HomeMy WebLinkAboutCAG2020-332 - Original - The Swigard Family B Trust - Use of ROW for Noise Abatement Wall - 10/12/2020Agreement Routing Form
KENT For Approvals, Signatures and Records Management
Thls torm comblnes &:eplaccsthc Request tor Mryo/s Slgnature and Conttact Cov€r Sheet fotms.
(Print on pink or cherry colored paped
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Originator:Cheryl Rolcik-Wilcox Department:Public Works
DateSent:L0/8/2020 Date Required:L0/L2/202A
Authorized
to Sign:
Director or Designee
ffinuyo,
Date of
Council
Approval:
N/e
Budget
Account
Number:
N/A Grant?
Type:
l_l ves l__.1 *o
N/A
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Vendor
Name:The Swigard Family B Trust Category:License
Vendor
Number:Sub-Category
Project
Name:N/A
Project
Details:License for use of ROW for previously constructed noise abatement wall
Agreement
Amount:
N/A Basis for
Selection of
Contractor:
Start Date:Full Execution Terminotion Date:N/A
Notice required prior to
disclosure?
Yes No Contract Number:
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Date Received by City Attorney:
October 8,2020
Comments:
tWYlt'
Date Routed to the Mayor's Office:
Dote Routed to the City Clerk's Qffice:
Date Sent to Originator:
Visit Documents.KentWA.gov to obtain copies of all agreements
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CAG2020-332
IJMITED TXCENSE BETWEEN
THE CITY OF KENT AND
THE SWIGARD FATTIILY B TRUST
PARTIES
' THIS UMITED ucENsE ("License") is between the crrv oF KENT, a
washington Municipal corporation ("city"), and rHE swrGARD FAMTLY B TRusr
("Licensee").
RECITAI-S
1. Licensee seeks a license at the premises located in the Southeast
Quarter of the Southwest Quarter of Section 8, Township 22 North, Range 5 East,
and known to be a portion of right-of-way of SR 515 from SE 240th Sireet to Se fgO,t
Street in the City of Kent.
: 2. Licensee has requested that the City grant a license to use City right-
ofiry|y to install and maintain a noise abatement wall in accordance with permit plans
onlfile with the City.
3. This noise abatement was previously constructed and was the subject
of an airspace lease with the Washington State Department of Transportation.
the City now controls this portion of the right-of-way, the City has agreed
to this license.
NOW, THEREFORE, THE CITY AND UCENSEE AGREE AS FOLLOWS:
LICENSE
1. License Granted. The city grants this License ("LicenseJ for a period
(10) years from the Effective Date (the "TermJ for Licensee to install and
a noise abatement wall in the southeast Quarter of the southwest Quarter8, Township 22 North, Range 5 East, and known to be a portion of right-of SR 515 from SE 240th Street to SE 196fr Street in the City of Kent
across, along,in, upon, and under the City's right-of-way depicted onibit A ("PropefiJ.City and Licensee agree that this License shall automatically
at the end ofthe Term, and a new ten (10) year Term shall commence, unless
inated as provided in Section 3 of this License. A general description of the plans
specifications for the noise abatement wall is also described on Exhibit A
of
m
of
a
provementsJ. This License is subject to all the terms and conditions established
UMITED UCENSE--Page 1 of I
(between City of Kent and Swlgard)
2. Damage tO PrOperty and Restoration. Licensee shall repair any
damage to the #;;,ty -.ui,i"a uv ttre installation, construction, operation,
maintenance, removal, repair, 1."aonrirration, replacement, use, and inspection of
the Improvements on in"'prob".ty. uo6n .""u".ition, termination, or expiration of
this License, Licensi" tniU ."rtor" the'property to its original condition prior to the
issuance of the License. such restoritionlurigaiion stait survive the expiration of
this License.
