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HomeMy WebLinkAbout12-044 - Westfield / JCPenney / Bridgestone (Firestone) - Access and Right of Entry Agreements12 -044 Council Approval N/A ACCESS AGREEMENT THIS ACCESS AND INDEMNITY AGREEMENT (this "Agreement is made and entered into as of r, 2012, by and between Bridgestone Retail Operations, LLC (`BSRO J. C. Penn y' Corporation, Inc. "JCP (collectively, "Licensors and the City of Tukwila, Washington "Licensee RECITALS A. JCP is the tenant of that certain parcel of real property located at 215 Andover Park West in Tukwila, Washington (the "Property B. BSRO currently subleases the Property from JCP. C. Licensee desires to have access to the Property for purposes of conducting, at no cost to Licensors, the work outlined in Exhibit A attached hereto (the "Work NOW THEREFORE, in consideration of the mutual covenants and agreements described below, and for good and valuable consideration, receipt of which is hereby acknowledged, it is agreed: 1. Access. Subject to the provisions of this Agreement, Licensors hereby grant Licensee reasonable non exclusive access to the Property for the sole purpose of allowing Licensee and its employees, contractors and consultants (collectively, the "Licensee Parties to perform the Work. 2. Permits. Licensee shall obtain, at its own expense, and prior to any access to the Property by Licensee, all necessary permits and authorizations for the Work of whatever nature from any and all governmental agencies as may be required. In connection therewith, Licensee shall comply with all applicable federal, state and local laws, regulations, permits, permit conditions, standards, directives, guidelines, and judicial and administrative orders and decrees, including but not limited to those directly applicable to the Work (collectively, "Laws 3. Work. (a) Licensee must obtain Licensors' prior written consent to any changes in the Work outlined in Exhibit A. (b) Within five (5) business days after the same are available to Licensee, Licensee shall disclose and furnish copies to Licensors of all final results of any sampling and analytical tests performed in the course of the Work and all final evaluations, analyses and reports of Licensee relating to the Property. Distribution of all such copies shall be to the following addresses: To JCP: Aman Zahiruddin, Esq. J. C. Penney Corporation, Inc. Legal Department P. O. Box 10001 D f 3 OW 16 1A119V-S CHI- 1836102v1 Dallas, Texas 75301 -1119 with a copy to: Richard Nelinson J. C. Penney Corporation, Inc. Legal Department P. O. Box 10001 Dallas, Texas 75301 -2107 with a copy to: Susan G. Gerhard, Esq. J. C. Penney Corporation, Inc. P. O. Box 10001 Dallas, Texas 75301 -1106 To BSRO: John G. Sheerin, P.E., Esq. Bridgestone Retail Operations, LLC 333 East Lake Street Bloomingdale, IL 60108 (b) Nothing in this Agreement shall give Licensee the right to use the Property to treat, store or dispose of any wastes or hazardous substances. Licensee, at its own cost and expense, shall immediately remove from the Property any wastes and hazardous substances used in or generated by the Work. All documentation for transportation or disposal of such wastes or hazardous substances from the Property shall be prepared and executed in Licensee's name only and Licensors shall have no responsibility or liability therefor. Licensee shall take appropriate measures to ensure that the Property is protected from any hazardous exposure to airbome asbestos fibers. These measures include the use of the following equipment or repairs: HEPA Vacuum Amended water solution Visqueen plastic drops Kit to immediately repair damage to pipe lagging or other construction materials during bulk sampling (c) Licensee shall. immediately notify Licensors of any spill, release, or discharge of any petroleum products or any hazardous substances in, on, under or about the Property that results from or is related to the Work or Licensee's access to and /or use of the Property under this Agreement. CHI- 1836102v12 4. Prior Written Notice. Licensee shall, at least seven (7) days prior to any entry onto the Property, deliver written notice to BSRO and JCP of its intention to enter the Property to conduct the Work and the proposed date and time of such entry upon the Property. Licensee may enter only on the dates and times specified in such notices. Licensors and their representatives shall have the right to accompany and observe Licensee during Licensee's performance of all such Work and activities upon the Property. 