HomeMy WebLinkAbout22-105 - King County - George Long Shops Temporary Access Agreement{JEH2673402.DOC;1/13175.000024/ }
Temporary Access – Tukwila / King County Page 1 of 9
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TEMPORARY ACCESS AGREEMENT
THIS TEMPORARY ACCESS AGREEMENT (“Agreement”) is made as of the ____
day of _________________, 2022 by CITY OF TUKWILA, a municipal corporation of the State
of Washington (“Grantor”) in favor of KING COUNTY, a home rule charter county and political
subdivision of the State of Washington (“Grantee”). Grantor and Grantee may be collectively
referred to herein as the “Parties” and individually as a “Party.”
RECITALS
A.Grantor represents and warrants it is the owner of the real property located at 14000
Interurban Avenue S, Tukwila, King County, State of Washington, Tax Parcel Numbers
336590-0925, 336590-0975, 336590-1015 and 336590-1016, more particularly
described in Exhibit A and depicted in Exhibit B, both of which are attached hereto and
by this reference incorporated herein (the “Property”).
B.Grantor and Grantee are engaged in ongoing negotiations regarding Grantee’s potential
purchase of the Property.
C.Grantee wishes to access the Property to conduct environmental due diligence.
D.Grantor and Grantee acknowledge the initiation or completion of such due diligence
does not bind either Party to proceed with negotiations or enter an agreement for the
purchase and sale of the Property.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
and agreements set forth herein, the Parties agree as follows:
AGREEMENT
1.Temporary Access. Grantor hereby grants Grantee and its respective agents,
officers, contractors, subcontractors, suppliers and their respective agents, officers and employees
(each a “Grantee Party”), with necessary equipment, the temporary non-exclusive right to (i)
enter upon and have access to the Property depicted on the map attached hereto as Exhibit B; and
(ii)conduct environmental due diligence activities (the “Due Diligence”), as more fully described
in Section 2 of this Agreement. Access to the Property shall be for the sole purpose of conducting
the Due Diligence, and no other use of the Property by Grantee and its agents, officers,
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August 31
22-105
Council Approval N/A
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contractors, subcontractors, suppliers and their respective agents, offices, and employees, is
authorized by this Agreement.
2. Conditions.
(a) Prior to carrying out the work described in Section 2(c), Grantee will enter the
Property to conduct a utility locate. Upon confirmation of all underground utility locations,
Grantee shall submit to the Grantor for its review and approval, which approval shall not be
unreasonably withheld, locations of the proposed borings. Grantor shall have ten (10) business
days following receipt thereof to approve the boring locations (or any modification thereof). If
Grantor submits proposed revisions to the boring locations within the 10-day period, then
Grantee shall revise the proposed boring locations consistent with the proposed revisions and
shall resubmit the same to Grantor for further review until Grantee’s submittals have been
approved by Grantor.
(b) Grantee shall work with Grantor to identify a time or times for conducting the
Due Diligence which is acceptable to the Parties. Grantor may, at its option, have representatives
of Grantor present during Grantee’s Due Diligence on the Property, provided, that the presence
of Grantor’s representatives shall be for observation purposes only, and such representatives shall
not interfere with or direct, control, or otherwise be responsible for Grantee’s Due Diligence, and
provided further, that Grantor shall be required to comply with all safety measures established by
Grantee’s environmental consultant.
(c) The Due Diligence may include, but not be limited to, taking soil and groundwater
borings through use of direct push probe technology, as well as on-site storage of 16-gallon steel
drums of investigation-derived waste (soil cuttings and decontamination water) on the Property
(the “On-Site Storage”). Grantee shall have the right to stow the On-Site Storage within the
building on the Property for up to six (6) weeks from the date soil and groundwater samples are
taken. Grantee shall be solely responsible for ensuring that the steel drums are properly sealed
and secured against leaks and tampering, and for cleaning up any spills or releases of such
materials caused by the failure of a Grantee Party to properly seal and secure the drums. No later
than six (6) weeks from the date of sampling, Grantee shall remove the On-Site Storage,
including any related materials and equipment, and restore the area of the On-Site Storage to its
pre-existing condition, at Grantee’s sole cost and expense. Grantee shall coordinate with Grantor
to identify an acceptable schedule for removal of the On-Site Storage. Grantee shall also ensure
all temporary borings are decommissioned in accordance with Washington State Department of
Ecology guidelines.
(d) Grantee shall take all necessary and appropriate measures to protect the safety of
persons and property on the Property while completing the Due Diligence.
