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HomeMy WebLinkAboutCAG2002-0502 - Original - Boing Company - Pacific Gateway Business Park Limited Steet License - 02/01/2002LIMITED STREET LICENSE BETWEEN THE CITY OF KENT AND THE BOEING COMPANY THIS LIMITED STREET LICENSE ("License") is entered into between the CITY OF KENT, a Washington Municipal Corporation ("City"), and The Boeing Company, a Delaware corporation ("Licensee") RECITALS WHEREAS,Licensee seeks to construct infrastructure improvements as part of the Pacific Gateway Business Park in the City of Kent; and WHEREAS, Licensee has requested that the City grant a pernit to use City nght-of-way to extend an underground utility conduit and imgation system("Improvements") witlun the City, and WHEREAS,Licensee intends to use the utility conduit for future potential extension of fiber optics, cable television, electrical power, telephone, or any other similar utility use WHEREAS, the City is willing to enter into this License under the terms and conditions set forth in this License so that Licensee can commence construction of its planned Improvements NOW, THEREFORE, THE CITY AND LICENSEE AGREE AS FOLLOWS LICENSE 1.License Granted. The City grants Licensee this Limited Street License from the effective date of this License to install, construct, operate, maintain, remove, repair, reconstruct, replace,use and inspect Improvements and related equipment across, along,in,upon, and under the City's nght-of-ways described in Exhibit A,which is attached and incorporated by this reference A general description of the plans and specifications for these Improvements is attached as Exhibit B This License is subject to all the terms and conditions established below. 2.City Owned Facilities. Typically, the City requires under this Section,Licensee to either compensate the City for part of its costs to administer this License or install a four-inch conduit with pull boxes for and on behalf of the City However,because Improvements are part of a larger project, and because Licensee has paid associated permit and landscaping fees, and because the impact on City nght-of-ways is mammal, the City is waiving the normal requirements of this Section 3. Revocation and Termination. The intent of this License is to authorize Licensee to operate (as described in Section 1) its Improvements on the designated City nght-of-ways, which nght-of-ways constitute a valuable property interest owned by the City This License does not grant an estate in the land described in Exhibit A, it is not an easement; it is not a franchise, it is not exclusive, and,it does not exclude the City from full possession of the property described in Exhibit A. As a license upon real property, it is revocable at the will of the City. However, prior to LICENSE--Page 1 of 6 termination or revocation by the City,the City shall provide Licensee with at least sixty(60)calendar days written notice of that termination or revocation. Upon the effective date of the City's termination or revocation,the City may require Licensee to remove the Improvements within thirty 30) calendar days; if Licensee fails to remove the Improvements within the allotted time,the City may remove all or part of the Improvements and 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. Notwithstanding the foregoing,the City agrees that it will not terminate or revoke this License for a period of ten(10) years commencing on the date of the later signature of the parties to this License except upon a finding by the City that such termination or revocation is required for reasons of public health or safety 4. Permits Required. The City's grant of this License does not release Licensee from any of its obligations to obtain applicable local, state, and federal permits necessary to install, construct,operate,maintain,remove,repair,reconstruct,replace,use and inspect the Improvements Licensee's failure to comply with this Section 4 shall constitute grounds for immediate revocation by the City 5.Relocation. Licensee shall,at its sole cost and expense,protect,support,temporarily disconnect, relocate or remove, all or a part of its Improvements when required by the City for reasons of traffic conditions or public safety, widening or improvement of existing right-of-ways, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity,provided that Licensee shall,upon receiving approval and obtaining the necessary perinits from the City,have the right to bypass in the authorized portion of the same right-of-way, any section of cable required to be temporarily disconnected or removed 5.1. For the purposes of this Section 5, any condition or requirement imposed by the City upon itself or any person or entity acting on the City's behalf, (including without limitation, any condition or requirement imposed pursuant to any contract or in conjunction with approvals for permits for zoning, land use, construction, or development) that reasonably necessitates the relocation of Licensee's facilities within the right-of-ways described in Exhibit A shall be a required relocation for purposes of this section 5.2. If the City,under its authority,causes a required relocation of all or part of the Improvements, the City, at least sixty (60) calendar days prior to the commencement of the project requiring relocation, shall provide written notice to Licensee of the required relocation and shall provide Licensee with copies of pertinent portions of the plans and specifications for the project After receipt of the City's notice,Licensee must complete the required relocation of its affected facilities at least ten (10) calendar days prior to the commencement of the project requiring relocation. Licensee will complete this required relocation at no charge or expense to the City. Further, Licensee's relocation shall be accomplished in a manner that accommodates and does not interfere with the project requiring relocation. 