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HomeMy WebLinkAboutEC16-336 - Original - Dwell at Kent Station LLC - Kent Station III Apartments Limited Non-Exclusive License for Maintenance of Private Improvements Within Public Right-Of-Way - 08/31/2016 r " RRecords Ma z # ae e� ¢ , KEAI"I' ocument WASHINOTOH CONTRACT COVER SHEET i 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: Dwell at Kent Station LLC Vendor Number: JD Edwards Number Contract Number: e(,Ito -67Xe This is assigned by City Clerk's Office Project Name: Kent Station III Apartments Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ❑ Contract ® Other: Limited Non-Exclusive License for Maintenance of Private Improvements within Public Right-of-way Contract Effective Date: 9/1/16 Termination Date: Notice Contract Renewal Notice (Days): Number of days required notice for termination or renewal or amendment Contract Manager: Matt Gilbert Department: Economic & Community Development Contract Amount: N/A Approval Authority: ❑ Department Director ® Mayor ❑ City Council Detail: (i.e. address, location, parcel number, tax id, etc.): As of: 08/27/14 LIMITED NON-EXCLUSIVE LICENSE FOR MAINTENANCE OF PRIVATE IMPROVEMENTS WITHIN PUBLIC RIGHT-OF-WAY PARTIES THIS LIMITED NON-EXCLUSIVE LICENSE FOR MAINTENANCE OF PRIVATE IMPROVEMENTS WITHIN PUBLIC RIGHT-OF-WAY ("License") is granted by the City of Kent, a Washington Municipal Corporation ("City"), to Dwell at Kent Station L.L.C., a Delaware limited liability company ("Licensee"), as of the Effective Date, defined in Section 16, below. RECITALS 1. Licensee seeks to install overhead canopies at its building, referred to as the "Dwell at Kent Station" apartments, along 4th Avenue North, located in the city of Kent, in order to comply with the City's downtown design guidelines. 2. Licensee has requested that the City grant a permit to use City right- of-way for the installation and maintenance of these canopies. 3. The City has agreed to the issuance of such a permit, subject to the terms and conditions contained herein. NOW, THEREFORE, THE CITY AND LICENSEE AGREE AS FOLLOWS: LICENSE I 1. License Granted. The City, for and in consideration of mutual benefits derived and/or other valuable consideration, receipt of which is hereby acknowledged by the City, grants this License to Licensee for the installation and maintenance of overhead canopies at Licensee's Dwell at Kent Station location ("Premises") across, along, upon, and above the City's right-of-way described in Exhibit A ("Property"). A general description of the plans and specifications for the canopies is attached as Exhibit B ("Improvements"). This License is subject to all the terms and conditions established below. 2. Damage to Property and Restoration. Licensee shall repair any damage to the Property caused by the installation, construction, operation, maintenance, removal, repair, reconstruction, replacement, use, and inspection of the Improvements on the Property. Upon revocation, termination or expiration of this License, Licensee shall immediately restore the Property to its original condition prior to the issuance of the License. Such restoration obligation shall survive the expiration of this License. LIMITED LICENSE- -Page 1 of 8 (between City of Kent and Dwell at Kent Station, L.L.C.) i I 3. Revocation and Termination. The intent of this License is to authorize Licensee to install overhead canopies within 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 Property; 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 Property. As a License upon real property, it is fully revocable at the will of the City. However, prior to termination or revocation by the City, the City shall provide Licensee with at least 60 calendar days' written notice of termination or revocation. Upon receipt of such notice from the City, Licensee is required to remove all Improvements and restore the Property pursuant to Section 2. If Licensee fails to remove the Improvements within the allotted time, the City may remove all or part of the Improvements, restore the Property, and recover the costs of such removal and restoration from Licensee. Licensee waives any right it may have to any claim for damages of any kind incurred as a result of the City's removal of all or part of the Improvements. Unless revoked sooner by the City, this License shall last for a period of 15 years; provided, however, that if the overhead canopies are no longer required pursuant to city code and/or design guidelines, and if Licensee thereafter removes its Improvements for a period of 60 consecutive days and fails to replace them during such time period, then the License shall immediately expire. 