3.RevocationandTermination'TheintentofthisLicenseisto
authorize Licensee io instail a noise a-uiiement warl on the designated city right-of-
way, which right-of-way constitutet u *luiule property interest owned by the City'
This License does not grant an estate inifte fini discribea as the Propefi; it is not
an easement; it i. nof a franchise; it is not exclusive; and it does not exclude the
City from futl posseJsion of the Pro$fty. As a License upon real property' it is
revocable at the will of the City. nowlvei, prior to -termination
or revocation by the
city, the city shal provide Licensee *nrt ui r["it rzo calendar days'written notice of
termination or revocation. Upon receif;f such notice from the City' Licensee is
required to remove lii ftnptotiements-JnC restore the Property pursuant to Section
3. If Licensee fdiG ;; r-"*ou" tfre rmJiovements wnlin the allotted time' the Ctty
may remove all or part of the lmprovJmenG, restore the Property' and recover the
costs of such ,"r&ir-"no restoiation Iror Li.enr"u. Licensee waives any right it
may have to any claim for damages of any kind incurred as a result of the city's
removal of all or part of the Improvements'
4. Permits Requircd. The city's grant of this ucense does not release
Licensee from any of its obligationsio obi"in applicable local, state' and federal
permits n"""rru,i -Lo--insta-tl
. consiiuA, opeiate, maintain, remove' repair'
reconstruct, replace, use, and inspect the Improvements' Licensee's failure to
comply with this se-&ion 4 shall .onrtit t" grou;or for immediate revocation by the
city. The consioeriiion in section 2 is in ad-'dition to any fees required for applicable
local, state, and federal Permits'
s. Maintenance. Ucensee shall maintain the Improvements and Property
inaclean,wetl-kept,orderlyandsafeconditiontothesatisfactionoftheclw'
Licensee shall promptly make repairs it l-icensee's cost, as necess-ary' to ensure the
Improvements an]'Fi"p".t' qp.k"Oi in gooa condition to the satisfaction of the City'
Any structural problems sirall o" ."piii"J *nnin 90 days of receipt of notice by
Licensee. Licensee shall ensu* rmp'rou"rents are kept_free of all veg,etation, and
shail submit an approved traffic .on[iJr'Jrn iii*o"ar of vegetation interferes with
traffic flow on si5rs. A[ graffiti ,ii.il b" removed within 48 hours of notification'
using approved graffiti-removal methods'
6.Emergency'Intheeventofanyemergencyin.whichan.yportionof
the Impro,r"r"nG-b.eiks, becomes damaged, or in any other way becomes an
IJMITED UCENSE--Page 2 of 8
(between CitY of Kent and Swlgard)
immediate danger to. the property, tife, health, or safety of any'individual, Licenseeshall immediately take the proper emergency measures to remedy the dangerouscondition without first applying for and obtaining a permit as required Oy ttris License.l'lowever, this emergency work shall not relievsLicensee from its obtigation to obtainall permits necessary_-for this purpose, and Licensee shall apply foi ttrose permitswithin the next two (2) succeeding business days.
7. fndemnification.
indemn ification requirements :
Licensee shall comply with the following
7'7, Licensee shall defend, indemnify, and hold the City, its officers,ofFlcials, employees, agents, assigns, and volunteers harmless froni'any and aliclalms, actions,_ injuries, damages, losses, or suits, including all reasonjble legalcosts, witness fees, and attorney fees, arising out of or in connection with theperformance of any of Ucensee's rights or obligalions granted by this License, exceptto the extent caused by the sole negligence of the city, its employees, agents,contractors, or invitees.
7,2 The City's inspection or acceptance of any of Licensee's workwhen compleOted shall not be grounds to avoid any of these covenants ofindemnification.
7.3 These indemnification obligations shall extend to any claim,action or suit that may be settled by compromise, provided that Licensee shall notbe liable to indemnify the City for any settlement agreed upon without the consentof Licensee; however, if Licensee consents to thd agreed upon setgement, theLicensee shall indemnify and hold the City harmless as irovidecj for in this Section 7by reason of that settlement. Moreover, if Licensee refuies to defend the City againstclaims by third parties, Licensee shall indemniff the City regardless of whether thesettlement of such claims is made with or without Licensee'Jconsent.
