immediately notify Landlord if claims made against Tenant and covered by any single policy exceed fifty percent (50%) or more of the aggregate limit. Notwithstanding the foregoing, if during the Lease Term, in Landlord's reasonable judgment, the Exhibit D policy limits are no longer adequate to provide reasonable protection to Landlord, Landlord may notify Tenant of the inadequacy and Tenant, within 30 days of receiving the notice, will obtain and provide Landlord with evidence of additional amounts of insurance. (c) Tenant will deliver to Landlord upon the Commencement Date and from time to time thereafter as requested by Landlord copies of all policies of these insurance or certificates thereof showing the parties named above as a primary additional insureds and the applicable policy limits thereof. In no event will the limits of these policies be considered as limiting the liability of Tenant under this Lease. (d) Service of Alcoholic Beveraqes. The insurance to be carried by Tenant pursuant to Section 14.2(a) above will not exclude liability for violation of any governmental statute, ordinance, regulation or rule pertaining to the sale, gift, distribution or use of any alcoholic beverages, or liability by reason of the selling, serving, or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or any other person, or which causes or contributes to the intoxication of any persons. Accordingly, the indemnification obligations in Section 14.1 of this Lease will extend, as well, to damages occurring at locations other than the Premises and resulting from risks insurable by any of the following (1) so-called dram shop liability insurance; (2) host liquor liability insurance; (3) liquor legal liability insurance; or(4) insurance otherwise related to the sale, gift, distribution or use of alcoholic beverages. Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 121 (e) Failure to Maintain. If Tenant fails or refuses to maintain any insurance required by this Section 14, Landlord, at its discretion, may obtain and maintain insurance for those items and interests to protect Landlord in amounts as Landlord may determine to be appropriate, and any and all premiums paid or payable by Landlord will be deemed to be additional rent and will be due on the payment date of the next installment of Rent. The failure to obtain or maintain any insurance required by this Section 14 will constitute a material breach of this Lease. (f) Increase in Insurance Premium. Notwithstanding anything in this Lease to the contrary, Tenant will not keep, use, sell or offer for sale in or upon the Premises any article, nor conduct any activities or operations, which are or may be prohibited by Landlord's insurance carriers. Tenant will pay any increase in premiums for property or liability insurance maintained by Landlord resulting from Tenant's use or occupancy of the Premises, whether or not Landlord has consented to the increase. In the event of Landlord's increased insurance premiums, Tenant also will pay immediately to Landlord an amount equal to any additional premium on the insurance policy or policies that Landlord may carry for its protection against loss resulting from any insured event. In determining whether increased premiums are the result of Tenant's use or occupancy of the Premises, the rates and premiums determined by the organization setting the insurance premiums will be conclusive evidence of the several items and charges which make up the insurance premiums. Landlord will deliver bills for these additional amounts to Tenant, and Tenant will immediately pay Landlord. 14.3 Mutual Release and Waiver of Subrogation. Landlord and Tenant hereby mutually release each other from liability, and waive all right of recovery against each other, for any injury, loss or damage to any building, structure, inventory or other tangible property and any revenues, profit and rents to be generated therefrom, whether due to negligence or any other insured cause, if the injury, loss or damage is caused by any of the perils that are covered by a first-party insurance policy benefiting the party suffering the injury, loss or damage or if the injury, loss or damage was required to be covered by insurance pursuant to this Lease; provided that this Section 14.3 will be inapplicable if it would have the effect, but only to the extent it would have the effect, of invalidating any insurance coverage of Landlord or Tenant. Landlord and Tenant acknowledge that their current insurance policies, as of the date of this Lease, will not be invalidated. In the future, if avoiding any invalidation can be effected by the payment of money to an insurer, the other party may elect to pay that amount to obtain a waiver of subrogation for its benefit. Landlord and Tenant, respectively, will promptly notify the other if its insurance will be invalidated by the foregoing release and waiver or if any payment is required to avoid invalidation. Notwithstanding anything to the contrary, this Section will not apply to any claim by Landlord for any Minimum Rent, Percentage Rent, Adjustments and additional rent payable under this Lease. Landlord and Tenant specifically intend, however, that this Section will apply to any potential claim that could otherwise be made by Landlord for any rents to be paid by other occupants of the Project or any claim that could potentially be made by Tenant for any lost sales, profits or revenues that could have been generated from or operating expenses related to the Premises or elsewhere. 14.4 Acts of Others. Landlord will not be responsible or liable to Tenant, or to those claiming by, through or under Tenant, for any loss or damage which may be occasioned by or through the acts or omissions of third parties or persons occupying space adjoining the Premises, any part of the Premises, the Premises building, or any other part of the Riverbend Golf Complex. In addition, Landlord will not be responsible or liable to Tenant for any loss or damage resulting to Tenant, or those claiming by, through or under Tenant, or any of its property, from fire, explosion; falling plaster; the breaking, bursting, stoppage or leaking of water, gas, sewer, electrical cables, wires or steam pipes; or from water, rain or other substances leaking or coming from the roof, street, subsurface or from any other place or from dampness or from any similar risks or causes. Landlord will not be liable for any loss or damage to any person or property sustained by Tenant or any other persons, which may be caused by theft, or by any act or neglect of any tenant or occupant of the Project, or of any other third parties. Be the Ball, L.L.C.,d!b/a Scotch and Vine Riverbend Restaurant Lease P a g e 122 I 14.5 Evidence of Coverage Prior to Entry. Notwithstanding the foregoing, prior to entry upon the Premises, Tenant will provide Landlord with written evidence of the required insurance coverage in the form of a certificate of insurance with the applicable endorsements attached or, at Landlord's request, a copy of the policy. With respect to industrial labor and industry insurance, this requirement will be satisfied by a letter from the appropriate state agency confirming participation in accordance with statutory requirements. Tenant will submit all accurate and complete certifications and endorsements required under this Section 14 no later than five days prior to opening for business. All corrections and/or modifications to the certifications and endorsements requested by Landlord must be completed to Landlord's satisfaction prior to Tenant's opening for business. SECTION 15 - EMINENT DOMAIN If all or part of the Premises are taken by the power of eminent domain exercised by any governmental or quasi-governmental authority, this Lease will terminate as of the date Tenant is required to vacate the Premises and all Minimum Rent, Percentage Rent, Adjustments and other rentals and charges due hereunder will be paid to that date. The term "eminent domain'will include the taking or damaging of property by, through or under any governmental or quasi-governmental authority, and any purchase or acquisition in lieu thereof, whether or not the damaging or taking is by the government or any other person. SECTION 16 - TENANT'S DEFAULT 16.1 Default. The occurrence of any one or more of the following events will constitute a default and breach of this Lease by Tenant: (a) Vacating the Premises. The vacating or abandonment of the Premises by Tenant or the violation of the operating covenant in Section 5.3. Vacation or abandonment of the Premises will be deemed to exist if Tenant's business in the Premises remains closed to the public for more than five consecutive days. (b) Failure to Pay Rent. The failure by Tenant to make any payment of Minimum Rent, Adjustments, additional rent or any other payment required to be made by Tenant, as and when due. (c) Failure to Perform. The failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease, other than described in Section 16.1 (b) above, where Tenant's failure continues for a period of at least 30 days after the Landlord provides written notice (unless a shorter period is specifically provided for in this Lease with respect to any covenant, condition or provision); provided, however, that if the nature of Tenant's default is such that more than 30 days are reasonably required for its cure, then Tenant will not be deemed to be in default if Tenant commences the cure within 30 days and diligently prosecutes the cure to completion. (d) Bankruptcv. The making by Tenant or Guarantor, if any, of any general assignment or general arrangement for the benefit of creditors, or by the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt, or a petition or reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Tenant, the same is dismissed within 60 days of filing); or the appointment of a trustee or a receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where that seizure is not discharged within 30 days after appointment of a trustee or receiver, or the filing of a petition for the appointment of a trustee or receiver, whichever occurs first. Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 123 (e) Repeated Defaults. Tenant's third failure to perform or observe any of Tenant's obligations under the Lease during any calendar year (despite the fact Tenant may have cured the previous failures after notice from Landlord and within the notice period). (f) Default by Guarantor. A default by Guarantor, if any, in its obligations under its guaranty in favor of Landlord. 16.2 Remedies in Default. In the event of any of these defaults or breaches by Tenant, Landlord may at any time with or without notice of demand and without limiting Landlord in the exercise of a right or remedy which Landlord may have by reason of the default or breach: (a) Terminate Lease. Terminate Tenant's right to possession of the Premises by any lawful means, in which case this Lease will terminate and Tenant will immediately surrender possession of the Premises to Landlord. In this event Landlord will be entitled to recover from Tenant (1) any unpaid rent which has been earned at the time of termination plus interest at the rates contemplated by this Lease; plus (2) the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of that rental loss that Tenant proves could have been reasonably avoided plus interest at the rates contemplated by this Lease; plus (3) any other amount necessary to compensate Landlord for all the damage proximately caused by Tenant's failure to perform under this Lease; (b) Continue the Lease. Maintain Tenant's right to possession, in which case this Lease will continue in effect whether or not Tenant has abandoned the Premises. In this event Landlord will be entitled to enforce all Landlord's rights and remedies under this Lease, including the right to recover the Minimum Rent, damages from Tenant's breach or default and any other charges and Adjustments as may become due, and to specifically enforce Tenant's obligations and obtain injunctive relief from further defaults or breaches; (c) Remove Persons and Property. Landlord will also have the right with or without terminating this Lease, to re-enter the Premises and remove all persons and property from the Premises; property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of the Tenant. No re-entry or taking possession of the Premises by Landlord pursuant to this subsection (c) will be construed as an acceptance of a surrender of the Premises or an election to terminate this Lease unless Landlord gives a written notice of that intention or unless a court decrees termination; and (d) Other Remedies. Landlord may also pursue any other remedy available to Landlord under the laws or judicial decisions of the State of Washington, including but not limited to specific performance, injunctive relief or any other equitable remedy, and/or the right to assess against Tenant an amount equal to the attorneys' fees incurred by Landlord in collecting any rent or other payment due, which amount will be due in full within ten days of Tenant's receipt of the assessment by Landlord. 16.3 Remedies Cumulative-Waiver. It is understood and agreed that the Landlord's exercise of any right or remedy due to a default or breach by Tenant will not be deemed a waiver and will not alter, affect or prejudice any right or remedy that Landlord may have under this Lease or by law or in equity. Neither the acceptance of Minimum or Percentage Rent nor any other acts or omission of Landlord at any time or times after the happening of any event authorizing the cancellation or forfeiture of this Lease, will operate as a waiver of any past or Be the Ball, L.L.C.,d/ba Scotch and Vine Riverbend Restaurant Lease P a g e 124 future violation, breach or failure to keep or perform any covenant, agreement, term, or condition or to deprive Landlord of its right to cancel or to forfeit this Lease. 16.4 Acceptance of Payment. It is specifically understood and agreed that Landlord's acceptance of any sum, whether as Minimum Rent, Percentage Rent, Adjustments or otherwise, which is less than the amount claimed as due by the Landlord, will not act as, or be deemed to be, a waiver of the claimed amount or a compromise or accord and satisfaction of the amount due Landlord. 16.5 Waiver of Rights of Redemption. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in the event of Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the covenants or conditions of this Lease, or otherwise. 16.6 Application of Rents. In the event that Landlord elects to re-let, the rents received by Landlord from that re-letting may, in Landlord's sole subjective discretion, be applied as follows: first to the payment of any indebtedness other than rent due from Tenant; second to the payment of any costs of re-letting; third, to the payment of the cost of any alterations and repairs to the Premises; fourth, to the payment of rent due and unpaid; and the residual, if any, held by Landlord and applied to payment of future rent as it will become due. Should that portion of rents received from re-letting during the month which is applied to the payment of rent be less than the rent payable during that month, then Tenant will pay any deficiency immediately upon Landlord's demand. The deficiency will be calculated and paid monthly. Tenant will also pay Landlord, as soon as is certain, any of the costs and expenses incurred by Landlord in re-letting or in making any alterations and repairs not covered by the rents received from re-letting. 16.7 Bankruptcy. Landlord and Tenant (as either debtor or debtor-in-possession) agree that if a petition ("Petition") is filed by or against tenant under any chapter of Title 11 of the United States Code (the "Bankruptcy Code"), the following provisions will apply: (a) Adequate Protection. Adequate protection for Tenant's obligations accruing after filing of the Petition and before this Lease is rejected or assumed will be provided within 15 days after filing in the form of a security deposit equal to three months' Minimum Rent and Adjustments and other Lease charges, to be held by the court or an escrow agent approved by Landlord and the court. (b) Reasonable Compensation. The sum of all amounts payable by Tenant to Landlord under this Lease constitutes reasonable compensation for the occupancy of the Premises by Tenant. (c) Abandonment. Tenant or Trustee will give Landlord at least 30 days written notice of any abandonment of the Premises or any proceeding relating to administrative claims. If Tenant abandons without notice, Tenant or Trustee will stipulate to entry of an order for relief from stay to permit Landlord to re-enter and re-let the Premises. (d) Timely Performance. If Tenant failed to timely and fully perform any of its obligations under this Lease before the filing of the Petition, whether or not Landlord has given Tenant written notice of that failure and whether or not any time period for cure expired before the filing of the Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 125 Petition, Tenant will be deemed to have been in default on the date the Petition was filed for all purposes under the Bankruptcy Code. (e) Prompt Cure. For the purposes of Section 365(b)(1) of the Bankruptcy Code, prompt cure of defaults will mean cure within 30 days after assumption. (f) Adequate Assurance of Future Performance. For the purposes of Section 365(b)(1) and 365(f)(2) of the Bankruptcy Code, adequate assurance of future performance of this Lease by Tenant, Trustee or any proposed assignee will require that Tenant, Trustee or the proposed assignee deposit three months of Minimum Rent, Adjustments and other Lease charges into an escrow fund (to be held by the court or an escrow agent approved by Landlord and the court) as security for future performance. In addition, if this Lease is to be assigned, adequate assurance of future performance by the proposed assignee will require that: (1) the assignee have a tangible net worth not less than the net worth of Tenant as of the Commencement Date or that the assignee's performance be unconditionally