FIFTH AMENDMENT TO LEASE AND OPERATING AGREEMENT BETWEEN THE PORT OF TACOMA AND EVERPORT TERMINAL SERVICES INC.

Transcription

1 Item No.: 4D_Attach A-2 Date of Meeting: February 6, 2018 FIFTH AMENDMENT TO LEASE AND OPERATING AGREEMENT BETWEEN THE PORT OF TACOMA AND EVERPORT TERMINAL SERVICES INC. THE NORTHWEST SEAPORT ALLIANCE, as licensee/agent for the PORT OF TACOMA, hereinafter referred to as Lessor, and EVERPORT TERMINAL SERVICES INC., hereinafter referred to as Lessee, on this day of, 2018, hereby make and enter into this Fifth Amendment to the Lease and Operating Agreement between the PORT OF TACOMA and EVERPORT TERMINAL SERVICES INC. RECITALS: WHEREAS, the Port of Tacoma and the Port of Seattle are the Managing Members of The Northwest Seaport Alliance, a Washington port development authority ( NWSA ), formed for the joint operation, management, and use of certain properties of each such Port by NWSA, and pursuant to NWSA agreements, the Port of Tacoma licensed the operation, use and management of the real property and improvements that constitute the Premises under this Lease to NWSA as the licensee/agent for the Port of Tacoma effective August 4, 2015, for the purposes and subject to the terms, conditions, and limitations set forth in such agreements, as now in effect or as hereafter amended or adopted, and for purposes of this Lease, the term Lessor shall mean and refer to NWSA and the Port of Tacoma, unless the context clearly requires otherwise; and WHEREAS, the Port of Tacoma as Lessor, and Evergreen Marine Corp. (Taiwan) Ltd., as Lessee, entered into a Lease And Operating Agreement dated January 9, 2003, with respect to certain facilities at the Port of Tacoma, which was amended by a First Addendum To Lease And Operating Agreement dated July 15, 2004 (the First Addendum ), a Second Amendment To Lease And Operating Agreement dated September 20, 2010 (the Second Amendment ), a Third Amendment To Lease And Operating Agreement dated September 21, 2011 (the Third Amendment ), and a Fourth Amendment To Lease And Operating Agreement dated September 21, 2017 (the Fourth Amendment ), collectively the Lease ; and WHEREAS, Evergreen Marine Corp. (Taiwan) Ltd. assigned its interest in the Lease to EVERPORT TERMINAL SERVICES INC. by an Assignment and Assumption of Lease dated August 14, 2012; and WHEREAS, one of the key strategic pillars of the Lessor is to be the gateway that is the easiest to do business with by providing best in class service delivery. In addition, Goal 1.B of the Lessor s Strategic Business Plan is to enhance its competitive position through improving the efficiency and cost competitiveness of the supply chain. WHEREAS, the Northwest Ports Clean Air Strategy (NWPCAS) was developed in 2007 and published in 2008 in collaboration between Port Metro Vancouver (PMV), the Port of Seattle (POS), and the Port of Tacoma (POT) with the aim of reducing air

2 emissions from maritime and port-related activities that affect air quality and contribute to climate change in the Puget Sound-Georgia Basin air shed. As this strategy advances, it provides a triple-benefit for the Lessee: 1) Efficient cargo flow, promotes an increase of cargo velocity. Attractive to stakeholders (terminal operators, truckers, labor, warehouse workers etc.) across the gateway with great economic value. As technology deployment continues, these operations can be integrated with other local and regional transportation networks to benefit visibility and communication for regional traffic flow and cargo movement. 2) Cargo movement efficiencies reflects well on terminal operations, thus yielding faster turnaround times for truck drivers, reducing congestion, improving service levels and improving their income. 3) Efficiency at terminals and throughout operations, reduces emissions and fuel consumption, continuing our focus on environmental sustainability. Reduction of emissions, fuel consumption by truck idling at gate queues and equipment idling when terminals are congested. WHEREAS, the Clean Truck Program implemented in this Amendment is planned to include RFID technology which will provide Lessor and Lessee, as well as Beneficial Cargo Operator s and others real time information regarding turn times, traffic congestion, emergency response and other factors that might impact the flow of cargo. Once operational, this system would support the entire supply chain and improve the overall velocity of cargo moved through Lessee s terminal and the Lessor NWSA s gateway. WHEREAS, the parties desire to further amend the Lease as set forth in this Fifth Amendment; NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Clean Truck Program. Effective April 1, 2018 Section 2 Truck Emission Improvement Program set forth in the Second Amendment to the Lease including Exhibit A thereto is deleted in its entirety and a new Section 21 is added to the Lease as follows: 21. Clean Truck Program. Lessee will comply with The Northwest Seaport Alliance ( NWSA ) Tariff Item No In the event The Northwest Seaport Alliance dissolves, Lessee will continue to comply with this tariff item until Lessor notifies Lessee that the applicable Port of Tacoma tariff item will apply in place of NWSA Tariff Item No Savings Clause. Except to the extent expressly modified by the express terms of this Amendment, all other terms, conditions, and provisions of the Lease and all 4d_attach a-2_ loaamend5(everport)-.docxpage 2 of 5

3 exhibits and attachments thereto shall remain in full force and effect. 3. Counterparts. This Amendment may be executed in counterparts, each of which shall be regarded as an original and all of which together shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their proper officers thereto authorized on the dates set forth below. SIGNATURES APPEAR ON FOLLOWING PAGES 4d_attach a-2_ loaamend5(everport)-.docxpage 3 of 5

4 LESSOR: THE NORTHWEST SEAPORT ALLIANCE As licensee/agent of the Port of Tacoma By Title Date STATE OF WASHINGTON ) ) ss. COUNTY OF PIERCE ) On this day of, 20, personally appeared before me the undersigned, a Notary Public, in and for the State of Washington, duly commissioned and sworn,, to me known to be the of THE NORTHWEST SEAPORT ALLIANCE, a Washington Port Development Authority, as licensee/agent of the PORT OF TACOMA, a Washington port district, that executed the foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said entity, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute the said instrument and that the seal affixed is the corporate seal of said municipal corporation. WITNESS MY HAND AND OFFICIAL SEAL hereto affixed the day and year first written above. Signature of Notary Public Printed Name of Notary Public My Appointment Expires: 4d_attach a-2_ loaamend5(everport)-.docxpage 4 of 5

5 LESSEE: EVERPORT TERMINAL SERVICES INC. By Title Date STATE OF ) ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that 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 of EVERPORT TERMINAL SERVICES INC. to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated:, 20 WITNESS MY HAND AND OFFICIAL SEAL hereto affixed the day and year first written above. Signature of Notary Public Printed Name of Notary Public My Appointment Expires: 4d_attach a-2_ loaamend5(everport)-.docxpage 5 of 5