5. Minimum Disturbance. Licensee shall perform all work with such care, diligence and cooperation with BSRO personnel as will avoid accident, damage or harm to persons or property and delays to or interference with operations of BSRO. If any aspect of Licensee's Work interferes with or delays the operations of BSRO, Licensee shall reimburse BSRO for any and all costs and damages, incurred by BSRO as a result of any such interference or delay. 6. Condition of the Pronertv/Reuair. At all times during the term of this Agreement and in connection with Licensee's access to the Property, Licensee shall, at its own cost and expense, promptly take any necessary action to keep the Property and any improvements and personalty thereon, and all facilities appurtenant thereto, in the same or substantially similar condition as existed prior to the access. If any portion of the Property (including improvements and fixtures on, and the subsurface portion of, the Property) suffers damage by reason of the access of Licensee to the Property, Licensee shall, at its own cost and expense, immediately repair all such damage or replace any damaged portion of the Property and restore the Property to a substantially similar condition as existed prior to the occurrence of such damage. Repair of damage includes, without limitation, re- grading and resurfacing any holes, ditches or other indentations, as well as any mounds or other inclines created. by any excavation by Licensee. 7. Indemnification. Licensee, on behalf of itself, the Licensee Parties, and its successors and assigns, agrees to protect, indemnify, defend, and hold harmless Licensors and their respective affiliates, officers, directors, employees, agents, successors and assigns from and against any and all liabilities, claims, demands, suits, judgments, causes of action, losses, damages, costs, injuries, penalties, enforcement actions, fines, taxes, remedial actions, removal and disposal costs, and expenses (including without limitation reasonable attorneys' fees and litigation and/or administrative proceeding costs, experts' and consultants' fees, and laboratory costs), sums paid in settlement of claims, whether direct or indirect, known or unknown, resulting from or in connection with, in whole or in part, the access to and use of the Property by Licensee or its representatives pursuant to this Agreement. The provisions of this paragraph shall survive the termination of this Agreement. 8. Term. Except as otherwise provided herein, this Agreement shall be terminated on the date that the Work is completed or on June 30, 2012, whichever occurs first. 9. Assis?nment. Licensors extend the rights of access under the Agreement solely to Licensee as described herein, and Licensee may not under any circumstances assign its interest in, or rights or obligations under, this Agreement. 10. Choice of Law. This Agreement shall be governed by the laws of the State of Washington. CHI- 1836102x13 11. Severabilitv. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions, or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 12. Notice. All notices and demands which any party is required or desires to give to any other shall be given in writing by personal delivery, by express courier service or by certified mail, return receipt requested, to the address set forth below for the respective party. All notices and demands shall be effective only upon receipt by the party to whom notice or a demand is being given. To Licensors: J. C. Penney Corporation, Inc. 6501 Legacy Drive Plano, Texas 75024 Attention: Real Estate Counsel And to: Bridgestone Retail Operations, LLC 333 East Lake Street Bloomingdale, IL 60108 Attn: Law Department Real Estate with a copy to: John G. Sheerin, P.E., Esq. Bridgestone Retail Operations, LLC 333 East Lake Street Bloomingdale, Illinois 60108 To Licensee: U 0 (100 SOAK CA- '�\a \,A R b kbP_) 13. Insurance. Prior to entering the Property, Licensee shall provide Licensors with a certificate -of insurance evidencing insurance coverage for any entity that will actually access the Property to perform the Work (including, but not limited to, Licensee's environmental consultant) under Commercial General Liability, Contractors