guaranteed by a person or entity that has a tangible net worth not less than the net worth of Tenant as of the Commencement Date; (2) the assignee demonstrate that it possesses a history of success in operating a business of similar size and complexity in a similar market as Tenant's business; and (3) the assignee assumes in writing all of Tenant's obligations relating to the Premises or this Lease. (g) Assignment/Assumption. If Tenant or Trustee intends to assume and/or assign this Lease, Tenant or Trustee will provide Landlord with 30 days written notice of the proposed action, separate from and in addition to any notice provided to all creditors. Notice of a proposed assumption will state the assurance of prompt cure, compensation for loss and assurance of future performance to be provided to Landlord. Notice of a proposed assignment will state: (1) the name, address, and federal tax identification and registration numbers of the proposed assignee, (2) all of the terms and conditions of the proposed assignment, and (3) the assignee's proposed adequate assurance of future performance to be provided to Landlord. (h) No Obligation. If Tenant is in default under this Lease when the Petition is filed, Landlord will not be required to provide Tenant or Trustee with services or supplies under this Lease or otherwise before Tenant assumes this Lease, unless Tenant compensates Landlord for those services and supplies in advance. SECTION 17 - DEFAULT BY LANDLORD 17.1 Default by Landlord. Landlord will not be in default unless Landlord fails to perform obligations required of Landlord within a reasonable time, but in no event later than 30 days after written notice by Tenant to Landlord. The notice will specify how Landlord has failed to perform its obligation; provided, however, that if the nature of Landlord's obligation requires more than 30 days for performance, then Landlord will not be in default if Landlord commences performance within 30 days and diligently prosecutes remedying the default obligation to completion. Tenant further agrees not to invoke any of its remedies under this Lease until 30 days (or longer as provided in this section) have elapsed. In no event will Tenant have the right to terminate this Lease as a result of Landlord's default, and Tenant's remedies will be limited to damages and/or an injunction. 17.2 Tenant's Riqht to Damages. Tenant's right to seek damages from Landlord as a result of a default by Landlord under this Lease will be conditioned on Tenant taking all actions reasonably required, under the circumstances, to minimize any loss or damage to Tenant's property or business, or to any of Tenant's officers, employees, agents, invitees, or other third parties that may be caused by any Landlord default. Be the Ball,L.L.G.,dib/a Scotch and Vine Riverbend Restaurant Lease P a g e 126 i i SECTION 18 - DESTRUCTION 18.1 Damage or Destruction. If during the Term of this Lease, any portion of the Premises, access to the Premises or any part of the Riverbend Golf Complex that is economically and physically essential to the use of the Premises is damaged or destroyed and that damage or destruction can, in Landlord's reasonable estimation, be repaired within 240 days following the damage or destruction, this Lease will remain in full force and effect, and Landlord promptly will begin repairs and restore the damage or destruction to substantially the same condition as existed prior to the damage event and then diligently complete the repair and restoration in compliance with all then existing laws. Landlord will give Tenant written notice of this determination within 60 days after the date of the damage event. If the damage or destruction cannot, in Landlord's reasonable estimation, be repaired within 240 days from the date the damage occurs, then either party may, in its sale discretion, terminate this Lease by delivery of written notice to the other party at least 30 days prior to the termination date. In addition, if (i) more than forty percent (40%) of the Riverbend Golf Complex is damaged or destroyed (regardless of its impact on the Premises); or (iii) the damage or destruction is not covered in full by Landlord's insurance required by this Lease, or Tenant's insurance by this Lease (or combination of both policies), or (iv) the damage or destruction occurs within the last 12 months of the Term of this Lease or any extensions, then Landlord may, in its sole discretion, terminate this Lease by delivery of notice to Tenant within 60 days of the date Landlord learns of the damage. (a) Rent Abatement. In the event of repair, reconstruction and restoration by Landlord as described in this Section 18.1, the Minimum Rent payable under this Lease will be abated proportionately with the degree to which Tenant's use of the Premises is economically or physically impaired during the repair, reconstruction, or restoration period. Tenant will not be entitled to any compensation or damages for loss of the use of the whole or any part of the Premises, damage to Tenant's personal property, and/or any inconvenience or annoyance occasioned by the repair, reconstruction, or restoration. (b) Tenant's Obligation to Repair. If Landlord is obligated to or elects to repair or restore under this Section 18.1, Landlord will be obligated to make repair or restoration only to those portions of the Riverbend Golf Complex and the Premises that were originally provided at Landlord's expense, and the Tenant will be responsible for the repair and restoration of items not provided at Landlord's expense. Tenant agrees to coordinate the restoration and repair of those items it is required to restore or repair with Landlord's repair and restoration work. Further, Tenant's work will be performed in accordance with the terms, standards and conditions contained in Section 10 above. SECTION 19 -ACCESS BY LANDLORD 19.1 Right of Entry. Landlord or Landlord's employees, agents and/or contractors will have the right to enter the Premises at any time to examine the Premises, to show them to prospective purchasers or tenants, and, after giving reasonable notice (except in emergencies) to make repairs, alterations, improvements or additions as Landlord may deem necessary or desirable. If Tenant is not personally present to permit entry and an entry is necessary, Landlord or its agents may forcibly enter, without rendering Landlord liable for that entry. 19.2 Excavation. If an excavation is made upon property adjacent to the Premises, Tenant will afford to the person authorized to cause the excavation, license to enter the Premises for the purpose of doing necessary Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 127 work to preserve the wall of the Premises Building from injury or damage or to support the foundations, without any claim for damages or indemnification against Landlord for diminution or abatement of Rent. SECTION 20 -SURRENDER OR ABANDONMENT OF PREMISES 20.1 Surrender of Possession. Tenant will promptly yield and deliver to Landlord possession of the Premises at the expiration or prior termination of this Lease. Landlord may place and maintain a "For Lease' sign in conspicuous places on the Premises for 60 days prior to the expiration or prior termination of this Lease. 20.2 Holdinq Over. Any holding over by Tenant after the expiration or termination of the Lease Term, with or without Landlord's consent, will be construed to be a tenancy from month-to-month on all of the terms and conditions set forth in this Lease, to the extent not inconsistent with a month-to-month tenancy, provided, that the Minimum Rent for this hold-over period will be an amount equal to one hundred twenty five percent (125%) of the Minimum Rent due for the last month of the Lease Term. 20.3 Voluntary Surrender. Tenant's voluntary or other surrender of this Lease will not work a merger, and Landlord's removal of Tenant's personal property will not be construed or deemed to be a termination of this Lease or an actual or constructive eviction of Tenant, nor will it relieve Tenant of its obligations under this Lease. Landlord will have rights of entry and removal in order to attempt to mitigate Landlord's damages in the event of Tenant's abandonment of the Premises. SECTION 21 - QUIET ENJOYMENT 21.1 Landlord Covenant. Tenant, upon fully complying with and promptly performing all of the terms, covenants and conditions of this Lease, and upon the prompt and timely payment of all sums due, will have and quietly enjoy the Premises for the Lease Term. SECTION 22 -AUTHORITY OF PARTIES 22.1 Authority. Each individual executing this Lease on behalf of Tenant personally represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of Tenant, and that this Lease is binding upon Tenant in accordance with its terms. Tenant will, within 30 days after execution of this Lease, deliver to Landlord a certified copy of a resolution of the board of directors, members, or partners (as applicable) of Tenant authorizing or ratifying the execution of this Lease. SECTION 23 - SIGNS 23.1 General. Tenant will