HomeMy WebLinkAbout08-016 - Museum of Flight Foundation - Pedestrian Bridge Airspace Lease 20081217000135
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12/17/2008 09:53
KING COUNTY, WA
Return Address:
City of Tukwila
6300 Southcenter Boulevard, Suite 100
Tukwila, Washington 98188
Attention: Bob Giberson, City Engineer
Document Title(s) (or transactions contained therein):
1. Airspace Lease
2.
Reference Number(s) of Documents assigned or released:
(on page of documents(s))
Grantor(s) (Last name first, then first name and initials):
1. City of Tukwila, a Washington municipal corporation
4. F� Additional names on page of document.
Grantee(s) (Last name first, then first name and initials):
1. Museum of Flight Foundation, a Washington non -profit corporation
3. Additional names on page of document.
Legal description (abbreviated: i.e. lot, block, plat or section, township, range)
Full legal is on page 11 of document.
Assessor's Property Tax Parcel/Account Number
5624201034;3324049019
01043- 0028/LEGAL 14814758.2
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 finds 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, together with the right to construct
support structures for the properties legally described in the attached Exhibit A.
(See attached document referencing Parcels 3324049019 and 5624201034).
2. TERM OF AIRSPACE LEASE.
The initial term of this airspace lease "Lease shall be fifteen (15) years,
COMMENCING ON MARCH 17, 2008 "Commencement Date
Airspace Lease Page 1
01043- 0028 /LEGAL 14814758.2
3. RENEWAL.
Airspace Lease Page 2
01043- 0028/LEGAL 14814758.2
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.
A. Construction of Pedestrian Bridge. 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.
B. Maintenance.
1. The Museum shall perform or cause to be performed at its sole
expense all inspection functions, maintenance, and repairs that
shall include, but 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:
httn: /www. wsdot.wa. eov /nuhl i cations /man ual s /ful ltext/m36 -64/Bri d eel nsnecti on.ndf
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
Airspace Lease Page 3
01043 0028/LEGAL 1481475 8.2
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 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
Airspace Lease Page 4
01043- 0028 /LEGAL 14814758.2
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 bridge 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 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 TERMINATION.
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.
Airspace Lease Page 5
01043- 0028/LEGAL 14814758.2
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, 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.
Airspace Lease Page 6
01043 0028 /LEGAL 14814758.2
[SIGNATURES ON FOLLOWING PAGE]
CITY OF TUKWILA
Jim H rton, M
1V131�Fi TM OF FL HT FOUNDATION
i.�
By Date: -02 ef 40
Printed Name :qh vl ic.. 1 :4u n66'2-
Title: ids (Ail f inia 0,6"
APPROVED AS TO FORM:
n A
rs x 6S 9
Tukwila Attorney
564' a 0ie16 /n/4c5
(),(-61(0
Airspace Lease Page 7
01043 0028 /LEGAL 14814758.2
Date: 1--1' kb
IN WITNESS WHEREOF I have here>:nto set my hand and official seal the day and year
STATE OF WASHINGTON
ss.
COUNTY OF q
J
On'ithis I day of 'C2J4t.j py 2008, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally
appeared 0 f ht qcie.v to me known to be the person who signed as
AktilLY
of the CITY OF TUKWILA, the municipal corporation
that execute&the within and foregoing instrument, and acknowledged said instrument to
be the free and voluntary act and deed of said municipal corporation for the uses and
purposes therein mentioned, and on oath stated that was duly elected, qualified and
acting as said officer of the municipal corporation, that th- was authorized to
execute said instrument on behalf of said municipal corporation.
first above written.
Airspace Lease Page 8
01043 0028 /LEGAL 14814758.2
iittar„,0
(Signature of NNtary),
Me It SS -1'
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Washington, residing at G rit aJt-tti..)
My appointment expires: l /R /l2.
STATE OF WASHINGTON
ss.
COUNTY OF K
On this. day of 0c..- c 2008, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally
appeared�o.. w J t�,r„� t to me known to be the person who signed as
c.0 c of the MUSEUM OF FLIGHT FOUNDATION, the non-
profit corporation that executed the within and foregoing instrument, and acknowledged
said instrument to be the free and voluntary act and deed of said non profit corporation
for the uses and purposes therein mentioned, and on oath stated that was duly
elected, qualified and acting as said officer of the non profit corporation, that
was authorized to execute said instrument on behalf of said non profit corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year
first above written.
