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INDEMNIFICATION AGREEMENT
TI-1[S INDEMNIFICATION AGREEMENT("Agreement"), dated for reference purposes
as July 27 ,2018, is made by and between The Boeing Company, a Delaware
corporation ("Boeing"),and City of Renton, a Washington municipal corporation
("Renton").
For and in consideration of the mutual benefits to be derived and other valuable
consideration the sufficiency of which is hereby acknowledged, the parties hereby agree
as follows.
1. RENTON FORBEARANCE OF ENFORCEMENT ACTIONS
Subject to objection or contrary guidance issued by the Federal Aviation Administration,
Renton agrees that Boeing may occupy the portion of Taxiway"B"located at the Renton
Municipal Airport depicted in Exhibit A(the"Property"),and Renton shall then forbear
from taking enforcement action against Boeing for such occupancy during the term of
this Agreement. Renton confirms it has issued or will issue one or more Notices to
Airmen ("NOTAM")covering Boeing's activity authorized under this Agreement. Any
such occupancy shall be subject to the following limitations:
(a) Boeing's occupancy of the Property shall be in common with
Renton and all licensees and tenants of Renton, each of which shall have
the continuing right of access to the Property.
(b) Boeing shall immediately relocate and/or remove any and all of its
property(including but not limited to aircraft,aircraft parts,machinery,
and other equipment) from the Property if requested to do so by Renton
due to Renton's operational needs such as maintenance,repair, inspection,
passage(whether by Renton or any other entity or person), mitigation of
safety or security concerns, or any other airport purpose.
(c) Boeing shall exercise all reasonable efforts to assure any activities
on the Property shall not result in any damage or injury to the Property.
Boeing shall be responsible for any damage arising from the activity of
Boeing on the Property, and shall repair such damage or,in lieu thereof if
mutually agreed by Renton and Boeing,make a cash settlement therefor.
(d) Boeing shall not make any improvements or alterations to the
Property. Boeing shall hold Renton and the Property harmless from and
against any liens of contractors,subcontractors,or other persons supplying
goods, services,equipment, materials,or labor to or on behalf of Boeing at
the Property. At the request of Renton, Boeing shall discharge any such
liens.
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(e) In its occupancy of the Property, the Boeing shall not violate any
applicable law, ordinance,deed,restriction or regulation affecting the
Property or any part thereof. Boeing is solely responsible for obtaining all
necessary permits, licenses,and approvals required from any
governmental authority or agency and shall conduct its business at the
Property strictly in conformance with all requirements of any applicable
permits, licenses,and approvals.
(f) Boeing is hereby advised that the following activities are among
those prohibited on Renton's property,including the Property: use of
tobacco products of any kind; possession and/or consumption of alcoholic
beverages;possession and/or use of firearms or explosives;possession
and/or use of controlled substances and related paraphernalia. Boeing
shall take such steps to enforce such prohibitions as Renton shall
reasonably request from time to time.
(g) Boeing may erect signs or barricades on the Property only with the
prior written consent of Renton,which Renton may withhold in its sole
discretion. Any signs or barricades allowed by Renton shall be removed
by Boeing at the termination of this Agreement.
(h) Boeing will not conduct any fueling, maintenance,or repair
activity of any kind on any vehicles or other equipment on the Property.
Boeing will not conduct any washing or cleaning of vehicles or any other
equipment on the Property.
(i) Notwithstanding its agreement to forbear enforcement action to
prevent Boeing's use of the Property,Renton reserves the right to regulate
use of the Renton Municipal Airport, including the Property,the runway
and other common areas outside of the Property, in accordance with
Federal Aviation Administration recommendations and regulations,and
with federal law,as well as enacting other safety and security measures
deemed advisable by Renton to mitigate against risks created by Boeing's
occupancy of the Property. As further detailed in Section 7.B, Boeing
agrees to reimburse the City for certain costs Renton incurs taking such
mitigation actions.
2. TERM
This Agreement shall commence on the Effective Date and shall continue(unless sooner
terminated pursuant to this Agreement)for the ensuing ninety(90)days. Either party
may terminate this Agreement early at any time by giving notice of such termination to
the other party, stating in such notice the date on which such termination shall be
effective. In addition, this Agreement shall automatically terminate upon any
determination by the Federal Aviation Administration,whether formal or informal,
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written or unwritten, that Boeing's occupancy of the Property violates or potentially
violates any applicable federal regulation or law.