not place or suffer to be placed on the exterior walls of the Premises or upon the roof or any exterior door or wall or on the exterior or interior of any window any sign, awning, canopy, marquee, advertising matter, decoration, letter or other thing of any kind (exclusive of the signs, if any, Be the Ball, L.L.C.,db/a Scotch and Vine Riverbend Restaurant Lease Page 128 which may be provided for in the original construction or improvement plans and specifications approved by the Landlord) without the prior written consent of Landlord, which consent may be withheld in Landlord's sole subjective discretion. Landlord reserves the exclusive right to the use for any purpose the roof and exterior of the walls of the Premises or the Premises building. In the event Tenant installs any sign without the Landlord's prior written approval, Landlord will have the right and authority without liability to Tenant to enter upon the Premises, remove and store the sign and repair all damage caused by the removal of the sign. All costs and expenses incurred by Landlord will be immediately paid by Tenant as additional rent. Tenant will be responsible for all maintenance and repair costs for its signs and awnings (if any). The Landlord reserves the right to remove the Tenant's signs or awnings during any period that Landlord repairs, restores, constructs or renovates the Premises or the Premises building. 23.2 Tenant's Interior Siqns. Except as otherwise herein provided, Tenant will have the right, at its sole cost and expense, to erect and maintain within the interior of the Premises all signs and advertising matter customary and appropriate in the conduct of Tenant's business; so long as the signage complies with the provisions set forth in Landlord's sign criteria; provided, however, that Tenant will upon demand of the Landlord immediately remove any sign, advertisement, decoration, lettering or notice which Tenant has placed or permitted to be placed in, upon or about the Premises and which Landlord deems objectionable or offensive, and if Tenant fails or refuses so to do, the Landlord may enter upon the Premises and remove the same at Tenant's cost and expense. In this connection, Tenant acknowledges that the Premises are a part of an integrated Project, and agrees that control of all signs by Landlord is essential to the maintenance of uniformity, propriety and the aesthetic values in or pertaining to the Project. 23.3 Sign Requirements. Notwithstanding anything to the contrary provided for in this Lease, Tenant will be obligated, at its sole cost and expense and on or before the date Tenant opens its doors for business, to design, fabricate and install a primary storefront sign on the Premises ("Storefront Sign"); provided further that the Storefront Sign will remain subject to Landlord's approval prior to installation with respect to and without limitation, design, method of attachment, location or other conditions. SECTION 24— DISPLAYS, AUCTIONS AND SALES 24.1 General. Tenant agrees not to install any exterior lighting, amplifiers or similar devices or use in or about the Premises, such as flashing lights, searchlights, loudspeakers (although Tenant may play music at a reasonable level in the outdoor seating areas), phonographs or radio broadcasts, nor to make, or allow to be made, any excessive noise in or around the Premises. No advertisement or sound of advertising will be heard outside the Premises, unless Tenant first receives Landlord's prior written approval. If music or any other audio transmission emanating from within the Premises is objectionable or offensive (in the reasonable judgment of Landlord), Landlord may require Tenant to stop or decrease the volume of those sounds to a reasonable level, as determined by Landlord, and Tenant will immediately comply. The Tenant may not display, sell or store merchandise outside the defined exterior walls and permanent doorways of the Premises. SECTION 25 - MISCELLANEOUS 25.1 Successors or Assigns. All the terms, conditions, covenants and agreements of this Lease will extend to and be binding upon Landlord, Tenant and their respective heirs, administrators, executors, successors, subtenants, Be the Ball, L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 129 subleases, concessionaires, assigns and marital communities, if any, and upon any person or person coming into ownership or possession of any interest in the Premises by operation of law or otherwise. 25.2 Tenant Defined. The word "Tenant"will mean each and every person, partnership or corporation who is mentioned as a Tenant or who executes this Lease as Tenant. 25.3 Broker's Commission. Tenant represents and warrants that it has incurred no liabilities or claims for brokerage commissions or finder's fees in connection with the execution of this Lease. 25.4 Partial Invalidity. If any term, covenant, or condition of this Lease or its application to any person or circumstance is, to any extent, determined to be invalid or unenforceable, the remainder of this Lease, or the application of that term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, will not be affected and each term, covenant or condition of this Lease will be valid and be enforced to the fullest extent permitted by law. 25.5 Recording. Tenant will not record or file this Lease, or any assignment or security document pertaining to this Lease or all or any part of Tenant's interest in this Lease without the prior written consent of Landlord, which consent may be withheld or granted in Landlord's sole discretion. 25.6 Notices. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other party or any other person will be in writing and either served personally or sent by registered or certified United States mail, or by overnight courier (collectively, "Notice"). Any Notice will be addressed to the other party at the address appearing in Section 1.1. Notice will be deemed communicated within three business days from the time of deposit in the United States mail if mailed as provided in this section, or upon delivery or refusal of delivery if delivered personally or by overnight courier. Although either party will have the right to change its address for notice purposes from time to time, any notice delivered pursuant to this Section to the address set forth in Section 1.1. of this Lease or to other addresses as may be specified in writing in accordance with this Section will be effective even if actual delivery cannot be made as a result of a change in the address of the recipient if the party delivering the notice has not received actual written notice in accordance with the provisions of this Section of the current address to which notices are sent. 25.7 Plats and Riders Marginal Headings: Captions. Clauses, plats, riders, exhibits and addendums, if any, affixed to this Lease are incorporated herein by reference. To the extent any Exhibits conflict with the terms of this Lease, the terms of this Lease will control. Except to the extent any Addendum specifically modifies terms of this Lease, the terms of this Lease otherwise will control. Any section or paragraph titles or captions are for convenience only and will not be deemed to define, limit or otherwise modify the scope and intent of this Lease or any provision thereof. Be the Ball,L.L.C.,dlbla Scotch and Vine Rlverhend Restaurant Lease P a g e 130 25.8 Waiver. The waiver by Landlord of any term, covenant or condition will not be deemed to be a waiver of that term, covenant or condition or any subsequent breach of that or any other term, covenant or condition. Landlord's subsequent acceptance of Minimum or Percentage Rate or any other Adjustment or sum will not be deemed to be a waiver of any preceding default by Tenant, other than the failure of the Tenant to pay the particular sum so accepted, regardless of Landlord's knowledge of the preceding default at the time of the acceptance of that sum. 25.9 Joint Obligations. If there be more than one Tenant the obligations hereunder imposed will be joint and several. 25.10 Time. Time is of the essence of this Lease. 25.11 Inability to Perform. In the event that either party will be delayed or hindered in or prevented from the performance of any covenant, agreement, work, service, or other act required under this Lease (other than monetary obligations), and that delay or hindrance is due to causes entirely beyond its control, such as riots, insurrections, martial law, lawsuits, court orders or injunctions, civil commotion, war, fire, flood, earthquake, or other casualty or acts of God, the performance of the covenant, agreement, work, service, or other act will be excused for the period of delay and the time period for performance will be extended by the same number of days in the period of delay. 25.12 Choice of Law;Venue. This Lease will be governed by the laws of the State of Washington. The venue for any action to enforce the terms of this Lease or collect any amounts owing by Tenant to Landlord will be in the Superior Court for King County, Washington. 