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L17-085 - Original - WA State Department of Transportation - Airspace Lease - SR 167 - 09/25/2017
i CITY CLERK CITY OF KENT ' 220 4"Avenue South T Kent, WA 98032 w.,shNs.�x Fax: 263-856-6725 PHONE: 253-856-5725 doPzo{l� �� Lease Agreement Cover Sheet Instructions This document is to be used in lieu of the Contract Cover Sheet SECTION 1 — CONTRACT PROCESSINgi AND TENANTSET-UP: All lease agreements must be signed by the Mayor or his/her designee and approved by the City Council. Lease amendments, extensions, renewals, and assignments may or may not require Council approval (contact the Law Department), but they must be signed by the Mayor. The City Clerk's Office will perform the following tasks associated with all lease agreements and amendments: • Assign sequential eIr g based son r rting with 001 and L. Q . 0 preceded with "L", e. L001 • Scan the Lease Covbr Sheet-Lease Ageement (or Amendment) and, if any, related supporting documentation into the document imaging system. • Provide notification via e-mail to the Contact Person (Question 2), Law and Customer Services. The Lease Agreement Cover Sheet is to be completed for each existing and active and all subsequent lease agreements, lease amendments and assignments of lease. There is recognition that certain existing and active agreements and amendments may not incorporate new policies, e.g. commencement of the lease on the lst of the month or year. Those agreements and amendments will be addressed through subsequent agreements and/or amendments, if any. Contract Number: 99-3003C 1. Responsible Department/Division: Public Works Engineering 2. Contact Person and Title: Chad Bieren, City Engineer Telephone Extension: x5534 Lease Agreement Cover Sheet—Page 1 of 5 3. Tenant (Customer) Name: Washington State Department of Transportation 4. Tenant (Customer) Number: 38139 5. General Ledger Account Number: 99-3003C 6. King County Tax Parcel Number: SR 167 7. Address of Parcel: N/A 8. Type of Lease: Airspace Lease 9. Council Authorization Date: 9/19/17 10. Mayor Signature Date: 9121/17 S,ECTIPN 2 — LEAgE QYRATION AND IMPORTANT DATE�5. All lease agreements and amendments must reflect the lease start date, lease termination date and the duration of the lease. The lease agreement may also authorize the tenant to request an extension of the lease term, i.e. either "month to month" or for a defined period of time. The tenant must provide advanced written notice of the intent to exercise this lease option. A date certain lease start date must be established in the lease agreement and must be the first of the month. Commencement of certain leases may be predicated on certain actions by the tenant, e.g. installation of cellular tower equipment. In such instances, a reasonable fixed future date must be established in the lease agreement. 11. Lease Start Date: 9/25/17 12. Tenant Lease Option Renewal Notification Due Date: 6/24/42 13. Lease Termination Date: 9/24/42 14. Lease Duration: 25 years SECTION — RENT DETERMINATION E DATE: Lease agreement must include provisions establishing the stated rent and, if over one year in length, modification of stated rent. Typically, rental increases are based on changes in the Consumer Price Index. Example of possible contract language: Effective as of each anniversary of the Commencement date (the "Adjustment Date") by an amount equal to the greater of four (4) percent or the percentage increase in the CPI two (2) months prior to the Adjustment Date and the CPI for the month 12 months prior Lease Agreement Cover Sheet—Page 2 of 5 to the Adjustment Date. "CPI"means the Consumer Price Index - Allnc..morc (—cattle-Tacoma-Rrome +vn :A/A) All Tfp, , j r'e.. y^e aev.. a...✓neave..ee s 4 base period d9$2-$4 100 P.ot Seasc 7"'_ 91�'ustew, issued by the U.S. Bureau of Labor Statistics. If the CPI is converted to a different standard reference base, or otherwise revised, the adjustment set forth in this paragraph shall be made with the use of the conversion formula published by the U.S. Bureau of Labor Statistics. 15. Rent: $0 16. Rent Due Date: N/A 17. Calculation of Rental Increase(s): N/A SIECTION 4 - LEASEHOLD EXCISE TAX: Leasehold excise tax applies to the possession and use of publicly owned real property by a private sector individual, business or other organization. This tax is calculated based on 12.84 percent of the contract rent amount. See also Department of Revenue Leasehold Excise Tax Frequently Asked Questions and Answers htt : dor.wamgcv/docs/Pubs/IndustSpecific,/Leasehold,pdf).. Contact the Customer Services Financial Analyst (LIDs/Receivables) or the Audit Manager regarding questions in this area. 18. Is this lease subject to leasehold excise taxes? ❑ YES (go to Question 19) ® NO, reason: The lease is between two public agencies (WSDOT and the City) 19. Are leasehold excise taxes for this tenant centrally assessed, i.e. directly collected from the tenant by the Washington State Department of Revenue? ❑ YES (attach written verification received directly from DOR or indirectly through the tenant, e.g. DOR notification letter) ❑ NO (go to Question 20) 20. Does Lease Rent include Leasehold Excise Tax? (Leasehold taxes must be broken out on the invoice and coded: Business unit.32500.0303) ❑ YES Calculate the leasehold excise tax (Stated Rent divided by 1.1284) ❑ NO Calculate the leasehold excise tax (Stated Rent times .1284) Lease Agreement Cover Sheet—Page 3 of 5 I SECTIONPP ITy mP T TIES: The Lease agreement must include provisions establishing responsibility for payment of utilities, including but not limited to electricity, natural gas, water, sewer, storm drainage, and garbage collection and disposal services. In certain instances, the utility service may not be applicable, e.g. septic system, or may not be provided by the City, e.g. Highline Water District service area. In all instances, City utilities will be billed through the Customer Services utility billing system. Other utilities paid by the City on behalf of the tenant, e.g. electricity or natural gas, will be invoiced to the tenant through the central accounts receivable system (ID Edwards). Electricity or natural gas charges may be established based on actual consumption, e.g. usage of a meter or by a reasonable amount established through appropriate financial analysis. Separate meters for measurement should not be established on City-owned or leased properties. The dollar amount of electric and natural gas charges must be included in the lease agreement (amendment) and should be subject to future modification based on appropriate methodologies, e.g. change in rate, etc. Contact Finance Customer Services for questions in this area, as well as ensuring that City accounts are transferred into the name of the tenant. 21. Applicability of Utilities — Check all that utilities that are affected and indicate provider (e.g. City of Kent), Account Number or basis of exclusion. Does Not Apply ❑ Water: City Account Number/Other Provider Name ❑ Sewer: City Account Number/Other Provider Name Drainage: City Account Number/Other Provider Name [] Garbage: City Account Number/Other Provider Name ❑ Electricity/Natural Gas: City Account Number/Other Provider Name Ensure that Finance Customer Services is properly notified to ensure City utility account, if any, is recorded into the name of the tenant if so established in the Agreement. Ensure all other applicable charges are properly invoiced to the tenant. TION 6 — MONETARY PENALTIES A TE INTEREST CHARGES: Lease agreement should contain provisions establishing penalties and must contain provisions establishing late interest charges. Late interest (also referred to as "finance charges") should be consistent with Chapter 3.10 of the Kent City Code, i.e. currently 1% of the amount of the unpaid balance or $2.00, whichever is greater, if not paid within 30 days from the due date. Lease Agreement Cover Sheet—Page 4 of 5 22. Monetary Penalties: Greater of $100.00 or five percent of the delinquent amount 23. Late Interest: 12& SECTION 7 — OTHER LEASE CQNSIDERATI'ONS: The City will be responsible for any cost to WSDOT as a result of the bridge. Lease Agreement Cover Sheet—Page 5 of 5 Revised 3/2015 RES 420 AA 1-13678 IC 1-17-14558 Parcels 1-294 and 1-295 SR 167, South 228"' SE in Kent to Renton A R S P A C E L E A S E THIS IS AN AIRSPACE LEASE (Lease) made and entered into between the WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, hereinafter called (WSDOT), and CITY OF KF,NT, hereinafter called (CITY), a municipal corporation in the state of Washington. RECITALS A. WSDOT is granted authority to lease property under RCW 47.12.120,and WSDOT deers it to be in the public interest to enter into this Lease. B. WSDOT owns fee title, including access, light, view, and air, to real property currently being used as a portion of the operating State Route (SR) 167 right of way, a limited access highway facility, located within the city of Kent. C. The CITY has designed, and desires to construct, operate, own, and maintain a bridge structure and appurtenances (Bridge) in an aerial corridor no less than 18.5 feet above and over SR 167 at South 224"' Street, the location shown hachured on Exhibit A, attached hereto and by this reference made a part hereof, as well as that area extending from the lower limit of the aerial corridor down to 146 feet under the ground surface at the location shown cross-hachured on Exhibit A. Said Bridge will serve to connect part of the CITY's public city street system and shall be open as a matter of right to public vehicular traffic, excluding vehicles that require stationary rails or tracks. D. WSDOT has determined that the land and premises to be leased herein are not presently needed exclusively for WSDOT highway purposes and that the use of said land and premises as a city street that is open as a matter of right to public vehicular traffic, excluding vehicles that require stationary rails or tracks, as detailed herein, is compatible with the current SR 167 limited access highway operation and maintenance. E. The CITY and WSDOT have entered into General Permit No. GCB 2393 (General Permit) which sets forth the terms and conditions applicable to the CITY's Bridge construction Pagc I of25 AA 1-13678 IC: 1-17-14558 City of Kent activities. A copy of the General Permit is attached as Exhibit B, and by this reference incorporated herein. AGREEMENT NOW, THEREFORE, in consideration of the terms, conditions, covenants and performances contained herein, IT IS MUTUALLY AGREED THAT: 1. PREMISES. A. WSDOT does hereby lease to CITY, and CITY does hereby lease from WSDOT, the premises located in the Government Lot 4 of Section 7 and Government Lot 1 of Section 18, Township 22 North, Range 5 East, W.M., in the city of Kent, King County, and known to be a portion of the highway right of way of SR 167, South 220 St. in Kent to Renton, approved November 22, 1960, sheet 1 of 10 sheets, consisting of: (1) A three dimension aerial corridor at South 2241h Street which is 50 feet in width and located 18.5 feet above the paved surface of the underlying SR 167 right of way and extending to 75 feet above the paved surface of the underlying right of way, as established by the National Geodetic Vertical Datum, NAVD 1988 and as further shown bachured on Exhibit A (Aerial Corridor); (2) An area extending from the lower limit of the Aerial Corridor to 146 feet under the ground surface, as established by said NAVD 1988, together with two (2) triangular shaped areas located within the median of SR 167, one extending northeast from the northern border of the Pier Area and one extending southwest from the southern border of the Pier Area, and as further shown cross-hachured on Exhibit A (Pier and Pier Protection Area). B. The Premises consists of approximately 13,300 square feet for the Aerial Corridor and approximately 2,277 square feet for the Pier Area and Pier Protection Area, The Aerial Corridor is shown hachured on Exhibit A and the Pier Area and Pier Protection Areas are shown cross-hachured on Exhibit A. 2. TERM. The term of this Lease shall be twenty-five (25) years, COMMENCING ON THE DATE OF EXECUTION OF THIS LEASE BY WSDOT(Corninencement Date). 3. RENEWAL. This Lease may be renewed by the CITY for two (2) additional twenty-five (25) year periods (Renewal Period); provided that: (A)the CITY is not in default and has not been in default during the term of this Lease; (B)there is no alternative public need for the Premises; (C) CITY's continued use under this Lease does not impair the safety or operation of WSDOT's highway or facility, as solely determined by WSDOT; and(D)the terms and conditions of this Lease conform to then-existing WSDOT policies or practices, laws, regulations and contracts, or provided CITY is willing to amend this Lease to bring it into compliance with such Page 2 of 25 AA 1-13678 IC: 1-17-14558 City of Kent policies,practices, laws,regulations,and contracts.The Renewal Period shall be on the same terms and conditions as set forth herein, except as modified by any changes in policies, practices, laws, regulations or contracts and as reflected in a written amendment signed by both parties. CITY shall give notice of its intent to renew this Lease for the Renewal Period at least ninety (90) calendar days, but not more than six (6) months, prior to the expiration of this Lease, or any extension thereof. 4. HOLDING OVER. In the event the CITY shall hold over or remain in possession of the Premises with the consent of WSDOT after the expiration of the stated term of this Lease, or any written extension or renewal of the term of this Lease, such holding over or continued possession shall create a tenancy from month-to-month only, upon the same terms and conditions as are set forth herein; provided that, WSDOT or the CITY may, in addition to other remedies provided elsewhere herein, terminate this Lease for any reason with not less than twenty (20) calendar days prior written notice. 