4„. S51oME*;:
PUB1r CI
N"':•• 11 o9' i
.1,(...* F w Pk. O`'
Airspace Lease Page 9
01043- 0028 /LEGAL 14814758.2
(Signature of Notary)
(Print or stamp name of Notary)
NOTARY PUBLIC in and for the State
of Washington, residing at Sl,� a� w
My appointment expires: 1 I l 0 9
Airspace Lease Page 10
01043 0028 /LEGAL 14814758.2
EXHIBIT A
See attached pages
CV)
DRAWING
Vicinity Map
Vvooimzgcji
Project Site
Legal Description
Parcel No. 5624201034
Legal Description:
MOORES FIVE ACRE TRS "REVISED LOT A"mKWILA BOUNDARY LINE ADJUSTMENT NO
ayA-01-002REowo2001080390000 & AFFIDAVIT OF CORRECTION REC NO. 20020215001703 WCH IS
ponopoe1wopmm1w AND ponormw`/4ormE 1/4 STR 33-24-04
Parcel No. 3324049019
Legal Description:
THAT POR OF THE SE QTR OF SEC 33 TWP 24 N RNG 4 E WM IN KING COUNTY WA DESCRIBED AS
FOLLOWS COMMENCING AT THE SE COR OF SD SUBD TH N 88-04-53 W A DIST OF 1314.13 FT ALG S
LwnooprowecrMswope MARGINAL w,m AND poBrnxuanomewwxn-0+savvAmurop
37.35 FT TH CONT ALoaoMmmwz2'o1-savvAo/nTmpnm.ao+rT* DEPARTING eomowa
87-49-39 sxmoTmp77.07 FTr*w22-49-0ewxmaTor23.50 pTTxo87-49-39 E A DIST OF 89.83
prTxSo2'11'aywAomTnr4z1oFrTnsan-*a.4seAo/aToF 290.49 FT TH S-28-43-46 E A DIST
OF 89.25 FT TH S 88-18-47 E Ao/SroF1*4./upTToAum THAT |SsnoFTFR AND PLW C/L RUNWAY
1on'u1LrnALsaoLwaoo-4x'o*eAmnToFosn.00FTTxSar-2o-0nwmmrops9o.o4rT TO POB
PER CITY OF TUK BLA NO L 02-058 REC #20030115900002
MOF-BJD-2008-003
April 25, 2008
The Honorable Jim Haggerton
Mayor of Tukwila
Tukwila City Hall
6200 Southcenter Boulevard
Tukwila, WA 98188
Subject: Museum of Flight Pedestrian Bridge Airspace Lease
Dear Mayor Haggerton,
Thank you for joining us for lunch on April 3, to discuss the Museum's pedestrian bridge project
and to review our future development plans. The purpose of this letter is to follow-up on the
discussions in the meeting and your subsequent telephone message to me regarding the
Museum's proposal to accelerate the annual rent payments for the Airspace Lease and capitalize
the cost as part of the project.
On March 18, 2008 the Museum received the Airspace Lease for the bridge project for final
review and signature. The terms of the Lease are generally acceptable; however, the Museum
proposes changing the language in paragraph 5, Compensation, and paragraph 6, Rent
Adjustments, to allow the Museum to make a single payment in 2008 equal to the present value
of the annual rent over the initial fifteen year term of the Lease. This payment plan will allow the
Museum to capitalize the cost of the Airspace Lease as part of the project. The present value of
the annual rent payments due during the initial Lease term is an amount of $12,354. A table
describing the Museum's present valuation calculation is enclosed for your review. Capitalization
of the annual rent provides a financial advantage for the Museum and for the City of Tukwila and
we recommend that this change be incorporated into the Airspace Lease through an amendment
which the Museum will execute concurrent with the Airspace Lease.
We are grateful for the City of Tukwila's assistance with the bridge project and look forward to a
successful partnership with the City as we plan for the development of additional gallery space
across East Marginal Way. The City's consideration of the proposed approach to financing the
annual rent payments for the Airspace Lease will be appreciated. Please feel free to contact me
with any. questions.
Regards,
Bonnie J. Dunb-.IW'hD
President and
Enclosure
tihal WaY So
1 U?9
l 206 764 5700;<
2.06364 707
n f? r
The Museum of Flight
Pedestrian Bridge Airspace Lease
Present Value of Annual Rent Payments Over Initial 15 Year Term
Payment Remains Constant - Discount @ 6.0%
Present Value Factor 1 000000 0.943396 0.889996 0.839619 0.792094 0,747258 0.704961 0.665057 0.627412 0.591898 0.558395 0.526788 0.496969 0-468839 0.442301
Present Value @. 6.0% $ 1,200 $ 1.132 $ 1,068 $ 1.008 $ 951 S 897 5 846 $ 798 $ 753 S 710 $ 670 S 632 $ 596 5 563 5 531 $ 12,354
Cash Out $ 1,200 $ 1,200 $ 1,200 $ 1,200 $ 1:200 $ 1,200 $ 1,200 $ 1,200 $ 1,200 S 1,200 $ 1,200 $ 1,200 $ 1.200 5 1,200 $ 1.200 $ 18,000
Year 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022