25.13 Legal Expenses. If either party is required to bring or maintain any action (including assertion of any counterclaim or cross-claim, or claim in a proceeding in bankruptcy, receivership or any other proceeding instituted by a party hereto or by others), or otherwise refers this Lease to an attorney for the enforcement of any of the covenants, terms or conditions of this Lease, each party will be responsible to pay all its costs and attorneys'fees incurred as a result. 25.14 Competition. During the Lease Term, and any extensions, and for a period of one year from the date of Lease termination (as may be shortened or extended),Tenant will not directly or indirectly engage in any similar or competing business within a radius of three miles from the property line of the Riverbend Golf Complex closest to the location of the proposed competing business location, Unless the Landlord first provides its prior written approval; provided, that if Tenant does directly or indirectly engage in any similar or competing business within this radius during the Lease Term (as may be shortened or extended), then the Gross Sales by Tenant (as defined above) from the competing location will be added to Gross Sales from the Premises for the computation of Percentage Rent due under this Lease. Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 131 25.15 Acceptance of Keys. The acceptance of keys to the Premises by the Landlord, its agents, employees, contractors or any other person on Landlord's behalf will not be deemed or constitute a termination of this Lease unless termination is evidenced in writing signed by the Landlord. 25.16 Landlord's Consent. Unless otherwise specifically stated, whenever Landlord's consent is required, Landlord's consent may be withheld in Landlord's sole subjective discretion. 25.17 No Light Air or View Easement. Any diminution or shutting off of light, air or view by any structure that may be erected on or adjacent to the Premises will not affect this Lease or Tenant's obligations under the Lease, and will not impose any liability on Landlord. 25.18 Name. Tenant will not, without the prior written consent of Landlord, use the name of the building or project for any purpose other than as the address of the Premises, and in any event, Tenant will not acquire any rights in or to those names. 25.19 Submission of Lease. This Lease will not bind Landlord in any way until (a) Tenant has executed and delivered at least one original copy of the Lease to Landlord, and (b) Landlord has executed and delivered at least one fully-signed copy to Tenant. 25.20 Prior Agreements. It is understood that there are no oral or written agreements or representations between Landlord and Tenant affecting this Lease and that this Lease supersedes and cancels any and all previous negotiations, arrangements, representations, brochures, displays, projections, estimates, agreements and understandings, if any, made by or between Landlord and Tenant, nor will they be used to interpret, construe, supplement or contradict this Lease. This Lease, and all mutually-executed, written amendments, is and will be considered to be the only agreement between Landlord and Tenant and their representatives and agents. All negotiations and oral agreements acceptable to Landlord and Tenant have been merged into and are included in this Lease. There are no other representations, covenants or warranties between Landlord and Tenant and all reliance with respect to representations is solely upon the express representations, covenants and warranties contained in this Lease. Landlord and Tenant agree that the interlineation, obliteration or deletion of language from this Lease prior to its mutual execution by Landlord and Tenant will not be construed to have any particular meaning or to raise any presumption, canon of construction, or implication, including, without limitation, any implication that Landlord or Tenant intended to state the converse, obverse or opposite of the deleted language. This Lease will be read as if the obliterated or deleted language had never existed and the interlineated language had always existed. 25.21 Construction. Each party acknowledges and agrees that it has participated in the drafting and the negotiation of this Lease and has been afforded a full and fair opportunity to seek advice from legal counsel. Tenant Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 132 acknowledges that Landlord's attorney represents Landlord and not Tenant. Although the printed provisions of this Lease were drawn by Landlord, Landlord and Tenant agree that this circumstance will not create any presumption, canon of construction, or implication favoring the position of either Landlord or Tenant. Accordingly, in the event of a dispute with respect to the interpretation or enforcement of this Lease, no provision will be construed so as to favor or disfavor either party. 25.22 Financial Statements. Tenant will, prior to Tenant's execution of this Lease and within 10 days after Landlord's request at any time of Tenant's default hereunder during the Term, deliver to Landlord complete, accurate and up- to-date financial statements with respect to Tenant and any Guarantor(s) or other parties obligated upon this Lease, which financial statements must be (a) prepared according to generally accepted accounting principles consistently applied, and (b) certified by an independent certified public accountant or by Tenant's (or Guarantor's, as the case may be) chief financial officer, or Guarantors# Guarantor is an individual, that the same are a true, complete and correct statement of Tenant's (o'r Guarantor's)financial condition as of the date of those financial statements. A?,#w 25.23 Effective Date. This Lease will take effect on the last date provided below. LANDLORD: THE CITY OF KENT, a Washingto-n Tunicipal corporation A BY: uzette ooke %Its: a or t-Date: TENANT: BE THE BALL, L.L.C., d/b/a The SCOTCH AND VINE a Washington Limited Liability Company By:"David Pritchard Its: E - Date: h75`flf TENANT: BE THE BALL, L.L.C., d/bla The SCOTCH AND VINE a Washington Limited Liability Cot9pany f J e i , yYr B ',Jill Pritchard Pfite: El vI a t_ iZ : ?' t Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 33 STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) I certify that I know or have satisfactory evidence that Suzette Cooke is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated that she was authorized to execute the instrument and acknowledged it as the Mayor of the City of Kent to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. -Notary Seat Must Appear Within This Box- IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first abkov�h%UI I II �""c al®�®ZZ ve - . 'W V su - • " (Signature) tx'' �r � % NOTARY PUBLIG, in and for the Sate of Washington, � � ., 'v' t21t r..,. i A ?-I Ssv a 0 = residing at � /V</ 9Trr�rr4��tt+a`°°`� ®# r My appointment 6xpires 7- OF W Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 134 STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) I certify that I know or have satisfactory evidence that David Pritchard, 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 A�VI�.� of Be the Ball d/b/a The Scotch and Vine to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. -Notary Seal Must Appear Within This Box- IN W�TWS§'WHEI5EOF, I have hereunto set my hand and official seal the day and year first above written (Signature) NOTARY PUBL�/�(�'; I�n� $r�nd for the State of Washington, OP vx ��-•s,��'. residing at F..oy, �r/6a;g A �4� My appointment expires I Be the Ball, L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 135 I STATE OF WASHINGTON ) )ss. COUNTY OF KING ) I certify that I know or have satisfactory evidence that Jill Pritchard is the person who appeared before me, and said person acknowledged that she signed this i t t, on oath stated that she was authorized to execute the instrument and acknowledged it as the 7 of Be the Ball d/b/a The Scotch and Vine to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. -Notary Sea/Must Appear Within This Box- IN WIT IE$�§ 4REOF, I have hereunto set my hand and official seal the day and year first above writtei� ei A 4(, ,7 /d p d�� W �tt ' � µpa (Signature) i C! $ r NOTARY PUBIA in aid for the State of Washington, residing at v My appointment expires foie '0 6 - E Be the Ball,L.L.C.,d/b/a Scotch and Vine Riverbend Restaurant Lease P a g e 136 EXHIBIT A City of Kent Riverbend Golf Complex Restaurant Lease Premises Defined The Tenant's (The Scotch and Vine) Premises include: • The sidewalk adjacent to the restaurant entrance. • The restaurant entrance. • The main seating area with the restaurant space • The meeting room space within the restaurant space. • The take-out window area within the restaurant space. • The main bar area within the restaurant space. • The front kitchen area within the restaurant space. • The back kitchen and dish washing area within the restaurant space. • The restrooms within the restaurant space. • The hallway located with the restaurant space. • The walk-in refrigerator and walk-in freezer located within the restaurant space. • The walk-in beer cooler located in the restaurant space. • The dry storage room located within the restaurant space. • The manager's office located within the restaurant space. • The back office located within the restaurant space. • The patio area (Concrete) located outside the main seating area of the restaurant space. • The concrete area located outside the main seating area adjacent to the take-out window. • The area immediately outside the back delivery door of the restaurant space. • The storage container and fenced area located outside the back delivery door. I EXHIBIT A-1 d g'Wxg g� gx A SM1d �4Y I A.. 6 3 y P.1 y p Igp 10) qp gq f 0 � � -�---� A g ns f m a 3 6A� U 1 I a 1€ �� S56 o Ens j , ¢pp33 FF Sn( g 11 .014 0h I� RF Rs W os$38 ids $�.