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AG 04-091 DATE IN: DATE OUT: TO: Du-lèI1t'/ LtAAASt-f/ p' CITY OF FEDERAL WAY LAW DEPARTMENT REQUEST FOR CONTRACT PREPARATIONIDOCUMENT REVIEW/SIGNATURE ROUTING SLIP 1. 2. 4. 5. 6. 7. 8. 9. 10. 11. ORIGINATING DEPT./DIV: PiC / ,-AC1VI'1Ji. Úé;-htt-H ê--¡/l) ORIGINATING STAFF PERSON: kt' ~1 _.UrUe'/ EXT: "I{j(/ 3. DATE REQ. BY: TYPE OF DOCUMENT REQUESTED (CHECK ONE) 0 PROFESSIONAL SERVICE AGREEMENT D MAINTENANCE/LABOR AGREEMENT 0 PUBLIC WORKS CONTRACT D SMALL PUBLIC WORKS CONTRACT D SECURITY DOCUMENT (EG AGREEMENT & PERFIMAIN BOND; ASSIGNMENT OF FUNDS IN LIEU OF BOND) D CONTRACTOR SELECTION DOCUMENT (E.G.. RFB, RFP, RFQ) D CONTRACT AMENDMENT D CDBG AOTHER FÜbfiC P¡Qr¿. Use) 0/- Jhdo) 11¡Ì-J~ "L.~')~n? I þ îe'f.l-:t7 S3t(J -it, I ;2jld .Art .~ (LESS THAN $200,000) D PURCHASE AGREEMENT) (MATERIALS, SUPPLIES, EQUIPMENT) D REAL ESTATE DOCUMENT AG#: PROJECT NAME: 3tu t1d TituLsrt ('tIL1t'L/ NAME OF CONTRACTOR: SClt ¡ Ld 1î a il:Sì.-b ADDRESS: SIGNATURE NAME: TELEPHONE TITLE ATTACH ALL EXHIBITS AND CHECK BOXES D SCOPE OF SERVICES D ALL EXHIBITS REFERENCED IN DOCUMENT D INSURANCE CERTIFICATE D DOCUMENT AUTHORIZING SIGNATURE TERM: COMMENCEMENT DATE: ? /~ 1 Á-it.f COMPLETION DATE: l TOTAL COMPENSATION $ (INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: DYES DNO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED 0 YES 0 NO IF YES, $ PAID BY: 0 CONTRACTOR 0 Cn CONTRACT REVIEW D PROJECT MANAGER D DIRECTOR D RISK MANAGEMENT 9Q.AW (-1/11 i L"3 CONTRACT SIGNATURE - '&rING AW DEPARTMENT DC MANAGER 'Ó/~ 0 CITY ~; SIGN COpy l',. TO O~INATING DEPT. ~SSIGNED G# O~-'11 {pJI D PURC SING: PLEASE~GE TO: INITIAL/DATE APPROVED INITIAL/DATE APPROVED (Vy UjtlL klVI(I./) fh1/'t! INITIAL/DATE APPROVED tr'/{Y ¡lCl L S . A C::l'CJ-f~? I RIGHT-OF-WAY USE AGREEMENT FOR IMPROVEMENTS BY SOUND TRANSIT TO SOUTH 316TH STREET BETWEEN 21 ST AVENUE SAND 23RD AVENUE S '" THIS AGREEMENT is entered into this 1..ì day of M~ 2004, by and between the City of Federal Way, Washington, a Municipal Corporation ("City") and the Central Puget Sound Regional Transit Authority ("Sound Transit"), collectively referred to herein as the "Parties". RECITALS WHEREAS, The City holds rights-of-way within the City in trust for the benefit of the public, including South 316th Street between 21 st Avenue South and 23rd Avenue South, legally described in Exhibit A attached hereto and incorporated by reference ("Premises"); and WHEREAS, Sound Transit desires to use space in, on, or above the Premises for the installation and maintenance of certain improvements outside of the traveled roadway that include special stamped concrete pavement, trellis footings, landscaping, street light banners and benches ("Facilities") for use in connection with its construction and operation of a transit center located at 23rd Avenue S. and S. 316th Street; NOW THEREFORE, in consideration of their mutual promises and covenants, the Parties agree as follows: 1. Premises. City grants use to Sound Transit, on a non-exclusive basis and subject to the conditions and limitations herein, the Premises as legally described in attached Exhibit A. Sound Transit may locate its Facilities on the Premises in the manner as described specifically in the attached Exhibit B. Sound Transit may not add Facilities in addition to that shown on Exhibit B other than as may be approved in writing by the City. 2. Term and Termination. Sound Transit understands and agrees that the permission granted herein to occupy the Premises is wholly of a temporary nature, vests no permanent rights whatsoever, and that upon thirty (30) days notice, or without notice in case such use or occupation or such Facilities shall become dangerous, insecure or unsafe, or shall not be constructed, maintained or used in accordance with the provisions of the FWCC, building permit #03-1O2584-000-00-CO or this Agreement, the Agreement may be terminated and the Facilities ordered removed. Page I 3. Permitted Use of Premises. 