HomeMy WebLinkAboutLW16-109 - Original - EW A KENT, LLC - Install & Maintain ER Access Driveway - 03/22/2016 Records Ma,
KENT
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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.
Xf you have questions, please contact City Clerk's Office.
Vendor Number.
ID Edward's Wimber
Contract Numbers.- I
This is assigned by City Clerk's Office
Project Name: W b U to I 1 0 Y7 d /W 0-
Description.- Interlocal Agreement ❑ Change Order ❑ Amendment ❑ Contract
Other: Ufflflf6l. �--
Contract Effective mate. Termination Bate. WOOF
Contract Renevval Notice (Days):
Number of days regUired notice for termination or renewal or amendment
Contract Manager, ob Department-
Contract Amount,: NIft
p rro vai authority" ❑ Department director Payor ❑City Council
Detail.- (i.e. address, location, parcel number, tax id, stab).
C Z ° `AT_•
a dcc W 1 p877_8_14
REQUEST FOR MAYOR'S SIGNATURE,
Print on Cherry-Colored Paper
KENT
W�S�...... Routing Information:
(ALL REQUESTS MUST FIRST BE ROUTED THROUGH THE LAW DEPARTMENT)
Approved by Director_
Originator: Kim Komoto Phone (Originator): 5788
Date Sent: /
Date Required: 3/25/16
3/2216
Return Signed Document to: Kim Komoto Contract Termination Date: N/A
VENDOR NAME: Date Finance Notified:
(Only required on contracts N/A
EW A Kent, LLB �20,000 and over or on an Grant
DATE OF COUNCIL APPROVAL: N/A Date Risk Manager Notified:N/A
(Reguired on_Non-City Standard Contracts/Agreernents)_
Has this Document been Specifically Account Number: N/A
Authorized in the Budget? YES NO
Brief Explanation of Document:
Limited license to install and maintain an emergency access driveway, irrigation,
landscaping and other vegetation within the City's right-of-way along the intersection of
68th Ave S and S. 212st Street.
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All Co e Routed Through The Law Department
6 w Department)
(Thi L"L20pleted by the La
Received:
Approval of Law Dept.:
W
oEPT
Law Dept. Comments: krr LA --7- -
Date Forwarded to May 24 cce
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Shaded Areas To Be Completed By Administration Staff
Received:
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Recommendations and Comments:
U
Disposition,: 2
Date Returned:
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Kit0rorms—cument Proce Trnptriequest mr ayor s Sqn.t.m acx
LIMITED LICENSE AGREEMENT BETWEEN
THE CITY OF KENT AND
EW A KENT, LLC
PARTIES
THIS LIMITED LICENSE AGREEMENT ("License") is between the CITY OF
KENT, a Washington municipal corporation ("City"), and EW A KENT, LLC, a
Colorado limited liability corporation ("Licensee").
RECITALS
1. Licensee owns that certain real property identified as King County Tax
Parcel No. 112204-9079, in the City of Kent, and seeks to install an emergency
access driveway, irrigation, landscaping and other vegetation all within the City's
right-of-way along the intersection of 68th Ave S. and S. 212th St., immediately
adjacent to Tax Parcel No. 112204-9079, and to maintain and irrigate the
landscaping and grass at the City's entry-way monument sign to the City, located
adjacent to said real property in the City of Kent.
2. Licensee has requested that the City grant a license for Licensee, and
all subsequent owners or occupants of the aforementioned real property to use City
right-of-way to install and maintain the above landscaping and improvements
within the City right-of-way.
3. The City has agreed to issue this license, subject to the following
terms and conditions.
NOW, THEREFORE, THE CITY AND LICENSEE AGREE AS FOLLOWS:
LICENSE
1. License Granted. In consideration of mutual benefits derived and
other valuable consideration, receipt of which is hereby acknowledged by the City,
the City grants this License for a period of ten years from the Effective Date (the
"Term") for Licensee to install and maintain an emergency access driveway,
landscaping and other vegetation, including necessary appurtenances, within a
portion of the City's right-of-way along the intersection of 68th Ave S. and S. 212th
St., immediately adjacent to Tax Parcel No. 112204-9079, located east of the
property line of said tax parcel, also identified as 21214 66th Ave S., Kent,
Washington, as described in Exhibit A ("Property"). City and Licensee agree that
this License shall automatically renew at the end of the Term, and a new ten-year
Term shall thereupon commence, unless this License has been previously
terminated as provided in Section 3 of this License. The second ten-year Term
LIMITED LICENSE
(City of Kent and EW A Kent, LLC) Page 1 of 9
17545714
shall be subject to all of the same terms and conditions contained in this License. A
general description of the plans and specifications for the emergency access,
irrigation, landscaping, vegetation, and other improvements, including necessary
appurtenances, at the Property are on file with the City of Kent under civil permit
RECC-2151672 and revision RVS4 2153768. A graphic depiction of the general
location of the landscaping and related improvements (collectively, "Landscaping")
and the emergency access driveway ("Emergency Access") is attached as Exhibit B
("Licensed Area").
