Loading...
HomeMy WebLinkAbout2018 - Right-of-Way Use and Encroachment Agreement - City of Tukwila / Porter Investment Properties LLC - 20181102000836After recording return document to: City of Tukwila Office of the City Clerk 6200 Southcenter Blvd Tukwila, WA 98188 AGREEMENT Rec: $106.00 1112/2018 2:27 PM KING COUNTY, WA RIGHT-OF-WAY USE AND ENCROACHMENT AGREEMENT Grantors: City of Tukwila, a municipal corporation Grantee: Porter Investment Properties, LLC, a Washington State Limited Liability Company Abbreviated Legal Description/STR: Road Portion at Robbins Springbrook to Riverton, being a Portion of the NW % of the NW %, Sec. 15, T23N, R4E, W.M. Legal Description: Lots 1, 2, and 3, Block 7, Robbins Spring Brook Addition to Riverton, according to the Plat thereof recorded in volume 16 of Plats, Page(s) 57, in King County, Washington; Except those portions thereof heretofore conveyed to the State of Washington for State Road no. 1 by deeds recorded under recording numbers 2014240 and 2122275. Assessor's Tax Parcel Number: King County Parcel #735960-0610 Address of Property: 13003 Tukwila International Blvd. This Right -of -Way Use and Encroachment Agreement is entered into by and between the City of Tukwila, Washington, a municipal corporation (the "City" or "Grantor"), and Porter Investment Pro erties. LLC ("Property Owner" or "Grantee"), for use of the City's right-of-way. I. RECITALS WHEREAS, Property Owner is the owner of property located at 13003 Tukwila International Boulevard in Tukwila, Washington, also known as King County Tax Parcel Number #7359600610 ("the Property"); and WHEREAS, Grantee recognizes that the City possesses police powers granted to it by the Washington State Constitution, Art, XI to regulate its rights -of -way and to generally provide for the public health, safety, and welfare; and WHEREAS, the City likewise has the legal authority to abate any obstructions or encroachments of its rights -of -way or utility easements under RCW 7.48; and WHEREAS, Grantee recognizes that should the City at any time require access to the right-of-way at the location described above, the City has the authority to remove any 1 obstructions or encroachments on the right-of-way, and shall charge the cost of such removal to the Grantee or other responsible property owner; and, WHEREAS, Grantee recognizes that the City also has the authority to file a lawsuit requiring removal of any obstructions or encroachments in the right-of-way; and, WHEREAS, Property Owner has requested use of a portion of the City's right-of-way adjacent to the Property (the "right-of-way"), to be used for Parking; and WHEREAS, Chapter 11.08 of the Tukwila Municipal Code ("TMC") allows the long- term use of the City's right-of-way, subject to the issuance of a permit by the City; and WHEREAS, in exchange for the right to use the City's right-of-way for the purpose described above, Property Owner agrees to maintain the portion of right-of-way being used and to indemnify the City for such use; NOW, THEREFORE, in consideration of the mutual benefits and conditions described herein, the parties agree as follows: A. Authorized Use. Property Owner shall be authorized to use the portion of the City's right-of-way, depicted in Exhibit B hereto, for parking vehicles that are associated with the use of the Subject Property. (the "Encroachment"), provided Property Owner complies with the following conditions: 1. Property Owner agrees to obtain all necessary permits and authorizations required by the City, including a Type D permit issued pursuant to TMC 11.08. 2. Property Owner agrees to pay for all permits and authorizations required by the City. 3. Property Owner shall ensure that the City has access to the utility equipment on the property at all times. 4. Property Owner shall keep the City's right-of-way area free of any refuse, garbage and debris. Property Owner is responsible for any disposal costs associated with any items abandoned in the permitted right-of-way area. 5. Any additional use or encroachment not specified within this Agreement shall require prior written approval by the City. 6. If the Encroachment is destroyed or damaged, Property Owner will be responsible to repair or remove it at Property Owner's sole expense. Any necessary repairs will be reviewed by a structural engineer and will not encroach further upon the City's right-of-way. Any peiinits required for any repairs will be obtained by and paid for by Property Owner. 2 7. Property Owner agrees there will be no further encroachments into the City's right-of-way. B. Term/Termination/Modification of Agreement. 1. This Agreement shall expire ten years from the date of its mutual execution by the parties, unless terminated sooner pursuant to Section B herein, extended by written agreement of the parties, or upon Property Owner's acquisition of the Property through any lawful means. If Property Owner wishes to extend the term of the Agreement beyond its initial ten-year term, Property Owner shall notify the City of such desire at least six months prior to the end of the current term of the Agreement. 2. At any time the City deems the area being leased is necessary for public benefit, in the City's sole discretion, this Agreement may be teiininated by the City and Property Owner shall be required, at Property's Owner's sole expense, to remove the Encroachment from the City's right-of-way; provided, that the City shall provide Property Owner with 30 days written notice of the City's intention to terminate to provide the Property Owner time for the removal. 3. The City may revoke, annul, change, amend, amplify, or terminate this Agreement, or any of the conditions herein enumerated, at any time if Property Owner fails to comply with any or all of its provisions or, through willful or unreasonable neglect, fails to comply with notices given by the City, or if the work identified herein is not installed, operated or maintained in conformity with the terms and conditions of this Agreement. Should Property Owner: (1) have his or her right-of-way use permit revoked pursuant to TMC 11.08.080; (2) fail to maintain the City's right-of-way in compliance with local, state and federal law; (3) fail to maintain insurance coverage; or (4) breach this Agreement in any other manner, the City shall have the right to terminate this Agreement immediately without notice. 