Pollution Liability, and. Errors and Omissions Liability insurance policies in a form reasonably acceptable to Licensors and naming Licensors as additional insureds. CHI- 1836102,14 14. Confidentialitv. Licensors consider the information developed at the Property to be confidential. Any person to whom this information is disclosed must also agree to these terms of confidentiality. Except to the extent required by law to be disclosed, no information produced from the Work may be disclosed, without the prior written consent of Licensors, to any individual who is either (a) not named in this Agreement or (b) not Licensee's trustees or attorneys, but in any event anyone to whom the information is provided, with or without consent of Licensors, including those mentioned in (a) and (b), must agree in writing to be bound by the confidentiality covenants herein. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized Representatives as of the day and year first above written. BRID EST IL RATI NS, LLC (Licensor) *4 By. v Title: James M. Blecha, Director Real Estate Assets New Store Development J. C. PE Y ORPO TION, INC. (Licensor) APPROVED APPROVED' By: C S f A-S Title: UCK V .X41DLhT ATTORNEY a REALESTATEJ v CITY OFT WILA, WASHINGTON (Licensee) By: 5L 711 0 1, Title: ty MCL CHI— 1836IO2v15 Exhibit A Due Diligence Studies and Geotechnical services performed by Shannon Wilson Inc. and subcontractors. In the vicinity of Firestone: We will conduct a Hazardous Buildings Materials Survey of the canopy on the Firestone property. As part of this study, we will collect up to six potential asbestos containing material samples, and five samples of potential lead -based paint. They will be collected from the various types of suspect building materials that may be present in the canopy. We do not anticipate patching any small holes that are a result of sampling because the canopy will be removed as part of this project. Geoprobe study We will arrange for a private utility locate service to mark the area before any subsurface work is performed. We will advance approximately eight geoprobes in the area by the Firestone property to assess soil quality. The probes will be advanced in any suspect areas identified by the geophysical study in property that would be acquired. Boring locations can likely be placed so that they do not interfere with site operations. The probes will be advanced to approximately 20 feet below the ground surface or the groundwater interface, whichever comes first. We will collect one subsurface soil sample from each probe that will be analyzed for petroleum and lead. We will generate one 35- gallon drum of waste soil that will remain on -site, or at a nearby staging area until we have analytical results. We will coordinate disposal of this drum. The probe is mounted on a small truck. There will also be one support truck for the probe, and a third truck driven by the Shannon Wilson employee. It is a one -day effort; we can provide approximately 2 weeks advance notice, and can alter the schedule based on site operations. CHI- 1836102v16 Ref. 12 -044 Council Approval N/A RIGHT OF ENTRY AGREEMENT Project: Tukwila Transit Center Phase 3 The undersigned property owner, hereinafter called the "Owner hereby grants a right of entry to the City of Tukwila, Washington, a Washington Non Charter Optional Municipal Code City "Entrant and its employees, consultants, and contractors, (the "Entrant Parties for the purposes of sampling, inspecting, surveying, geotech boring, and general engineering functions (the "Work"). This Agreement and the right of entry by Entrant are subject to the following conditions. 1. The land affected by this right of entry "License Area includes easterly portions of the Westfield Southcenter Mall in Tukwila, Washington (the "Owner's Property lying generally along Andover Park West north of the Baker Street driveway and south of the Firestone store, as depicted in the cross hatched area shown on Exhibit A as the Transit Easement, where Entrant is conducting work in connection with the Tukwila Transit Center project, and specifically includes the portion of the Owner's Property leased to J.C. Penney depicted in the cross hatched area shown on Exhibit B, and located in the County of King, State of Washington, at the following address (the "Firestone Parcel Firestone Complete Auto Care 215 Andover Park