2. Damage to Property and Restoration. Licensee shall repair any
damage to the Property or the Licensed Area caused by Licensee or its agents in
connection with the planting, installation, construction, operation, maintenance,
removal, repair, reconstruction, replacement, use, and inspection of the
Landscaping or Emergency Access within the Licensed Area. This repair obligation
shall survive the expiration of this License.
3. Revocation and Termination. The intent of this License is to
authorize Licensee to install landscaping and other vegetation, including necessary
appurtenances, as well as an emergency access driveway, within the designated
City right-of-way, which right-of-way constitutes a valuable property interest owned
by the City. This License does not grant an estate in the land described as the
Licensed Area; it is not an easement; it is not a franchise; it is not exclusive; and it
does not exclude the City from full possession of the Licensed Area. As a license
upon real property, it is freely revocable at the will of the City. However, prior to
termination or revocation by the City, the City shall provide Licensee with at least
fifteen calendar days' written notice of termination or revocation, except where
immediate revocation is expressly authorized elsewhere in this License. Any
Landscaping, including any and all appurtenances, located within the Licensed Area,
along with the Emergency Access, shall, upon revocation, termination or expiration
of the License, become the sole property of the City without any reimbursement for
the remaining value thereof to Licensee.
4. Permits Required. The City's grant of this License does not release
Licensee from any of its obligations to obtain applicable local, state, and federal
permits necessary to install, construct, operate, maintain, remove, repair,
reconstruct, replace, use, and inspect the Landscaping and the Emergency Access.
Licensee's failure to comply with this Section 4 shall constitute grounds for
immediate revocation by the City.
5. Maintenance. Licensee shall maintain the Emergency Access and the
Landscaping, including any improvements and appurtenances thereto, and the
Licensed Area, in a clean, well-kept, good, safe and orderly condition in accordance
with all applicable local, state and federal regulations, laws and ordinances and to
the reasonable satisfaction of the City, at Licensee's sole expense. Such duties
LIMITED LICENSE
{City of Kent and EW A Kent, LLQ Page 2 of 9
1754572A
shall include but not be limited to: maintenance of all landscaping and vegetation
in the City's right-of-way, prompt repair to any damages or defect within the right-
of-way, and removal or repair of obstacles or defects within the landscaped areas in
or adjacent to the intersection of 68th Ave S. and S. 212th St.
6. Emergency. In the event of any emergency in which any portion of
the Emergency Access or Landscaping becomes damaged, or in any other way
becomes an immediate danger to the property, life, health, or safety of any
individual, Licensee shall immediately take the proper emergency measures to
remedy the dangerous condition without first applying for and obtaining a permit as
required by this License. However, this emergency work shall not relieve Licensee
from its obligation to obtain all permits necessary for this purpose, and Licensee
shall apply for those permits within two business days following commencement of
the emergency work. Notwithstanding anything to the contrary set forth in this
Section 6, if any portion of the Emergency Access or Landscaping becomes
damaged, or in any other way becomes an immediate danger to the property, life,
health, or safety of any individual and such damage or danger is caused solely by
the City, its employees, agents, or contractors, the City shall be obligated to
perform the necessary repairs at its sole cost and expense, unless the damage (or
to the extent such damage) is as a result of normal wear and tear.
7. Indemnification. Licensee and Licensor, as applicable, shall comply
with the following indemnification requirements:
7.1 Licensee shall defend, indemnify, and hold the City, its officers,
officials, employees, agents, assigns, and volunteers harmless from any and all
claims, actions, injuries, damages, losses, or suits, including all reasonable legal
costs, witness fees, and attorney fees, arising out of or in connection with the
performance of any of Licensee's rights or obligations granted by this License,
except to the extent caused by the sole negligence of the City, its employees,
agents, contractors, or invitees. To the extent not prohibited by applicable law,
Licensor shall hold Licensee, its officers, members, managers, employees, agents,
and assigns harmless from any and all claims, actions, injuries, damages, losses, or
suits, including all reasonable legal costs, witness fees, and attorney fees, arising
out of or in connection with the negligent acts of the City, its employees, agents,
contractors, or volunteers.
