HomeMy WebLinkAbout12-171 - MSI 6400 Tukwila - Right-of-Way Use Agreement for Monument Sign12-171
Council Approval N/A
RIGHT -OF -WAY USE AGREEMENT BETWEEN THE CITY OF TUKWILA AND MSI
6400 TUKWILA, LLC FOR PLACEMENT OF A MONUMENT SIGN WITHIN THE
PUBLIC RIGHT -OF -WAY OF SOUTHCENTER BOULEVARD.
WHEREAS, MSI 6400 Tukwila, LLC , a Washington limited liability company, mistakenly
constructed/installed a monument Sign in the right -of -way of Southcenter Blvd near 6400 Southcenter
Blvd, King County Parcel 000320-003, (the "Right -of- Way "); and
WHEREAS, City of Tukwila (hereinafter "City ") records indicated that the sign has been in
place for over 30 years; and
WHEREAS, MSI 6400 Tukwila, LLC , recognizes that the City possesses police powers granted
to it by the Washington State Constitution, Article, XI to regulate its rights -of -way and to generally
provide for the public health, safety, and welfare, and that 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, MSI 6400 Tukwila, LLC , 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
obstructions or encroachments on the Right -of -Way and can charge the cost of such removal to the
responsible property owner; and
WHEREAS, the City does not foresee the need to remove the sign in the immediate future and
wishes to work with the property to allow for signage needed to allow the property to be able to attract
tenants; and
NOW THEREFORE, in consideration of the promises and mutual covenants of the parties set
forth herein, the sufficiency of which consideration is hereby acknowledged,
IT IS HEREBY AGREED AS FOLLOWS:
Section 1. Permission to Locate in City Right —of -Way. The City hereby grants to MSI 6400 Tukwila,
LLC the right and permission to use the Right -of -Way for the installation, repair, and maintenance of a
Monument Sign constructed/installed within the portion of right -of -way shown in Exhibit A, attached
hereto. This permission shall run with the land for the benefit of MSI 6400 TUKWILA, LLC and its
successors and assigns. The ability of MSI 6400 Tukwila, LLC to use the City's Right -of -Way is not
exclusive and the CITY may require relocation or removal in the future. No other signage, including real
estate signs, shall be placed within the City's Right of Way.
Section 2. Sign Permit Requirements. MSI 6400 Tukwila, LLC agrees to obtain all required permits
from the Department of Community Development for placement and display of the monument sign.
Furthermore, MSI 6400 Tukwila, LLC shall obtain a permit for any reface or copy change for the
monument sign. The monument sign must meet all applicable standards as outlined in Tukwila
Municipal Code Title 19, with the exception of setbacks. The monument sign may remain in its current
location and may not get closer to the sidewalk without approval from the City.
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Section 3. Consideration Provided. In exchange for and in consideration of the CITY's agreement to
allow MSI 6400 Tukwila, LLC to use the City's right -of -way, MSI 6400 Tukwila, LLC shall continue
to maintain the landscaping within the right of way, up to the edge of the sidewalk. This maintenance
shall include watering of plants, removal of weeds, and when needed planting of new vegetation. No
trees shall be removed within the City's right -of -way without the written permission of the City.
Section 4. Indemnification. MSI 6400 Tukwila, LLC agrees to defend, indemnify and hold harmless
the CITY from any and all claims for damages brought by any party arising from or related to MSI 6400
Tukwila, LLC 's use of the City's Right of Way and shall defend, indemnify and hold harmless the CITY
from all liability for the City's actions taken, if any, to remove the encroachment or obstruction from the
City's right -of -way, in the event the City is required to do so to install, construct, repair, or otherwise
maintain utilities within the City's Right -of -Way. This indemnification shall include damages, costs, and
reasonable attorney's fees, and shall not apply with respect to any willful or negligent tortious act or
omission of City. The provisions of this section shall survive the expiration or termination of this
Agreement
Section 5. Future City Construction Projects. Whenever the City determines that it is necessary for
any of MSI 6400 Tukwila, LLC 's facilities to be moved or relocated to accommodate the construction,
alteration, repair, or improvement of the right -of -way for purposes of public welfare, health, or safety, the
City shall notify MSI 6400 Tukwila, LLC in writing of such determination, and MSI 6400 Tukwila,
LLC shall, within 30 days, submit plans for such relocation. Within 90 days of the approval by the City
of the plans for relocation, MSI 6400 Tukwila, LLC shall relocate the Monument Sign. All costs of
moving or relocating such facilities shall be the sole responsibility of MSI 6400 Tukwila, LLC.