7-4 In the event that Licensee refuses to accept tender of defense in
an_y claim, action, or suit by a third pafty pursuant to this Section 7 and if Licensee'srefusal.is subsequently determined by a court having jurisdiction (or such othertri^bunal that the parties shall agree to decide the mattei) to have been a wrongfulrefusal, then Ucensee shall pay allthe City's costs for defense of the action, induding
all reasonable legal costs, witness fees, and attorney fees and also including the City{costs, including all legal costs, witness fees and reasonable attornef fees, forrecovery under this Section 7 indemnification clause.
7.5 The provisions of this section 7 shall survive the expiration or
of this License.
UCENSE--Page 3 of 8u
City of Kent and Swigard)
S.Insurance'Licenseeshallprocureandmaintainforthedurationofthis
ucense, insurance ;d; fia ana in'tfie imounts described berow against craims
for injuries to persons or dJmage to p-p"*v thal may arise from or in connection
with the performani" oi tfiu *dt Uy ii.int"i. Licensee also agrees to require the
samecoverageofitsagents,-'"p'"'.ntatives,employees,contractors'
subcontractors, consultants, suoconsunarits, or assigns performing work under the
;;G;iihii irc"ni"inJ to'ffirrre that such coveraee is
8'lBeforebeginningworkontheprojectdescribedinthisLicense,
Licensee shall provide a certifrcate or tnsuranpe evidencing:
S.l.lAutomobileLiabilityinsurancewithlimitsnolessthan
g1,000,000 comuinediingle limit p".ffi'for bodily injury and propefi damage;
and
8.1.2 Cofnmercial Gener.a!
=Lia-bilW
insurance yrilten on an
occurrence basis w;;; I combined single limit per
occurrence and general aggregat" foipeitonit injuty, bodily injury and property
darnage. Coverage shal[ includ" iut'not Oe tiriritii to, 'ndntLt contractual;
prqducts/comptete'Jop"iutionyuroJlorm property damage; explosion, collapse
SnJrnO6tground (xcti); and employer's liabilitv'
8.1.3 Excess Liability insurance with limits not less than
$2,000,000 per occurrence and aggregate'
S.2Anypaymentofdeductibleorself-insuredretentionshallbethe
sole resPonsibilitY of Licensee'
g.3 The city, its officers, officials, employees, agents, assigns and
vorunteers shail be named-as an "ooiiio,iii
insureo- on the insurance policy' '65
respects wort< pe*ormed by ot oi- U"nuii of the Licensee and shall make its
endonsement "urifrUf"-for
inipeAnon by the Licensor' -Licensor
waives no righ6 and
Licensee is not "*iirr"oirom
perform"i.u ir lii"nt"" fails to provide Licensor with a
paper copy of the indorsement naming the city as an additional insured'
S.4Licensee,sinsuranceshallcontainaclausestatingthatcoverage
shall apply separatelv to gac.fr ittutJi-g;i;;i;d;.qFit is made or suit is brousht'
except witn respJcii'to tne limits of the insurer's liability.
S.5Licensee,sinsuranceshallbeprimaryinsuranceasr.espectsthe
City, and the Ciry ,!ptl. b:liY:,] ilirty froi citenOai davs prior written notice
electronica'y and by united states iiliibr.."'i cancellation'-suspension or material
change in coverage.
UMITED UCENSE--Page 4 of I
(between CitY of Kent and Swigard)
9. ltlodification. This License may not be modified, altered, or amendedunless first approved in writing by the City.
10. Assignment. Licensee. shall not assign all or any portion of its rights,
lenefits, or privileges, in and under this License wifhout prior written ipproval of theCity, which approval will not be unreasonably withheld ordelayed. r-iceirlel shatt, nolater than thirty (30) days prior to the date of any proposed jssignment, nl" writtenncitice of intent to assign the License with the City iogether with th6 assignee,s writtenacceptance of all terms and conditions of the License and promise # compliance.Notwithstanding the foregoing, Licensee shall have the right, without such notice or
9.u.ch yritten acceptance, to_mortgage its rights, benefits, ind privileges in and underthis License to the trustee for its bondhoHlrs ina assign to any suSsidiary, parent,affiliate. or company having common control with uceniee so long as notice of sameis provided to the City and provided Licensee remains fully liabb to the city forcompliance with all terms and conditions of this license until such time as the Cityshall consent to such assignment as provided above.