7.2 The City's inspection or acceptance of any of Licensee's work
when completed shall not be grounds to avoid any of Licensee's covenants of
indemnification.
7.3 These indemnification obligations shall extend to any claim,
action or suit that may be settled by compromise, provided that Licensee shall not
be liable to indemnify the City for any settlement agreed upon without the consent
LIMITED LICENSE
(City of Kent and EW A Kent, LLQ Page 3 of 9
1754572.4
of Licensee; however, if Licensee consents to the agreed upon settlement, the
Licensee shall indemnify and hold the City harmless as provided for in this Section 7
by reason of that settlement.
7.4 In the event that Licensee refuses to accept tender of defense in
any claim, action, or suit by a third party pursuant to this Section 7 and if
Licensee's refusal is subsequently determined by a court having jurisdiction (or
such other tribunal that the parties shall agree to decide the matter) to have been a
wrongful refusal, then Licensee shall pay all the City's costs for defense of the
action, including all reasonable legal costs, witness fees, and attorney fees and also
including the City's costs, including all legal costs, witness fees and reasonable
attorney fees, for recovery under this Section 7 indemnification clause.
7.5 The provisions of this Section 7 shall survive the expiration or
termination of this License.
S. Insurance. Licensee shall procure and maintain for the duration of
this License, insurance of the types and in the amounts described below against
claims for injuries to persons or damage to property that may arise from or in
connection with the performance of the work by Licensee. Licensee also agrees to
require the same coverage of its agents, representatives, contractors,
subcontractors, consultants, subconsultants, or assigns performing work under the
scope of this License and to assure that such coverage is maintained.
8.1 Before beginning work on the project described in this License,
Licensee shall provide a Certificate of Insurance evidencing:
8.1.1 Automobile Liability insurance with limits no less than
$1,000,000 combined single limit per accident for bodily injury and property
damage; and
8.1.2 Commercial General Liability insurance written on an
occurrence basis with limits no less than $2,000,000 combined single limit per
occurrence and general aggregate for personal injury, bodily injury and property
damage. Coverage shall include but not be limited to: blanket contractual;
products/completed operations/broad form property damage; explosion, collapse
and underground (XCU); and employer's liability.
8.1.3 Excess Liability insurance with limits not less than
$2,000,000 per occurrence and aggregate.
8.2 Any payment of deductible or self-insured retention shall be the
sole responsibility of Licensee.
LIMITED LICENSE
(City of Kent and EW A Kent, LLQ Page 4 of 9
1754572.4
8.3 The City its officers, officials, employees, agents, assigns and
volunteers shall be named as an additional insured on the insurance policy, as
respects work performed by or on behalf of the Licensee and shall make its
endorsement available for inspection by the City. The City waives no rights and
Licensee is not excused from performance if Licensee fails to provide the City with a
paper copy of the endorsement naming the City as an additional insured.
8.4 Licensee's insurance shall contain a clause stating that coverage
shall apply separately to each insured against whom claim is made or suit is
brought, except with respect to the limits of the insurer's liability.
8.5 Licensee's insurance shall be primary insurance as respects the
City, and the City shall be given thirty calendar days prior written notice
electronically and by United States mail of any cancellation, suspension or material
change in coverage.
9. Modification. This License may not be modified, altered, or amended
unless first approved in writing by the City.
10. Assignment. Licensee shall not assign all or any portion of its rights,
benefits, or privileges, in and under this License without prior written approval of
the City, which approval will not be unreasonably withheld or delayed; provided,
however, that Licensee may only assign all or a portion of its rights, benefits, and
privileges in and under this License to a subsidiary, parent, affiliate or company
having common control with Licensee; or to a third party with a real property
interest in any portion of that property identified as King County Tax Parcel No.
112204-9079; and provided further that Licensee shall remain fully liable to the
City for compliance with all terms and conditions of this License until such time as
the City consents to the assignment as provided above.
11. Compliance with Laws. Licensee shall comply with all federal, state,
and municipal laws, rules, and regulations that are applicable to this License.