5. CONSIDERATION. The CITY's use of the Premises as a city street that is open as a matter of right to public vehicular traffic, excluding vehicles that require stationary rails or tracks, serves a highway purpose and, as such, no monetary rent is due. WSDOT shall have the right to review any change in the use of the Premises and may require the CITY to begin paying rent if the use or partial use of the Premises is not a highway purpose as solely determined by WSDOT. 6. TERMINATION BY WSDOT. A. This Lease may be terminated by WSDOT, without penalty or liability: (1) Upon not less than five (5) years prior written notice to the CITY; (2) Upon thirty (30) calendar days prior written notice to the CITY if the CITY defaults and fails to cure such default within that thirty-day period, or such longer period, as may be reasonably determined by WSDOT, if the CITY is diligently working to cure the default; (3) Immediately, upon written notice, if WSDOT is required by court order, by legislative action, or by a governmental agency having jurisdiction to take some action, which would effectively prohibit the CITY's use of the Premises; (4) Upon not less than sixty (60) calendar days prior written notice if the Premises is needed for a state highway purpose; or (5) Immediately in the event of an emergency, as determined by WSDOT, if WSDOT deterinines that it is in the best interest of WSDOT to terminate this Lease. Page 3 of 25 AA 1-13678 IC: 1-17-14558 City of Kent B. Upon WSDOT's termination of this Lease,the CITY shall comply with the balance of the terms of this Lease, including but not limited to Section 14., the ownership, operation, maintenance, repair, and replacement of Bridge and Premises; Section 30., performance by WSDOT; and Section 3L. the removal or relocation of Bridge and appurtenances. 7. TERMINATION BY CITY. This Lease may be terminated by the CITY upon five (5) years written notice to WSDOT, without penalty, and for any reason; however, the CITY agrees to be bound by the balance of the terms of this Lease upon its termination or expiration. The CITY expressly agrees that prior to the effective termination date it shall have removed or relocated the Bridge and appurtenances, as further described in Section 31.herein. S. NONAPPLICABILITY OF RELOCATION ASSISTANCE. The CITY acknowledges that this Lease does not entitle CITY to assistance under the Uniform Relocation and Real Property Acquisition Policy (ch 8.26 RC W) for any real or personal property owned by any entity on the Premises. 9. ENCUMBRANCES. It is expressly understood that the CITY shall not encumber the Premises. 10. USE OF PREMISES. A. The CITY's use of the Premises is limited to the construction,operation,ownership, and maintenance of the Bridge, as provided in the General Permit, which serves to connect part of the CITY's public city street system that is open as a matter of right to public vehicular traffic, excluding vehicles that require stationary rails or tracks. The underside of the Bridge shall be no less than 18.5 feet above the paved surface of the underlying SR 167 right of way. The CITY's occupancy or use of the Premises and improvements, shall not interfere with the use, safety, appearance, nor the enjoyment of the highway facility. The CITY shall design the bridge to minimize the release of fumes, vapors, odors, drippings, droppings, or discharge of any kind. B. In using the Premises, CITY shall comply with all policies and regulations, including, but not limited to chapter 47.42 RCW et seq. and WAC 468-66 et seq., heretofore adopted or hereafter promulgated by WSDOT relative to the location, operation, and maintenance of improvements located on the Premises. C. In using the Premises, it is expressly agreed that CITY shall (1) comply with all applicable federal, state and local laws, ordinances, and regulations, including environmental requirements that are in force or which may hereafter be in force, and (2) secure all necessary permits and licenses for the uses of the Premises authorized in this Lease. Page 4 of 25 AA 1-13678 IC: 1-17-14558 City of Kent 1). Access to the Premises is South 224`h Street. Further, direct access to ramps or traveled lanes of limited access highways is not permitted. E. CITY shall not commit or allow to be committed any waste upon the Premises nor allow any public or private nuisance. F. CITY may construct improvements on the Premises as further detailed in Section 26. herein. G. CITY's use of the Premises shall not, in any way, interfere with the drainage of SR 167,and the CITY shall, at its own expense,make such provision as WSDOT may direct to remedy any drainage impacts to the state highway resulting from the CITY's use of the Premises. H. If the CITY fails to remedy any impacts identified in conjunction with Section 10.G. within thirty (30) calendar days of notification from WSDOT, then WSDOT may connect said impacts at the CITY's sole expense. The CITY shall reimburse WSDOT for said WSDOT costs in accordance with Section 35. herein. 1. CITY shall not grant franchises within the Premises without prior written approval from WSDOT. 11. SIGNS, DISPLAYS, OR ADVERTISING DEVICES. Signs, displays, or advertising devices are not permitted on the Premises; provided, that street signs are permitted on the Bridge pursuant to WSDOT standards for city street signs within limited access facilities. 12. FENCES. Any WSDOT-owned fences in place at the time of execution of this Lease or relocated to separate the Premises from the traveled roadway will be maintained by WSDOT for the duration of the Lease. Nothing may be attached to WSDOT's fence without WSDOT's prior written approval. If any fence is damaged as a result of CITY's activities, the CITY will irmmediately repair such damage at its cost and to WSDOT's satisfaction;provided that, if CITY fails to complete said repair immediately WSDOT may complete the repair and CITY shall reimburse WSDOT for the costs of such repairs in accordance with Section 35. herein. 13. CONDITION OF THE PROPERTY. WSDOT and CITY acknowledge that they have jointly examined the Premises and the CITY accepts said Premises in its present condition as of the Commencement Date of this Lease. Page 5 of 25 AA 1-13678 IC: 1-17-14558 City of Kent 14. OWNERSHIP, OPERATION, MAINTENANCE, REPAIR AND REPLACEMENT OF BRIDGE AND PREMISES. A. The CITY, as owner of the Bridge, shall perform or cause to be performed at its sole cost and expense all operation, maintenance, repair, removal, and/or replacement of the Bridge, city street, appurtenances, and/or all associated CITY improvements to be located on the Premises or off the Premises that might adversely affect the Premises. B. In the event the maintenance of the Premises requires the CITY to access an area of WSDOT's right of way other than the Premises, the CITY shall, prior to entry on said right of way, notify the Bridge Maintenance Superintendent, at the address and in the manner set forth in Section 42. herein, obtain written approval from the Bridge Maintenance Superintendent, and comply with all additional conditions as required by the Bridge Maintenance Superintendent, including but not limited to, obtaining a permit from WSDOT. C. WSDOT, or its agents or contractors, shall perform the regular inspection of the Bridge structure as required by the Code of Federal Regulations 23 CFR 650, subpart C, National Bridge Inspection Standards (NBIS), and as it may be amended or replaced. The CITY shall be responsible for all Bridge structure inspection costs, including but not limited to materials, equipment, labor, overtime, and per diem costs. The CITY shall contact WSDOT's Bridge Preservation Engineer at 360-570-2556 to enter into an agreement that will detail inspection schedules and costs estimates. Inspections will be conducted on a twenty-four (24) month cycle, or more frequently, as solely determined by WSDOT's Bridge Preservation Engineer. The CITY agrees to reimburse WSDOT for all costs of the Bridge structure inspections performed by WSDOT,its agents or contractors. The CITY's reimbursement to WSDOT for said WSDOT costs shall be in accordance with Section 35. herein. D. The CITY, as owner of the Bridge, shall be responsible for all costs to replace or repair all damage to the Bridge and appurtenances and/or associated CITY improvements on the Premises,or off the Premises that might adversely affect the Premises, caused by third parties, acts of God, and/or force majeure. Any CITY work such as repair, maintenance, construction, or reconstruction that is related to the safety or structural integrity of the Bridge structure requires WSDOT's prior written approval. WSDOT shall be responsible for first response activities for impacts to SR 167 mairdine originating from, or relating to, the Bridge. WSDOT shall notify the CITY'S Street Superintendent at (253) 856-5600 immediately regarding any first response activities. The CITY shall be responsible for, and shall reimburse WSDOT all such first response costs incurred by WSDOT, including but not limited to materials, equipment, labor, overtime, and per diem costs. The CITY's reimbursement to WSDOT for said WSDOT costs shalll be in accordance with Section 35. herein. Pne 6 of 25 AA I-1367s IC: 1-17-14553 City of Kent E. The CITY shall provide WSDOT with traffic plans for WSDOT review and approval in advance of any CITY authorized work or activity on the Premises or off the Premises which may result in traffic impacts to SR 167. WSDOT shall review and approve, modify,or reject the CITY's plans with fifteen(15)business days after receipt of plans. If WSDOT rejects the plans, WSDOT and the CITY will cooperate to develop acceptable plans. If WSDOT incurs costs associated with the review, approval, and coordination of such traffic control plans, it will be at the CITY's sole expense. Reimbursement to WSDOT for these costs shall be pursuant to Section 3.5. herein. F. During the term of this Lease, WSDOT may require the CITY to provide additional security as may be required by WSDOT or the Department of Homeland Security, such as,but not limited to, video surveillance of the Premises or temporary closures of the Bridge. If WSDOT determines that additional security is required, WSDOT shall contact the CITY to notify them of the requirements. CITY agrees to promptly comply with all such requirements within 90 calendar days. Failure to so comply shall result in the immediate termination of this Lease without further action and the CITY shall immediately secure the Premises to prevent access to the Bridge. If the CITY fails to immediately secure the Premises and prevent access to the Bridge, WSDOT may complete the work to secure and prevent access to the Bridge, and the CITY agrees to reimburse WSDOT for all costs incurred by WSDOT in securing the Premises and preventing access to the Bridge including but not limited to materials, equipment, labor, overtime, and per diem costs. The CITY's reimbursement to WSDOT for said WSDOT costs shall be in accordance with Section 35. herein. The provisions in this section shall survive termination of this Lease. G. CITY agrees that it shall be additionally responsible for the following specific maintenance and operational items located on the Premises or off the Premises if they adversely affect the Premises, as solely determined by WSDOT, at the CITY's sole cost and expense,without further liability to WSDOT: (1) Security for or policing the Premises; (2) Removing and disposing of all signs, banners, ribbons, etc. from the Premises; (3) Maintenance and operation of stormwater facilities to WSDOT's satisfaction in accordance with WSDOT maintenance standards and practices; and in accordance with the CITY's National Pollutant Discharge Elimination System (NPDES)permit requirements. (4) Maintaining, repairing, and ensuring the structural integrity of the Bridge and appurtenances located on the Premises, including but not limited to repairing earthquake damage such as cracks and concrete spatting. Any proposed repairs or structural changes on or Page 7 of 25 AA 1-13678 IC: I-17-14558 City of Kent adjacent to the Premises will require WSDOT Bridge Preservation Engineer's prior written approval and may be subject to additional conditions and requirements, as deemed appropriate by WSDOT's Bridge Maintenance Superintendent, H. CITY shall also be responsible for any additional cost incurred by WSDOT due to the CITY's occupancy of the Premises, including but not limited to: (1) Additional cost of maintenance and operation of WSDOT's right of way and highway facility; (2) Any cost needed to prevent vandalism to WSDOT property; (3) Any cost to remove graffiti on WSDOT's property; (4) Any cost related to the review and approval of any necessary plans including, but not limited to, construction and traffic control plans; and (5) Any cost incurred by WSDOT for performing traffic control measures. I. CITY reimbursement to WSDOT for all costs WSDOT incurs pursuant to this section shall be in accordance with Section 35.herein. 