° - ...r w %dR —7d ") m I � Au m s y i Exhibit B Landlord improvements Riverbend Golf Complex Scotch and Vine Lease Agreement • Entrance and Exterior: Moved the main entrance into the restaurant. Installed new front doors. Replaced and painted exterior lap siding with new board and batten. Poured new concrete in front of new restaurant to ensure code compliance. • HVAC: Replaced entire HVAC system • Lighting: Ensured all existing lighting was operational and identified switch legs • Ceilings: Installed new ceiling grid and tiles as part of the new entrance, kitchen and server area. Painted the new HVAC units and duct work to match ceiling color. • Kitchen: Modified existing 2-compartment sink to make a 3-compartment sink. Grease trap was serviced. Electrical outlets were checked for proper operation and identified in panel. Fire suppression serviced and certified. Replaced the FRP (fiberglass reinforced plastic) in the kitchen and server area. Replaced corner guards within the kitchen pass through areas. Backflow assemblies were inspected and certified. Replaced the compressor and condenser for the walk-in cooler. Other coolers were serviced. Removed the pizza oven and capped the chimney. • Walls: Removed all loose wiring from overhead spaces and walls. Re-routed them into conduits. Patched all interior walls and made paint ready. Repaired dry rot where needed. • Floors: Saw cut and patched concrete for water and drain access at new sink locations. • Bathrooms: Reconfigured and constructed the men's and women's interior restrooms to ensure ADA code compliance including new vinyl flooring, partitions and fixtures. Jett routed the drain system to ensure it is fully operational. EXHIBIT C ENANT IMPROVEMENTS 46 aE-- c O N ` 3 N � V ............. } _ ,A? ail s \�ry •Oe ja e � � � Sl 00 000 oo fin, ^4 T 1 i E �- Eta o n p u £ � Y m EXHIBIT C TENANT IMPR®VEME I � ----air-w - F z ® _ � t ` o tan a C O h q �. 0 as � A.a � V O O 00 p 0 �\ s o W a N 3 VJ ld-- LT.e :U 'zY J Eho a V 0 Q y �"A mWU U a Ua' r N a , EXHIBIT C . ENANTIMPROVEMENTS Z .w o +� 0+ CL o 0 o o OJM h N P] W 4 u 0 U 0 EXHIBIT C TENANT IMPR®VEMENI , Z o J L 45 >1 a v � i � a i o La O ,n 1 q( U o i U m v `o`w O 4 Via' \ U ._ .-....._.___._.___ 4 EXHIBIT C , ENANTIMPROVEMENTS g � m to m w LL LL LL ca 03 LU N i�uH tw L 4 S t m 11 � ry il 4 L � m ,� k m s EXHIBI c TENANTIMPROVEMENT� yyt - f § . . � . y� y� » «: y\ � § / » ,� .« » � • � a . . . . . : >: . . y 4 / # ^ \ k ƒ } \ > . q , � � . EXHIBIT C , ENANTIMPROVEMENTS Taylor Made Construction 24223 9" Five 5 Proposal 160301 Des Inoines, tdfi 98198 3/13/16 Submitted to: Job Address: Dave and Jill 2019 W Meeker St Scotch and Vine Kent, WA 98032 Scope of work: All work to be done according to Construction plans dated 3/1/16 and walk through. i. Demo- concrete for indirect drains, partial booth, partial old wall, server� casework and disposai. 2; Frame, drywall tape and finish approximately 40' of new wail 3, Install 1 3'0" door and 6 4'0" X 8'0" biscuited doors to create movable banquet wall with header, 4. Plumbing- Install 1 pr valve with water filter and connections for espresso machine, 1 hand sink and i cold water valve at server station. 1- 5 gallon hot water treater and hot water connection to salvaged hand sink. Indirect drains from sink, server station ice bin and espresso machine. Install Pex water lines to hand sinks and glass washer. Provide Indirect drains from hand sinks and glass washer. Install 1 5 gal water heater for hand sinks. Provide water valve and P-trap for bear taps. 5. Electrical- Install 8o led track lights and track for restaurant area. Install 1 220 amp 3 phase circuit for glass washer and receptacles for POS system, Install 2 GP outlets backside of bar and 5 outlets front for cell chargers. 1 20 amp 110 circuit for water heater. Install 2 outlets for POS system at walk up area and server area. Install 220 30 amp circuit for espresso machine. Install 1 20 amp circuit for coolers and 1 20 amp circuit for hot dog machine and GP use. 6. Cabinets- Install 9'of base cabinets and p-tam top In banquet area. Install 17' of p-lam countertop and 9' of base cabinets In walk up area. Install W of cabinets for server area next to walk up area with P-am top. Install 5' of case work to replace existing server area with p-lam top. Existing ice bins to be reutilized In server areas. Install 1 3' base cabinet behind bar with p-lam top for wine tap. Install p-lam top over cooler for back bar area. 7. Re-veneer front of bar with new oak panels. Laminate backside of bar with owner supplied FRP. Sand and refinish bar to. (Color to be determined) Build wood and mirrored back bar with glass shelves (budget number) 8. Install 1 V:" metal railing 36" high to define bar area. Install foot rail at base of bar. Color to be back. 9. Grind floor smooth, stain, seal and wax (Color to be determined 10.Seal and paint interior walls using colors selected. EXHIBIT O INSURANCE REQUIREMENTS FOR LEASE Insurance The Lessee shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the Lessee's operation and use of the leased Premises. A. Minimum Scope of Insurance Lessee shall obtain insurance of the types described below: 1. Commercial General Liability insurance shall be written on Insurance Services Office (ISO) occurrence form CG 00 01 and shall cover premises and contractual liability. The City shall be named as an insured on Lessee's Commercial General Liability insurance policy using ISO Additional Insured-Managers or Lessors of Premises Form CG 20 11 or a substitute endorsement providing equivalent coverage. 2. Liquor Legal Liability insurance with the same limits as the Commercial General Liability coverage. 3. Property insurance shall be carried by the Lessee to cover any and all property on the Leased premises. B. Minimum Amounts of Insurance Lessee shall maintain the following insurance limits: 1. Commercial General Liability insurance shall be written with limits no less than $2,000,000 each occurrence, $3,000,000 general aggregate. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Commercial General Liability insurance: 1. The Lessee's insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Lessee's insurance and shall not contribute with it. 2. The Lessee's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. EXHIBIT D (Continued) D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than ANII. E. Verification of Coverage Lessee shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Lessee. F. Waiver of Subrogation Lessee and Landlord hereby release and discharge each other from all claims, losses and liabilities arising from or caused by any hazard covered by property insurance on or in connection with the premises or said building. This release shall apply only to the extent that such claim, loss or liability is covered by insurance. G. Landlord's Property Insurance Landlord shall purchase and maintain during the term of the lease all-risk property insurance covering the Building for their full replacement value without any coinsurance provisions. I i i ® DATE(MMIOD)YYYY) ACCIR® CERTIFICATE OF PROPERTY INSURANCE li.