3. FEE
Boeing shall pay Renton a monthly fec in the amount of TWELVE THOUSAND NINE
HUNDRED TWENTY-NINE AND 58/100 DOLLARS($12,929.58)for occupancy of the
Property, with the first payment prorated and due to Renton within fourteen (14) days of
the Effective Date, and subsequent payments payable promptly in advance on the first day
of each and every month during the term of this Agreement. All such payments shall be
made to the City of Renton, Airport Administration Office,Renton Municipal Airport,616
West Perimeter Road,Unit A, Renton,Washington 98057.
4. CONDITION IS"AS IS,WHERE IS"; DISCLAIMERS AND WAIVERS;
EXCLUSIONS OF LIABILITY
A. "AS IS,WHERE IS"CONDITION WITHOUT WARRANTY.
RENTON MAKES NO WARRANTIES WHATSOEVER AS TO THE
CONDITION OR SUITABILITY OF THE PROPERTY. IT IS SUBJECT TO
THIS AGREEMENT ON AN"AS IS,WHERE IS"CONDITION.
B. EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES.
NEITHER RENTON NOR ANY RENTON PARTY (DEFINED IN SECTION
4.E) SHALL HAVE ANY OBLIGATION OR LIABILITY TO BOEING,
WHETHER ARISING IN CONTRACT(INCLUDING WARRANTY),TORT
(INCLUDING ACTIVE,PASSIVE OR IMPUTED NEGLIGENCE)OR
OTHERWISE,FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY
OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES.
C. Waiver of Claims for Damage to Boeing's Property.
Without limiting the generality of any other provision of this Section 4,Boeing
does hereby release Renton from,and waive, Boeing's entire claim of recovery
for loss of or damage to property arising out of or incident to fire, lightning or any
other perils normally included in an"all risk"property insurance policy when
such property is located on the Property,whether or not such loss or damage is
due to the negligence of Rcnton,or its respective agents,employees, guests,
licensees, invitees or contractors.
D. Waiver of Subrogation.
Boeing shall cause its insurance carriers to waive all rights of subrogation against
Renton to the extent of Boeing's undertakings set out in Section 4.C.
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E. Definition.
"Renton Party" means Renton and every officer, employee, agent, contractor, or
invitee of Renton (other than Boeing, its directors, officers, employees, agents,
contractors, and invitees)and their successors and assigns.
5. ENVIRONMENTAL MATTERS
A. Definitions.
As used in this Agreement,the term "Hazardous Substances"means any
hazardous, toxic,chemical,or dangerous substance, pollutant,contaminant,waste
or material, including petroleum,which is regulated under any and all federal,
state,or local statute, ordinance, rule, regulation,or common law relating to
chemical management,environmental protection, contamination,or cleanup
including,without limitation, the Comprehensive Environmental Response,
Compensation,and Liability Act of 1980 as amended (42 U.S.C. § 9601 et seq.),
the Resource Conservation and Recovery Act as amended (42 U.S.C. § 6901 et
seq.)or any other federal, state, county,or city law,or any other ordinance or
regulation existing or which may exist.
As used in this Agreement the term "Environmental Laws and Requirements"
means any and all federal,state, local laws,statutes(including without limitation
the statutes referred to in the first paragraph of this Section 5.A above),
ordinances,rules,regulations and/or common law relating to environmental
protection, contamination, the release, generation,production, transport,
treatment,processing, use,disposal, of storage of Hazardous Substances,and the
regulations promulgated by regulatory agencies pursuant to these laws, and any
applicable federal,state, and/or local regulatory agency-initiated orders,
requirements, obligations, directives, notices,approvals, licenses,or permits,
including but not limited to those for the reporting, investigation,cleaning,or
remediation of Hazardous Substances on the Property.
B. Compliance with Laws and Requirements.
Except as otherwise agreed by Renton in writing, Boeing shall be solely
responsible at its expense for obtaining any permits, licenses or approvals,and for
preparing, maintaining and submitting any records or reports, as required under
applicable Environmental Laws and Requirements for its operations hereunder.