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 Improvements. Licensee's failure to comply with this Section 4 shall constitute grounds for immediate revocation by the City. 5. Maintenance. Licensee shall maintain the Improvements and Property in a clean, well-kept, orderly and safe condition at Licensee's sole cost, to the satisfaction of the City. Licensee shall promptly make repairs at Licensee's cost, as necessary, to ensure the Improvements and Property are kept in good condition to the sole satisfaction of the City. 6. As-Builts. Within 60 days of construction of the Improvements, Licensee shall provide the City with accurate copies of all record drawings and maps showing the horizontal and vertical location and configuration of all located or relocated Improvements within the public right-of-way. Licensee warrants the accuracy of all record drawings and maps provided to the City. Licensee shall provide the City with updated record drawings and maps upon request. 7. Emergency. In the event of any emergency in which any portion of the Improvements breaks, becomes damaged, or in any other way becomes an imminent 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 LIMITED LICENSE- -Page 2 of 8 (between City of Kent and Dwell at Kent Station, L.L.C.) Licensee o License. However, this emergency work shall not relievefrom its obligation to obtain all permits necessary for this purpose, and Licensee shall apply for those permits within the next two succeeding business days. If Licensee fails to take immediate action to correct an imminent danger to property, life, healthy or public safety, the City reserves the right to perform the necessary emergency work itself and charge Licensee for the cost thereof. 8. Indemnification. Licensee shall comply with the following indemnification requirements: 8.1. 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. 8.2. The City's inspection or acceptance of any of Licensee's work when completed shall not be grounds to avoid any of these covenants of indemnification. 8.3. 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 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 8 by reason of that settlement. Moreover, if Licensee refuses to defend the City against claims by third parties, Licensee shall indemnify the City regardless of whether the settlement of such claims is made with or without Licensee's consent. 8.4. 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 8 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 8 indemnification clause. B.S. The provisions of this Section 8 shall survive the expiration, termination or revocation of this License. 9. Insurance. Licensee shall procure and maintain, for the duration of this License, insurance of the types and in the amounts described below against LIMITED LICENSE- -Page 3 of 8 (between City of Kent and Dwell at Kent Statlon, L.L.C.) 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, employees, contractors, subcontractors, consultants, subconsultants, or assigns performing work under the scope of this License and to assure that such coverage is maintained. 9.1. Before beginning work on the project described in this License, Licensee shall provide a Certificate of Insurance evidencing: 9.1.1. Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and 9.1.2. Commercial General Liability insurance written on an occurrence basis with limits no less than $1,000,000 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. 9.1.3. Excess Liability insurance with limits not less than $1,000,000 per occurrence and aggregate. 9.2. Any payment of deductible or self-insured retention shall be the sole responsibility of Licensee. 9.3. 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. City waives no rights and Licensee is not excused from performance if Licensee fails to provide City with a paper copy of the endorsement naming the City as an additional insured. 9.4. 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 respects to the limits of the insurer's liability. 9.5. Licensee's insurance shall be primary insurance as respects the City, and the City shall be given 30 calendar days prior written notice electronically and by United States mail of any cancellation, suspension or material change in coverage. 10. Modification; Extension of Term. This License may not be modified, altered, or amended unless first approved in writing by the City. So long as the overhead canopies remain a required design feature, and provided that LIMITED LICENSE- -Page 4 of 8 (between City of Kent and Dwell at Kent Station, L.L.C.) Licensee remains in substantial compliance with all the terms and conditions contained herein, the City may extend the term of the License, in writing, upon expiration of the initial 15-year period. 