—�- 6/7/2016 THIS CERTIFICATE 15 ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. PRODUCER CONTACT NAME: Elana Bryan PHONE Great Northwest lusumucc Bmkcrs,FLU yNGNoE#I' t20(i)550-1806 (AIC,NP): 206-577-2981 22506 Marine View DI'S 0201 DDSEss: clana(�J,gnwib.com PO RDx 13266 CUSTOMER ID: Dus Moines WA 98199 INSURERS)AFFORDING COVERAGE NAM# INSUREU INSURER A; UNITED SPECIALTY INSURANCE 12537 RL ICids LLC end Rc The Ball LLC INSURER B 22341 Min wic View DI S INSURER C: INSURER 0'. Dt;6M rocs WA 98198 INSURERE: INSURER F' COVERAGES CERTIFICATE NUMBER: I REVISION NUMBER: LOCATION OF PREMISES I DESCRIPTION OF PROPERTY (Attach ACC RD 101,Add ill onal Remarks Schedule,if more space is required) Scotch&Vine nt Rinerbeud Golf Cmuse 2019 W Meeker SE Kent,WA 98032 THIS IS TO CERTIFY TI IAT TI IF POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICAI L MAYBE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY I HE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY RAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION COVERED PROPERTY LIMITS LTR DATE(MM/ODIYYYY) DATE(MMIDDNYYY) X PROPERTY — BUILDING $ CAUSES OF LOSS DEDUCTIBLES X PERSONAL PROPERTY $ [50,000 BASIC X BUSINFSSINCOME $ 500,000 BROAD CTPTFFNTSXI EXTRA EXPENSE $ TNCL X SPECIAL 1,000 RENTALVALUE $ EARTHQUAKE BLANKET BUILDING $ A — USA4131218 06,,01/2016 06/01/2017 WIND BLANKET —(BLANKET PERK PROP $ FLOOD BLANKET PLUG 8 PP $ .. T1R 1,000 X TIB $ 130,000 — $ INLAND MARINE TYPE OF POLICY g CAUSES OF LOSS $ NAMED PERILS POLICY NUMBER $ $ CRIME $ TYPE OF POLICY $ $ I BOILER 8 MACHINERY I EQUIPMENT BREAKDOWN $ g $ $ SPECIAL CONDITIONS I OTHER COVERAGES (ACORD 101,Additional Remarks Schedule,may be attached ifmare space is required) CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE The City of Kenl THE EXPIRATION DATE THEREOF,NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 400 W Gowe St AUTHORIZED REPRESENTATIVE Kent,WA 98032 L ©1995-2015 ACORD CORPORATION. All rights reserved. ACORD 24(2016/03) The ACORD name and logo are registered marks of ACORD A ��® DATE(MMIDDIYYYY) /•l(vQ_j/ CERTIFICATE OF LIABILITY INSURANCE 6/7/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Liana Bryan Great Northwest Insurance Brokers,LLC E#: (206)5504806 (Aw,No); 206-577-2981 22506 Manne View or S 4201 ADDRESS: etana al gneib,Join PO BOX 13266 INSURER(S)AFFORDING COVERAGE BAD N Des Moines WA 98198 INSURERA: United Specialty Insurance Co 12537 INSURED INSURERS: Sho,toue Specialty ltaur'anoe 44776 Be the Ball LLC INSURER C: 22341 Marine View Di S INSURERD: INSURER E Des Moines WA 98198 INSURER F: COVERAGES CERTIFICATE NUMBER: 1 REVISION NUMBER: 1 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR TYPE OF INSURANCE IN n WVD POLICY NUMBER (MMIDD/YYYY) (MM/DDIYYYY) LIMITS X cOMMEHCIALGENERALLIABILITY EACH OCCURRENCE $ tA0a,000 N CI AIMSPNAOE ❑X OCCUR PREMISES(Ea noaurrence) $ 300,000 MED EXP(Any one person) $ 5,000 A Y Y USA4131218 06/01/2016 06/01/2017 PERSONAE_n ADV INJURY $ 1,000,000 GFWL AGGHEGAT E I.IMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 RO- .X POLICY ❑JECT ❑LUC PRODUCTS-COMP/OP AGO $ 2,000,000 OTHER: Liquor Legal Liability $ 1,000,000 _71nMFIN=NGUz LIMIT AUTOMOBILE LIABILITY (Eaecciden0 $ 1,000,000 ANY AU to BOOM.Y INJURY(For person) $ A OWNED SCHEDULED USA4131218 06/01/2016 06/01/2017 BODILY INJURY(Paracddard) $ AUTOS ONLY AUTOS _ HIRED NON-OWNED $ X AUTOS ONI-Y X AUTOS ONLY (Per accident) JE�.GESS BRELLA LIAR X OCCUR EACH OCCURRENCE $ 1,000,000 B LIAR cLAIMSMgDE Y Y SXS0553182 O6/O6/20t6 O6/06/2017 AGGREGATE $ I,OOQ000 D X RETF_N'IION$ 10,000 $ ORKERS COMPENSATION AND EMPLOYERS'LIAMUTY Y/N STATUTE ER ANY PROPRIETORIPARTNER/EXECUTIVE❑ N/A E.L.EACH ACCIDENT S OFFICER/MEMBER EXCLUDED? (Mandatory In NH) E.L.DISEASE-EA EMPLOYEE S Ilya describe under DESCRIPTION OF OPERATIONS bolew E.L.DISEASE-POLICY LIMIT $ Hach Occurrence 1,000,000 A Washington Stop Gap ITSA4131218 06/01/2016 O6/01/2017 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached It more spaeo a inquired) The City of Kent is named as Additional Insured with Waiver of Subrogation as respects restaurant operations at Riverbend Golf Complex. City of Kent is added via ISO Endorsement CG 20 11-Additional Insured-Managers or Lessors of Premises. Coverage hereunder is primary and noncontributory. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE The City of Kent THE EXPIRATION DATE THEREOF,NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 400 W Gawe St AUTHORIZED REPRESENTATIVE Kcal,WA 98032 ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25(2016103) The ACORD name and logo are registered marks of ACORD ANCHOR BAY PROGRAM THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSUREDS - LIMITED BLANKET COVERAGE This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM — CG 0001 A. Section II — Who Is An Insured is amended to include as additional insureds the following person(s) or organization(s), and any other person or organization to whom you are obligated by virtue of a written contract or agreement to provide insurance such as is afforded by this policy, but only with respect to liability arising out of your activities or operations. However: 1. Such person(s) or organization(s) is/are an additional insured only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by your acts or omissions, or the acts or omissions of those acting on your behalf, in the performance of your ongoing operations for the additional insured. 2. The insurance afforded to such additional insured: a. Only applies to the extent permitted by law; b. Does not apply to"bodily injury' or"property damage" arising out of the sole negligence of the person or organization who is added as additional insured, and c. If coverage provided to the additional insured is required by a contract or agreement, will not be broader than that which you are required by the contract or agreement to provide for such additional insured. A person's or organization's status as an additional insured under this endorsement ends when your operations for that additional insured are completed. B. Subject to A. above, the following are added to Section II—Who Is An Insured as additional insureds, Special provisions and limitations apply. 4. Any person or organization that is the lessor of equipment leased to you, but only with respect to their liability arising out of the maintenance, operation or use by you of such equipment. However, this insurance does not apply to any"occurrence"which takes place after the equipment lease expires. 5. Any person or organization that is the manager or lessor of premises leased to you, but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and subject to the following additional exclusions: This insurance does not apply to: a. Any"occurrence"which takes place after you cease to be a tenant in that premises. b. Structural alterations, new construction or demolition operations performed by or on behalf of the person or organization. 6. Any person or organization that grants permits to you when you and such person(s) or organization(s) have agreed in writing in a contract or agreement that such person(s) or organization(s) be named as an additional insured on your policy. Such person(s) or organization(s) is an insured only with respect to their liability as grantor of permits to you. The status of the person(s) or organization(s) as an additional insured under this endorsement ends when: a. The permit granted to you by such person(s) or organization(s) expires; or 6766 GL 1013 Includes copyrighted material of Insurance Services Office, Inc.,with its permission. Page 1 of 2 ANCHOR BAY PROGRAM III Your permit is terminated or revoked by such person(s) or organizations) prior to expiration of the license as stipulated by the contract or agreement. 7. Any person or organization that is a grantor of a franchise or charter to you when you and such person(s) or organization(s) have agreed in writing in a contract or agreement that such person(s) or organization(s) be named as an additional insured on your policy. Such person(s) or organization(s) is an insured only with respect to their liability as grantor of a franchise to you. A person(s)or organization(s) status as an additional insured under this endorsement ends when: a. The franchise rights granted to you by such person(s) or organization(s) expires or ends, or b. Your franchise agreement is terminated, suspended, or revoked by such person(s) or organization(s). S. Any person or organization that is the mortgagee, assignee or receiver, but only with respect to their liability as a mortgagee, assignee or receiver arising out of the ownership, maintenance or use of that part of the premises owned by you. This insurance does not apply to structural alterations, new construction or demolition operations performed by or on behalf of the person or organization. 10. Any national office of a fraternal organization with which you affiliated when such national office has agreed in writing in a contract or agreement that such national office be named as additional insured on your policy. The fraternal organization(s) national office status as an additional insured under this endorsement ends when: a. Your affiliation with such fraternal organization(s) expires or ends, or b. Your status as a fraternal organization is terminated, suspended or revoked by the national office(s) of such fraternal organization(s). C. With respect to the insurance afforded to the additional insureds added by this endorsement, the following is added to Section III—Limits Of Insurance: The most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement you have entered into with the additional insured, or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. All other policy terms, conditions, definitions and exclusions remain unchanged. 