Loading...
HomeMy WebLinkAboutContractCAG-18-277 LICENSE AGREEMENT THIS LICENSE AGREEMENT ("License"), is made and entered into this 18th day of December, 2018, by and between The Boeing Company, a Delaware corporation ("Licensor"), and City of Renton, a Washington municipal corporation -("Licensee"). 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. THE LICENSE Licensor does hereby grant to Licensee a non-exclusive license to use, subject to the terms and conditions of this License a portion of the real property commonly known as 757th Avenue and depicted or described in Exhibit A (the "Licensed Property"), such property to be used by Licensee solely for the purposes described in Section 2 of this License. This License does not constitute an interest in real property, and Licensor shall not be deemed to have granted, conveyed, or transferred an interest in the Property to Licensee by reason of the execution and delivery of this License or the performance by either party of its obligations under this License. Licensee hereby accepts this License and agrees that Licensee's use of the Licensed Property shall conform to the terms and conditions of this License. The license granted by this License is personal to Licensee and may not be assigned or sublicensed by Licensee in any way. Licensee shall not grant permission to any other person or entity to use the Licensed Property. 2. USE Licensee shall use the Licensed Property solely for subsurface geotechnical testing, subject to the following limitations: (a) Licensee shall use the Licensed Property in common with Licensor and all other licensees and tenants of Licensor. (b) Licensee shall exercise all reasonable efforts to assure any activities on the Licensed Property pursuant to this License shall not result in any damage or injury to the Licensed Property. Licensee shall be responsible for any damage arising from the activity of Licensee on the Licensed Property in the exercise of the rights of Licensee hereunder, and shall repair such damage or, in lieu thereof if mutually agreed by Licensor and Licensee, make a cash settlement therefor. (c) Licensee shall not make any improvements or alterations to the Licensed Property. Licensee shall hold Licensor and the Licensed WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page I of 14 (c) Licensee shall not make any improvements or alterations to the Licensed Property. Licensee shall hold Licensor and the Licensed 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 Licensee at the Licensed Property. At the request of Licensor, Licensee shall discharge any such liens. (d) In its use of the Licensed Property, the Licensee shall not violate any applicable law, ordinance, deed, restriction or regulation affecting the Licensed Property or any part thereof. Licensee 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 Licensed Property strictly in conformance with all requirements of any applicable permits, licenses, and approvals. (e) Licensee has been advised by Licensor that the following activities are among those prohibited on Licensor's property, including the Licensed 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. Licensee shall take such steps to enforce such prohibitions as Licensor shall reasonably request from time to time. (0 The Licensee will provide Licensor with its detailed boring plans and specifications, allowing at least one (1) week for Licensor review of any documents submitted. Among various items considered, the boring plan and specifications will address locations of existing utilities, hydrogeologic drawdown, known contamination, excavation size, and site remediation. The Licensee will comply with any internal notification processes required by Licensor. The Licensee will coordinate with BNSF regarding access to property owned or controlled by BNSF. The Licensee will work with Licensor to provide pre ❑ construction and post ❑ construction photographs of the Licensed Property. The Licensee will be responsible for addressing any hazardous material releases associated with or caused by their presence on the site, and must provide Boeing immediate notification of any hazardous material spills, as well as response actions taken. The Licensee will be responsible for managing and appropriately disposing of all investigative -derived waste (IDW), including soil and wastewater, by re -filling holes with the soil removed during borings to the extent possible, and otherwise disposing of all wastewater and any excess soil off -site. Off -site disposal of wastewater and any excess soil by Licensee or a Licensee contractor is subject to Boeing approval for profiling of the materials to be disposed and the disposal facility that will receive such materials. The Licensee will provide Boeing a copy of any analytical data or reports generated by the geotechnical well sampling, including any data generated for the purpose WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 2 of 14 of waste profiling prior to disposal. The Licensee is prohibited from discharging any wastewater on Licensor's property. For groundwater monitoring well(s) that will remain on Licensor's property for the duration of this License period, Licensee must maintain a lock on the well, and the well must remain closed when not being actively accessed by the Licensee. At the conclusion of Licensee's groundwater monitoring work, the Licensee must decommission the well in accordance with all applicable regulatory requirements and provide documentation of such to Boeing. (g) Licensee may erect signs or barricades on the Licensed Property only with the prior written consent of Licensor, which Licensor may withhold in its sole discretion. Any signs or barricades allowed by Licensor shall be removed by Licensee at the termination of this License. (h) Licensee will not conduct any fueling, maintenance, or repair activity of any kind on any vehicles or other equipment on the Licensed Property. Licensee will not conduct any washing or cleaning