West Tukwila, WA 98188 King County Parcel No.: 9202470070 2. The Owner shall allow the Entrant Parties the reasonable right of ingress and egress to the License Area, for the purpose of conducting the Work, at all reasonable times. Nothing in this Agreement gives any Entrant Party the right to park any vehicle other than a single passenger -sized vehicle in one single parking space on any portion of the Owner's Property. Entrant Parties shall conduct their work in accordance with the reasonable requests of Owner and the occupant of the Firestone Parcel, in a manner to minimize interference with the business conducted on the Owner's Property and the License Area. 3. Entrant will hold harmless, indemnify and defend Owner, its tenants, subtenants, lessees, franchisees, licensees, invitees, employees, agents, personal representatives, contractors, subcontractors, successors and assigns "Owner Parties against any and all claims, demands, loss, liabilities, costs, fines, penalties, expenses, damage, including claims for injury or death of any person, loss of or damage to any property, and including economic, direct, indirect and consequential damages, suits, liens, causes of action and judgments, including costs in connection with establishing the right to indemnification hereunder, and including, but not limited to reasonable attorney's, experts, and accountant's fees) (collectively, the "Claims asserted or arising directly or indirectly from, on account of or in connection with, or in any way related to or as a result or consequence of Entrant's Work including the design, implementation, and construction thereof, entrance upon and /or use of the License Area or Owner's Property, or any act or omission of Entrant and its lessees, franchisees, licensees, invitees, employees, agents, personal representatives, contractors, subcontractors, materialmen, successors and assigns "Entrant Parties in connection with the Entrant's Work or under this Agreement, except for s�,,, a 6�9 16 n/A-&-.S injuries or damages caused by the sole negligence of the Owner Parties. With respect to all or any portion of the foregoing obligation which may be held to be within the purview of RCW 4.24.115, such obligation shall apply only to the maximum extent permitted by RCW 4.24.115. Entrant expressly waives any immunity under industrial insurance whether arising from any statute or other source, to the extent of the indemnity set forth in this Section. In no event shall Entrant's obligations hereunder be limited to the extent of any insurance available to or provided by Entrant or any other person or entity. The Entrant's obligations in this section shall survive any termination or expiration of this Agreement. 4. Entrant and the Entrant Parties shall enter upon the Owner' Property and the License Area and conduct Entrant's Work at Entrant's sole risk, cost and expense. Entrant hereby waives and relinquishes any and all Claims arising from or related to the Entrant's Work or any entry on the Owner's Property or the subject matter of this Agreement now or hereafter arising in Entrant or any of the Entrant Parties' favor occasioned by, directly or indirectly, the conditions of or use of the Owner's Property or the License Area or any improvements thereon or any other facts or occurrences with respect to Entrant's Work or the conduct of Entrant's Work or under this License Agreement. Entrant's obligations in this section shall survive any termination or expiration of this License Agreement. 5. The Entrant Parties shall, at Entrant's sole cost and expense on a daily basis and upon completion of the Work, remove all equipment, materials, tools, trash, debris, and other property in accordance with applicable law, clean up all tanks, pipes and contamination encountered during the Work, and restore the Owner's Property and the License Area to the same or a better condition than it was in immediately prior to the entry by any of the Entrant Parties. If any damage, destruction, or loss occurs to the License Area or Owner's Property during the performance of Entrant's Work, and such damage, destruction or loss arises out of or is related to, or a consequence of any of Entrant's Work, Entrant will promptly notify Owner in writing of the damage, destruction, or loss. If Owner notices the damage, destruction or loss prior to receiving notice thereof from Entrant, then