Boeing shall comply with any and all Environmental Laws and Requirements and
shall not cause,permit or allow the presence of and shall not generate, release,
store,or deposit any Hazardous Substances on or about the Property in violation
of any Environmental Laws and Requirements,or in a manner which may give
rise to liability for environmental cleanup,damage to property,or personal injury
to Renton,or any other person. Boeing shall not release any Hazardous
Substances into the soil,water(including groundwater)or air of the Property or
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onto any other adjoining property in violation of Environmental Laws and
Requirements,or in a manner which may give rise to liability for environmental
cleanup,damage to property, or personal injury to Renton or any other person. In
the event of a spill or other release of Hazardous Substances caused by Boeing, its
agents,employees, contractors or invitees at or from the Property,Boeing shall
undertake immediate response as required by law, including but not limited to
reporting to appropriate agencies,and shall notify Renton of same as soon as
possible.
6. CONDITION AT TERMINATION
At the termination of this Agreement,Boeing shall leave the Property in the same or
better condition as at the commencement of this Agreement.
7. INDEMNIFICATION AND INSURANCE
A. Indemnity.
Boeing will indemnify,defend,and hold harmless, Rcnton and every Renton
Party(as defined in Section 4.E)(hereinafter"Indemnitees")from and against all
actions,causes of action, liabilities,claims,suits,penalties, fines,judgments,
liens,awards, damages,or losses(including but not limited to loss of grant funds,
obligations to repay grant funds,or loss of other revenues)of any kind whatsoever
(hereinafter"Claims"),for injury to or death of any person(including without
limitation claims brought by employees or invitees of Boeing or employees or
invitees of any contractor of Boeing(hereinafter"Contractor"))or damage to or
loss of any property or cleanup of any discharge or release by Boeing or any
Contractor or violation or alleged violation of any law or regulation,and
expenses,costs of litigation,and reasonable attorneys' fees related thereto,or
incident to establishing the right to indemnification, to the extent such Claims
arise out of or are in any way related to this Agreement or the presence on the
Property by Boeing, any Contractor or their respective employees or invitees.
Boeing expressly waives any immunity under industrial insurance whether arising
from Title 51 of the Revised Code of Washington or any other statute or source,
to the extent of the indemnity set forth in this paragraph. In the event that Boeing
is successful in proving that the foregoing indemnity is limited by RCW 4.24.115,
Boeing shall defend, indemnify and hold harmless the Indemnitees to the full
extent allowed by RCW 4.24.115. In no event shall Boeing's obligations
hereunder be limited to the extent of any insurance available to or provided by
Boeing. Boeing shall require each Contractor who desires access to the Property
to provide an indemnity, enforceable by and for the benefit of the Indemnitees, to
the same extent required of Boeing.Nothing in this Section 7.A is intended to
require Boeing to indemnify, defend, or hold harmless from any Claims to the
extent they arise out of the sole negligence or willful misconduct of any of the
Indemnitees.
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In addition, to the extent not already covered by the preceding paragraph, Boeing
shall also indemnify,hold harmless, and defend Renton,and its directors,officers,
employees,agents, assigns, and attorneys from any and all claims, losses,
damages, response costs, and expenses arising out of or in any way relating to the
violation of any Environmental Laws and Requirements,or to the generation,
release,storage, deposit or disposal of Hazardous Substances, to the extent caused
by Boeing, its agents,employees,contractors and invitees or arising out of
Boeing's occupancy of the Property, including but not limited to: (I)claims of
third parties, including governmental agencies, for damages (including personal
injury and/or property damage),response costs, fines,penalties, injunctive or
other relief; (2)the cost,expense,or loss to Renton of any injunctive relief,
including preliminary or temporary injunctive relief, applicable to the Renton or
the Property; and(3) the expense of reporting the existence of Hazardous
Substances to any agency of any state government or the United States as required
by applicable laws or regulations, before and after any trial or appeal therefrom
whether or not taxable as costs; all of which shall be paid by Boeing when
accrued.