In the event of an emergency, as determined by the City, that threatens public safety, public property or
private property, the City is in no way obligated to provide advance notification to the property owner on
removal of the sign.
Section 6. Termination. This agreement will terminate on January 1, 2023. MSI 6400 Tukwila, LLC or
successor, shall remove the monument sign on or before the termination date. The agreement may also
terminate if one of the following occurs: 1) Voluntary removal of the monument sign by MSI 6400
Tukwila, LLC; or 2) Notification by either party of its intent to terminate the agreement. Once notice is
received by the other party, the agreement shall remain in force for 90 -days. During the 90 -day period,
MSI 6400 Tukwila, LLC shall remove the monument sign structure.
Section 7. Call For Locates. MSI 6400 Tukwila, LLC shall call for locates prior to doing or allowing
any excavation within the City's Right -of -Way. If during the construction process MSI 6400 Tukwila,
LLC or its contractor /subcontractor damages utilities or other public or private property, MSI 6400
Tukwila, LLC shall immediately call 911 if the damage results in a release of natural gas or other
hazardous substance or potentially endangers life, health, or property.
If, during construction or following completion of the Monument Sign, any of MSI 6400 Tukwila, LLC 's
actions or lack of action to correct a situation related to the Monument Sign that threatens life or property,
the City may order MSI 6400 Tukwila, LLC to immediately correct said emergency situation, or at the
City's sole discretion, undertake measures to correct situation itself. MSI 6400 Tukwila, LLC shall be
liable for all costs, expenses, and damages attributed to the emergency as undertaken by the City. City
shall be reimbursed of all costs within thirty (30) days of the completion of the emergency project.
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Section 8. Recoding of Agreement. This Agreement shall be recorded with King County Records and
the property owner(s) shall pay the cost of said recording within 21 -days of being provided a copy of the
recording receipt.
Section 9. Agreement Runs with the Land. 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.
Section 10. Effective Date. This agreement shall be effective upon final execution by both Parities.
Section 11. Assignment of Interests, Rights and Obligations. This Agreement shall be binding and
inure to the benefits of the parties. No party may assign its rights under this Agreement without the
written consent of the other Party, which consent shall not unreasonably be withheld. This Agreement
shall be binding upon and shall inure to the benefit of the heirs, successors, and assigns of the City and
MSI 6400 Tukwila, LLC .
Section 12. Incorporation of Recitals. The Preamble and Recitals contained in this Agreement are
hereby incorporated into this Agreement as if fully set forth herein.
Section 13. Governing Law and Venue. This Agreement shall be construed and enforced in accordance
with the laws of the State of Washington. Venue for any action shall lie in King County Superior Court or
the United States Court for Western Washington.
Section 14. Attorney's Fees. In the event of any litigation or dispute resolution process between the
Parties regarding an alleged breach of this Agreement, each party shall be responsible for its own attorney
fees.
Section 15. Entire Agreement and Amendments. This Agreement represents the entire agreement
between the Parties with respect to the subject matter herein. This Agreement supersedes all other written
and/or oral agreements between the Parties related to placement of the sign within the City's Right of
Way. Either party may request changes in the Agreement. Proposed changes which are mutually agreed
upon shall be incorporated by written amendments to this Agreement.
Section 16. Severability and Survival. The provisions of this Agreement are separate and severable.
The invalidity of any clause, sentence, paragraph, subdivision, section, or portion or the invalidity of the
application thereof to any person or circumstance, shall not affect the validity of the remainder of this
Agreement, or the validity of its application to other persons or circumstances. The provisions of this
Agreement, which by their sense and context are reasonably intended to survive the completion,
expiration or cancellation of this Agreement, shall survive termination of this Agreement.