15. ENVIRONMENTAL REQUIREMENTS. A. CITY represents, warrants and agrees that it will conduct its activities on and off the Premises in compliance with all applicable Environmental Laws. As used in this Lease, the tern "Environmental Laws" means all federal, state and local environmental laws, rules, regulations, ordinances, judicial or administrative decrees, orders, decisions, authorizations or permits, including, but not limited to, the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et. seq., the Clean Air Act, 42 U.S.C. § 7401, et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq., the Emergency Planning and Community Right to Know Act, 42 U.S.C. § 11001,et seq.,the Comprehensive Fnvirommental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq., the Oil Pollution Control Act, 33 U.S.C. § 2701, et seq, and Washington or any other comparable local, state, or federal statute or ordinance pertaining to the environment or natural resources and all regulations pertaining thereto, including all amendments and/or revisions to said laws and regulations. B. Toxic or hazardous substances are not allowed on the Premises without the express written permission of WSDOT, under such terms and conditions as may be specified by WSDOT. For the purposes of this Lease, "Hazardous Substances," shall include all those substances Page 8 of25 AA 1-13678 IC: 1-17-14558 City of Kent identified as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq., and the Washington Model Toxics Control Act, RCW 70.105D et seq., including all amendments and/or revisions to said laws and regulations, and shall include gasoline and other petroleum products. In the event such permission is granted, the use and disposal of such materials must be done in a legal manner by the CITY. C. CITY agrees to cooperate in any environmental investigations conducted by WSDOT staff or independent thud parties where there is evidence of contamination on the Premises, or where WSDOT is directed to conduct such investigation by an agency having jurisdiction. CITY will reimburse WSDOT within thirty (30) calendar days of the date of WSDOT's invoice for the cost of such investigations, where the need for said investigation is determined to be caused by CITY's operations. CITY will promptly provide WSDOT with notice of any inspections of the Premises, notices of violations, and orders to clean up contamination. CITY will permit WSDOT to participate in all settlement or abatement discussions. in the event CITY fails to take remedial measures as duly directed by a state,federal,or local regulatory agency within ninety (90) calendar days of such notice, WSDOT may elect to perform such work, and CITY covenants and agrees to reimburse WSDOT for all direct and indirect costs associated with WSDOT's work, within thirty (30) calendar days of the date of WSDOT's invoice, where those costs are determined to have resulted from CITY's use of the Premises. D. For the purposes of this Lease, "Costs" shall include, but not be limited to, all response costs, disposal fees, investigatory costs, monitoring costs, civil or criminal penalties, and attorney fees and other litigation costs incurred in complying with state or federal environmental laws, which shall include, but not be limited to, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601,et seq.; the Clean Water Act, 33 U.S.C. § 1251; the Clean Air Act, 42 U.S.C. § 7401; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901; and the Washington Model Toxics Control Act, Ch. 70.105D RCW, et seq., including all amendments and/or revisions to said laws and regulations. E. CITY agrees to defend, indemnify and hold harmless WSDOT from and against any and all claims, causes of action, demands and liability including, but not limited to, any costs, liabilities, damages, expenses, assessments, penalties, fines, losses,judgments and attorneys' fees associated with the removal or remediation of any Hazardous Substances that have been released, or otherwise come to be located on the Premises, including those that may have migrated from the Premises through water or soil to other properties, including without limitation, the adjacent WSDOT property, and which are caused by or result from CITY's activities on the Premises. CITY further agrees to retain, defend, indemnify and hold harmless WSDOT from any and all liability arising from the offsite disposal, handling, treatment, storage, or transportation of any such Hazardous Substances removed from said Premises. Page 9 of 25 AA 1-13678 1C: 1-17-14558 City of Kent P. The provisions of this section shall Swwive the termination or expiration of this Lease. 16. WSDOT'S RESERVATION OF RIGHT TO MAINTAIN AND GRANT UTILITY FRANCHISES AND PERMITS. A. WSDOT reserves the right to grant all utility franchises and/or permits across the Premises pursuant to Chapter 47.44 RCW. WSDOT also reserves the right to grant utility franchise and permit holders the right to enter upon the Premises to maintain, repair and enhance existing facilities and install new utilities. Such installation and maintenance by utility franchise and permit holders will be accomplished in such a manner as to minimize any disruption to CITY. The franchise/permit holder will be required to restore paving and grading damaged by the installation. WSDOT also reserves the right to withdraw portions of the Premises for uses such as, but not limited to, telecommunications transmission sites, which WSDOT determines to be reasonably compatible with CITY's authorized use of the Premises. Prior to the installation of any utility, WSDOT shall conduct, or cause the applicant utility to conduct, a structural analysis to confirm there is no additional load from any utility installed on the Bridge. WSDOT shall obtain concurrence from the CITY's Public Works Director prior to granting any permits or franchises for any utility, which concurrence shall not be unreasonably withheld or delayed. The CITY shall first obtain a permit from WSDOT prior to installation of any future CITY-owned utilities proposed to be installed within the Premises. Except for CITY-owned utilities,the CITY shall not be responsible for damages or any costs related to the WSDOT issued franchise/permit holder's use of the Premises. WSDOT agrees it will seek reimbursement for any said damages or costs from the WSDOT issued franchise/permit holder and not the CITY. B. The CITY shall not disturb markers installed by a franchise/permit holder and will contact and provide notice to any franchise/permit holder and all owners of underground facilities prior to any excavation. CITY shall contact WSDOT and call the Underground Utility Locating Service, or its successor organization, as part of its efforts to ascertain any and all owners of underground utility facilities and to locate the utility. CITY shall not damage legally installed underground utilities. CITY shall comply with all applicable provisions of chapter 19.122 RCW relating to underground facilities. 17. USE OF CITY IMPROVEMENTS. The CITY hereby authorizes WSDOT to use the CITY improvement located on the Premises for highway purposes, including, but not limited to, the attaching of state highway signs or notice boards. Such use shall not unreasonably interfere with the CITY's use of Premises. Prior to the installation of any object on the Bridge, WSDOT shall have the sign or object and its connection to the Bridge designed. WSDOT shall obtain approval from the C1TY's Public Works Director prior to the installation of any object. The CITY shall not be responsible for any damage or cost related to WSDOT's use of Page 10 of25 AA 1-13678 IC: I-17-14558 City of Kent the Premises. WSDOT shall pay all costs for any said damage or cost from its use, and not the CITY. 18. USE OF RIGHT OF WAY UNDER OR ADJACENT TO STRUCTURE. The CITY agrees to provide, monitor and maintain protection against vehicular hits or other likely causes of damage arising from CITY's use of the Premises to all retaining walls and to piers exposed to such potential damage under any elevated structure to be constructed on the Premises, including but not limited to the Bridge. Such wall and pier protection shall be provided to the satisfaction of WSDOT. 19. TAXES, ASSESSMENTS, AND UTILITIES. The CITY agrees to pay all assessments that benefit the Premises and/or which may hereafter become a lien on the interest of the CITY in accordance with RCW 79.44.010. The CITY also agrees to pay all taxes that may hereafter be levied or imposed upon the interest of the CITY or by reason of this Lease. The CITY is responsible for and agrees to pay the cost of utilities, including, but not limited to, surcharges, fuel adjustments, rate adjustments and taxes that serve the Premises. 20. LIENS. A. Nothing in this Lease shall be deemed to make the CITY the agent of WSDOT for purposes of construction,repair, alteration, or installation of structures, improvements, equipment, or facilities on the Premises. CITY acknowledges that WSDOT may not, and shall not, be subject to claims or liens for labor or materials in connection with such activities by the CITY. B. The CITY shall at all times indemnify and hold harmless WSDOT from all claims for labor or materials in connection with construction, repair, alteration, or installation of structures, improvements, equipment, or facilities on or within the Premises, and from the cost of defending against such claims, including attorney fees. C. In the event a lien is filed upon the Premises,the CITY shall: (1) Record a valid Release of Lien; (2) Deposit sufficient cash with WSDOT to cover the amount of the claim on the lien in question and authorize payment to the extent of said deposit to any subsequent judgment holder that may arise as a matter of public record from litigation with regard to lienholder claim; or (3) Procure and record a bond which releases the Premises from the claim of the lien and from any action brought to foreclose the lien. Page 11 of25 AA 1-13678 IC: 1-17-14558 City of Kent D. Should the CITY fail to accomplish 1, 2, or 3, above, within fifteen (15) calendar days after the filing of such a lien, the Lease shall be in default. 21. WSDOT'S RIGHT OF ENTRY AND INSPECTION. A. WSDOT, for itself, its agents and contractors, and for the Federal Highway Administration (FHWA), reserves the right to enter upon the Premises and improvements at any time without notice to CITY for the purpose of inspection, maintenance, construction, or reconstruction of the highway facility or any element thereof, to perform security audits such as Homeland Security, or to perform enviromnental audits as provided for elsewhere in this Lease. WSDOT shall notify the CITY's Transportation Engineer at (253) 856-5500 prior to any lane closure on the Bridge. B. WSDOT and FHWA may enter upon the Premises at any time without prior notice for the purpose of inspecting any excavation, construction, or maintenance work being done by CITY. In addition, WSDOT and FHWA may enter upon CITY-owned improvements on the Premises at any time and without prior notice, for the purpose of inspection, maintenance, and repair of said improvements. C. The CITY shall not be compensated for any loss of the use of the Premises due to WSDOT's exercise of the rights in this section. Farther, WSDOT shall in no way be responsible for any incidental or consequential damages due to such loss of use, if any, by the CITY. 22. INSURANCE. A. At its sole expense, the TENANT shall secure and maintain in effect a policy providing commercial general liability insurance issued by an insurer licensed to conduct business in the State of Washington. The insurance policy shall provide liability coverage for any and all claims of bodily injury, property damage, and personal injury arising from the TENANT's use of the Premises which is the subject of this Agreement. The insurance policy required by this section shall provide coverage as follows: primary coverage limits of not less than One Million and no/100 Dollars ($1,000,000.00) bodily injury and property damage or combined single limit of liability per occurrence, with a general annual aggregate limit of not less than Two Million and no/100 Dollars($2,000,000.00). Such aggregate limits shall apply for this Premises location, and coverage under said policy shall be triggered on an "occurrence basis," not on a "claims made" basis. In addition, the TENANT shall provide excess liability coverage with annual limits of not less than $10,000,000.00 per occurrence and in the aggregate, which will provide coverage at least as broad as the primary cover ages set forth herein. These excess liability limits shall be reduced to $5,000,000.00 upon acceptance of the completed bridge structure and appurtenances described in Section I.A. above. Page 12 of 25 AA 1-13678 IC: 1-17-14558 City of Kent B. The coverage required by this section shall be at least as broad as that provided by the most current Commercial General liability Policy form ISO (hnsurance Services Office, Inc.) policy form CG 00 01 01 07, or its equivalent without modification. In addition,prior to the undertaking of any work, or any use of the Premises, in connection with any activities arising out of or related to the performance of this Agreement by a contractor, subcontractor, consultant or sub-consultant (together hereinafter "Contractors") of the TENANT, TENANT shall require that any such Contractor(s) obtain the insurance coverage set forth below and shall submit to WSDOT evidence that such Contractors)has obtained comprehensive general liability coverage under form CG 0001, naming WSDOT and the State as an additional insured as set forth in Section C below. The additional insured endorsement shall contain no restrictions or limitations with respect to "completed operations", "ongoing operations" or the "active negligence" of WSDOT and/or the State. This coverage shall be primary and non contributory and shall include a waiver of all rights of subrogation the insurer may have against WSDOT and the State. This coverage shall be on a "per occurrence" basis with limits of not less than the following: Bodily Injury Liability, including $2,000,000/$4,000,000 Auto bodily injury per occurrence/aggregate Property Damage Liability, including $2,000,000/$4,000,000 Auto property damage liability (if applicable) per occurrence/aggregate Should TENANT require limits of insurance which are greater than as set forth above, those higher limits shall also apply to the coverage to be afforded WSDOT and the State. Evidence of the required insurance shall be submitted prior to the start of any performance of work, or any use of the Premises under the Agreement on a standard ACCORD Form, with copies of the relevant additional insured and waiver of subrogation endorsements attached. TENANT shall require its contractor(s) to maintain such insurance during the entirety of the contract period. C. The State of Washington, its officers, agencies, officials, agents and employees (the "Additional Insureds") shall be named as an additional insured by endorsement of the general liability and pollution liability policies required by this section utilizing ISO Fornn CG 2010 or its equivalent without modification during the course of any construction at the Premises, and form CG 2026 or its equivalent without modification, at the conclusion of activities arising out of or related to the performance of this Agreement by Contractors of the