B. Payment of Costs.
As an implementation of Boeing's obligations in Section 7.A,Boeing agrees to be
liable for and to pay Renton,upon demand by Renton,all costs incurred by
Renton in connection with the enforcement of Renton's rights under this
Agreement, including but not limited to the value of time spent as well as actual
costs and fees incurred by any Renton Party enforcing or acting upon the
provisions of Sections 1(a)through 1(i)(including costs incurred in the taking of
safety and security measures,and reasonable fees and disbursements of Renton's
in-house attorneys and/or retained legal counsel). Such liability shall survive the
termination of this Agreement,the entry into the Property by Rcnton, and the
commencement of any action brought under or relating to this Agreement. All
amounts not paid to Renton when due shall bear interest at the annual rate of
twelve percent(12%)or, if less, the maximum rate permitted by law.
C. Insurance.
Boeing, at Boeing's own cost and expense,will provide and keep in full force and
effect during the Term, commercial general liability insurance with limits of not
less than$1,000,000 covering bodily injury to any person, including death, and
loss of or damage to real and personal property,or shall self-insure for the same.
Insurance provided hereunder may be provided under Boeing's blanket liability
insurance policy. During the Term Renton shall be named as an additional
insured under insurance carried pursuant to this Section 7.0 to the extent of
Boeing's undertaking set forth in Section 7 and will provide to Renton a
memorandum evidencing such insurance.
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8. DEFAULT OF BOEING
The following shall constitute events of default by Boeing:
(a) Boeing's failure to maintain in force or pay the premium for any
policy of insurance required to be obtained or maintained by Boeing
pursuant to this Agreement;or
(b) Any default by Boeing of its obligations under Section 5
(Environmental.Matters); or
(c) Boeing's failure to observe and perform any other provision,term
or condition in this Agreement within four(4) hours after Renton delivers
written notice of the failure to Boeing,or immediately after Renton
delivers written notice of the failure to Boeing if Renton deems the failure
an imminent risk to public health or safety.
9. REMEDIES OF RENTON
A. Termination and Removal by Renton.
In the event of a Boeing default, Renton may in addition to all other legal or
equitable remedies, (a)terminate this Agreement by delivering written notice of
termination to Boeing,and that action shall concurrently terminate any rights of
Boeing under this Agreement and release Renton from its enforcement
forbearance under this Agreement,or(b)with or without terminating this
Agreement, enter the Property,and by any lawful manner,remove Boeing.
B. Liquidated Damages.
Boeing acknowledges that any occupancy by Boeing of the Property after the
termination of this Agreement will cause Renton to incur substantial economic
damages and losses of types and in amounts which are impossible to compute and
ascertain with certainty as a basis for recovery by Renton of actual damages, and
that liquidated damages represent a fair,reasonable and appropriate estimate
thereof. Accordingly, in lieu of actual damages, Boeing agrees that liquidated
damages may be assessed and recovered by Renton as against Boeing, in the
event that Boeing continues to occupy the Property after the termination of this
Agreement and without Renton being required to present any evidence of the
amount or character of actual damages sustained by reason thereof; therefore
Boeing shall be liable to Renton for payment of liquidated damages in the amount
of Eight Thousand Dollars($8,000) for each day that Boeing occupies the
Property atter the termination of this Agreement. Such liquidated damages are
intended to represent estimated actual damages and are not intended as a penalty
Renton Municipal Airport The Boeing Company—Indemnification Agicement
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C. Remedies Cumulative.
Each right and remedy provided for in this Agreement shall be cumulative and
shall be in addition to every other right or remedy provided for in this Agreement
or now or hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by either party of any one or more of the
rights or remedies provided for in this Agreement or now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude the simultaneous or
later exercise by such party of any or all other rights or remedies provided for in
this Agreement or now or hereafter existing at law or in equity or by statute or
otherwise.
10. NO WAIVER
No failure by either party to insist upon the strict performance of any agreement, term,
covenant or condition hereof or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance of full or partial rent by Renton during the continuance of any
such breach,shall constitute a waiver of any such breach or of such agreement, term,
covenant,or condition. No agreement, term, covenant, or condition hereof to be
performed or complied with by either party, and no breach thereof, shall be waived,
altered or modified except by a written instrument executed by the parties. No waiver of
any breach shall affect or alter this Agreement, but each and every agreement, term,
covenant and condition hereof shall continue in full force and effect with respect to any
other then existing or subsequent breach thereof.