(e) Grantee shall (i) not commit or suffer any waste upon the Property; (ii) not do or
permit anything to be done in, on or about the Property that is illegal or unlawful; and (iii)
comply with all laws, including environmental, health and safety requirements imposed by the
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permitting jurisdictions or other governmental authorities or environmental laws. Grantee shall
not damage the Property during the exercise of the rights granted herein. Should the Property or
any improvements located thereon or any vehicles parked on the Property be damaged or
destroyed by the exercise of the rights granted hereunder by Grantee or Grantee’s contractors,
subcontractors, suppliers, employees, agents, licensees or invitees, Grantee at its sole cost and
expense shall repair the same and restore the Property to good condition and repair. Except as
otherwise provided in this Agreement, upon completion of the Due Diligence and prior to the
expiration of the Term (as that term is defined in Section 4), Grantee shall, at its sole cost and
expense, remove all related debris, materials, equipment and vehicles from the Property.
(f) (i) Grantee agrees to indemnify, defend, save and hold harmless Grantor and its
agents, employees, tenants, licensees, lenders, contractors, and consultants, from and against any
and all claims, actions, liabilities, damages, costs and expenses for injuries, sickness or death of
persons, or any damage to the Property, including reasonable attorneys’ fees and costs, caused by
the acts, errors, or omissions of Grantee, its agents, employees, contractors and/or consultants in
their respective use of the Property or activities conducted on the Property pursuant to this
Agreement, except that this obligation does not include such claims, actions, damages, costs
and/or expenses to the extent the same may be caused by the negligent acts or omissions of the
Grantor, its agents, employees, tenants, licensees, lenders, contractors, and/or consultants;
provided further that Grantee shall not be liable for any claim, damage, loss, or injury to the
Property arising from the condition of the Property prior to the date that Grantee enters onto the
Property pursuant to this Agreement, including, without limitation, any damage, loss, injury,
and/or response/remediation/cleanup costs that arise from the presence of hazardous waste and/or
hazardous substances (as defined by any federal, state or local law or regulation) which existed
on the Property as of the date Grantee enters onto the Property, unless the activity of Grantee, its
employees, contractors, agents, licensees, or invitees contributed to such claim, damage, loss or
injury, in which case any liability of Grantee shall be limited to the amount of such contribution.
This indemnity shall survive the expiration or termination of this Agreement.
(ii) The foregoing indemnity is specifically and expressly intended to constitute a
waiver of indemnifying party’s immunity under Washington’s Industrial Insurance Act, RCW
Title 51, as respects the indemnified Party only, and only to the extent necessary to provide the
indemnified Party with a full and complete indemnity of claims made by the indemnitor’s
employees. The Parties acknowledge that these Section 2(f) provisions were specifically
negotiated and agreed by them.
(g) Grantor acknowledges that Grantee, a Charter County Government under the
Constitution of the State of Washington, maintains a fully funded self-insurance program as
defined in King County Code 2.21 for the protection and handling of the Grantee’s liabilities,
including injuries to persons and damage to property. Grantee shall, at its own expense, maintain,
through its self-funded program, coverage sufficient for all its liability exposures for this
Agreement. Grantee shall provide Grantor with at least thirty (30) days prior written notice of any
material change in Grantee’s self-funded program and shall provide Grantor with a certificate of
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self-insurance as proof of coverage. Grantor further acknowledges that Grantee does not
maintain a commercial General Liability Insurance policy and is a self-insured government
entity; therefore, Grantee does not have the ability to add Grantor as an additional insured to such
policy. Should Grantee cease self-insuring its liability exposure and purchase a Commercial
General Liability Insurance Policy, Grantee shall add Grantor as an additional insured to such
policy. Grantee shall at all times maintain its self-funded program or a Commercial General
Liability Insurance Policy, each in an amount sufficient to cover its liability exposure under this
Agreement.
3. Reservation. Grantor reserves the right to use the Property for any and all
purposes which do not materially interfere with Grantee’s use of the Property for the purposes
stated herein and are not otherwise inconsistent with the rights herein contained.
4. Term. The rights granted by this Agreement will commence upon execution of
this Agreement and shall automatically expire in ninety (90) days, unless an extension is agreed
to in writing by the Parties, in which case it will expire on the date of any final extension agreed
to in writing, unless sooner terminated by written agreement of the Parties (the “Term”).
5. Miscellaneous.
(a) All recitals set forth above are incorporated into this Agreement as though fully
set forth herein. The captions and paragraph headings contained in this Agreement are for
convenience and reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement nor the intent of any provision hereof.
(b) This Agreement cannot be assigned by Grantee without the prior written consent
of Grantor, which consent may be withheld by Grantor in its sole and absolute discretion.
(c) This Agreement constitutes the entire agreement of the Parties with respect to the
subject matter hereto. This Agreement cannot be amended except by an instrument in writing
signed by the Parties hereto. The exhibits attached to this Agreement are deemed incorporated
herein as though set forth in full.