TENANT. "Operations" under Page 13 of 25 AA 1-13678 IC: 1-17-14558 City of Kent these endorsements shall include TENANT's products. The endorsements shall also state that this insurance shall be primary and non contributory with respect to any other applicable insurance which may be maintained by the Additional Insureds. The additional insured endorsements shall contain no restrictions or limitations with respect to"completed operations,""ongoing operations," or the "active negligence"of WSDOT and/or the State. The coverage shall include a waiver of all rights of subrogation the insurer may have against WSDOT and the State. This coverage shall be on a "per occurrence" basis. The TENANT shall provide WSDOT with not less than thirty (30) days written notice after learning of any cancellation of the coverage required by this section. D. Unless approved by WSDOT in advance and in writing, the liability coverage required by this section shall not be subject to any deductible or self-insured retentions of liability greater than Five Thousand and no/100 Dollars ($5,000.00)per occurrence. The payment of any such deductible or self-insured retention of liability amounts remains the sole responsibility of the TENANT. E. The insurance coverages required under this section shall be kept in full force and effect throughout the duration of this Agreement. TENANT assumes all obligations for premium payments, and in the event of nonpayment, the TENANT is obligated to reimburse WSDOT the cost of maintaining the insurance coverage and any legal fees incurred in enforcing such reimbursement should the TENANT fail to pay the policy premiums. F. Coverage obtained by the TENANT in compliance with this section shall not be deemed as having relieved the TENANT of any liability in excess of such coverage. G. The TENANT shall provide WSDOT with a certificate of insurance reflecting the insurance coverage required by this section within ten (10) business days of the execution of this Agreement. Such certificates shall also be provided upon renewal of said policies and changes in carriers. H. No changes whatsoever shall be initiated as to the coverage without prior written approval by WSDOT and written authorization by WSDOT to make any requested changes. I. . In lieu of the commercial insurance required above, TENANT and WSDOT may mutually agree, in writing, upon an appropriate program of commercial insurance, self-insurance, or any combination thereof in amounts and types sufficient to satisfy TENANT's liabilities under this Agreement. J. TENANT agrees that WSDOT, when it deems reasonably necessary, may require liability limit increases for the coverages required by this section during the term of this Agreement and any extensions thereof. In such cases, WSDOT shall provide written notice to TENANT of Page 14 of 25 AA 1-13678 IC: 1-17-14558 City of Kent any coverage increase requirements at least 60 days prior to the date on which WSDOT requires such increases to go into effect. 23, ALLOCATION OF LIABILITY A. Hold Harmless/Indemnification. The CITY, its successors and assigns, will protect, save, and hold harmless WSDOT, its authorized agents and employees, from all claims, actions, costs, damages, (both to persons and/or property) or expenses of any nature whatsoever by reason of the acts or omissions of the CITY,its assigns,agents, contractors,invitees, employees, or any person whomsoever, arising out of or in connection with any acts or activities related to this Lease, whether those claims, actions, costs, damages, or expenses result from acts or activities occurring on or off the Premises. The CITY further agrees to defend WSDOT, its agents or employees, in any litigation, including payment of any costs or attomey's fees, for any claims or actions commenced, arising out of, or in connection with acts or activities related to this Lease, whether those claims, actions, costs, damages, or expenses result from acts or activities occurring on or off the Premises. This obligation shall not include such claims, actions, costs, damages, or expenses which may be caused by the sole negligence of WSDOT or its authorized agents or employees; provided, that if the claims or damages are caused by or result from the concurrent negligence of (1) WSDOT, its agents or employees, and (2) the CITY, its assigns, agents, contractors, invitees, employees, or involves those actions covered by RCW 4.24.115, this indenmity provision shall be valid and enforceable only to the extent of the negligence of CITY or its assigns, agents, contractors, invitees, or employees. B. Waiver. The CITY agrees that its obligations under this section extend to any claim, demand and/or cause of action brought by, or on behalf of, any of its employees or agents while performing construction, operation,and/or maintenance work while located on the Premises. For this purpose, THE CITY, BY MUTUAL NEGOTIATION, HEREBY WAIVES WITH RESPECT TO WSDOT ONLY, ANY IMMUNITY THAT WOULD OTHERWISE BE AVAILABLE TO IT AGAINST SUCH CLAIMS UNDER THE INDUSTRIAL INSURANCE PROVISIONS of Chapter 51.12 RCW. C. The CITY agrees that it shall be directly liable to WSDOT for all damages caused to the state highway facility and/or right of way, resulting from the CITY's construction, reconstruction, maintenance, use, and/or occupancy of the Premises. D. The indemnification and waiver provisions contained in this section shall survive the termination or expiration of this Lease. 24. PERSONAL PROPERTY. WSDOT shall not be liable in any manner for, or on account of, any loss or damage sustained to any property, including but not limited to the Bridge, Page 15 of 25 AA 1-13678 IC: 1-17-14558 City of Kent of whatsoever kind stored, kept, or maintained on or about the Premises, except for such claims or losses that may be caused by WSDOT or its authorized agents or employees. Upon termination of this Lease, WSDOT or its agent may remove all non-W SDOT property remaining on the Premises at CITY's expense and dispose of it in any manner WSDOT deems appropriate. CITY agrees to reimburse WSDOT for the costs of such removal and disposal within thirty (30) calendar days of the date of WSDOT's invoice pursuant to Section 35. herein, except that WSDOT shall pay the costs of removal and disposal of WSDOT property. 25. ADDITIONAL CONSTRUCTION PROHIBITED. Except as provided in Section 26. herein, no new construction by the CITY is permitted for the duration of this Lease, except as may be approved in advance and in writing by WSDOT and subject to any additional terms and conditions, as solely determined by WSDOT. 26. WSDOT'S APPROVAL OF DESIGN AND CONSTRUCTION. The CITY and WSDOT have entered into General Permit No. GCB 2393 (GCB 2393), attached as Exhibit B. GCB 2393 sets forth the terms and conditions applicable to the CITY's initial Bridge construction activities, including,but not limited to, General Provisions, Special Provisions,Right of Way Plan, and Construction Plans. During the initial construction of the CITY's Bridge Project, the terms and conditions of GCB 2393 shall apply to the CITY's activities on the Premises. Upon WSDOT's issuance of the Notice of Final Acceptance and Approval pursuant to the Special Provisions of GCB 2393, GCB 2393 shall terminate and all future use of the Premise is governed by the terms and conditions of this Lease. 27. NONCOMPLETION OF CONSTRUCTION. In the event that this Lease authorizes the construction of improvements, unless the time or times for completion are extended in writing by WSDOT, WSDOT may, at its option,terminate this Lease,without penalty or further liability if: A. Construction of the improvements is not begun within one hundred eighty (180) calendar days of the Commencement Date; and B. Construction of the Bridge is not prosecuted to completion with reasonable adherence to a construction schedule that allows not more than five hundred fifty (550) calendar days from the start to the finish of construction. 28. NONDISCRIMINATION. CITY, for itself, its successors and assigns, as part of the consideration hereof, does hereby agree to comply with all applicable civil rights and antidiscrimination requirements, including, but not limited to, chapter 49.60 RCW. Page 16 of 25 AA 1-13678 IC: 1-17-14558 City of Kent 29. ASSIGNMENT; NON-HIGHWAY PURPOSE USE. A. Neither this Lease nor any rights created by it may be assigned, sublet, or transferred. B. In the event that the CITY uses, or allow others to use, any portion of the Premises for non-highway purposes, whether by written or oral agreement, without WSDOT's prior written approval, WSDOT, in addition to or in lieu of terminating this Lease for default, and in addition to any damages it may experience, may demand all or a share of any revenue generated by such unauthorized use. WSDOT shall set the amount of said share, and its decision shall be final and binding. WSDOT may demand such share at any time during the term of this Lease. The CITY shall pay said share to WSDOT within thirty (30) calendar days of demand as provided in Section 35 herein. The CITY agrees to pay said share retroactively to the date the unauthorized non- highway use of the Premises commenced. Furthermore, such unauthorized use shall not relieve the CITY hereunder from all of its obligations under this Lease, including, but not limited to, the maintenance of insurance. 30. PERFORMANCE BY WSDOT. If CITY defaults in the performance or observation of any covenant or agreement contained in this Lease, WSDOT, without notice if deemed by WSDOT that an emergency exists, or if no emergency exists, with thirty (30) calendar days prim written notice, may direct CITY to stop work and may itself perform or cause to be performed such covenant or agreement and may enter upon the Premises for such purpose. Such emergency shall include,but not be limited to, endangerment of life,the highway facility or failure of CITY to obtain in a timely manner the specified insurance coverage. CITY shall reimburse WSDOT the entire cost and expense of such performance by WSDOT within thirty (30) calendar days of the date of WSDOT's invoice pursuant to Section 35. herein. Any act or thing done by WSDOT under the provisions of this section shall not be construed as a waiver of any agreement or condition herein contained or the performance thereof. 31. DISPOSITION OF IMPROVEMENTS. The CITY acknowledges and agrees that its use of the Premises is subject to WSDOT's plenary authority to use its limited access right of way for state highway purposes, which includes but is not limited to the widening and/or relocation(horizontally or vertically) of SR 167. Further, the CITY acknowledges and agrees that should WSDOT require the full use of its right of way, including the full or partial use of the Premises, for WSDOT purposes, such as but limited to the operation, maintenance, construction, or reconstruction of SR 167, WSDOT shall terminate this Lease as provided herein, and the CITY agrees to remove the improvements it has made to the Premises, including, but not limited to, the Bridge from WSDOT's right of way and Premises at the CITY's sole cost and expense prior to the effective termination date. Should the CITY fail to remove said improvements by such date, Page 17 of 25 AA 1-13678 1C: 1-17-14558 City of Kent WSDOT may remove said improvements at CITY's sole cost and expense, and the CITY agrees to reimburse all such costs in accordance with Section 35. herein. 32. WSDOT ACCESS TO REMOVE IMPROVEMENTS. In the event the CITY fails to remove improvements or restore the Premises to WSDOT's satisfaction, then if necessary or desirable in WSDOT's judgment for reasons of safety or economy, WSDOT or its agents shall have the right to cross any lands owned or otherwise controlled by the CITY for the purpose of accomplishing said removal or restoration. Said right shall expire five (5) years after the date of termination of this Lease, or when removal and restoration is complete in WSDOT's judgment, whichever is the earlier. 33. RESTORATION OF SITE. Prior to termination of this Lease, the CITY agrees to restore the Premises to its condition prior to CITY's occupancy, reasonable wear and tear excepted. This work is to be done at CITY's expense and to the satisfaction of WSDOT. 34. VACATION OF PREMISES. Upon termination of this Lease, the CITY shall cease its operations on and/or use of the Premises. In the event the CITY fails to vacate the Premises on the date of termination, the CITY shall be liable for any and all costs to WSDOT arising from such failure and the CITY agrees to reimburse all such costs in accordance Section 35. herein. 35. INVOICE AND PAYMENTS. A. The CITY shall reimburse WSDOT for all costs incurred by WSDOT under this Lease. WSDOT shall notify the CITY prior to the start of any work on the Bridge and/or appurtenances, unless the work is done as an emergency as determined solely by WSDOT. WSDOT shall provide detailed invoices to the CITY, and the CITY agrees to pay WSDOT within thirty (30) calendar days from the date of the WSDOT invoice. Invoices shall be based on costs, including but not limited to materials, equipment, labor, overtime, and per diem costs. B. Payments shall be made payable to the Washington State Department of Transportation. All payments shall be mailed or delivered to: DEPARTMENT OF TRANSPORTATION (Mailing Address) Alto.: Property Management Program Manager P.O. Box 47339 Olympia, WA 98504-7339 Page 18 of 25 AA 1-13678 IC: 1-17-14558 City of Kent DEPARTMENT OF TRANSPORTATION (Physical Address) Real Estate Services Attu.: Property Management Program Manager 7345 Linderson Way SW Tumwater, WA 98501 C. The CITY agrees that if payment or arrangement for payment of any of WSDOT's invoices for costs covered in this Lease are not made to WSDOT within forty-five (45) calendar days after the date of WSDOT's invoice, WSDOT shall be entitled to withhold and expend the total sum due, including late payment and interest, if any, from the CITY's regular monthly Motor Vehicle Fund fuel tax allotments. D. Charge for Late Payment, NSF checks. If any sums payable to WSDOT under this Lease are not received by the fifth (5"') calendar day following its due date, CITY shall pay WSDOT, in addition to the amount due, for the cost of collecting and handling such payment, an amount equal to the greater of ONE HUNDRED and NO/100 dollars ($100.00) or five percent (5%) of the delinquent amount. In addition, all delinquent sums payable by CITY to WSDOT and not received by the fifth (5th) calendar day following its due date shall, at WSDOT's option, bear interest at the rate of twelve percent(12%)per anntmi, or the highest rate of interest allowable by law, whichever is greater; provided that if the highest rate allowable by law is less than twelve percent (12%), interest charged hereunder shall not exceed that amount. Interest on all delinquent amounts shall be calculated from the original due date to the date of payment. Also there shall be a charge for any check returned uncollectible in accordance with WAC 468-20-900. WSDOT and CITY agree that such charges represent a fair and reasonable estimate of the costs incurred by WSDOT by reason of late payments and uncollectable checks. E. WSDOT's acceptance of late payment charges and/or any portion of the overdue payment shall in no event constitute an accord and satisfaction, compromise of such payment, or a waiver of CITY's default with respect to such overdue payment, nor prevent WSDOT from exercising any other rights and remedies granted in this Lease. F. When a delinquency exists, any payments received will be applied first to the late payment charge and late payment fees and next to the delinquent payment. 