4. If during the construction process or as a result of Property Owner's Encroachment the right-of-way, Property Owner or its contractor/subcontractor damages utilities or other public or private property, Property Owner shall immediately call 911 and the City if the damage results in a release of natural gas or other hazardous substance or potentially endangers life, health, or property. Further, if during construction or following completion of the Encroachments, any of Property Owner's action or lack of action to correct a situation related to the Encroachments or if the Encroachments themselves threatens life, health, or property, the City may order Property Owner to immediately correct said emergency situation, or at the City's discretion, undertake measures to correct the situation itself, including removal of the Encroachments if necessary. Property Owner shall be liable for all costs, expenses, and damages attributed to the emergency as undertaken by the City. The City shall be reimbursed of all costs within thirty (30) days of the completion of the emergency project. 5. Upon tennination of this Agreement, Property Owner shall ensure that no debris, soil, or rubble is located in the right-of-way. In the event of noncompliance, the City may remove the Encroachment and bill Property Owner for the cost of removal and disposal. Upon 3 termination of this Agreement, Grantee shall restore the City's right-of-way to substantially the same condition that it was at commencement of this Agreement. C. Rent and Leasehold Excise Tax. Property Owner shall pay the amount of $100.00 per month for use of the City's right-of-way for the Encroachments. Property Owner shall also pay applicable leasehold excise tax monthly in the amount $12.84 for leasehold excise taxes. These payments shall be due to the City on the 15th of each month during the term of this Agreement. D. Indemnification. Property Owner shall defend, indemnify, and hold the City, its officers, officials, employees, agents, and volunteers harmless from any and all claims, injuries, damages, losses or suits, including attorneys' fees, arising out of or in any way connected to the Encroachments or other activities or operations performed by Property Owner or on Property Owner's behalf pursuant to this Agreement, including any and all claims arising from the use of the City's right-of-way by Property Owner or Property Owner's invitees, except for injuries and damages caused by the sole negligence of the City. E. Insurance. Property Owner shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with operations or activities performed by or on Property Owner's behalf pursuant to this Agreement. Property Owner's maintenance of insurance as required by the agreement shall not be construed to limit the liability of Property Owner to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. Property Owner shall obtain insurance of the types, amounts, and coverage as set forth in TMC 11.08.100, and shall provide documentation of this coverage to the City prior to the effective date of this Agreement. F. Maintenance. Property Owner agrees to maintain the City's right-of-way consistent with the uses described in this Agreement and pursuant to approval by the City of such maintenance, at Property Owner's sole expense. G. Entire Agreement. This Agreement contains the entire agreement between the parties and no other agreements, oral or otherwise, regarding the subject matter of this Agreement, shall be deemed to exist or bind any of the parties hereto. Either party may request changes in this Agreement. Proposed changes which are mutually agreed upon shall be incorporated by written amendments to this Agreement. H. Applicable Law: Venue: Attorneys' 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 attorneys' fees and costs of suit. I. Assignmentand Third -Party Beneficiaries. Property Owner shall not assign any portion of the terms contemplated by this Agreement without the prior written consent of the 4 City. This Agreement is for the benefit of the parties hereto only and is not intended to benefit any other person or entity, and no person or entity not a signatory to this Agreement shall have any third -party beneficiary or other rights whatsoever under this Agreement. No other person or entity not a party to this Agreement may enforce the terms and provisions of this Agreement. J. Police Power. Nothing in this Agreement shall be construed to diminish, restrict or limit the police powers of the City granted by the Washington State Constitution or by general law. K. Notices. Notices to the City shall be sent to the following address: Christy O'Flaherty City Clerk City of Tukwila 6200 Southcenter Blvd. Tukwila, WA 98188 Notices to Property Owner shall be sent to the following address: Porter Investment Properties, LLC 825 S. Stacy Street Seattle, Washington, 98134 L. Severability. Any provision or part of this Agreement held to be void or unenforceable under any law or regulation shall be deemed stricken and all remaining provisions shall continue to be valid and binding upon the City and Property Owner, who agree that this Agreement shall be reformed to replace such stricken provision or part with a valid and enforceable provision that comes as close as reasonably possible to expressing the intent of the stricken provision. M. Recording. This Agreement shall be recorded against the Property by the City, at Property Owner's expense. N. Covenant. This Agreement shall be a covenant running with the above described real property and burden said real estate, and shall be binding on the successors, heirs and assigns of all parties hereto. 5 DATED this day of;w( 2018. Henry, 'Ih, Public orC ectoi Dater Approved as To Form: Ciiy Attorney STATE OF WASHINGTON ) ss COUNTY OF KING ) On this .a..� ^' day of June, 2018 before me, the undersigned, a Notary Public, in and for the State of Washington, duly commissioned and sworn, personally appeared Henry Hash, Public Works Director, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Date: WITNESS my hand and official seal the day and year first above written. NOTARY PUBLIC in and for tl residing at: My appointment expires: 1 6 .e of Washington, IN WITNESS WHEREOF, said individual(s) have caused this instrument to be executed this day of June, 2018 Gran:. r / Authorized Signature STATE OF WASHINGTON ) )ss. COUNTY OF KING I certify I know or have satisfactory evidence that and said person acknowledged that he signed this instrument on oath stated that he was authorized to execute the instrument and acknowledge as the of Porter Investment Properties, LLC, a limited liability company, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated (p2ift t " • eBBBir,":„„. 0 0, „ . T 1:4 ••• BB:40: ""' Notary Public in and for the State of Washington residing at 12( rlitYi My appointment expires 7 EXHIBIT A Depiction of the Right -of -Way Encroachment Area NUNll•ION IN CASE BRASS DisK, 001,114 0,r S. 130TH STREET 'PUBUC ROADWAY' N 00'0040 E 606.90. (1. (J) CONTROL MAP N.T.S. 8