Section 17. No Third -Party Beneficiaries. 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, except
as expressly set forth in this Agreement. No other person or entity not a party to this Agreement may
enforce the terms and provisions of this Agreement.
Section 18. Authority. The Parties each represent and warrant that they have full power and actual
authority to enter into this Agreement and to carry out all actions required of them by this Agreement. All
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persons are executing this Agreement in their representative capacities and represent and warrant that they
have full power and authority to bind their respective organizations.
Section 19. Notices. Notices, demands, or correspondence to the City and Property Owner shall be
sufficiently given if dispatched by pre -paid first -class mail to the addresses provided by the executing
parties below. Notice to the City shall be to the attention of both the Director of Community
Development and the City Attorney. Notices to subsequent property owners shall be required to be given
by the City only for those property owners who have given the City written notice of their address for
such notice. The parties hereto may, from time to time, advise the other of new addresses for such
notices, demands or correspondence.
Section 20. 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.
Section 21. No Presumption Against Drafter. This Agreement has been reviewed and revised by legal
counsel for both Parties and no presumption or rule that ambiguity shall be construed against the party
drafting the document shall apply to the interpretation or enforcement of this Agreement.
Section 22. Headings. The headings in this Agreement are inserted for reference only and shall not be
construed to expand, limit or otherwise modify the terms and conditions of this Agreement.
Section 23. Legal Representation. In entering into this Agreement, the Property Owner represents that
it has been advised to seek legal advice and counsel from its attorney concerning the legal consequences
of this Agreement; that it has carefully read the foregoing Agreement and knows the contents thereof, and
signs the same as its own free act; and that it fully understands and voluntarily accepts the terms and
conditions of this Agreement.
IN WITNESS THEREOF OF THIS RIGHT OF WAY AGREEMENT:
CITY OF TUKWILA
Bob Giberson
Public Works Department
6300 Southcenter Blvd, Ste 100
Tukwila, WA 98188
Address:
�a- C _ c„ (Co V
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DATED this day of
GRANTOR:
a limited liability corporation
, 2012
By:
Print Name:
Its:
STATE OF WASHINGTON
ss.
COUNTY OF KING
On this 1 day of nk,,fibtC,, 2012, before me a Notary Public in and for the
State of Washington, personally appeared Jr�h'� ! o qSh , to me known to
be the A of 11'15 j (r{DO'i�� r�bfu ail, , a limited liability
corporatist eiecutea the foregoing instrument, and acknowledged it to be the free and
voluntary act of said corporation, for the uses and purposes mentioned in this instrument, and on
oath stated that he /she was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year
first above written.
DANETTE A. BRANDTN
STATE OF WASHINGTON
NOTARY PUBLIC
MY COMMISSION EXPIRES
03 -08 -13
Abland ithat
me: DIA42A- .,rr'cf'
TARY PUBLIC, in and for the State of
shington, residing at aj Ar15 y WA
My commission expires: 3r 53, „,70 /3
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DATED this 1 9 day of Clalf1/ 1 1:4-1\. , 2012.
GRANTEE: CITY of TUKWILA
By:
Print Name:
Its:
Bob Giberson
Public Works Director
STATE OF WASHINGTON)
)SS.
COUNTY OF KING )
On this day, before me personally appeared BOB GIBERSON to me known to be the
PUBLIC WORKS DIRECTOR for the City of Tukwila, and executed this instrument on behalf of
the City of Tukwila in his capacity as PUBLIC WORKS DIRECTOR and acknowledged that he
is authorized to do so at his free and voluntary act and deed, for the uses and purposes therein
mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first
above written.
'oBF
hR} '4\y., ,, Name: ,Wi- (mil I(
Ns
2 NOTARY PUBLIC, in and for the State of
% '6UB.§,�45 ,�0 s Washington, residing at CO
74,1 4N!\�\\w r My commission expires: !0 ! I s
pTFIOF \W P'gI;����
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Exhibit a
photo of sign location