36. BINDING CONTRACT. This Lease shall not become binding upon WSDOT unless and until executed for WSDOT by the Secretary of Transportation or his/her duly authorized representative. Page 19 of 25 AA 1-13678 IC: I-17-14558 City of Kent 37. ATTORNEYS' FEES. In the event of any controversy, claim, or dispute arising out of this Lease, each party shall be solely responsible for the payment of its own legal expenses, including but not limited to, attorney's fees and costs. 38. MODIFICATIONS. This Lease contains all the agreements and conditions made between the parties hereto pertaining to the rental of the Premises and may not be modified orally or in any other manner other than by a written agreement signed by all parties hereto. The receipt of rent by WSDOT, with knowledge of any breach of this Lease by the CITY, and/or with knowledge of any default on the part of the CITY shall not be deemed to be a waiver of any provision of this Lease. Failure on the part of WSDOT to enforce any covenant or provision herein contained shall not discharge or invalidate such covenant or provision or affect the right of WSDOT to enforce the same in the event of any subsequent breach or default. 39. INTERPRETATION. This Lease shall be governed by and interpreted in accordance with the laws of the state of Washington. The titles to paragraphs or sections of this Lease are for convenience only and shall have no effect on the construction or interpretation of any part hereof. 40. SEVERARILITY. In case any one or more of the provisions contained in this Lease shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Lease shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 41. VENUE. CITY agrees that the venue of any action or suit concerning this Lease shall be in the Thurston County Superior Court and all actions or suits thereon shall be brought therein, unless applicable law requires otherwise. 42. DISPUTE RESOLUTION. A. The following individuals, or their successors, are the Designated Representatives for the purpose of resolving disputes that arise under this Lease: WSDOT: Bridge Maintenance Superintendent 10833 Northup Way NE Bellevue, WA 98004 CITY, City of Kent Department of Public Works Public Works Director 400 W Gowe Street Kent, WA 98032 Page 20 of 25 AA 1-13678 IC: 1-17-14558 City of Kent B. WSDOT Designated Representative and the CITY Designated Representative shall confer to resolve disputes that arise under this Lease as requested by either party. The Designated Representatives shall use their best efforts and exercise good faith to resolve such disputes. C. In the event the Designated Representatives are unable to resolve the dispute, the appropriate WSDOT Regional Administrator and the Mayor for the CITY shall confer and exercise good faith to resolve the dispute. D. In the event WSDOT Regional Administrator and the Mayor for the CITY are unable to resolve the dispute, the parties may, if mutually agreed in writing, submit the matter to non-binding mediation. The parties shall then seek to mutually agree upon the mediation process, who shall serve as the mediator, and the time frame in which the parties are willing to discuss the disputed. E. Each party shall bring to the mediation session, unless excused from doing so by the mediator, a representative from its side with full settlement authority. In addition, each party shall bring counsel and such other persons as needed to contribute to a resolution of the dispute. The mediation process is to be considered settlement negotiations for the purpose of all state and federal rules protecting disclosures made during such conference from later discovery or use in evidence;provided that, any settlement executed by the parties shall not be considered confidential and may be disclosed. Each party shall pay its own costs of mediation and equally share in the cost of the mediator. The venue for the mediation shall be in Olympia, Washington, unless the parties mutually agree in writing to a different location. F. If the parties cannot mutually agree as to the appropriateness of mediation, the mediation process,who shall serve as mediator,or the mediation is not successful,then either party may institute a legal action in the county of Thurston, state of Washington, unless another venue is mutually agreed to in writing. The parties agree that they shall have no right to seek relief in a court of law until and unless each of the above procedural steps has been exhausted. 43. TOTALITY OF AGREEMENT. It is understood that no guarantees, representations,promises, or statements expressed or implied have been made by WSDOT except to the extent that the same are expressed in this Lease. 44. NOTICES. Wherever in this Lease written notices are to be given or made, they will be served, personally delivered or sent by certified or overnight mail addressed to the parties at the address listed below unless a different address has been designated in writing and delivered to the other party. CITY agrees to accept service of process at said address. Pagc21 of25 AA 1-13678 IC: 1-17-14558 City of Kent WSDOT: DEPARTMENT OF TRANSPORTATION (Mailing Address) Attn.: Property Management Program Manager P.O. Box 47338 Olympia, WA 98504-7338 DEPARTMENT OF TRANSPORTATION (Physical Address) Real Estate Services Attn.: Property Management Program Manager 7345 Linderson Way SW Tumwater, WA 98501 WSDOT: DEPARTMENT OF TRANSPORTATION Attn: Bridge Maintenance Superintendent 10833 Northup Way NE Bellevue, WA 98004 Phone: 425-739-3700 WSDOT: DEPARTMENT OF TRANSPORTATION Attn: Bridge Preservation Engineer Mail Stop 47340 7345 Linderson Way SW Tumwater, WA 98501 Phone: 360-570-2556 CITY: CITY OF KENT Attn.: Public Works Director 400 W Gowe Street Kent, WA 98032 Phone: 253-856-5500 THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK Page 22 of 25 AA 1-13678 1C: 1-17-14558 City of Kent IN WITNESS WHEREOF, the parties have executed this Lease as of the date of WSDOT's execution written below. Accepted and Approved by: CITY OF KENT WASHINGTON STATE DEPARTMENT OF TRANSPORTATION May ;it4Kent Lorena Eng Regional Adrnintstrator, Dion Dated: ��� / Dated: q0c,�/;W 7 APPROVED AS TO FORM By: As,istant Attorney General 20 A/ Page 23 of 25 AA 1-13678 IC: 1-17-14558 City of Kent AGENCY ACKNOWLEDGMENT STATE OF WASHINGTON ) ss COUNTY OF KING ) On this ° day of 20 ✓ ' bc1'ore ntc personally appearetd ✓r '* to me known to be the duly appointed Yam and that he/she executed the within and foregoing instrument and acknowledged the said instrument to be his/her free and voluntary act and deed of said city of Kent, for the uses and purposes therein set forth, and on oath Lessees that he/she was authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the �� day of Qlll� 20 7 SO + ' yl ✓,W+ fo +Q % (Sig ritUTe) ' CFF IIIt14thXMw'k'�"*w`"+« (Print or type name) Notary Public in and for the State of Washington residing at ''"` ' My commission expires Page 24 of 25 AA 1-13678 IC- 1-17-14558 City of Kent WSDOT AGENCY ACKNOWLEDGMENT STATE OF WASHINGTON ) ss COUNTY OF KING ) y On this Pp gla of 5e,f1# mt e 20 I� before me p 2� ersonally appeared Lorena Ena to me known to, be the duly appointed Regional Administrator, Northwest Region, and that she executed the within and foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said state of Washington, for the uses and purposes therein set forth, and on oath states that she was authorized to execute said instrument. IN 'WITNESS WHER1015, I have hereunto set my hand and affixed my official seal the 4� yy _'i- > day ok`.�.�;X'. :::�"� .:�..k��R G.�. , 20 f� . r�r (Signature) e � ER (Print or type name) amuar "" Notary Public in and for the State of Washington + KOTARy residing at�acr{h e ! ` 1 Wm.... ........................... $fir My commission expires 1 �� aw Page 25 of25 Exhibit B AA 1-13678/ IC 1-17-14558 City of Kent/Page 1 of 22 W all dit Local Agency Construction Agreement Contact Name Chad Bieren, P.E. Title City Engineer Address Construction by Local Agency on 220 Fourth Avenue South State Highway Right of Way at Kent, WA 98032-5895 Local Agency Expense _... .,.-.... Phone 253-856-5534 Email CBieren@KentWA.gov Local Agency Project Title CITY OF KENT PUBLIC WORKS SOUTH 224TH STREET BRIDGE _... Agreement Number Description of Improvements GCB 2393 Temporary right of entry to allow for the City's State Route Number Mile Post Control Section planned construction of SOUTH 224th BRIDGE Over 167 21.39- 21.73 , 176502 SR 167. This Construction Agreement is issued in ....... Exhibits Attached conjunction with NWR Real Estate Services' Exhibit"A": Special Provisions Airspace Lease No. IC 1-17-14558 (AA 1-13678) for Exhibit"B": Right-of-Way Plans the structure. Exhibit"C" Plans. NOTE: Contract documents (plans, specifications, Exhibit"D" etc) for the structure are part of this agreement but Exhibit"E,, are not included due to the volume of the documents. ......... ........ ....................................... .... .. —.. --- ...._-. ..........m....... STATE _ LOCAL AGENCY State Construction Representative Local Agency Construction Representative Ed Giraud Garrett Inouye, P.E. ._........ .............. Title Title LA&DS Construction Representative Project Engineer .............................................. _._..�.... Address Address WSDOT- NW Region City of Kent Public Works P.O. Box 330310 (MS 240) 220 Fourth Avenue South 15700 Dayton Avenue North Kent, WA 98032-5895 Shoreline, WA 98133 .....................m._.m.m......m...............-......................................a............. _____ Email Address Email Address GiraudE@wsdot.wa.gov Glnouye@KentWA.gov Phone Phone Office: 206-440-4709, Mobile: 206-940-2737 253-856-5548 This Agreement is made and entered between the Washington State Department of Transportation(STATE)and the above named governmental entity hereinafter called the"AGENCY." WHEREAS, the AGENCY wishes to construct certain improvements on state highway right of way located within (a)a county, (b)a state limited access facility inside city limits, or(c)on areas under state jurisdiction within city streets that form part of the state highway system, (hereinafter, "Improvements"), and WHEREAS, the STATE is willing to authorize the AGENCY to construct the Improvements subject to the terms and conditions identified in this Agreement, and DOT Form 224-032 EF Revised 2/2015 Page 1 Exhibit B AA 1-13678/ IC 1-17-14558 CityV of lent/ Page 2 of 22 WHEREAS, in addition to the provisions below, construction, maintenance, and/or operation of the Iri�provements a subject to the Special Provisions, attached as Exhibit A,which set forth AGENCY and Improvements requirements specific to the type of state highway facility on which the Improvements will be constructed. NOW, THEREFORE, pursuant to RCW 47.28.140, RCW 47.24.020, and/or chapter 39.34 RCW, the above recitals,which are incorporated herein as if set forth below, and in consideration of the terms, conditions, covenants, and performances contained herein, and in the Exhibits attached hereto and hereby made a part of this Agreement, IT IS MUTUALLY AGREED AS FOLLOWS: 1.0 PURPOSE OF AGREEMENT The AGENCY provided the STATE with its Plans and Specifications for the proposed Improvements, and the STATE has reviewed and agreed with the plans and specifications, unless otherwise modified pursuant to the terms of this Agreement. The AGENCY agrees to and shall construct, operate and/or maintain the Improvements in accordance with the terms of this Agreement. 2.0 RIGHT OF ENTRY 2.1 AGENCY Subject to the terms of this Agreement, the STATE hereby grants to the AGENCY, its authorized agents, contractors, subcontractors, and employees, a right of entry upon state-owned highway right of way or upon state highway right of way under STATE jurisdiction, onto which access is necessary to constrict, operate and/or maintain the Improvements. If the STATE has approved any limited access breaks for the Improvements, the AGENCY shall comply with the terms and conditions of such approval. 2.2 STATE The AGENCY hereby grants to the STATE, its employees, authorized agents, contractors, and subcontractors, a right of entry upon all AGENCY-owned property necessary for the STATE's design review, inspection, and, as applicable, maintenance and/or operation of the Improvements as provided in Section 6, below. 3.0 CONSTRUCTION 3.1 DOCUMENTS ON SITE Copies of this Agreement shall be kept at the AGENCY's project office and by the AGENCY or its contractor at the construction site. The Agreement shall be shown, upon request, to any state representative or law enforcement officer. 