of vehicles or any other equipment on the Licensed Property. (i) The Licensee shall give Licensor no less than forty-eight (48) hours advance notice prior to entry upon Licensor's property. The Licensee shall exercise all reasonable efforts to assure any activities on Licensor's property pursuant to this Agreement shall not result in any damage or injury to such property. Further, the Licensee at its own cost and expense shall repair and restore the Licensed Property to its condition immediately prior to Licensee entry. The Licensee shall accomplish said work with as little inconvenience to Licensor as is possible. If the Licensee believes that it must enter a secured area of the Licensor's property (including any areas that are within a fence line) in order to perform work under this License, Licensee shall so advise Licensor. The personnel entering any such secured area shall comply with the Licensor's security requirements, including requirements relating to identification, citizenship, badging, and escort, as may be in effect from time to time. 0) The Licensee's work shall be subject to compliance with rules, restrictions and conditions imposed by Licensor in its sole discretion, including but not limited to work scheduling to avoid high traffic periods, providing traffic control flaggers, maintaining at least one lane of traffic each direction at Gate D9, and use of air or water jet drilling equipment (no auger drilling allowed). 3. TERM WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 3 of 14 This License shall commence December 20, 2018 (the "Commencement Date") and shall continue (unless sooner terminated pursuant to this License) until April 31, 2020. The date on which this License shall terminate is referred to here as the "Termination Date" and the period of time commencing on the Commencement Date and ending on the Termination Date is referred to here as the "Term". Either party may terminate this License 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. 4. LICENSE FEE The License is granted without charge. 5. SERVICES AND UTILITIES Licensor shall have no responsibility to provide any services or utilities to the Licensed Property. Licensee is responsible, at its sole risk and expense, to supply all services in connection with Licensee's use of the Licensed Property. Licensee shall pay when due all charges for utilities and other services provided to or on behalf of Licensee at the Licensed Property. 6. CONDITION; "AS IS"; DISCLAIMER 6.1 Warranty. Licensor warrants that it is the owner or lessee of the Licensed Property and that Licensor has the power and right to grant the License hereunder to Licensee. 6.2.1 DISCLAIMER AND RELEASE. EXCEPT FOR THE WARRANTY IN PARAGRAPH 6.1, THE LICENSED PROPERTY, AND ALL OTHER GOODS OR SERVICES PROVIDED OR TO BE PROVIDED IN CONNECTION WITH THIS CONTRACT ARE BEING PROVIDED TO THE LICENSEE "AS IS, WHERE IS" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. 6.2.2 EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. NEITHER LICENSOR NOR ANY LICENSOR PARTY (DEFINED IN SECTION 6.5) SHALL HAVE ANY OBLIGATION OR LIABILITY TO LICENSEE, 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. 6.3 Waiver of Claims for Damage to Licensee's Property. Without limiting the generality of any other provision of this Article 6, Licensee does hereby release Licensor and any Licensor Party from, and waive, Licensee'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 WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 4 of 14 located on the Licensed Property, or the Boeing Renton, Washington plant site, whether or not such loss or damage is due to the negligence of Licensor, any Licensor Party, or their respective agents, employees, guests, licensees, invitees or contractors. 6.4 Waiver of Subrogation. Licensee shall cause its insurance carriers to waive all rights of subrogation against Licensor to the extent of Licensee's undertakings set out in this Article 6. 6.5 Definition. "Licensor Party" means The Boeing Company, a Delaware corporation, any entity owned or controlled by The Boeing Company, and any director, officer, employee, agent, contractor, or invitee of any of the foregoing (other than Licensee, its directors, officers, employees, agents, contractors, and invitees) and their successors and assigns. 7. MAINTENANCE Licensee, at Licensee's sole cost and expense, shall be responsible throughout the Term for preventing damage to the Licensed Property as a result of the use of the Licensed Property by Licensee. LICENSOR'S ACCESS Licensor shall have the continuing right of access to the Licensed Property PROVIDED that Licensor shall not interfere with Licensee's use of the property, so long as Licensee is not in default hereunder. 9. CONDITION AT SURRENDER At the termination of the Term of this License, Licensee shall surrender the Licensed Property to Licensor in the same condition as at the Commencement Date, including replacing all underground utilities, excepting normal wear and tear, casualty, condemnation, and alterations permitted by Licensor, and damage caused by other tenants or licensees of Licensor. 