5.3. Licensee may,after receipt of the City's written notice requesting relocation, submit written alternatives to the City. The City will evaluate those alternatives to determine LICENSE--Page 2 of 6 if any of the alternatives can accommodate the work that would otherwise necessitate the relocation of the Improvements. If requested by the City, Licensee will submit additional information to assist the City in making its determination. The City will give each alternative proposed by Licensee full and fair consideration. In the event the City ultimately determines that no reasonable or feasible alternative exists, Licensee shall relocate its facilities as otherwise provided in this Section 5. 5.4. Notwithstanding the above provisions in this Section 5,the Licensee may seek reimbursement from the City for its actual relocation expenses under any one of the following conditions 5.4.1. If the City has required the Licensee to relocate these facilities at Licensee's cost within five (5) years of the date of a request for relocation, 5.4.2. If the City requests relocation solely for aesthetic purposes 5.5. In the event that a relocation of any of the Improvements is required by any person or entity other than the City, so long as that person or entity is not acting on the City's behalf in conducting any of the activities described in this Section 5, Licensee shall make those arrangements, including compensation for Licensee's relocation cost, that it deems appropriate with that person or entity. 5.6. Notwithstanding all of the above, the City may require the relocation of the Improvements at Licensee's expense in the event of an unforeseen emergency that creates an immediate threat to the public safety, health or welfare 5.7. The provisions of this Section 5 shall survive the expiration or termination of this License 6.Undergrouding. Intentionally Omitted. 7. Emergency. In the event of any emergency in which any portion of the Improvements breaks, becomes damaged,or in any other way becomes an immediate danger to the property, life, health, or safety of any individual, Licensee shall immediately take the proper emergency measures to remedy the dangerous condition without first applying for and obtaining a permit as required by this License However, this emergency work shall not relieve Licensee from its obligation to obtain all permits necessary for this purpose, and Licensee shall apply for those permits within the next two succeeding business days. 8.Indemnification. Licensee shall comply with the following indemnification requirements. 8.1. Licensee shall defend, indemnify and hold the City, its officers, officials, employees,agents,assigns and volunteers harmiless from any and all claims,actions,injuries, LICENSE--Page 3 of 6 damages,losses or suits,including all legal costs,witness fees and attorney fees,ansing out of or in connection with the performance of any of Licensee's rights or obligations granted by this License, but only to the extent of the negligence or comparative fault of Licensee, its employees, agents, contractors, subcontractors,consultants, subconsultants or assigns. 8.2. The City's inspection or acceptance of any of Licensee's work when completed shall not be grounds to avoid any of these covenants of indemnification. 8.3. These indemnification obligations shall extend to any claim,action or suit that may be settled by compromise, provided that Licensee shall not be liable to indemnify the City for any settlement agreed upon without the consent of Licensee; however, if Licensee consents to the agreed upon settlement, then Licensee shall indemnify and hold the City harmless as provided for in this Section 8 by reason of that settlement Moreover,if Licensee refuses to defend the City against claims by third parties,Licensee shall indemnify the City regardless of whether the settlement was made with or without Licensee's consent 8.4. In the event that Licensee refuses to tender defense in any claim,action or suit by a third party pursuant to this Section 8 and if Licensee's refusal is subsequently determined by a court having jurisdiction(or such other tribunal that the parties shall agree to decide the matter)to have been a wrongful refusal,then Licensee shall pay all the City's costs for defense of the action, including all legal costs, witness fees and attomeys'fees and also including the City's costs, including all legal costs, witness fees and attorneys' fees, for recovery under this indemnification clause (Section 8) 8.5. The provisions of this Section 8 shall survive the expiration or termination of this Agreement 9. Insurance. Licensee shall procure and maintain for the duration of this License, insurance of the types and in the amounts described below against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work by Licensee, its agents, representatives, employees, contractors, subcontractors, consultants, subconsultants or assigns 9.1. Before beginning work on the project described in this License,Licensee shall provide a Certificate of Insurance evidencing. 9.1.1. Automobile Liability insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage, and 9.1.2. Commercial General Liability insurance written on an occurrence basis with limits no less than $2,000,000 combined single limit per occurrence and general aggregate for personal injury,bodily injury and property damage. Coverage shall include but not be limited to blanket contractual; products/completed operations/broad form property damage, explosion, collapse and underground XCU); and employer's liability. LICENSE--Page 4 of 6 9.1.3. Excess Liability insurance with limits not less than $2,000,000 per occurrence and aggregate. 