3.2. PRE-CONSTRUCTION CONFERENCE Prior to the beginning of construction, a preconstruction conference shall be held at which the STATE, the AGENCY, and the AGENCY's contractor(if applicable)shall be present.The AGENCY shall give a minimum of five(5)working days notice to the STATE's construction representative prior to holding the pre-construction conference. For the purpose of this section, "working days'are defined as Monday through Friday, excluding legal holidays. 3.3 CONSTRUCTION OF IMPROVEMENTS 3.3.1 The AGENCY shall construct the Improvements as shown on the attached Exhibits at the AGENCY's expense; STATE shall not be required to contribute to the Improvements construction.Any proposed changes to the Improvements'plans or specifications previously approved by the STATE require further STATE review and prior written approval before implementing the changes. 3.3.2 The AGENCY agrees and shall construct the Improvements to the satisfaction of the STATE.All material and workmanship shall conform to the Washington State Department of Transportation's Standard Specifications for Road, Bridge, and Municipal Construction, current edition, and amendments thereto, and shall be subject to STATE inspection. The parties agree that the STATE inspections and acceptances regarding the Improvements are solely for the benefit of the STATE and not for the benefit of the AGENCY, the AGENCY's contractor(if any), or any third party. 3.3.3 No excavation shall be made or obstacle placed within the limits of the state-owned, or under state jurisdiction, highway right of way in such a manner as to interfere with the construction of, operation of, maintenance of and/or travel over the state highway, unless the AGENCY obtains the STATE's prior written authorization. DOT Form 224-032 EF Page 2 Revised 2/2015 Exhibit B AA 1-13678/ IC 1-17-14558 City of Kent/Page 3 of 22 3.4 CONSTRUCTION SCHEDULE In addition to the requirements in Section 3.2,the STATE may, at any time, request a construction schedule or updates thereto from the AGENCY, showing critical dates and activities that will lead to the timely completion of the Improvements. The AGENCY shall notify the STATE's construction representative of any changes to the construction schedule at least three(3) working days prior to implementation. Working days are defined in Section 3.2. 3.6 LOCAL AGENCY REPRESENTATIVE Should the AGENCY choose to perform the work outlined herein with other than its own forces, an AGENCY representative shall be present on-site at all times during performance of the work, unless otherwise agreed to by the STATE. Where the AGENCY chooses to perform the work with its own forces, it may elect to appoint one of its own employees engaged in the construction as its representative. Should the AGENCY fail to comply with this section, the STATE, in its sole discretion, may restrict any further AGENCY work within state highway right of way until the requirements of this section are met.All contact between the STATE and the AGENCY's contractor shall be through an authorized representative of the AGENCY. 3.6 SUPERVISION OF WORK The AGENCY, at its own expense,shall adequately police and supervise construction of the Improvements by itself, its contractor, subcontractor, or agent, and others, so as not to endanger or injure any person or property. The AGENCY's responsibility for the proper performance, safe conduct, and adequate policing and supervision of the work shall not be lessened or otherwise affected by the STATE's review and concurrence with the AGENCY's plans, specifications, or work,or by the STATE's construction representative's presence at the work site to assist in determining that the work and materials meet this Agreement's requirements. 3.7 REQUIRED PERMITS The AGENCY shall obtain all necessary Federal, State, and Local Permits including, but not limited to, permits required by the Washington State Department of Ecology, the Washington State Department of Fish and Wildlife, U.S.Army Corps of Engineers, and the National Environmental Policy Act(NEPA)prior to beginning construction. 3.8 COMPLIANCE WITH CLEAR ZONE GUIDELINES The AGENCY hereby certifies that the Improvements described in this Agreement are in compliance with the State's Clear Zone Guidelines as specified within the STATE's Utilities Manual(publication M 22-87.01). If applicable, for Improvements constructed within the AGENCY's city streets that form part of the state highway system, the AGENCY may apply its own clear zone guidelines in lieu of the STATE's guidelines. 3.9 PROTECTION OF PROPERTY Unless authorized by the STATE or other affected property owner in writing, the AGENCY shall assure that all public and private property, including but not limited to signal equipment,signs, guide markers, lane markers, and utilities, are not damaged, destroyed, or removed. If any such property is damaged, destroyed, or removed without prior written authorization, the AGENCY shall notify the STATE's construction representative within eight(8) hours of such damage, destruction or removal. The AGENCY shall replace, repair, or fully restore any private or public property that is damaged, destroyed, or removed to the STATE's sole satisfaction. The AGENCY shall not disturb, remove, or destroy any existing Survey Monument before first obtaining a Washington State Department of Natural Resources (DNR) permit. The AGENCY agrees that resetting Survey Monuments shall be done by or under the direct supervision of a Licensed Professional Land Surveyor. A listing of Survey Monuments can be found at the STATE's Geographic Services Office Website: (http://www.wsdot.wa. gov/mon ument/searchBroad.aspx). 3.10 CULTURAL RESOURCES If any archaeological or historical resources are revealed in the work vicinity, the AGENCY shall immediately STOP work, notify the STATE's construction representative and retain a US Secretary of the Interior's qualified archaeologist. Said archaeologist shall evaluate the site and make recommendations to the STATE regarding the continuance of the work. 3.11 CLEAN UP Upon completion of the work,the AGENCY shall immediately remove all rubbish and debris and shall leave the state highway right of way neat and presentable to the STATE's sole satisfaction. AGENCY agrees to take corrective action if directed by the STATE. DOT Form 224-032 EF Revised 2/2015 Page 3 Exhibit B AA 1-13678/ IC 1-17-14558 City of Kent/Page 4 of 22 3.12 FAILURE TO COMPLETE PROJECT Should for any reason, the AGENCY decide not to complete the Improvements in a timely manner after construction has begun, the STATE shall determine what work must be completed to restore STATE facilities and right-of-way to a condition and configuration that is safe for public use. If the AGENCY or its contractor is not able to restore the STATE facilities and right-of way, the STATE may perform or contract to perform, the restoration work at the AGENCY's sole expense. The Agency agrees that all costs associated with Agreement termination, including engineering, completing STATE facility and right-of way restoration, and contractor claims will be the sole responsibility of the AGENCY. This section shall survive Agreement termination. 4.0 ACCEPTANCE OF IMPROVEMENTS 4.1 FINAL INSPECTION The AGENCY shall notify the STATE, in writing, of its completion of the Improvements within five(5)working days, as defined in section 3.2, of such completion. The AGENCY shall include in the written notice a proposed date on which to meet with the STATE for the purpose of conducting a final inspection of the Improvements. The STATE will not make its final inspection of the Improvements until all AGENCY construction work required under this Agreement has been completed. 4.2 STATE'S ACCEPTANCE 4.2.1 The STATE will provide the AGENCY with a Letter of Acceptance for the Improvements after the following items have been completed: (a)Satisfactory completion of the Improvements and all AGENCY obligations hereunder, (b)Final inspection of the Improvements; (c) Submittal by the AGENCY to the STATE of a complete set of as-built plans for the Improvements, (d) Receipt of material acceptance documentation by the STATE (if required under the Special Provisions hereto), and (a) Final payment pursuant to Section 7. The Letter of Acceptance shall not waive any potential claims against the AGENCY or its contractor for defective work or materials, nor bar the STATE from requiring the AGENCY to remedy any and all work deficiencies not identified by the STATE during its inspection. 4.2.2 The STATE may withhold acceptance of the Improvements by submitting written notification, including the reason(s)for withholding acceptance, to the AGENCY,within thirty(30)calendar days following the final inspection. The parties shall work together in good faith to resolve the outstanding issues identified in the STATE's written notification. If any issues cannot be resolved within forty five (45)calendar days after the STATE's notification, the parties mutually agree to seek resolution of the issues through the process described in Section 8.7. 4.2.3 Upon resolution of the outstanding issues, the STATE will deliver the Letter of Acceptance to the AGENCY, 4.2.4 The AGENCY shall continue to be responsible for all actual direct and related indirect costs to the STATE, including inspection and monitoring, until the disputed issue(s) has been resolved and a Letter of Acceptance has been issued. 5.0 INSURANCE AND INDEMNIFICATION 5.1 INSURANCE The AGENCY must provide proof of the following insurance coverage prior to performing any work within state highway right of way a)Commercial General Liability covering the risks of bodily injury(including death), property damage and personal injury, including coverage for contractual liability; this coverage may be any combination of primary, umbrella and/or excess coverage affording total liability limits of not less than$3 million per occurrencel$3 million general aggregate; b) Business Automobile Liability(owned, hired, or non-owned)covering the risks of bodily injury(including death)and property damage, including coverage for contractual liability; this coverage may be any combination of primary, umbrella and/or excess coverage affording total liability limits of not less than $1 million per accident; c) Employers Liability(Stop Gap) insurance covering the risks of AGENCY's employees' bodily injury by accident or disease with limits of not less than $1 million per accident for bodily injury by accident and $1 million per employee for bodily injury by disease; DOT Form 224-032 EF Page 4 Revised 2/2015 Exhibit B AA 1-13678/IC 1-17-14558 City of Kent/Page 5 of 22 Such insurance policies or related certificates of insurance shall name the Washington State Department of Transportation (WSDOT)as an additional insured on all general liability, automobile liability, employers' liability, and excess policies, using form CG 2010 11 85 or similar endorsement approved in advance by WSDOT. The additional insured coverage afforded shall be"primary and non-contributory'with respect to any other coverage which may be available to WSDOT. All coverages afforded to WSDOT as an additional insured shall also contain a waiver of subrogation endorsement made in favor of WSDOT. The AGENCY may comply with these insurance requirements through a program of self insurance that meets or exceeds these minimum limits. The AGENCY must provide the STATE with adequate documentation of self insurance prior to performing any work within state highway right of way. Should the AGENCY no longer benefit from a program of self-insurance,the AGENCY agrees to promptly obtain insurance as provided above.A forty-five(45)Calendar Day written notice shall be given to prior to termination of or any material change to the policy(ies)as it relates to this Agreement. 6.2 INDEMNIFICATION The AGENCY, its successors and assigns, agree to indemnify, defend, and hold harmless the State of Washington and its officers and employees,from all claims, demands, damages(both to persons and/or property), expenses, regulatory fines, and/or suits that: (1)arise out of or are incident to any acts or omissions by the AGENCY, its agents,contractors, and/or employees, in the use of the state highway right of way as authorized by the terms of this Agreement, or(2)are caused by the breach of any of the conditions of this Agreement by the AGENCY, its contractors, agents, and/or employees.The AGENCY, its successors and assigns, shall not be required to indemnify, defend, or hold harmless the State of Washington and its officers and employees, if the claim, suit, or action for damages (both to persons and/or property)is caused by the sole acts or omissions of the State of Washington, its officers and employees, provided that, if such claims, suits, or actions result from the concurrent negligence of(a)the State of Washington, its officers and employees and (b)the AGENCY, its agents, contractors, and/or employees, or involves those actions covered by RCW 4.24.115,the indemnity provisions provided herein shall be valid and enforceable only to the extent of the concurrent acts or omissions of the State of Washington, its officers and employees and the AGENCY, its agents, contractors, and/or employees. The AGENCY agrees that its obligations under this section extend to any claim,demand and/or cause of action brought by, or on behalf of, any of its employees or agents while performing construction, operation and/or maintenance of the Improvements under this Agreement. For this purpose, the AGENCY, by mutual negotiation, hereby waives with respect to the STATE only, any immunity that would otherwise be available to it against such claims under the Industrial Insurance provisions chapter 51.12 RCW. This indemnification and waiver shall survive the termination of this Agreement. 