10. INDEMNIFICATION AND INSURANCE A. Indemnity. Licensee will indemnify, defend, and hold harmless, Licensor and every Licensor Party (as defined in Section 6.5) (hereinafter "Indemnitees") from and against all actions, causes of action, liabilities, claims, suits, penalties, fines, judgments, liens, awards and damages of any kind whatsoever (hereinafter "Claims"), for injury to or death of any person (including without limitation claims brought by employees or invitees of Licensee or employees or invitees of any Contractor of Licensee (hereinafter "Contractor")) or damage to or loss of any property or clean up of any discharge or release by Licensee or any Contractor, and expenses, costs WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 5 of 14 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 License or the presence on the Licensed Property by Licensee, any Contractor or their respective employees or invitees. Licensee 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 Licensee is successful in proving that the foregoing indemnity is limited by RCW 4.24.115, Licensee shall defend, indemnify and hold harmless the Indemnitees to the full extent allowed by RCW 4.24.115. In no event shall Licensee's obligations hereunder be limited to the extent of any insurance available to or provided by Licensee. Licensee shall require each Contractor who desires access to the Licensed Property to provide an indemnity, enforceable by and for the benefit of the Indemnitees, to the same extent required of the Licensee. Nothing in this Section 10.A is intended to require Licensee to indemnify, defend, or hold harmless for any Claims to the extent they arise out of the negligence or willful misconduct of any Licensor Party. B Licensee shall ensure that any Contractor carries and maintains during the Term of this License, Commercial General Liability Insurance with available limits of not less than One Million Dollars ($1,000,000) per occurrence for bodily injury, including death, and property damage combined, One Million Dollars ($1,000,000) general aggregate. Such insurance shall be in a form and with insurers acceptable to Licensor and shall contain coverage for all premises and operations, broad form property damage and contractual liability (including without limitation that specifically assumed herein). Any policy which provides the insurance required under this paragraph shall: (a) be endorsed to name The Boeing Company and its subsidiaries and their respective directors, officers, employees, agents, attorneys and assigns" as additional insureds (hereinafter "Additional Insured") with respect to any liability arising out of Licensee's presence on the Licensed Property, (b) be endorsed to be primary to any insurance maintained by The Boeing Company, (c) contain a severability of interest provision in favor of the Additional Insured and (d) contain a waiver of any rights of subrogation against the Additional Insured. A certificate evidencing such insurance coverage shall be delivered to Licensor not less than fifteen (15) days prior to the commencement of the Term. Such certificate of insurance will provide for fifteen (15) days advance notice in the event of cancellation. If licensed vehicles will be used in connection with this License, Licensee shall ensure that any Contractor who uses licensed vehicles in connection with this License carries and maintains, Automobile Liability insurance covering all vehicles, whether owned, hired, rented, borrowed or otherwise, with limits of liability of not less than One Million Dollars ($1,000,000) per occurrence combined single limit for bodily injury and property damage. WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 6 of 14 Licensee shall ensure that any Contractor covers or maintains, insurance in accordance with the applicable laws relating to workers' compensation, with respect to all of their respective employees working on or about the Licensed Property, regardless of whether such coverage of insurance is mandatory or merely elective under the law. 11. GOVERNMENTAL IMMUNITY. Licensee hereby waives any governmental immunity it may otherwise have with respect to any claims, liabilities, or obligations pursuant to or arising out of this License. 12. ENVIRONMENTAL MATTERS A. Definitions. As used herein, 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 herein 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 Paragraph 12 (B) above), ordinances, rules, regulations and/or common law relating to environmental protection, contamination, the release, generation, production, transport, treatment, processing, use, disposal, or 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 Licensed Property. B. Compliance with Laws and Requirements. Except as otherwise agreed by Licensor in writing, Licensee 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. Licensee shall comply with any and all Environmental Laws and Requirements WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 7 of 14 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 Licensed 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 Licensor, or any other person. Licensee shall not release any Hazardous Substances into the soil, water (including groundwater) or air of the Licensed Property or 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 Licensor or any other person. In the event of a spill or other release of Hazardous Substances caused by Licensee, its agents, employees, contractors or invitees at or from the Licensed Property, Licensee shall undertake immediate response as required by law, including but not limited to reporting to appropriate agencies, and shall notify Licensor of same as soon as possible. C. Indemnification. Licensee shall indemnify, hold harmless, and defend Licensor, 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 Licensee, its agents, employees, contractors and invitees at any time during the term of this License, including but not limited to: (1) 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 Licensor of any injunctive relief, including preliminary or temporary injunctive relief, applicable to the Licensor or the Licensed 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 Licensee when accrued. 