. 11. Compliance with Laws, Licensee shall comply with all federal, state,and municipal laws, rules, and regulations that are applicab6 to this Licenie.
12. Venue and Jurisdiction. This License shall be construed in accordancewith the laws of the State of Washington. Venue and jurisdiction for the resolutionof disputes shall be in the Superior C6urt for Kin! Couniy, Washington. In the eventof claim or litigation regarding the enforcemen{ of the'terms of this License, each
PaS-y shallte responsible for its own legal costs and attorney fees "*."pt as notedin Section 7.
13- Notices. All notices, requests, demands, or other communicationsprovided for in this License, unless otherwise noted, shall be in writing inO shall bedeemed to have been given when sent by registered or certified maif ietuin receiptrequested, to the addresses listed below forlach party, or to such other person oraddress as either pafty shall designate to the othei part/ in writing:
CITY: LICENSEE:
City of Kent
Attn: City Clerk
220 Fourth Avenue South
Kent, wA ggo32
The Swigard Family B Trust
Philip Swigard, Stephen Swigard and
Kathleen Swigard
22OOL 107e place SE
Kent, WA 98031
' L4. No Waiver of Rights. Nothing in this License shall constitute a waiverof.eitherparty's right to challenge any portion of the License that is not in accordancewith applicable federal, state and local laws.
LIMITED UCENSE--Pa9e 5 of 8
(belvveen City of Kent and Swigard)
15.EntireAgreementandEffectiveDate'ThisLicensecontainsthe
entire agreement O"ttrt"n the parties and, in executing it, the City and Licensee do
not rely upon any statement, piomise, or representation, whether oral or written' not
expressed in this License. This ticense shail be effective upon the last day executed
below (Effective Date).
16. warranty of Authority to Execute. Each person executing this
License warrants tn-ailrefsne has the-requisite authoriW to bind the party for whorn
that person is executing.
This License is executed and shall become effective as of the last date signed
below.
CITY OF KENT
By
Name
Title:
Date:
UCENSEE
By:
Print Name
Title
Date
(Nobry Acknowledgments on Following Page)
IQ{
to
UMITED UCENSE--Page 6 of 8
(between CitY of Kent and Swigard)
srATE OF WASHINGTON )
:
COUNTY OF KING )
ss.
I hereby ceftrfy that I know or have satisfactory evidence that Dana Ralph is
the percon who appeared before me, and said person acknowledged that she signed
this instrument, on oath stated that she is authorized to execute the instrument on
behalf of the City of Kent as its l*layor, and such execution to be the free and
voiuntary act of ir.n pirty for the usls and purposes mentioned in the foregoing
instrument.
-Nobry Seal Must Appar Within Thls Box'
IN WITNESS WHEREOF,I hereunto set mY hand and I seal
the day above
l1 ftA
+o At)
120137
t?Buro
PUBUC,and for
of Washington, residing at
-0 8-My appointment exPires
Op
Irtttl1
\\
LIMITED UCENSE--Page 7 of I
(between CitY of Kent and Swigard)
\
STATE OF
COUNTY
Dated
UMITED UCENSE--Page 8 of 8
(between City of Kent and Swigard)
ss.
)
)
)
I certifo that I know or have satisfactory evidence an",W,
the percon who appeared before me, and said-person acknowffi
this instrument and acknowledged it to be his firee and voluntary aA for the uses andpurposes mentioned in the instrument.
-filobry 5eF/l Must Appar Within This Box-
IN wITNEss WHEREOF, I have hereunto set my hand and officialseal
the day and year first above written.
iliffiib itiE-"1
@ ?nzt
I Fn[Itl,tAN
Notary Public - Cdifdnh
Placer County
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