6.0 MAINTENANCE 6.1 GENERAL MAINTENANCE RESPONSIBILITIES Unless otherwise agreed to pursuant to a separate written agreement between the STATE and AGENCY, upon completion of the Improvements authorized herein, all future operation and maintenance of the Improvements shall be in accordance with each party's ownership and/or jurisdictional responsibilities as follows: a)For Improvements on state-owned highway right of way located within unincorporated county limits and/or within any limited access highway rights of way: the STATE has sole ownership, operation and maintenance responsibilities for the Improvements. b) For Improvements located inside city limits within managed access highway rights of way: Ownership, operation and maintenance responsibilities shall be apportioned between the city and the STATE pursuant to chapter 47.24 RCW and the City Streets as Part of State Highways Guidelines developed between the Association of Washington Cities and the STATE, as may be revised from time to time. 6.2 EMERGENCY WORK BY THE STATE If the STATE determines in good faith that emergency work to any Improvements to be maintained by the AGENCY, as provided in Section 6.1(b) hereunder, is immediately needed to protect(a)any aspect of the state highway, or(b)to secure the safety of the traveling public, as a result of a failure of the AGENCY's Improvements, such work may be performed by the STATE without prior approval of the AGENCY, and the AGENCY agrees to pay the STATE's reasonable cost and expense for performing the work. The AGENCY will be notified of the emergency work and the necessity for it at the STATE's earliest opportunity. The STATE shall provide to the AGENCY a detailed invoice for such emergency work, and the AGENCY agrees to make payment within thirty(30)calendar days of the date of the invoice. The terms of this section shall survive the termination of this Agreement. DOT Form 224-032 EF Revised 2/2015 Page 5 Exhibit B AA 1-13678/IC 1-17-14558 City of Kent/Page 6 of 22 7.0 PAYMENT 7.1 REIMBURSABLE COSTS The AGENCY shall reimburse the STATE for all actual direct and related indirect costs incurred by the STATE under this Agreement. Such costs include, but are not limited to, agreement preparation, plan review, including review of proposed revisions to plans and specifications contained in the Exhibits, construction inspection, and administrative overhead. 7.2 INVOICES The STATE shall provide detailed invoices to the AGENCY for STATE-performed work as required under this Agreement. The AGENCY agrees to make payment within thirty(30)calendar days from the date of a STATE invoice. The AGENCY agrees that if it does not make payment within thirty(30)calendar days after the date of a STATE invoice,the invoice amount shall bear interest at the rate of one percent per month or fraction thereof until paid. 8.0 MISCELLANEOUS TERMS 8.1 FAILURE TO COMPLY WITH TERMS AND CONDITIONS Any breach of the terms and conditions of this Agreement, or failure on the part of the AGENCY to proceed with due diligence and in good faith in the construction and maintenance of the Improvements provided for herein, shall subject this Agreement to be terminated, and the STATE, in its sole discretion, may require the AGENCY to remove all or part of the Improvements constructed hereunder at the AGENCY's sole expense. If the AGENCY fails to effect such removal of its Improvements,the removal may be performed by the STATE without prior approval of the AGENCY, and the AGENCY agrees to pay the STATE's reasonable cost and expense for performing the work. The STATE shall provide to the AGENCY a detailed invoice for such removal work, and the AGENCY agrees to make payment within thirty(30)calendar days of the date of the invoice pursuant to Section 7. 8.2 TERM OF AGREEMENT Should the AGENCY not begin construction within eighteen (18)months after the date of execution, the Agreement shall automatically terminate, unless the STATE, in its sole discretion, grants a time extension. As part of any time extension granted by the STATE,the Plans and Specifications attached hereto must be revised to meet the STATE's most current design and construction standards. If this Agreement is terminated, the AGENCY may be required to repeat the entire application, review, and approval process in the STATE's sole discretion. Unless otherwise provided herein,the term of this Agreement shall commence as of the date this Agreement is fully executed by the parties and shall continue until the Improvements are accepted by the STATE pursuant to Section 3 or as otherwise provided herein. 8.3 ASSIGNMENT OF AGREEMENT No assignment or transfer of this Agreement in any manner whatsoever shall be valid, nor vest any rights hereby granted, until the STATE consents thereto and the assignee accepts all terms of this Agreement. 8.4 NON-EXCLUSIVITY This Agreement shall not be deemed or held to be an exclusive one and shall not prohibit the STATE from granting permits or franchise rights; or entering into other Agreements of like or other nature with other public or private companies or individuals, nor shall it prevent the STATE from using any of its highways, streets, or public places, or affect its right to full supervision and control over all or any part of them, none of which is hereby surrendered. 8.5 AUDIT RECORDS All Improvement records, including labor, material and equipment records in support of all STATE costs shall be maintained by the STATE for a period of six(6)years from the date of termination of this Agreement. The AGENCY shall have full access to and right to examine said records during normal business hours and as often as it deems necessary, and should the AGENCY require copies of any records, it agrees to pay the costs thereof. The parties agree that the STATE work performed herein is subject to audit by either or both parties and/or their designated representatives and/or state and federal government. 8.6 MODIFICATION This Agreement may be amended or modified only by the mutual agreement of the parties. Such amendments or modifications shall not be binding unless they are in writing and signed by persons authorized to bind each of the parties. DOT Form 224-032 EF Revised 2/2015 Page 6 Exhibit B AA 1-13678 IC 1-17-14558 City of Kent/Page 7 of 22 8.7 DISPUTES In the event that a dispute arises under this Agreement, it shall be resolved as follows: The STATE and the AGENCY shall each appoint a member to a disputes board,these two members shall select a third board member not affiliated with either party. The three-member board shall conduct a dispute resolution hearing that shall be informal and unrecorded. An attempt at such dispute resolution in compliance with aforesaid process shall be a prerequisite to the filing of any litigation concerning the dispute.The parties shall equally share in the cost of the third disputes board member; however,each party shall be responsible for its own costs and fees. 8.8 VENUE AND ATTORNEYS FEES In the event that either party to this Agreement deems it necessary to institute legal action or proceedings to enforce any right or obligation under this Agreement, the parties hereto agree that any such action or proceedings shall be brought In a court of competent jurisdiction situated in Thurston County,Washington Superior Court. Further,the parties agree that each will be solely responsible for payment of its own attorney's fees,witness fees,and costs. 8.9 INDEPENDENT CONTRACTOR The AGENCY shall be deemed an independent contractor for all purposes under this Agreement,and the employees of the AGENCY or any of its contractors, subcontractors, consultants,and the employees thereof,shall not in any manner be deemed to be employees or agents of the STATE. 8.10 TERMINATION OF AGREEMENT Neither party may terminate this Agreement without the concurrence of the other party,except as otherwise provided under Section 8.2,Termination shall be in writing and signed by both parties.If this Agreement is terminated prior to the fulfillment of the terms stated herein,the AGENCY shall reimburse the STATE for Its actual direct and related indirect expenses and casts incurred up to the date of termination.Any termination of this Agreement shall not prejudice any rights or obligations accrued to the parties prior to termination. IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the party's date last signed below. STATE OF WASHINGTON DEPARTMENT OF TRAN ORTATION AGENCY By. Ramin Pazooki By. Chad Bieren, P.E. Title: Utilities&Development Services Manager Title: City Engineer Date: Q/�.../ (o...____....._ Date; APPROVED AS TO FORM Date: Any changes to this Form shall require review by the Office of the Attorney General DOT Form 224-032 EF Revised 2/2015 Page 7 Exhibit B AA 1-13678/ IC 1-17-14558 Special Provisions for 0rVJW V6fC8drWies or Within Limited Access Highways Construction Agreement No. GCB 2393 The State and Local Agency(Construction)Agreement and these Special Provisions apply to all construction items within STATE jurisdiction and maintenance responsibility only. Applicable provisions are denoted by (®) Z 1. STATE REPRESENTATIVE/NOTICE TO PROCEED. No work provided for herein shall be performed until the AGENCY is authorized by the following STATE representative: Edward Giraud,Construction Liaison Mike Golden,Superintendent NWR Development Services NWR Area 4 Maintenance PO Box 330310 26620-661h Avenue South 15700 Dayton Avenue North Kent,WA 98032 Seattle,WA 98133-9710 Office: 253-372-3900 Office: 206-440-4709 Cellular: 206-94 0-2737 ® 2. PLAN CHANGES. • AGENCY CHANGE ORDERSIADDENDAS. Changes to any Approved Plan affecting highway right-of-way under STATE jurisdiction must be reviewed and approved by the STATE prior to execution, • STATE REQUIRED CHANGES OR CORRECTIONS. The STATE reserves the right to require changes or corrections due to plan omissions or details not in conformance with the STATE's Standard Specifications,Standard Plans,Design Manual,or Project Special Provisions. [� 3. MATERIALS AND QUALITY ASSURANCE/QUALITY CONTROL(QAIOC). • MATERIALS AND WORKMANSHIP. All materials and workmanship shall conform to the current edition of the Washington State Department of Transportation Standard Specifications for Road,Bridge and Municipal Construction,and amendments thereto,and shall be subject to inspection by the STATE. • APPROVAL OF MATERIALS-REQUEST FOR APPROVAL OF MATERIALS SOURCE(RAMS)AND QUALIFIED PRODUCTS LIST (OPL). Prior to the placement of any materials,the AGENCY shall submit copies of the approved RAMS farms listing Materials Manufacturers and Suppliers for Earthwork,Aggregates,Asphalt and Concrete Plants,Pit Sites,Mix Designs,Pipe, Drainage Structures,Striping and Pavement Markings, Electrical Materials, Shop Drawings,and Catalogue Cuts to the STATE for concurrence,OR,fill out and submit RAMS forms to the STATE for approval. The current QPL sheets for each material shall be submitted. (The QPL can be located on the STATE web site at: (htItg:ilwww.wadotwa.aovlblafmatsdOPLVOPL. Search.cfm). NOTE-There may be additional acceptance actions,including samples,noted on the QPL or RAM that need to be completed prior to the materials being incorporated into the work). • MATERIALS TESTINGIREPORTING OF RESULTS. All materials testing is to be performed by the AGENCY or an Independent Certified Testing Laboratory of their choice. Copies of all test results shall be submitted to the STATE's Representative prior to beginning the next phase of construction. The STATE reserves the right to verify the test results or to perform the testing. • HOT MIX ASPHALT(HMA)DESIGN. Prior to Paving Operations,the AGENCY shall submit STATE approved HMA Mix Design(s)for use on this project. • PAVING OPERATIONS. NO PAVING OPERATIONS WILL BE PERMITTED WHEN IT IS RAINING or SNOWING. Written permission from the STATE's Representative shall be required if paving operations begin before April 15L,or after October Vt. Surface temperature limitations as per the WSDOT Standard Specifications shall be enforced. • CONCRETE MIX DESIGN. Prior to any placement of Cement Concrete,the AGENCY shall submit STATE approved Mix Design(s)for use on this project. • DRAINAGE STRUCTURES. Only structures stamped APPROVED by the STATE's Fabrication Inspection Office shall be used on this project. ® 4. UNSUITABLE/MATERIALS. If determined necessary by the STATE,any unsuitable, hazardous,or contaminated materials encountered during any excavation shall be removed,disposed of properly according to current environmental regulations,and replaced to the satisfaction of the STATE at the AGENCY's expense. The replacement material shall be free-draining and granular,or other materials as determined by the STATE's Representative in accordance with the Standard Specifications, Special Provisions-COUNTIES LIMITED ACCESS Exhibit"A" CONSTRUCTION AGREEMENT No.GCB 2393 Last Rev. D3118A3 1 Exhibit B AA 1-13678/ IC 1-17-14558 City of Kent/Page 9 of 22 ® S. DELAY TO STATE CONTRACTS. The AGENCY agrees to schedule and perform the work herein in such a manner as not to delay the STATE's contractor in the performance of any STATE contract in the area. The STATE shall in no way be held liable for any damage to the AGENCY by reason of any such work by the STATE, its agents or representatives,or by the exercise of any rights by the STATE upon roads,streets,public places,or structures in question, ® 6. WORKER VISIBILITY. All workers within the STATE highway right-of-way who are exposed either to traffic or to construction equipment within the work zone shall wear high-visibility safety apparel meeting Performance Class 2 or 3 requirements of the ANSIASEA 107-2010 publication titled"American National Standard for High Visibility Safely Apparel and Headwear". ® 7. TRAFFIC CONTROL AND PUBLIC SAFETY. • TRAFFIC CONTROL PLANS(TCPs). During the construction and/or maintenance of this facility,the AGENCY shall submit Project Specific Traffic Control Plans to the STATE for review and approval at least ten (10)working days in advance of the time that signing and other traffic control devices will be required. These TCP's shall be in compliance with one of the fallowing: ❑ (a) The Manual on Uniform Traffic Control Devices(MUTCD)for Streets and Highways-Part 6;Chapter 6H IhLt r:I/my ,tbwa-dot.govOHTMN2003ri/uart6doarf6hl.hlm)and Washington modifications thereto. ❑ (b) WSDOT Work Zone Traffic Control Guidelines(M54-44) (h :/www.w .w : If I � al I IY1axil!'M54.441Workzono. dW ❑ (c) The WSDOT Standard Plans Manual(M21-01);Section K for Work Zone Traffic Control (h tto:Itwww.ws dol.wa.