9.2. Any payment of deductible or self-insured retention shall be the sole responsibility of Licensee. 9.3. The City, its officers, officials, employees, agents, assigns and volunteers shall be named as an additional insured on the insurance policy, to the extent of the Licensee's indemnity set out in Section 8 as respects work performed by or on behalf of the Licensee and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. 9.4. Licensee's insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability 9.5. Licensee's insurance shall be primary insurance as respects the City, and the City shall be given thirty (30) calendar days prior written notice by certified mail of any cancellation, suspension or material change in coverage. 10. Modification. This License may not be modified, altered, or amended unless first approved in writing by the City 11. Assignment. Licensee may assign all or any portion of its rights, benefits, and privileges, in and under this License subject to and conditioned upon approval of the City, which approval will not be unreasonably withheld or delayed Licensee shall,no later than thirty(30) days of the date of any proposed assignment, file written notice of intent to assign the License with the City together with the assignee's written acceptance of all terms and conditions of the License and promise of compliance Notwithstanding the foregoing,Licensee shall have the right, without such notice or such written acceptance, to mortgage its rights, benefits, and privileges in and under this License to the Trustee for its bondholders and assign to any subsidiary,parent, affiliate or company having common control with Licensee so long as notice of same is provided to the City and provided Licensee remains fully liable to the City for compliance with all terms and conditions hereof until such time as the City shall consent to such assignment as provided above. 12. Dispute Resolution; Venue; Jurisdiction. In the event of any alleged breach or threatened breach of this License by either party and if the City and Licensee are unable to cure the breach or otherwise resolve their dispute, then final resolution of this dispute or claim shall occur exclusively under the venue,jurisdiction and rules of the King County Superior Court located in Kent, Washington. Each party shall also be responsible for its own legal costs and attorney fees incurred in defending or bringing that claim or lawsuit. LICENSE--Page 5 of 6 13. Notice. All notices,requests,demands,or other communications provided for in this License shall be in writing and shall be deemed to have been given when sent by registered or certified mail, return receipt requested, addressed as the case may be,to the addresses listed below for each party,or to such other person or address as either party shall designate to the other from time to time in writing forwarded in like manner. CITY OF KENT LICENSEE: Attn City Clerk Attn. Colette Temmink 220 Fourth Avenue South Vice President, Development Kent, WA 98403 Boeing Realty Corporation P O Box 3707,M/C 1F-58 Seattle, WA 98124-2207 This License contains the entire agreement between the parties and, in executing it, the City and Licensee do not rely upon any statement, promise, or representation, whether oral or written, not expressed herein. IN WITNESS, this Limited Street License is executed and shall become effective as of the last date signed below C1T OF KENT LICENSEE lJ THE BOEING COMPANY, a Delaware corporation 13 By Step en J Barker 1FFE, Mayor f Its Aut nzed Signatory Date Date Z) APPROVED AS TO FORM: THOMAS C. BRUBAKER r I C• 0lMtJ- , +sc 1- C%^p P\CjvffJU ,%OpenFdmUW210mmg rt ty<om-Fw ftc LICENSE--Page 6 of 6 EXHIBIT A City Right-of-ways The following roads are affected by the Limited Street License. S. 196`h Street from 62nd Ave S. to W Valley Highway 62n1 Ave S. from S 196' Street to S 199 h Place S 1991h Place from 62"d Ave S. to W. Valley Highway W. Valley Highway from S. 196`h Street to S 199`h Place 591h Place S. from S 2121h Street to S. 199`h Place EXHIBIT B Description 1. Conduit Crossings Two to three 4" conduits which cross the City Right-of-Way at the approximate locations shown on the attached Exhibit. 2. Landscape Irrigation Landscape irrigation heads which extend into the City Right-of-Way up to the back of the City sidewalk in the area shown on the attached two page exhibit. EXHIBIT "B" S 19e Street 17 16 16 12 10 8 6 4 1 18 13 2 m 11 8 1 6 3 21 10 m 14 20 S lw Place 22 23 x 24 c R $ 26 Sao v 26 27 s LEGEND m OCONDUIT CROSSING (APPROXIMATE LOCATION) N 28CDS W m I O l j0 Z J33HS 33S 3Ni) H:iLv7A wx I 0 9 01 ,a S31WA 0rn w b 0 0 N N D p 0 R m r O0 3 0 z CO J e Z n O m t= z UWN I W e m m Hinos -3Ab CIN99 W Y mII a m 0. ZIP 3NIl NOLLO3S gNOOr II IIId 2 i EXHIBIT B I W SECTION LINE BACK OF SIDEWALKin W SOUTH 196TH STREET—Z- - - - - - - - - 588'59'48"E 139700, N86 40'24"W 266 62' N42 49'26 W N W 2 I1 217 2 i z QI 0 92 72 N1414•W LuW aGkllo-I Z e Go co R.0 W. BOUNDARY n w Q c 1 =200' W J 0 100 200 400 BACK OF SIDEWALK J KIM Q 199TH PL. SOUTH R I m W I _ F1(4 t91t 2-II-1J 1 i i i SHEET 2 OF 2 PROJECT DIMENSIONS,INC. 20300 59"Place South.Kent.Washington 98032 Letter of Transmittal TO: City of Kent DATE: March 7, 2002 220 Fourth Ave S. Kent,WA 98032 PROJECT: Pacific Gateway—Project 1 ATTN: Brett Vinson RE: Limited Street License CC: SENT VIA: ( ) Mail Fedex (X) Messenger Fax: Message: Attached is one Limited Street License for your signature Please return one fully executed copy to me. Please let us know if you will be recording this document or if we should be doing that. Signed: Name: Chris Austin Title: Senior Project Manager