3.1. Sound Transit may use the Premises solely for the installation, operation, and maintenance of its Facilities specifically described in Exhibit B and approved by building permit #03-102584-000-00-CO. 3.2 Sound Transit shall not use the Premises in any way that interferes with the use of the Premises by City, lessees, licensees or other entities authorized by the City. 3.3. Sound Transit shall remove the Facilities from the Premises upon termination of the Agreement. Upon removal of the Facilities, Sound Transit shall restore the affected area of the Premises to the reasonable satisfaction of the City. All costs and expenses for the removal and restoration to be performed by Sound Transit shall be borne by Sound Transit. If however, Sound Transit requests permission not to remove all or a portion of the improvements, and City consents to such nonremoval, title to the affected improvements shall thereupon transfer to City and the same thereafter shall be the sole and entire property of City, and Sound Transit shall be relieved of its duty to otherwise remove same. 3.4. The City reserves the right to regulate, use, occupy and enjoy its right-of-way property for such purposes as it shall desire including, but not limited to, constructing or installing structures and facilities on the right-of-way, or developing, improving, repairing or altering the right-of-way. Upon the City's demand and at the Sound Transit's sole cost and expense, Sound Transit shall remove and/or maintain the Facilities pursuant to the City's instructions and within the reasonable time period prescribed by the City. 4. Restoration. In the event that Sound Transit causes damage of any kind during the course of installing, operating or maintaining the Facilities, including damage to the right-of-way caused by cutting, boring, jack hammering, excavation or other work, and including latent damage not immediately apparent at the time of the work, Sound Transit shall repair the damage and restore the right-of-way at its sole cost and expense, without delay or interruption and within the reasonable time period prescribed by the City. Restoration of the right-of-way shall be to a condition that in the judgment of the City is equivalent to the condition of the right-of-way prior to commencing the installation, operation or maintenance of the Facilities. Whenever part of a square or slab or existing concrete sidewalk or driveway is cut or damaged, the entire square or slab shall be removed and replaced. All materials and compacting shall be in accordance with the "Standards and Specifications for Road, Bridge, and Municipal Construction," as amended. Page 2 5. Maintenance. Sound Transit shall, at its own expense, maintain the Facilities in a safe condition and in good repair. Additionally, Sound Transit shall keep the Facilities free of debris, graffiti and anything of a dangerous, noxious or offensive nature or which would create a hazard or undue vibration, heat, noise or any interference with City services. Sound Transit shall have sole responsibility for the maintenance, repair, and security of its Facilities, and shall keep the same in good repair and condition during the Agreement tenn. 6. Compliance with Laws. Sound Transit's use of the Premises is subject to its obtaining all certificates, pennits, zoning, and other approvals that may be required by any federal, state or local authority. Sound Transit shall erect, maintain and operate its Facilities in accordance with applicable site standards, statutes, ordinances, rules and regulations issued by the City, federal or state government or any other governing bodies. Sound Transit acknowledges that all aspects of this Agreement are consistent with existing Washington State statutes and the City Code, and to the best of its knowledge, this Agreement is consistent with all other applicable federal, state and local laws. In addition, Sound Transit specifically acknowledges that the Premises are located in right-of- way subject to City's regulatory authority. Nothing herein shall be deemed to limit, impair or affect City's authority to pennit, fÌ'anchise or regulate usage of rights-of-way pursuant to its lawful authority. 