®nvlDeslg,nlSEandardslP lans.hfm#Sland ardPtansl ® (d) Project Specific Traffic Control Plans in accordance with the WSDOT Work Zone Traffic Control Guidelines(M54- 44),or the Manual on Uniform Traffic Control Devices(MUTCD)for Streets and Highways-Part 6;Chapter 6H and Washington modifications thereto. • MODIFICATION OR REVOCATION OF APPROVED TRAFFIC CONTROL PLANS. The STATE reserves the right to modify or revoke any Traffic Control Plan at any time due to safety and operational problems for the traveling public. All costs and time delays associated with modification or revocation shall be borne by the AGENCY or their contractor. • PERMITTED HOURS FOR LANE CLOSURES/STATE NOTIFICATION. The working hours within the highway under STATE's jurisdiction for this project are restricted per the Approved Traffic Control Plan(s). Any extension of these hours must be requested in writing and approved prior to construction.Weekend or Holiday(including Canadian Holidays-Skagit&Whatcom Counties)work is not permitted without written permission from the STATE. Five(5)working days notification shall be given to the STATE Representative prior to any lane closure. • SUSPENSION OF TRAFFIC CONTROL OPERATIONS. The STATE reserves the right to suspend all lane closure operations due to unexpected emergencies or impediments to the flow of traffic. All costs associated with this suspension shall be borne by the AGENCY or their contractor. • HAZARD PROTECTION. All hazards to vehicular,pedestrian,and bicycle traffic shall be marked by warning signs,barricades,and lights • STORAGE OF EQUIPMENT AND MATERIALS. All lanes shall be open and the shoulders shall be clear of construction equipment and materials during non-working hours. The Work Zone Clear Zone(WZCZ)applies during working and non-working hours. The WZCZ applies only to temporary roadside objects introduced by the Contractor's operations and does not apply to pre-existing conditions or permanent work. Those work operations that are actively in progress shall be in accordance with adopted and approved Traffic Control Plans,and other Contract or Permit requirements. During nonworking hours,equipment or materials shall not be within the WZCZ unless they are protected by permanent guardrail or temporary concrete barrier. The use of temporary concrete barrier shall be permitted only if the STATE approves the installation and location. During actual hours of work, unless protected as described above,only materials absolutely necessary to construction shall be within the WZCZ and only construction vehicles absolutely necessary to construction shall be allowed within the WZCZ or allowed to stop or park on the shoulder of the roadway. The Contractor's non-essential vehicles and employees private vehicles shall not be permitted to park within the WZCZ at any time unless protected as described above. Deviation from the above requirements shall not occur unless the Contractor has requested the deviation in writing,and the STATE has provided written approval. ® B. TRAFFIC CONTROL SUPERVISOR(Required for Large or Complex Projects: Lane Closures on Highways 40 MPH or Greater,New Signal Construction,Signal Modifications,Roundabout Construction,Major Channelization Changes,or Night Work). The AGENCY or Prime Contractor shall employ an individual or individuals to perform the duties of Full-Time Traffic Control Supervisor (TCS),certified by the STATE. The TCS shall be responsible for safe implementation of Approved Traffic Control Plans, The TCS shall be present on the project whenever flagging,spotting,or other traffic control is being utilized. The TCS shall be responsible for having a current set of approved Traffic Control Plans, Inspecting traffic control devices and nighttime lighting for proper location,installation,message, cleanliness,and effect on the traveling public. Traffic control devices shall be inspected at least once per hour during working hours. The TCS shall correct,or arrange to have corrected,any deficiencies noted during these inspections. The AGENCY or Prime Contractor shall maintain 24-hour telephone numbers at which the TCS can be contacted and be available upon request of the STATE Representative at other than specified working hours. Special Provisions-COUNTIESILMITED ACCESS Exhibit"A" CONSTRUCTION AGREEMENT No.GCB 2393 Last Rev'. 03/19113 2 Exhibit B AA 1-13678/IC 1-17-14558 City of Kent/ Page 10 of 22 ® 9. INTELLIGENT TRANSPORTATION SYSTEM CONSTRUCTION/INSPECTION. The AGENCY shall assure that the construction of Intelligent Transportation Systems owned by the STATE meets all requirements of the STATE. ❑ 10. TRAFFIC SIGNAL CONSTRUCTIONHNSPECTION. • CONSTRUCTION. The AGENCY shall assure that the design and construction of Traffic Signals and illumination on signal pales installed within the STATE highway right-of-way meets all requirements of the STATE. • TRAFFIC SIGNAL STANDARDS-APPROVAL If the proposed signal standards are not on the STATE's PRE-APPROVED LIST (btto:t/www.wsdot.wa.00vteesclbrldoWlin4ItSinnalatandard20ndQz rA1n),Signal Pole Shop Drawings(Seven(7)sets of copies)shall be submitted to the STATE's Representative for transmittal to HQ for approval. • ILLUMINATION DURING CONSTRUCTION. Pre-existing illumination shall be maintained and functional at all times during construction until the new illumination is operational. • TEMPORARY VIDEO DETECTION SYSTEM. If any induction loop is scheduled to be disabled,a temporary video detection system shall be completely installed and made operational prior to any associated induction loop being disabled. • EXISTING TRAFFIC DETECTION LOOPS. The Contractor shall notify the Area Traffic Engineer through the STATE's Representative a rpiniroum of five working days in advance of pavement removal or grinding in areas with existing loops. If the STATE's Representative suspects that damage to any loop,not identified in the Plans as being replaced,may have resulted from Contractor's operations or is not operating adequately,the STATE's Representative may order the Contractor to perform the field tests specified in Section 8 20.3(14)D. The test results shall be recorded and submitted to the STATE's Representative. Loops that tail any of these tests shall be replaced. Loops that fail the tests,as described above,and are replaced shall be installed in accordance with current WSDOT design standards and Standard Plans,as determined by the STATE's Representative. If traffic signal loops that fail the tests,as described above, are not replaced and operational within 48 hours,the Contractor shall install and maintain interim video detection until the replacement loops are operational. The type of interim video detection furnished shall be approved by the STATE's Representative prior to installation. • TRAFFIC SIGNAL HEADS. Unless ordered by the STATE's Representative,signal heads shall not be installed at any intersection until all other signal equipment is installed and the controller is in place, inspected,and ready for operation at that intersection,except that the signal heads may be mounted if the faces are covered with a black opaque material. • SIGNAL HEAD COVERING. The signal head covering material shall be manufactured from a durable fabric material,black in color with a mesh front and designed to fit the signal head properly. The cover shall have an attachment method that will hold the cover securely to the signal in heavy wind. The cover shall be provided with a drain to expel any accumulated water. • NEW TRAFFIC SIGNAL TURN-ON AND/OR SWITCH-OVER OPERATIONS. The AGENCY shall contact the STATE's Representative at least five(5)working days prior to scheduling a signal turn-on in order to assure that all appropriate items of the STATE's "Traffic Signal Turn-On Checklist"are satisfactorily addressed. The Pre-Turn-On and Turn-On shall not occur until all applicable Checklist items are installed and/or connected. This Checklist can be located on the STATE's web site at: h t :/Awww.wssYod.wa. dw/NorPhwe d,"DawaY pmeni rvA L Yd n .Yt rm (Go to: "What is needed to turn on a traffic signal?"). • PERMITTED HOURS FOR NEW SIGNAL TURN-ON OR SWITCH-OVER OPERATIONS. Unless approved by the STATE's Representative,no change to signal stop and go operation will be allowed between 6.00 AM to 10:00 AM,or between 2:00 PM to 7:)00 PM on Monday through Thursday,nor will signal operation changes be allowed on Friday,weekends, holidays,or the day preceding a holiday. • NEW SIGNAL AHEADISIGNAL REVISION WARNING SIGNING, "NEW SIGNAL AHEAD'(W20-902) or"SIGNAL REVISION AHEAD"(W20-903)signs shall be installed in advance of all affected directions of travel on the Project when a new traffic signal system is installed or when modifications to and existing signal are made. The location of the signs shall be per Section 2C.05 of the MUTCD,or as directed by the STATE's Representative. These signs are 48" X 48"black letters on orange background,and shall be post mounted. The bottom of the sign shall be mounted seven(7)feet above the pavement elevation, Each sign shall have three 12"by 12"Fluorescent Orange flags or Flag Signs mounted on both sides and on top of the sign. The flags signs shall be made of aluminum. Flags shall be made of durable cloth or plastic. The signs and flags shall stay erect for six to eight weeks or as directed by the STATE's Representative. ❑ 11. ROADSIDE IMPROVEMENT AND BEAUTIFICATION,OBSTRUCTIONS ON RIGHT-OF-WAY,AND SEVERANCE AND SALE OF TIMBER AND OTHER PERSONALTY-REMOVAL OF NON-MARKETABLE MATERIALS. This Agreement is subject to all applicable provisions of RCW 47.40, RCW 47.12,140(2),and/or RCW 47.32 and amendments thereto. ® 12. SIGN INSTALLATION AND MAINTENANCE. All Directional, Regulatory, Parking,Stop Signs as well as Route Markers shall be installed as per the Approved Plans in Exhibit C,the WSDOT Standard Plans,or as directed by the STATE's Representative, Special Provisions-COUNTIESILIMITED ACCESS Exhibit"A" CONSTRUCTION AGREEMENT No.GCB 2393 Last Rev: 03118/13 3 Exhibit B AA 1-13678/ IC 1-17-14558 City of Kent/Page 11 of 22 ❑ 13. TRAFFIC REVISION WARNING SIGNING. "TRAFFIC REVISION AHEAD"(W20-901)signs shall be installed in advance of all affected directions of travel on the Project when the channelization of the highway is changed. The location of the signs shall be per Section 2C.05 of the MUTCD,or as directed by the STATE's Representative, These signs are 48"X 48"black letters on orange background,and shall be post-mounted. The bottom of the sign shall be mounted seven(7)feet above the pavement elevation. Each sign shall have three 12"X 12"Fluorescent Orange flags or Flag Signs mounted on both sides and on lop of the sign. The flag signs shall be made of aluminum. Flags shall be made of durable cloth or plastic. The signs and flags shall stay erect for six to eight weeks or as directed by the STATE's Representative. ® 14. CHANNELIZATION PAVEMENT MARKINGS. • REMOVAL. Pavement Markings and Striping to be removed shall be obliterated until blemishes caused by the pavement marking removal conform to the coloration of the adjacent pavement. • STRIPINGIPAVEMENT MARKING APPLICATION. Two applications of paint shall be required on all paint stripe markings as per the Standard Specifications. ® 15. ILLUMINATION CONSTRUCTION. • CONSTRUCTION. The AGENCY shall assure that the design and construction of all illumination installed within the highway under STATE's jurisdiction meets all requirements of the STATE. • ILLUMINATION DURING CONSTRUCTION. Pre-existing illumination shall be maintained and functional at all times during construction until the new illumination is operational. ® 16. EROSION CONTROL/DRAINAGE. • BEST MANAGEMENT PRACTICES(BMPs). During construction of this project,the LOCAL AGENCY shall comply with the Washington State Department of Transportation Highway Runoff Manual,or STATE approved equivalent plan,and implement Best Management Practices(BMPs)as detailed in the manual to mitigate erosion and prevent negative impacts to environmentally sensitive areas. • WATER DISCHARGES ON THE PROJECT. All discharges to State right of way on this project shall conform to State and Local water quality regulations and shall meet WAC 173- 201 A. ❑ 17. VEGETATION ON STATE RIGHT-OF-WAY. This Agreement does not give the AGENCY,or any agent or contractor of the AGENCY,any rights to cut,spray, retard, remove,destroy, damage,disfigure, or in any way modify the physical condition of any vegetative material located on the highway right-of-way under STATE jurisdiction,except by written permission from the STATE. All restoration shall be done to the satisfaction of the STATE at the sole expense of the AGENCY. ❑ 18. MAINTENANCE OF LANDSCAPING. The AGENCY is responsible for the maintenance of all landscaping beyond the face of the curbs or edge of pavement,and in the median of divided highways. Trees that are planted as replacement for impacted trees shall be established for a period of three(3)years. ® 19. RIGHT-OF-WAY RESTORATION. Upon completion of work,the AGENCY shall remove and dispose of all scraps,brush,timber, materials,etc.off of the highway right-of-way under STATE jurisdiction. The aesthetics of the highway shall be as it was before work started,or better. ® 20. INTERFERENCE TO STATE HIGHWAY DRAINAGE. If the work done under this Agreement interferes in any way with the drainage of the highway under STATE jurisdiction,the AGENCY shall wholly and at its own expense make such provision as the STATE may direct to deal with the said drainage. ® 21, NON PAYMENT OF REIMBURSEABLE ACCOUNT. The AGENCY agrees that if it does not make payment for any STATE work, as provided herein,within ninety(90)calendar days after receipt of a STATE invoice,the STATE may deduct and expend any monies to which the AGENCY is entitled to receive from the Motor Vehicle Fund as provided by RCW 47.24.050. ® 18. AIRSPACE LEASE. This Agreement is issued in conjunction with Northwest Region Real Estate Services'Airspace Lease Number IC 1-1 7-1 455 8(AA 1-13678). The lease documents City ownership and maintenance responsibilities for the structure. 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