13. DEFAULT OF LICENSEE The following shall constitute events of default by Licensee: (a) Licensee's failure to maintain in force or pay the premium for any policy of insurance required to be obtained or maintained by Licensee pursuant to this License; or (b) Any default by Licensee of its obligations under Section 12 (Environmental Matters); or WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 8 of 14 (c) Licensee's failure to observe and perform any other provision, term or condition in this License within thirty (30) days after Licensor delivers written notice of the failure to Licensee, or if the cure cannot reasonably be concluded within thirty (30) days, then if Licensee fails to commence to cure the failure within such thirty (30) day period and thereafter proceed diligently to complete the cure. 14. REMEDIES OF LICENSOR A. Termination and Removal by Licensor. In the event of a Licensee default, Licensor may in addition to all other legal or equitable remedies, (a) terminate this License and Licensee's right to possession of the Licensed Property by delivering written notice of termination to Licensee, and that action shall concurrently terminate the rights of Licensee under this License, or (b) with or without terminating this License, re-enter the Licensed Property by summary proceedings, proceedings in unlawful detainer, eviction, or otherwise, and may dispossess Licensee. B. Payment of Costs. Licensee agrees to be liable for and to pay Licensor all costs incurred by Licensor in connection with the enforcement of Licensor's rights hereunder, including the reasonable fees and disbursements of Licensor's attorneys. Such liability shall survive the termination of this License, the re-entry into the Licensed Property by Licensor, and the commencement of the action to secure possession of the Licensed Property. All amounts not paid to Licensor when due shall) bear interest at the annual rate of twelve percent (12%) or, if less, the maximum rate permitted by law. 15. ENFORCEMENT A. Nonwaiver. 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 Licensor 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 License, 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. WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 9 of 14 B. Remedies Cumulative. Each right and remedy provided for in this License shall be cumulative and shall be in addition to every other right or remedy provided for in this License 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 License 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 License or now or hereafter existing at law or in equity or by statute or otherwise. 16. MISCELLANEOUS A. Successors and Assigns. Subject to the provisions of this Paragraph 16, all of the provisions of this License shall bind and inure to the benefit of the parties and their respective heirs, legal representatives, successors and assigns, but Licensee shall not assign this License nor grant any right of possession of the Licensed Property in whole or in part without the prior written consent of Licensor, which Licensor 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: Licensor: The Boeing Company c/o MBG Consulting, Inc. Boeing Lease Administration Team 980 N. Michigan Avenue, Suite 1000 Chicago, IL 60611-4521 Licensee: City of Renton Renton City Hall 1055 South Grady Way Renton, WA 98057 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. WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 10 of 14 C. Severability. If a court of competent jurisdiction shall determine, to any extent, that any provision, term or condition of this License shall be invalid or unenforceable, that determination shall not affect the remainder of this License, and each provision, term or condition in the remainder of this License shall be valid and enforceable to the extent permitted by law. D. Licensee's Interest; Holdover. Licensee has no right in the Licensed Property other than the license to use the Licensed Property as set out in this License. Licensee has no right to hold over after the end of the Term and agrees that Licensor may use all legal means to remove Licensee and its property and all Licensee Vehicles from the Licensed Property at and following the end of the Term, and that Licensee shall reimburse Licensor for all of Licensor's reasonable out-of-pocket expenses in so doing. E. Attorneys' Fees and Disbursements. Except for actions by Licensor pursuant to Paragraph 14 of this License upon a default by Licensee, if a dispute between Licensor and Licensee arises under this License, 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 License are not a part of the License but are inserted only for convenience. They shall have no effect on the construction or interpretation of any part of this License. G. Time is of the Essence. Time is of the essence in the performance of all covenants and conditions of this License in which time is a factor. H. Counterparts. This License may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original License, but all of which together shall constitute one and the same License. I. Choice of Law. This License shall be governed by the Laws of the State of Washington, without reference to its choice of law rules. WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 11 of 14 J. Agents and Brokers. Each party represents that it has hired or retained no agent or broker in connection with this License and shall hold the other party harmless from any claim by any agent or broker claiming payment of any commission, finders' fee or the like in connection with this License. K. No Recording. Neither party shall record this License, nor any memorandum of this License. L. Survival. Licensee's indemnification obligations set forth in this License shall survive the expiration or early termination of this License and shall not be limited by any provision of this License. M. Complete Agreement. This License, 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. Licensor and Licensee further agree that no alteration, amendment or modification to this License shall be binding upon Licensor or Licensee unless same is first reduced to writing and signed by both Licensor and Licensee. WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 12 of 14 Executed in duplicate as of the date first written above. LICENSOR: The Boeing Company By: �Q_IZMR_ I W LICENSEE: The City of Renton 1 Title: Public Works Administrator WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 13 of 14 EXHIBIT A Licensed Property Outlined in Red WA-RTNLND-LIC (City of Renton) Park Ave Geotech License 20181213 Page 14 of 14