7. Agreement Subject to Future Ordinances. Sound Transit acknowledges that the City may develop rules, regulations, ordinances and specifications for the use of the right-of-way and City property which shall govern Sound Transit's Facilities and activities hereunder as if they were in effect at the time this Agreement was executed by the City, and Sound Transit covenants and agrees to be bound by same; provided, however, that Sound Transit shall not be bound by new laws where its rights have previously vested by operation of law. 8. Indemnity. 8.1. Disclaimer of Liability: Except for the sole negligence or willful misconduct of the City, its employees or agents, the City shall not, at any time, be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of Sound Transit's construction, installation, maintenance, repair, use, operation, condition or dismantling of the Premises or Sound Transit's Facilities and Sound Transit expressly assumes all such risk. 8.2. Indemnification and Hold Harmless: Sound Transit shall, at its sole cost and expense, indemnify and hold harmless City and its officers, boards, commissions, employees, agents, attorneys and contractors from and against any and all liability, damages and claims (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be asserted by reason of any act or omission of Sound Transit, its employees, agents, or contractors or which may be in any way connected with the construction, installation, operation, maintenance, repair, use, condition or dismantling of the Premises or Sound Transit's Facilities except for the sole negligence or willful misconduct of the City and its officers, boards, commissions, employees, agents, attorneys and contractors. Page 3 8.3. Defense of City: When under the terms of this Agreement Sound Transit is required to defend the City against any action or proceeding brought against the City, Sound Transit shall, at Sound Transit's sole cost and expense, resist and defend the same provided, however, that Sound Transit shall not admit liability in any such matter on behalf of the City without the written consent of City. Nothing herein shall be deemed to prevent City from cooperating with Sound Transit and participating in the defense of any litigation with City's own counsel. Sound Transit shall pay all expenses incurred by City in response to any such actions, suits or proceedings. These expenses shall include all out-of-pocket expenses such as attorneys' fees and shall also include the reasonable value of any services rendered by the City Attorney's office, and the actual expenses of City's agents, employees, consultants and expert witnesses, and disbursements and liabilities assumed by City in connection with such suits, actions or proceedings. 8.4. Survival. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 9. Insurance: During the term of this Agreement, Sound Transit shall maintain in full force and effect and at its sole cost and expense, and listing the City, its officers, boards, commissions, employees and agents as additional insureds, the following types and limits of Insurance: 9.1. Comprehensive commercial general liability insurance with minimum limits of Two Million Dollars ($2,000,000) per occurrence and Five Million Dollars ($5,000,000) in the annual aggregate. 9.2. Comprehensive automobile liability insurance with combined single minimum limits of Two Million Dollars ($2,000,000) per occurrence and Five Million Dollars ($5,000,000) in the annual aggregate. 9.3. required by law. Worker's compensation Insurance and such other Insurance as may be 9.4. Evidence of Insurance: Certificates of insurance for each insurance policy required by this Agreement shall be filed and maintained with City prior to commencement of the term of this Agreement and thereafter. 