Owner shall promptly notify Entrant in writing of the damage, destruction, or loss. Unless otherwise agreed by the Owner in writing, Entrant will repair the damage and restore Owner's Property (or commence and diligently pursue repair and restoration) within three (3) days after the Entrant's discovery of the matters requiring such repair or restoration, or the receipt of Owner's notice, whichever is earlier. If Entrant fails to restore the License Area or Owner's Property, or fails to repair the damage, (or fails to timely commence and diligently pursue restoration or repair) within such three (3) day period, then Owner may in its sole discretion restore the Owner's Property or conduct the repair of any such damage, in which event Entrant shall reimburse Owner for all costs incurred by Owner, plus an administrative fee of twenty -five (25 of all such costs, within ten (10) days after Entrant's receipt of an invoice from Owner. The Entrant's obligations in this section shall survive any termination or expiration of this License Agreement. 6. Prior to commencing Entrant's Work and prior to any subsequent entry on the License Area, Entrant shall provide Owner with insurance certificates and endorsements in form acceptable to Owner showing liability and other insurance coverage, including automobile liability insurance, in the amounts and in accordance with the Owner's requirements set forth on Exhibit C. The Entrant's participation in a self insured governmental risk pool shall satisfy the 2 conditions set under this section but in no way shall limit the indemnification provision set forth herein. 7. It is a condition to the execution of this Agreement by Owner that Entrant shall obtain from JC Penney and from Firestone, the tenant and subtenant of Owner in possession of the Firestone Parcel, an executed right of entry agreement on terms and conditions acceptable to such entities "Firestone ROE and provide copies of such executed agreements to Owner.. Until execution and delivery of this Agreement by both parties, neither Entrant nor any of the Entrant Parties shall have any right to enter, commence or perform the Work on the License Area or elsewhere on the Owner's Property. Until delivery of a copy of the fully executed Firestone ROE, neither Entrant nor any of the Entrant Parties shall have any right to enter, commence or perform the Work on the Firestone Parcel. This agreement shall be binding on the parties from the date it is fully executed by Owner and by Entrant (and an executed original delivered by Entrant to Owner), and shall remain in effect until completion by Entrant of the Work, but in all events shall terminate no later than June 30, 2012. 8. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the. date(s) set forth below. OWNER: WEA SOUTHCENTER LLC, a Delaware limited liability company: By: Southcenter 1 LP, a Delaware limited partnership, its managing member By: Westfield Southcenter GP LLC, a Delaware limited liability company, its general partner By: Southcenter Holding 2 LLC, a Delaware limited liability company, its sole member By: Westfield America Limited Partnership, a Delaware limited partnership, its sole member By: Westfield jkS: partner Delaware limited liability company, its general By: /7,/ /�i��,�� Nam P�x+► Title: A4 -6i&n4 Secjre�ar'\j ENTRANT: CITY OF TUKWILA a Washington municipal c By: Name: 4JJ fi Its: M l/ Date: 7, io /a u Attest /Authenticated: 11� V 44A-h,� Inc pux 1 City Clerk J Approved As to Form: 4��"' 2J TJr City orney EXHIBIT A Depiction of License Area PACE 1 EXHIBIT MAP TUKWILA TRANSIT CENTER EASEMENT WESTFIELD PARCEL CONTINUED ON PAGE 2 LINE TABLE LINE I BEARING I LENGTH L21 500'11'38 "E1 14.751 1-31 533'53'21 "Ei 35.871 0 F I 1-71 N00'11 WI 36.261 z I I L e.2 1 L81 N89'10'47 "WI 29.171 L91 S02'27'57 "WI 77.421 U I 1-701 SO0'46'41 17.671 L121 S89'46'20 "WI 29.761 0, rn J 1' L131 N89'48'22 "Fl 23.401 Q L141 N89 "Ei 32.111 L151 N89'46'20 "EI 29.761 L161 N00'11'38 WI 14.601 y 30' I L771 N33 53'21'W 40.78 `POB 1-781 589'46'16 "WI 73.771 12.01 G SOUL +i L191 589'59'26 "WI 1, AREA L201 S00 "EI 21.871 PRG, 1-2a 1-211 N89'59'37 "EI 3.661 5.