AG 04-091 - SOUND TRANSIT
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.
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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
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(LESS THAN $200,000)
D PURCHASE AGREEMENT)
(MATERIALS, SUPPLIES, EQUIPMENT)
D REAL ESTATE DOCUMENT
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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
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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~{
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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
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