9.5. Cancellation of Policies of Insurance: All insurance policies maintained pursuant to this Agreement shall contain the following or substantially similar endorsement: "At least sixty (60) days prior written notice shall be given to City by the insurer of any intention not to renew such policy or to cancel, replace or reduce coverage regarding the Premises, such notice to be given by registered mail." 9.6. Deductibles: All insurance policies may be written with commercially reasonable deductibles. Page 4 9.7. License: All insurance policies shall be with insurers licensed to do business in the State of Washington and with a rating of A (IV) or better, unless waived by the City. 10. Acceptance of Premises. Sound Transit accepts the Premises in the condition existing as of the date of this Agreement. City makes no representation with respect to the condition of the Premises and City shall not be liable for any defect in the Premises. II. Taxes. Sound Transit shall pay all personal property taxes (or payments in lieu of taxes) and assessments for the Premises, if any, which become due and payable during the term of this Agreement attributable to the Facilities or Sound Transit's use of the Premises. 12. Condemnation. In the event the Premises are taken in whole or in part by any entity by eminent domain, this Agreement shall terminate as of the date title to the Premises vests in the condemning authority. Sound Transit shall not be entitled to any portion of the award paid and the City shall receive the full amount of such award. Sound Transit hereby expressly waives any right or claim to any portion thereof. However, Sound Transit shall have the right to claim and recover from the condemning authority, other than the City, such other compensation as may be separately awarded or recoverable by Sound Transit. 13. Dangerous Conditions: Authority for City to Abate. Whenever construction, installation, or excavation of Facilities authorized by this Agreement has caused or contributed to a condition which impairs the lateral support of the adjoining public way, street or public place, or endangers the public, street utilities or City-owned property, the Public Works Director may direct the Sound Transit, at the Sound Transit's own expense, to take reasonable action to protect the public, adjacent public places, City-owned property, streets, utilities and public ways. Such action may include compliance within a prescribed time. In the event that the Sound Transit fails or refuses to promptly take the actions directed by the City, or fails to fully comply with such directions, or if emergency conditions exist which require immediate action, the City may enter upon the Premises and take such actions as are reasonably necessary to protect the public, the adjacent streets, public ways and utilities, to maintain the lateral support thereof, or other actions regarded as necessary safety precautions; and the Sound Transit shall be liable to the City for the costs thereof. The provisions of this Section shall survive the expiration, revocation or termination of this Agreement. 14. General Provisions. 14.1. Entire Agreement. This Agreement contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement and no prior agreements shall be effective for any purpose. 14.2. Modification. No provision of this Agreement, including this provision, may be amended or modified except by written agreement signed by the Parties. Page 5 14.3. Full Force and Effect. Any provision of this Agreement that is declared invalid or illegal shall in no way affect or invalidate any other provision hereof and such other provisions shall remain in full force and effect. 14.4. Assignment. Sound Transit may not assign this Agreement nor transfer occupancy of the Premises or operation and ownership of the Facilities, in whole or in part, without the prior written consent of the City. 14.5. Successors in Interest. Subject to the foregoing Subsection, the rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors in interest, heirs and assigns. 14.6. Attorney Fees. In the event either of the Parties defaults on the perfonnance of any terms of this Agreement or either Party places the enforcement of this Agreement in the hands of an attorney, or files a lawsuit, each Party shall pay all its own attorneys' fees, costs and expenses. The venue for any dispute related to this Agreement shall be King County, Washington. 14.7. No Waiver. Failure or delay of the City to declare any breach or default immediately upon occurrence shall not waive such breach or default. Failure of the City to declare one breach or default does not act as a waiver of the City's right to declare another breach or default. 14.8. Governing Law. This Agreement shall be made in and shall be construed in accordance with the laws of the State of Washington. 