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HomeMy WebLinkAboutTrans 2008-02-12 Item 3B - Lease Agreement - Airspace Lease for Museum of Flight Pedestrian BridgeTo: Mayor Haggerton From: Public Works Directo Date: February 7, 2008 Subject: Museum of Flight Pedestrian Bridge Airspace Lease ISSUE BACKGROUND INFORMATION. MEMO Approve an air space lease with the Museum of Flight. The Museum of Flight has applied for a permit to construct a pedestrian bridge over East Marginal Way, just north of So. 94 P1. Their application and plans have been reviewed and they will soon be sent a correction letter for a few minor revisions. The Museum of Flight was successful in receiving a Federal Transit Grant to help pay for this safety project. The bridge construction may begin as soon as March or April and be substantially completed this year. Both ends of the bridge have foundations on private property; however the bridge will encroach in the airspace over East Marginal Way. The law requires that public agencies charge a fair market value with an agreement for the use of the airspace, as long as the space isn't needed. The attached airspace lease has been reviewed by the City Attorney and will guarantee that the bridge is inspected, maintained, repaired and insured, and that it will create minimal risk to the City. RECOMMENDATION Authorize the Mayor to sign. Attachments: Exhibit A Airspace Lease Drawings P:\BOB\TC_UCtInfo Memo MOF Air Space Lease.doc Airspace Lease Page 1 01043 -0028 /LEGAL 13 896734.1 Recording No. After recording return original to: The Museum of Flight Foundation 9404 East Marginal Way South Seattle, WA 98108 AIRSPACE LEASE THIS AIRSPACE LEASE is entered into between the CITY OF TUKWILA, a Washington municipal corporation "City and the MUSEUM OF FLIGHT FOUNDATION, a Washington non -profit corporation "Museum WHEREAS, the Museum and King County have entered into an agreement for the Museum to construct, among other things, a pedestrian bridge over East Marginal Way South, which will provide improved pedestrian access to the Museum's buildings on either side of East Marginal Way South, as well as, provide improved access for the general public to cross East Marginal Way South; and WHEREAS, the portion of East Marginal Way South over which the Museum will construct the pedestrian bridge is a major arterial located in the City of Tukwila; and WHEREAS, the use of space located over public roadways may be governed by an executed airspace lease; and WHEREAS, the City is the appropriate entity to grant such an airspace lease to the Museum, and; WHEREAS, the City is willing to grant such an airspace lease to the Museum. Now, therefore, THE PARTIES AGREE AS FOLLOWS: 1. GRANT OF RIGHT TO USE AIRSPACE. The City fmds the placement of the pedestrian bridge in the airspace above East Marginal Way South will not interfere with the use of the highway as a public right -of -way. It is in the best interest of the City to permit the Museum to so use the airspace. In the judgment of the City, the use of the airspace will not be inconsistent with the public purposes for which they were intended. In consideration for the mutual benefits to the parties and the terms and conditions of this airspace lease, the City grants to the Museum the right to use that portion of the airspace over East Marginal Way South between King County Parcel Numbers 3324049019 and 5624201034 that is needed for the placement of a pedestrian bridge as approved by the City and as illustrated in the attached Exhibit A. This lease is P:\BOB\TC_UCMOF Air Space Lease.doc EXH1B1T± Airspace Lease Page 2 01043- 0028/LE0AL13896734.1 limited to the air space used by the bridge and does not include any air space above or below the bridge. 