(d) If any portion of this Agreement shall be deemed void, illegal or unenforceable, the
balance of this Agreement shall not be affected thereby. The terms and conditions of this
Agreement shall be construed as a whole in accordance with the intention of the Parties and
without regard to any canons requiring construction against the Party responsible for drafting this
Agreement.
(e) This Agreement shall be governed by and construed and enforced in accordance with
the laws of the State of Washington, without giving effect to its conflicts of law rules or choice
of law provisions. Venue shall lie exclusively in King County Superior Court. The Parties
waive the right to file suit elsewhere.
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(f) In the event either Party employs an attorney to enforce or interpret any of the
provisions of this Agreement, the prevailing Party shall be entitled to recover its costs and
reasonable attorneys’ fees in connection with such action.
(g) Time is of the essence in the performance of this Agreement.
(h) In the event of a breach of any of the covenants or agreements set forth in this
Agreement, the Parties shall be entitled to any and all remedies available at law or in equity,
including, but not limited to, the equitable remedies of specific performance and injunctive relief
issued by a court of competent jurisdiction.
(i) This Agreement may be executed in counterparts each of which is an original and all
of which shall constitute but one original.
(j) Each Party represents and warrants to the other that it has full right, power and
authority to execute this Agreement and has the power to grant all rights hereunder, its execution
and performance of this Agreement will not violate any laws, ordinances, covenants or the
provisions of any mortgage, or other agreement binding on said Party, and the execution and
delivery of this Agreement and the performance of its obligations hereunder have been duly
authorized by all necessary personnel or corporate officers and do not violate any provisions of
law or the Party’s certificate of incorporation or bylaws or any other arrangement, provision of
law or court order or decree.
(k) This Agreement is not an easement and does not grant any right, title, or interest in
the Property to Grantee. This Agreement shall not be recorded and shall not run with the land
described on Exhibits A and B.
[Signatures follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first above written.
GRANTOR
City of Tukwila
By: __________________________
Name: ________________________
Title: _________________________
GRANTEE
King County
By: __________________________
Josh Baldi
Division Director
Water and Land Resources Division
King County Department of Natural
Resources and Parks
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DS
Allan Ekberg
Mayor
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EXHIBIT A
Full Property Legal Description
Parcel A:
Lots 1 through 11, inclusive, Block 9, Hillman's Seattle Garden Tracts, according to the plat thereof
recorded in Volume 11 of Plats, Page 24, in King County, Washington;
TOGETHER WITH that portion of vacated Edward[s] Avenue adjoining on the North, as vacated by
City of Tukwila Ordinance No. 101, recorded under recording no. 1744414;
EXCEPT the South 20 feet of Lots 5 through 11, inclusive, conveyed to the Town of Tukwila for street
purposes by instrument recorded under recording no. 1996562; and
EXCEPT any portion of said Lot 4 lying within the South 140th Street right of way;
(Also known as a portion of Parcel 2 of City of Tukwila Boundary Line Adjustment No. 87-1-BLA,
recorded under recording no. 8703040636).
Parcel B:
That portion of Lots 19 and 20, Block 9, Hillman's Seattle Garden Tracts, according to the plat thereof
recorded in Volume 11 of Plats, Page 24, in King County, Washington, lying Westerly of the following
described line:
Beginning at a point on the South line of said Lot 20 which lies 150 feet East of the Southwest corner
thereof;
Thence at right angles, North a distance of 80 feet to the North line of said Lot 19 and the terminus of
this line;
(Also known as Lot 1 of City of Tukwila Short Plat No. 84-13-BLA, recorded under recording no.
8406040817).
Parcel C:
Lot 2, City of Tukwila Short Plat No. 84-13-BLA, recorded under recording no. 8406040817, in King
County, Washington;
EXCEPT that portion thereof, if any, lying East of the following described line:
Beginning at a point on the North line of Lot 19, Block 9, Hillman's Seattle Garden Tracts, according to
the plat thereof recorded in Volume 11 of Plats, Page 24, in King County, Washington, which is 346.39
feet East of the Northwest corner of said Lot 19 and running thence South to a point on the
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EXHIBIT A
Full Property Legal Description – cont’d
South line of Lot 20, Block 9 of said plat which is 283.50 feet East of the Southwest corner of said Lot
20 and the terminus of said line.
Parcel D:
Lots 12 through 17, inclusive, Block 9, Hillman's Seattle Garden Tracts, according to the plat thereof
recorded in Volume 11 of Plats, Page 24, in King County, Washington;
TOGETHER WITH that portion of vacated Edward[s] Avenue adjoining on the North, as vacated by
City of Tukwila Ordinance No. 101, recorded under recording no. 1744414;
EXCEPT the South 20 feet of said Lots 12 through 17, inclusive, conveyed to the Town of Tukwila for
street purposes by instruments recorded under recording nos. 1996563 and 1996564.
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EXHIBIT B
Property Map
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