� TYP. L221 504'20'21 "EI 63.361 L2311 SOO'00'34 "W I 53.581 r m 1-241 S90'00'00 "WI 13.001 w I m L251 N89'40'07 "E I 4.001 p rn 1-261 N00'19'53"WI 75.881 LL L271 589'40'07 "WI 4.001 L281 N00'19'53 "WI 6.271 L291- S89'4W22 "WI 23.401 L301 S89'10'47 "EI 29.081 L311 NO2'2Y57 "E 17.421 `I• I 1 z r L321 S00 46'46 "WI 22.751 u L2 A.. I i j L331 S89'48'22 "W I 37.191 r SEE PAGE 2 FOR CURVE TABLE C7 TRANSIT EASEMENT CEL A PAR_ c1s 1-29 TEMPORARY. CONSTRUCTION EASEMENT C1 C 11255 Kirkland Way, Suite 300 1 Kirkland, WA 98033 p. 425.827.20141(.425.827.5043 Civil 1 Structural I Planning I Survey An Engineering Senkes Company paceengrs.com SCALE: 1" 5D' FILE: \EASEMENT EXHIBIT.DWG DATE: 11/15/11 BY: FW PROD. NO.: 09603.13 Exhibit A (Continued) EXHIBIT MAP TUKWILA TRANSIT CENTER EASEMENT WESTFIELD PARCEL I CURVE TABLE L E 1 z� L7 CURVE I LENGTH I RADIUS I DELTA N AREA 1 C31 45.961 95.001 27 I C41 7.871 8.001 5&'20'23 3" I I C71 6.351 8.251 44'07'53" Cal 10.991 13.001 48'27' 27' C1111 2.781 1.801 88'21'16" C1 C141 8.271 125.001 3 /Ct. C151 13.181 13D.001 5'48'36 "I C� C161 48.871 100.00i 28'00'041 C171 12.781 13.001 55'20'23 "1 C I B I 10.211 13.251 44'07'53 "1 C191 15.221 18.001 48'27'27 "1 C201 10.491 6.801 88'21'16"1. LEGEND: HORIZONTAL DATUM CITY OF TUKWILA BINDING SITE IMPROVEMENT PLAN NO. L10 -032 NEW TRANSIT EASEMENT HATCHED AREAS BSIP PARCEL LINES CENTERLINE RIGHT OF WAY LINE f \X�,\' PAGE 2 �I 30.00 .4.50'— L E 1 z� L7 POB NORTHI N AREA 1 BAKER NJ. BL VD. 30.00' I L4 e 30.00 C17 u c c6 N N CONTINUED FROM PAGE .1 11255 Kirkland Way, Suite 300 Kirkland, WA 98033 p. 425.827.2014 j f. 425.827.5043 Civil l Structural Planning I Survey An Engineering Services Company paceengrs.com SCALE: 1" a 50' FILE: \EASEMENT EXHIBIT.DWG DATE: 11/15/11 BY: FW PROJ. NO.:09603.13 6 EXHIBIT B Depiction of Firestone Parcel of License Area FIRESTONE CANOPY EASEMENT PARCEL G BSIP L10 -032 NE CO I 9 PARCEL. 0 i f N d CANOPY N89'56'07"W 62.27' 30 00' \-POB I C) LL' o_ Z to L J W w I 0 Cn 10 la 5 45.00' a N C I =2.31' z i tw 7-71 co N89'54'34 "W 62.85' V ARCEL G I W WEA SOUTHCENTER f S LLC 651P VOL 249177 -84 30. aQ' P AR CEL A EXHIBIT C Entrant Insurance Requirements Before any entry by Entrant or any of the Entrant Parties on the License Area or on Owner's Property and throughout the Term of the Agreement, Entrant shall maintain insurance coverage with the following minimum limits: 1. Statutory Worker's Compensation insurance as required by Washington law; 2. Commercial General Liability Insurance, on an "occurrence" basis, or policy equivalent thereof, and including Completed Operations coverage, with limits of not less than Two Million Dollars ($2,000,000) each occurrence Combined Single Limit (CSL) and Three Million Dollars ($3,000,000) General Aggregate, insuring against claims for bodily injury, personal injury and property damage sustained in, on or about the Owner's Property. 3. Commercial Automobile Liability Insurance insuring against claims for bodily injury, personal injury and property damage arising out of the ownership, maintenance or use of any owned, non -owned or hired vehicles with a combined single limit of not less than Two Million Dollars ($2,000,000) for each occurrence. 4. Employer's liability insurance insuring against claims alleging employer negligence that result in work related injuries, illness or death that are not covered .under applicable workers compensation statutes in an amount not less than Two Million Dollars ($2,000,000) for each accident or disease.. 5. Contractually Assumed Liability coverage specifically covering said Entrant Party for all liability loss, cost and damages, including attorneys fees, assumed by Entrant Party and Entrant's obligation to protect, defend and indemnify Owner as set forth under the provisions of this License Agreement. 6. Where Entrant's Work involves any subsurface activities, insurance coverage for explosion, collapse and underground hazard (XCU) with policy limits not less than $1,000,000 per occurrence. Entrant shall provide to Owner, prior to any entry on the License area or any portion of Owner's Property, evidence of coverage letter confirming Entrant's coverage and limits with WCIA in conformance with the requirements set forth above. Entrant is a member of and insured by WCIA, a self insured risk pool, which provides contractual liability coverage to its members to cover liability assumed in a contract. Prior to any entry on Owner's Property, the Entrant will provide to the Owner an evidence of coverage letter confirming Entrant's coverage and limits with WCIA in conformance with the requirements set forth above.