2. TERM OF AIRSPACE LEASE. The initial term of this airspace lease "Lease shall be fifteen (15) years, COMMENCING ON THE DA'L'E OF EXECUTION OF THIS LEASE BY THE CITY "Commencement Date 3. RENEWAL. This Lease may be renewed by the parties for an additional fifty (50) periods (two -year "Renewal Period Provided that: (A.) the MUSEUM is not in default and has not been in default during the term of this Lease; (B.) there is no public need for the leased space; (C.) MUSEUM's continued use under this LEASE does not impair the safety or operation of the CITY's highway or right -of -way, as solely determined by the CITY; (D.) the terms and conditions of this LEASE conform to then existing City policies or practices, state laws, City regulations and contracts, or provided the MUSEUM is willing to amend this LEASE to bring it into compliance with such policies, practices, laws, regulations and contracts; and (E) the Museum agrees to maintain insurance in an amount that at a minimum meets the insurance amounts specified in Tukwila Municipal Code 11.08.100(A)(1), or as amended. Subject to the conditions set forth above, each additional term shall be on the same terms and conditions as set forth in the Lease, except as reflected in any written amendment(s) signed by both parties. The MUSEUM shall give notice of its intent to renew this Lease for an additional term at least ninety (90) days, but not more than six (6) months, prior to the expiration of this Lease, or any extension thereof. 4. COVENANTS BY THE MUSEUM. B. Maintenance. P:\BOB \TC_UC \MOF Air Space Lease.doc A. Construction of Pedestrian Bride. The Museum shall construct and maintain the pedestrian bridge in accordance with the approved permit documents, as submitted to the City. Lighting and all appurtenance entrances, stairways and structures shall conform to all applicable city codes. 1. The Museum shall perform or cause to be performed at its sole expense all inspection functions, maintenance, and repairs that shall include, but are not limited to, keeping the pedestrian bridge, the access route, and impacted public right -of -way in good condition, both as to safety and appearance, to the satisfaction of the CITY. All inspections, maintenance, and repairs shall be done in accordance with the WSDOT Washington State Bridge Inspection Manual (Manual Number M 36 -64), available for free online at: htto:/ .www.wsdot.waQovioublications/ manuals /fulltex /m36- 64/13ridgelnsnection.ndf Airspace Lease Page 3 01043- 0028/LEGAL13896734.1 P:\BOBITC_UCIMOF Air Space Lease.doe 2. The MUSEUM agrees that it is additionally responsible for the following specific maintenance and operational items, at its sole expense, without further liability to the CITY: Graffiti removal upon all real and personal property subject to this Lease. The Museum shall in no way interfere with any highway operations or traffic flow on E. Marginal Way when removing graffiti. Litter control on an as needed basis. Sweeping of the pedestrian bridge on an as needed basis; and Removing and disposing of unauthorized signs, banners, etc. from the pedestrian bridge. C. Public Access. The Museum hereby acknowledges that there shall be a nonexclusive right of pedestrian access by the public for the purpose of moving to and from either side of East Marginal Way South during the hours of bridge operation, which shall be determined by the Museum. D. Insurance. The Museum shall procure and maintain for the duration of the Lease, insurance against claims for injuries to persons or damage to property arising out of or in connection with any acts or activities related to this Lease. Such insurance shall be combined single -limit coverage of not less than two million dollars ($2,000,000.00) naming the City as an additional insured and shall include a provision prohibiting cancellation or reduction in the amount of said insurance except upon thirty (30) days prior written notice to the City. Cancellation of the required insurance shall automatically result in termination of this Lease. E. Waiver of Subrogation. The Museum hereby releases and discharges all claims, losses and liabilities arising from or caused by any hazard covered by property insurance on or in connection with the pedestrian bridge. This release shall apply only to the extent that such claim, loss or liability is covered by insurance. F. Indemnification. The Museum, its successors and assigns, will protect, save, and hold harmless the City, its authorized agents and employees, from all claims, actions, costs, damages, or expenses of any nature whatsoever by reason of the acts or omissions of the Museum, its assigns, subtenants, agents, contractors, licensees, invitees, employees, or any person whomsoever, arising out of or in connection with any acts or activities related to this Lease. The Museum further agrees to