11. Assignment. Licensee shall not assign all or any portion of its rights, benefits, or privileges, in and under this License, without the written approval of the City, which approval will not be unreasonably withheld or delayed; provided, however, that Licensee shall have the right, without prior notice to the City, to mortgage its rights, benefits, and privileges in and under this License to the trustee for its bondholders, and to assign all or a portion of the same to any 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. 383098-0070. Notwithstanding the foregoing provisions, Licensee shall remain fully liable to the City for compliance with all terms and conditions of this License until such time as the City shall consent to such assignment in writing. For purposes of this Section 11, a "real property interest" shall include, without limitation, a fully-executed purchase and sale agreement for the subject property. 12. Compliance with Laws. Licensee shall comply with all federal, state, and municipal laws, rules, and regulations that are applicable to this License, the Improvements, or the Premises. 13. 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 8. 14. 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 address as either party shall designate to the other party in writing: LIMITED LICENSE- -Page 5 of 8 III (between City of Kent and Dwell at Kent Station, L.L.C.) i j- CITY: LICENSEE: City of Kent Dwell at Kent Station, L.L.0 Attn: City Clerk Attn: Legal Department 220 Fourth Avenue South 1302 Puyallup Street Kent, WA 98032 Sumner, WA. 98390 15. 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. 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 day executed below (`Effective Date"). 17. 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. CITY OF KENT DWELL AT KENT STATION L.L.C. By: ��� By: ��` Print m :SUZETTE COOKE Print N me: M�( n 5s /IS�: M Its: Y-C_si n-t '-Id�cD rtvUalGQ , HQnlet lYIa8L2: Date:���AO(G P:\Civil\Files\Open Files\1964-Kent Station Phase III Apartments\L mited Non-Exclusive License ROW.docx - Notary Blocks Appear on Following Pages - LIMITED LICENSE- -Page 6 of 8 (between City of Kent and Dwell at Kent Station, L.L.C.) STATE OF WASHINGTON ) : ss. 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. fill _� e+®���� I�'y s NOTARY PUBLIC, in and for thq State / %', of Washington, residing at My appointment expires f8 18-20 t°+r `c WABNoO ®®®® i41ll�e��>®o>e®®® LIMITED LICENSE- -Page 7 of 8 (between City of Kent and Dwell at!Cent Station, L.L.C.) STATE OF WASHINGTON ) SS. COUNTY OF KING ) I hereby certify that I know or have satisfactory evidence that b�lldt fi� 1NGI�SS 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 of CY1VtS' CV �jfj rl0kO(1q.as its (P, idetlt , 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. 'Yr—, ?W ;� plea dasr- NOTAR LIC, in and for the State i�� ®•�d of Washington, residing at My appointment expires v;L 2-4 . 2011 I i LIMITED LICENSE- -Page 8 of 8 (between City of Kent and Dwell at Kent Station, L.L.C.) EXHIBIT A THE EXTERIOR FOUR FEET OF THAT PORTION OF THE EASTERN EDGE OF THE CITY OF KENT PUBLIC RIGHT-OF-WAY, IDENTIFIED AS FOURTH AVENUE NORTH, THAT IS IMMEDIATELY ADJACENT TO THE FOLLOWING DESCRIBED PARCEL: LOT B OF CITY OF KENT LOT LINE ADJUSTMENT NO. LL-2006- 21, RECORDED UNDER KING COUNTY RECORDING NUMBER 20080825900006, RECORDS OF KING COUNTY, WASHINGTON, ALSO KNOWN AS KING COUNTY PARCEL NUMBER 3830980070 B A IF SWETAIM REB LESS 11XVPiFIS A REDUCOPR T TAUOESOAIF,ACCORRRKLY -_— �PROPERiT LINE EXHIBIT co _ _ _ _ I`_✓_ _ LE✓<L 02 dA g ag U 12`-S y 8 N 7 9 IMERIOR yEFyFlFlyp ttp SIIMI. L.LOI Ti cTc ��T 4 3 BUILDING SECTION- EASTMEST va^=1-0^ _ - 4TH AVE N Ioevnlx 'T Nj _ � cprlorxnRovE -- -- - -. pP0 ERN IJNE A — e S�LAN 4TH AVE N P3 p P5 — P6 - R7 �P� E R - ' I]EVJAIH �� PER P LINE r — L Z �B Q� I� w- SITE PLAN 5fi as e i REQUEST FOR MAYOR'S SIGNATURE ® T Print on Cherry-Colored Paper 1K�N Routing Information: (ALL REQUESTS MUST FIRST BE ROUTED THROUGH THE LAW DEPARTMENT) Approved by Director Originator: KiM KOMOto Phone (Originator): 5788 Date Sent: 8/31/16 Date Required: ASAP Return Signed Document to: Kim Komoto Contract Termination Date: N/A VENDOR NAME: Date Finance Notified: Dwell at Kent Station LLC (Only required contracts n/a 20 000 and oveerr or on an Grant DATE OF COUNCIL APPROVAL: n/a Date Risk Manager Notified:n/a (Required on Non-City Standard Contracts/Agreements) Has this Document been Specificall Account Number:Authorized in the Budget? YES NO /a Brief Explanation of Document: Grant of Non-Exclusive Easement for Maintenance of Landscaping within Public Right-of-Way at the Dwell at Kent Station. All Corry PoTgtdh> ugh The LawDepartmenf (This area to be completed by the Law Department) Received: j y, Approval of Law Dept.: Law Dept. Comments: Date Forwarded to Mayor: Shaded Areas To Be Completed By Administration Staff,„ , c Received. - - - Recommendations and Comments, '=.r -p°f r d Disposition. Date Returned: N:mry vermsunrumemv saneriew=sror Mayorsspamre.asx ___-.