6766 GL 1013 Includes copyrighted material of Insurance Services Office, Inc.,with its permission. Page 2 of 2 CGL 1816 0106 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION - PRIMARY AND NON-CONTRIBUTORY COVERAGE This endorsement modifies insurance provided under the following: CONTRACTORS LIMITED CLAIMS MADE GENERAL LIABILITY COVERAGE FORM CONTRACTORS LIMITED CLAIMS MADE AND REPORTED GENERAL LIABILITY COVERAGE FORM COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Location(s)Of Covered Operations City of Kent 2019 West Meeker St 2001 W Meeker St Kent,WA 98032 Kent,WA 98032 '.. A. Section II — Who Is An Insured is amended to 2. That portion of "your work' out of which the include as an additional Insured the person(s) or injury or damage arises has been put to its organization(s) shown In the Schedule, but only intended use by any person or organization with respect to liabllityfor"bodily injury","property other than another contractor or subcontractor damage" or "personal and advertising injury" engaged In performing operations for a principal caused,in whole or in part,by: as a part of the same project. 1. Your acts or omissions;or C. It is agreed that the Insurance provided for the 2. The acts or omissions of those acting on your benefit of the above additional insured(s) shall be behalf; primary and non-contributory, but only with In the performance of your ongoing operations for respect to liability for "bodily injury", "property the additional Insured(s) at the location(s) damage" or "personal and advertising Injury" designated above. caused,in whole or in part,by: B. With respect to the insurance afforded to these 1. Your acts or omissions;or additional insureds, the following additional 2• The acts or omissions of those acting on your exclusions apply: behalf; This insurance does not apply to "bodily injury" or in the performance of your ongoing operations for "property damage"occurring after: the additional insured(s) at the location(s) 1. All work, including materials, parts or equipment designated above. furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional Insured(s) at the location of the covered operations has been completed;or CGL 18160106 Includes copyrighted material of Insurance Services Office,Inc.with its Pagel of permission.C ISO Properties,Inc.,2004 Certificate of Insurance This Certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage ISSUE DATE 06/14/16 afforded by the policies below. RETAIL PRODUCER ISSUING CARRIER--PRIMARY POLICY Great NW Insurance Brokers United Specialty Insurance Company PO Box 13266 550 Polaris Parkway, Suite 300 Des Moines, WA 98198 Westerville,OH 43802 Phone:206-550-1806 Fax:206-577-2981 INSURED ISSUED BY: Scotch&Vine Anchor Bay Insurance Managers, Inc RL Kids LLC; Be the Ball LLC dba: Post Office Box#2510 22341 Marine View Dr S Silverdale, WA 98383 Des Moines WA 98198 COVERAGES - This is to certify that the policies of insurance listed below have been issued to the Insured named above for the policy period indicated. '.. Notwithstanding any requirement,term or condition of any contract or other document with respect to which this certificate may be issued or may pertain,the insurance afforded by the policies described herein is subject to all the terms,exclusions and conditions of such policies. Limits shown may have been reduced by paid claims. Effective Expiration Type of Insurance Policy number Date Date Limits Building(s) Not Covered Tenant's Improvements&Betterments $130,000 Commercial Property USA4131218 6/1/2016 6/1l2017 Business Personal Property $250,000 Business Income Including $1,000,000 Extra Expense Tenant Glass Not Covered General Aggregate $2,000,000 Products and Completed Ops Aggregate $2,000,000 '.. Commercial General Liability USA4131218 6/1/2016 6/1/2017 Personal&Advertising Injury $1,000,000 &Liquor Liability Each Occurrence $1,000,000 Damage to Premises Rented to You $300,000 Medical Payments(each person) $5,000 Liquor Legal(each common cause) $1,000,000 Liquor Legal(annual aggregate) $2,000,000 Non-owned&Hired Auto Liability $500,000/$500,000 Employee Benefits Liability Not Covered Employers Liability $1,000,000/$1,000,010/ $1,000,000 Excess Liability Not Covered Comments: RE: Building Owner Equipment Breakdown Enhancement Endorsement&Property Enhancement Endorsement are both included. Form CGL1816 1006 Additional Insured-Owners,Lessees or Contractors-Scheduled Person or Organization-Primary and- Non-Contributory Coverage applies Certificate Holder is added as Additional Insured per: 5756GL 1013-Additional Insured-Limited Blanket Coverage Location Address: 2019 West Meeker St,Kent WA 98032 Certificate Holder Cancellation: Should any of the above described policies be canceled before the expiration date City of Kent thereof,the issuing company will endeavor to mail 30`days written notice to the certificate holder named to the left, but failure to mail such notice shall impose no 2001 W Meeker St obligation or liability of any kind upon the company, its agents or representatives. Kent,WA 98032 -10 days for non-payment of premium. '.. Authorized Representative: This the contract is registered and delivered as a surplus line coverage under the insurance code of the state of Washington,Title 49 RCW. It �,V/J is not protected by any Washington state guaranty association law. Licensee:William H Tanner. Washington State Liquor and Cannabis Board DIRECT SHIPMENT RECEIVER-IN/OUT WA SPIRITS/BRNWN REST LOUNGE + OFF-PREMISES SALE WINE CATERING TEMPORARY LICENSE EXPIRES: July'26, 2016 ISSUED TO: BE THE BALL LLC THE SCOTCH AND VINE AT RIVERBEND 2019 W MEEKER ST KENT, WA 98032-4216 UBI Number: 603.594-791-001-0001 Liquor License Number 406750-2M This temporary license authorizes you to sell Spirits/Beedwine. at the above location. The temporary license is valid only until July 26, 20% The temporary license must be prominently dlsplayed at your premises. RCW 66.44,090 prohibits the sale of alcohol without a valid temporary or permanent license. You must notify your liquor license investigator 10 days prior to the expiration date. You may.request another temporary license at that time. Failure to comply may disrupt liquor sales at your premises and cause your application tol be administratively closed or denied. ISSUED: May 27, 2016 WASHINGTON STATE LIQUOR AND CANNABIS BOARD IDUCton Wiff5 TP#12115 DECISIONS f Ab KENT Agenda Item:_ TO: Kent City Council DATE: March 1, 2016 SUBJECT: Lease Agreement with Scotch and Vine for the Riverbend Golf Complex Restaurant - Authorize MOTION: Authorize the Mayor to sign all documents necessary to enter into a lease agreement with RL Kids LLC, d/b/a Scotch and Vine, for the restaurant at Riverbend Golf Complex, subject to terms and conditions acceptable to the Parks Director and the City Attorney. SUMMARY: The city and Arnold Shain, consultant with Restaurant Group Inc., researched and negotiated with a small group of potential restauranteurs to operate the restaurant facility at the Riverbend Golf Complex. They determined that RL Kids, LLC, d/b/a Scotch and Vine, was best positioned to successfully operate the restaurant. The city then began lease negotiations with Scotch and Vine and recently agreed to final terms. The attached lease provides for a ten-year lease with one five-year option to renew. The lease requires payment of 8% of gross monthly revenues from restaurant operations, with an established minimum rent. The restaurant will be open for breakfast, lunch, and dinner 365 days a year, with some modifications to times of operation during the off-season. The restauranteur will also provide cart services out on the course during peak golf seasons. Jeff Watling, parks, recreation, and community services director, as well as David Pritchard, owner of Scotch and Vine, will be in attendance to answer any questions. EXHIBIT: Draft Lease Agreement RECOMMENDED BY: Parks and Human Services Committee YEA: Budell - Higgins - Fincher NAY: BUDGET IMPACT: The Riverbend Golf Fund REQUEST FOR MAYOR'S SIGNATURE Please fill in all applicable boxes y' Director Reviewed Rouging infoYmation BALL REVERTS MUST FIRST BE ROUTED THROUGH THE LAW DEPARTMENT) ---- Originator: Pete Petersen / Jeff Watling Phone {Criginator): x5130 / 5007 Date Sent. ^5j2-/20t&—, 14, ` ` Date Required: ASAP to initiate opening Return St' ned Document to: Teri /Jeff Contract Termination Date: +2026 VENDOR Date Finance Notified: n/a Revenue ; Be the Ball d/b/a Scotch and Vine LLC (only required on contracts$20,000 and over or on any Gra DATE OF C®UNcii- APPROVAL. 3/1/2016 Date Risk Manager :Notified:, 4/28/2016 Required on Non-City Standard contracts/Agreements) Nas this Document been Specifically Account Number: Authorized in the Budget? E5 NO Riverbend Golf Complex: 48006855.56250 revenue account Brief Explanation of Document: The city and Arnold Shain, consultant with Restaurant Group Inc., researched and negotiated with a small group of potential restaurateurs to operate the restaurant facility at the Riverbend Golf Complex. They determined that Be the Ball LLC, d/b/a Scotch and Vine, was best positioned to successfully operate the restaurant. All Contracts Must Be Routed Through The Law Department � Th"s area to be completed by the Caw Department) Received Ip k"';l' Approval of Law Dept.'',,,,n Law D 't�brrie n$s ' / Date Forwarded to Mayor Shaded Areas To Be Completed By Administration Staff Received: _ Recommendations and Comments: I Disposition:;. `%� ex—, Disposition: Date Returned