defend the City, its agents or employees, in any litigation, including payment of any costs or attorney's fees, for any claims or actions commenced, arising out of, or in connection with acts or activities related to the Lease. The Museum expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, for injuries to its employees, and agrees that the obligation to indemnify, defend and hold harmless provided Airspace Lease Page 4 01043- 0028/LEGAL13896734.1 for in this paragraph extends to any claim brought by or on behalf of any employee of the Museum. This waiver is mutually negotiated by the parties. This paragraph shall not apply to any damage resulting from the sole negligence of the City, its agents and employees. To the extent any of the damages referenced by this paragraph were caused by or resulted from the concurrent negligence of the City, its agents or employees, this obligation to indemnify, defend and hold harmless is valid and enforceable only to the extent of the negligence of the Museum, its officers, agents, and employees. G. Rules and Regulations. The Museum will maintain the pedestrian access route and may adopt reasonable rules and regulations for the use of this space; provided that the rules and regulations are not in conflict with the right of pedestrian access and are consistent with this section. The Museum agrees that it will abide by all applicable local, state and federal laws, rules and regulations in the operation of the pedestrian bridge. The Museum further agrees that it will adequately maintain and safely operate the pedestrian bridge, as reasonably determined by the City. 5. COMPENSATION. The MUSEUM covenants and agrees to pay rent for the Leased Air Space to the CITY in advance annually, on or before the 1 day of each January during the entire term of this Lease. Rent shall be paid at the initial rate, subject to adjustment as hereafter provided, of Twelve Hundred Dollars ($1,200.00) per year, payable at the address designated under Section 7. In no event shall the rent be less than this initial amount. 6. RENT ADJUSTMENTS. The CITY may, at its option, adjust the annual rent every year by the percentage change that occurred during the preceding calendar year in the U.S. Consumer Price Index for All Urban Consumers (U.S. CPI -U), using the data as published by the United States Department of Labor's Bureau of Labor Statistics, or its successor. The CITY shall give not less than thirty (30) days prior written notice to the MUSEUM that a Rent Adjustment has been made. This notice shall include the amount of the adjusted Rent and the date the new Rent is to become effective. 7. RENT PAYMENTS PAYABLE TO: City of Tukwila Attn: Finance Director 6200 Southcenter Blvd. Tukwila, WA 98188 8. RIGHT TO NOT BUILD/RIGHT TO REMOVE STRUCTURE. This airspace lease does not obligate the Museum to construct the pedestrian bridge. Furthermore, the Museum shall have the right at any time to remove the pedestrian brid at its expense. If the Museum elects to do so, it shall leave the airspace and right -of -way free and clear of all buildings, structures or encroachments. Upon removal of all P:\BOB \TC_UC\MOF Air Space Lease.doc Airspace Lease Page 5 01043- 0028/LEGAL13896734.1 buildings, structures, and encroachments, the Museum's obligations under this airspace lease shall cease. 9. TERMINATION BY CITY. The CITY may terminate this Lease, without penalty or further liability as follows, subject to applicable laws and regulations: a. Upon not less than thirty (30) days prior written notice to the MUSEUM, if MUSEUM fails to inspect, maintain, and/or repair the pedestrian bridge in a safe and satisfactory manner approved by the CITY; b. Upon not less than thirty (30) days prior written notice to MUSEUM, if MUSEUM fails to cure a default for payment of amounts due under this lease within that thirty (30) day period; c. Upon not less than thirty (30) days prior written notice to the MUSEUM, if there is a public need for the leased space; d Immediately if the MUSEUM's continued use under this lease causes an impairment to the safety or operation of the CITY's highway or right -of- way, as solely determined by the CITY; e. Upon not less than thirty (30) days prior written notice to the MUSEUM, if MUSEUM defaults, other than for non payment of rent, and fails to cure such default within that thirty (30) day period, or such longer period, as may be reasonably determined by the CITY, if MUSEUM is diligently working to cure the default; or f. Immediately, upon written notice, if the CITY is required by court order, by legislative action, or by a governmental agency having jurisdiction to take some action, which would effectively prohibit the MUSEUM's use of the Leased Airspace. 