11. MISCELLANEOUS
A. Successors and Assigns.
Subject to the provisions of this Section 11, all of the provisions of this
Agreement shall bind and inure to the benefit of the parties and their respective
heirs, legal representatives,successors and assigns,but Boeing shall not assign
this Agreement in whole or in part without the prior written consent of Renton,
which Renton may withhold in its sole discretion.
B. Notices.
Where provision is made herein for notice of any kind, it shall be deemed
sufficient, if such notice is addressed as shown below:
Renton: Airport Manager
Renton Municipal Airport
616 West Perimeter Road, Unit A
Renton, Washington 98057
Renton Municipal Airport—The Boeing Company—Indemnification Agreement
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Boeing: The Boeing Company
c/o MBG Consulting, Inc.
Boeing Lease Administration Team
980 N. Michigan Avenue, Suite 1000
Chicago. IL 6061 1-4521
All such notices shall be given either by hand or by recognized overnight delivery
service,with all fees for next business day delivery prepaid. Notices shall be
deemed given when delivered if given by hand or 24 hours after delivery to an
overnight delivery service with next business day delivery charges prepaid.
Formal notice may be accompanied by a courtesy notice delivered via telephone
call or electronic mail.
C. Severability.
If a court of competent jurisdiction shall determine, to any extent, that any
provision, term or condition of this Agreement shall be invalid or unenforceable,
that determination shall not affect the remainder of this Agreement,and each
provision, term or condition in the remainder of this Agreement shall be valid and
enforceable to the extent permitted by law.
D. No Interest in Property.
Boeing agrees that it has no right in the Property and that none is created by this
Agreement.
E. Attorneys' Fees and Disbursements.
Except for actions by Rcnton pursuant to Section 9 of this Agreement upon a
default by Boeing and except for Boeing's indemnification obligations under
Section 7 of this Agreement, if a dispute between Renton and Boeing arises under
this Agreement, each party shall bear its own costs, including but not limited to
attorneys' fees.
F. Captions.
The marginal headings or titles to the sections of this Agreement are not a part of
the Agreement but are inserted only for convenience. They shall have no effect
on the construction or interpretation of any part of this Agreement.
G. Time is of the Essence.
Time is of the essence in the performance of all covenants and conditions of this
Agreement in which time is a factor.
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H. Counterparts. •
This Agreement may be executed in any number of counterparts, each of which
when executed and delivered shall constitute an original Agreement, but all of
which together shall constitute one and the same Agreement.
1. Choice of.Law.
This Agreement shall be governed by the Laws of the State of Washington,
without reference to its choice of law rules.
J. No Recording.
Neither party shall record this Agreement.nor any memorandum of this
Agreement.
K. Survival.
Boeing's indemnification obligations set forth in this Agreement shall survive the
expiration or early termination of this Agreement and shall not be limited by any
provision of this Agreement.
L. Complete Agreement.
This Agreement, including Exhibit A,contains the entire and complete agreement
between the parties hereto,with all previous negotiations,warranties, covenants.
conditions and promises being merged herein. Renton and Boeing further agree
that no alteration,amendment or modification to this Agreement shall be binding
upon Renton or Boeing unless same is first reduced to writing and signed by both
Rcnton and Boeing.
M. Effective Date.
This Agreement shall take effect on the date signed last signed below by the
parties(the"Effective Date").
N. Renton City Council Ratification.
The parties agree that this Agreement responds to an emergency situation causing
Renton to have executed this Agreement prior to review by the Rcnton City
Council. Accordingly, this Agreement is subject to Renton City Council
consideration, and Renton will present the Agreement to the Renton City Council
at its first availability after the Execution Date. If the Renton City Council
considers the Agreement and does not ratify it, then the Agreement will
automatically terminate with no liability or further obligation arising on the part
of Renton.
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Executed by the parties.
The Boeing Company The City of Renton
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Banton MuneopaI Airport The Boeing CompanN --Intlemnfication Agi erment
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EXHIBIT A
Renton Municipal Ai port—The Boeing Company—indemnification Agrcement
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