12. Venue and Jurisdiction. This License shall be construed in accordance
with the laws of the State of Washington. Venue and jurisdiction for the resolution
of disputes shall be in the Superior Court for King County, Washington. In the
event of claim or litigation regarding the enforcement of the terms of this License,
each party shall be responsible for its own legal costs and attorney fees except as
noted in Section 7.
13. Notices. All notices, requests, demands, or other communications
provided for in this License, unless otherwise noted, shall be in writing and shall be
deemed to have been given when sent by registered or certified mail, return receipt
requested, to the addresses listed below for each party, or to such other person or
LIMITED LICENSE
(City of Kent and EW A Kent, LLQ Page 5 of 9
1754572 4
address as either party shall designate to the other party in writing:
CITY: LICENSEE:
City of Kent EW A Kent, LLC
Attn: City Clerk c/o EverWest Real Estate Partners, LLC
220 Fourth Avenue South 1099 181h Street, Suite 2900
Kent, WA 98032 Denver, CO 80202
Attn: General Counsel
14. No Waiver of Rights. Nothing in this License shall constitute a
waiver of either party's right to challenge any portion of the License that is not in
accordance with applicable federal, state and local laws.
15. Warranty of Authority to Execute. Each person executing this
License warrants that he/she has the requisite authority to bind the party for whom
that person is executing.
16. Entire Agreement and Effective Date. This License contains the
entire agreement between the parties and, in executing it, the City and Licensee do
not rely upon any statement, promise, or representation, whether oral or written,
not expressed in this License. This License shall be effective upon the last date
executed below ("Effective Date").
[Signature Page Follows]
LIMITED LICENSE
(City of Kent and EW A Kent, LLC) Page 6 of 9
1754572.4
IN WITNESS WHEREOF, the parties hereto have executed this License as of
the Effective Date.
CITY LICENSEE
EW A KENT, LLC, a Colorado limited
CITY OF KENT liability company
By: EverWest Advisors, LLC, a
B .
Delaware limited liability company
Print N me: SUZETTE C OKE Its: Manager
a ...................
Date: ';7 By:
Name:
Title:
LIMITED LICENSE
(City of Kent and EW A Kent, LLC) Page 7 of 9
1754572.1
STATE OF WASHINGTON
COUNTY OF KING
I hereby 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 is authorized to execute: the
instrument on behalf of the City of Kent as its Mayor, and such execution to be the
free and voluntary act of such party for the uses and purposes mentioned in the
foregoing instrument.
-Notary Seal Must Appear Within This Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal the day and year first above written.
/P
0 NOTARY PUBLIC, in and fort e State
of Washington, residing a
U) S .
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111,Y,'>&a My appointment expires
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LIMITED LICENSE
(City of I<ent and EW A Kent, LLC) Page 8 of 9,
1754572.4
STATE OF COLORADO,
: 1;S.
CITY AND COUNTY OF DENVER )
I hereby certify that I know or have satisfactory evidence that,,:t),O iio
is the person who appeared before me, and said person acknowledged
that he/she signed this instrument, on oath stated that he/she is authorized to
execute the instrument on behalf ofIF11d;4 An17- /-&d- as its r-L1,qW /,f AL�
1�jV,2 Oe-, and such execution to be the free and voluntary act of such party for the
uses and purposes mentioned in the foregoing instrument.
Notary Sea!Most Appear Witli if i This Box-
IN WITNESS WHEREOF, T have hereu - set my hand and official
seal the day and year first above en,
NOTARY PUBLIC, in and for the State
of Colorado, residing at
expires
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P:\0vd\F0es\0per1 F51es\2078-Aida rr a illat\City Urnited License Agreement with ESN A Kent LLC(DAG edit 2-29-16)dccx
LIMITED LICENSE
(City of Kent and EW A Kent, LLC) Page 9 of 9
1754572 4
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
That portion of the City of Kent's right-of-way, immediately adjacent to the
easternmost property line of Parcel F of Lot Line Adjustment LLA-96-2, recorded
under Recording No. 9601181132, records of King County, Washington, extending
generally to the western edge of the sidewalk on the west side of 68th Ave. S., and
bounded on the north by the southern edge of the sidewalk on the south side of S.
2121h St., in the City of Kent, Washington.
EXHIBIT B
GRAPHICAL DEPICTION OF LICENSE® AREA
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