10. EFFECT OF TERMNATION. Upon termination of this Lease, the Museum shall remove the pedestrian bridge at the Museum's expense. In the event the Museum fails to do so, the City may, at the Museum's expense, remove and dispose of the pedestrian bridge as it deems appropriate, subject to applicable laws and regulations. The Museum shall reimburse the City for all expenses incurred in such removal and disposal within thirty (30) days of the date of the City's invoice for such costs. 11. SIGNS, DISPLAY LIGHTS, ADVERTISING MATERIALS. Signs, display lights, or advertising media/materials are not permitted on the pedestrian bridge. 12. SUCCESSORS AND ASSIGNS. The Museum will not, in whole or in part, assign this airspace lease (other than for security purposes) without prior written consent of the City, which consent shall not be unreasonably withheld; provided, however that notwithstanding the foregoing, the Museum shall be entitled to assign its rights and interests under this airspace lease, P:\BOB \TC_UC\MOF Air Space Lease.doc Airspace Lease Page 6 01043 -0028 /LE0AL13896734.1 By Printed Name: Title: without the consent of the City, to King County if required pursuant to the terms of that certain Museum of Flight Pedestrian Bridge and Other Transportation Facilities 2006 Funding Agreement between the Museum and King County, and the rights and interests granted herein shall run with such real property. Any assignee shall be required to assume and fulfill all obligations of the Museum under this airspace lease arising after the date of such assignment. 13. RECORDATION. This airspace lease shall be recorded by the Museum with the King County Division of Records and Elections. Upon recording, the original document shall be returned to the City. 14. PARTIAL INVALIDITY. If any portion or provision of this airspace lease is held invalid that materially modifies the terms and conditions of this Lease and results in a detrimental change in circumstances or a material hardship for either party in performing this Lease, either party may request to renegotiate this Lease and the other party agrees to renegotiate fairly with the requesting party, otherwise the validity and enforceability of the remainder of this airspace lease shall not be affected. 15. APPLICABLE LAW; VENUE; ATTORNEY'S FEES. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County, Washington. The prevailing party in any such action shall be entitled to its attorney's fees and costs of suit. CITY OF TUKWILA Jim Haggerton, Mayor MUSEUM OF FLIGHT FOUNDATION P:\BOB \TC_UC\MOF Air Space Lease.doc Date: Date: Vicinity Map Parcel No. 5624201034 Atise Legal Description Project Sit a- .1 -J_�� Parcel No. 5624201034 Legal Description: MOORES FIVE ACRE TRS "REVISED LOT AN TUKWILA BOUNDARY LINE ADJUSTMENT NO BLA -01-002REC NO20010803900001 AFFIDAVIT OF CORRECTION REC NO. 20020215001703 WCH IS POR OF SE 114 OF SW 1/4 AND POR OF SW 1/4 OF SE 1/4 STR 33 -24-04 Parcel No. 3324049019 Legal Description: THAT POR OF THE SE OTR OF SEC 33 TWP 24 N RNG 4 E WM IN KING COUNTY WA DESCRIBED AS FOLLOWS COMMENCING AT THE SE COR OF SD BUBD TH N 88-04-53 W A DIST OF 1314.13 FT ALG S LN THOF TO NELY MGN OF E MARGINAL WY S AND POE TH ALG SD MON N 88-04 -53 W A DIST OF 37.35 FT TH CONT ALG SD MON N 22.31 -55 W A DIST OF 997.82 FT TH DEPARTING SD MGN S 87 -4939 E A DIST OF 77.07 FT TH N 22.49 -02 W A DIST OF 23.50 FT TN S 87-49-39 E A DIST OF 89.83 FT TH S 02 -11- 39 W A DIST OF 42.19 FT TH S 88- 43-46 E A DIST OF 290.49 FT TH S- 28.43.46 E A DIST OF 89.25 FT TH S 88 -18-47 E A DIST OF 164.78 FT TO A LN THAT IS 500 FT FR AND PLW C/L RUNWAY 13R-31L TH ALO SD LN S 28-43-34 E A DIST OF 65&80 FT TN S 67.28.05 W DIST OF 596.64 FT TO POB PER CITY OF TUK BLA NO L 02-058 REC 620030115800002 f No. 3324049019 I Airspace Lease Sketch Pedestrian Bridge Museum of Flight Design Sketch