14.9. Authority. City and Sound Transit respectively represent that their signatory is duly authorized and has full right, power and authority to execute this Agreement. 14.10. Notices. Any notices required to be given by the Parties shall be delivered a the addresses set forth below. Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth below. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. 14.11. Captions. The respective captions of the Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect any of the provisions of this Agreement. 14.12. Perfonnance. Time is of the essence of this Agreement and each and all of its provisions in which perfonnance is a factor. Adherence to completion dates set forth in the description of the Services is essential to the Contractor's perfonnance of this Agreement. 14.13. Remedies Cumulative. Any remedies provided for under the tenns of this Agreement are not intended to be exclusive, but shall be cumulative with all other remedies available to the City at law, in equity or by statute. Page 6 14.l4. Dispute Resolution. Disputes under this agreement will be resolved through the process established in Section IV of the Agreement Between Central Puget Sound Regional Transit Authority And The City Of Federal Way For Development Of A Transit Center, Parking Structure And Freeway Access (July 9, 2001). Page 7 This Agreement was executed as of the date first set forth above. CITY OF FEDERAL WAY By: IŒ: r/~ ~ Address: APPROVED AS TO FORM FOR CITY OF FEDERAL WAY: CENTRAL PUGET SOUND TRANSIT AUTHORITY REGIONAL By: fJ~{ eta) &~ Title: Address: Title: APPROVED AS TO FORM FOR SOUND TRANSIT: Its: ~ ('~ K:\Sound Transit\Right of Way Use Agreement 091503 Page 8 ) ) ss. ) On this day, personally appeare efore me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned sworn, David H. Moseley, to me known to be the City Manager of the City of Federal a Washington municipal corporation, the municipal corporation that executed the foregoing in ent, and acknowledged the said instrument to be the free and voluntary act and deed of said mun . al corporation, for the uses and purposes therein mentioned, and on oath stated that he was authori to execute the said instrument. Given under my hand and official seal this - day 0 , 2004. (typed/printed name of no ) Notary Public in and for the ate of Washington My commission expires: STATE OF WASHINGTON ) ) ss. ) COUNTY OF KING On this day, personally appeared before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, ..JòAt-J M. GA (¿L , to me known to be the C.~\ f S. -'f)Q ~ ,-e'iOy-",1 :I('te--,ò",t hi h cu 0 'DL/.V'¡) f/c<1i1/.::., T , a -t,....-r-I'll)I-. t-y , W c executed the foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of ~4, 4 -fYlL-1\S,';- ClL< fnor:1 'f ' for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute the said instrument. Given under my hand and official seal this J-<o day of AP/2( L , 2004. ~~K~ (notary signature) 11:~S/+ J. LA(>£fI/JO (typed/printed name of notary) Notary Public in and for the State of Washington My commission expires: S- - Jv- flrr' S- TERESA J. LAPETINO NOTARY PUBLIC : STATE OF WASHINGTON COMMISSION EXPIRES ~ MAY 20; 2005 Page 9 EXHIBIT A LEGAL DESCRIPTION The south fifteen feet of South 316th Street road right-of-way, between 21 st Avenue South and 23rd Avenue South in Federal Way, King County, Washington. Page 10 EXHIBIT B SITE SKETCH Page II ~~H ~~g ËU 0; , ~_a- "~~ ø ~I § ~IN,,--l.". SW 174, SEC. 9, 1WP 21 N. AGE 4E, W.M. 19+00 N 8817'46" W . ; ! 5~ ~ ~ -...I W ID W W C1) <i. w :z ~I' or. !;;: ;:E, llTlER R[ÇfJ'JI.' ;11. ; ~I¡; . ~l~ ~¡¡ " . ~I~ ~ S. 3161h STREET 18+00 ~I. i ~I; =I~ ;~ ~~ / [JOg¡ "<A."""Al1ON ~ < w »:I <ê w 5 :I: ~ < 2~ "2~t.SCœEl~ ~ '8 ri ,¡ .>1 ~ ~. ~~ ~~I ~~ ~ .~ CIo'. IAI OM""" B. JGM c._B. ADB ""',.. B, HS _B, RJ!. --- Iõõi& R..Ion. PER 01Y Œ FEOOIAl WAY sro. FUN:>-31 . ~ . 1m' RECEPTA' ..~_._.=.,. '47w ~~ ~ ò. ~ ~ CfI GRAPHIC SCALE ~" 20 .. ........' I T SOUNDTRANSrr ..... "",. 1D~1Øl u =õHo" ¡;¡;¡. ," . '0.0' SOUND TRANSIT REGIONAL EXPRESS I FW-CSF-OO FEDERAL WAY TRANSIT CENTER FW-csr-oo.dw, ~~ -~ RTA/RE "0-,, S. 3161.. STREETSCAPE EXHIBIT ~ APRIL " 2004