HomeMy WebLinkAboutKISS N RIDE
KISS N RIDE EASEMENT AND LICENSE AGREEMENT
THIS AGREEMENT is made as of the 23f('iklay of ]tic y ,2004 by and
between KITSAP COMMUNITY FEDERAL CREDIT UNION ("Grantor"), and
KITSAP TRANSIT ("Transit"), a Washington Municipal Corporation and CITY OF
BREMERTON ("City"), a Municipal Corporation. Collectively, Transit and the City
shall be referred to as Grantees.
1. Easement And License Grant. For good and valuable consideration, the receipt
and sufficiency of which is acknowledged, Grantor grants, conveys and warrants
to Grantees a perpetual easement and license (the "Easement") on that portion of
Grantor's Property (the "Easement Area") described in Section 2 below for the
purposes set forth in Section 3.
2. Easement Area. The Easement Area consists of the following:
a. Exclusive Area. That portion of Grantor's Property that extends 2 feet
below and 12'6" above the existing surface of the Property described in
Exhibit 1 (hereinafter, the "Exclusive Area"); and
b. Common Areas. That portion of Grantor's Property described in Exhibit 2
(hereinafter, the "Common Areas").
3. Purposes.
3.1 Exclusive Area. Grantees shall have the right to use, maintain, improve
and enjoy the Exclusive Area for vehicular passenger loading, unloading
and waiting. It is the parties intent that the Exclusive Area be used by the
public to drop off and pick up ferry passengers. Hereafter, such use shall
be referred to as "Kiss N Ride Use". However, subject to the provisions
of Sections 8 and 9, the Grantees may use the Exclusive Area for any
lawful use.
3.2 Common Areas. Grantees shall have the right to use the Common Areas
in common with Grantor for vehicular and pedestrian ingress and egress.
4. Title Warranties. In conveying the Easement, it is intended that Grantor is
providing all the title warranties encompassed within a statutory warranty deed
under Washington law, subject only to the Permitted Title Exceptions set forth in
Exhibit 3. Subject to the terms of this Agreement, Grantees shall have the full use
and quiet enjoyment of the Exclusive Area and maintain exclusive control,
dominion and possession thereof.
5. Grantor's Reserved Rights/Restrictions. Grantor has constructed (or is
constructing) a subsurface parking garage below the Exclusive Area and Common
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Area and reserves all subsurface rights associated with the maintenance,
operation, repair and improvement of the underground parking garage, provided,
in exercising and using its subsurface rights, Grantor shall not interfere with or
impair Grantees' right to use, enjoy and maintain the surface area of the Easement
Area for the purposes set forth in Section 3, or undertake or suffer any act, event
or activity that would damage any improvement on the Exclusive Area. It is
contemplated that Grantees may install underground utilities or other
improvements below the existing surface of the Exclusive Area; however,
Grantees shall make no subsurface improvements or undertake any activities that
would damage, disrupt, impair or interfere with Grantor's underground parking
garage.
Excluding lighting poles, Grantee shall not have the right to erect, construct, place
or maintain any improvement, object or structure on or over the Exclusive Area
that exceeds 12 feet 6 inches in height as measured from the existing completed
and constructed "as built" grade level of the Exclusive Area.
Above the Exclusive Area, Grantor reserves all air rights, including the right to
construct improvements, so long as such improvements are not constructed or
used in a manner that would pose a material risk of damage, injury, disruption,
impairment or interferment with Grantee's use and enjoyment of the Exclusive
Area.
6. Maintenance. That portion of the Grantor's Property described in Exhibit 4 shall
hereafter be referred to as the "Maintenance Area". The Maintenance Area
includes the Exclusive Area, the Common Areas and surface level parking area
associated with an office building on Grantor's Property. The Maintenance Area
excludes Grantor's underground parking garage. So long as the Maintenance
Area is used for vehicular and pedestrian parking, ingress and egress, loading,
unloading, holding and/or waiting, the Maintenance Area shall be maintained by
the parties in accordance with the Maintenance Standards set forth in Section 7 in
the following shares:
KCFCU:
Transit:
City:
50%
25%
25%
7. Maintenance Standards. The Maintenance Area shall be maintained in
accordance with the following:
a. The surface of all vehicular parking areas and drive aisles shall be
maintained with asphalt or concrete, kept free of pot holes, debris and
obstructions, and periodically sealed, re-stripped and/or resurfaced so as to
keep these areas in a professionally clean, neat, attractive and damage-free
condition.
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b. Sidewalks, curbs and gutters shall be concrete and kept in a professionally
clean, neat, attractive and damage-free condition and to the standards of
the City.
c. Sidewalks, parking areas and drive aisles shall be kept free of litter, debris,
snow and ice.
d. Landscaping planters shall be maintained and all vegetation properly
watered, trimmed, weeded, thinned, pruned and maintained in an attractive
appearance.
8. Grantor's Re-Purchase/Extinguishment Rights.
8.1 When A vailable. In the event Grantees propose to convert the use of the
Exclusive Area to a use or purpose other than Kiss N Ride Use (the
"Changed Use"), Grantees shall provide written notice to Grantor (the
"Conversion Notice"). The Conversion Notice shall specify the proposed
Changed Use. For a period of 45 days from the date of Grantees'
Conversion Notice, Grantor shall have the right to re-purchase Grantees'
Easement, terminate this Agreement and extinguish all of Grantees' rights
hereunder in accordance with the provisions of this Section 8, by
transmitting written notice (the "Purchase Notice") to Grantees. In the
event Grantor fails to timely transmit the Purchase Notice, grantees shall
have the right to use the Exclusive Area for the Changed Use specified in
the Conversion Notice (and continue to use the Common Areas for the
purposes described in Section 3.2).
8.2 Purchase Price. Grantor's Purchase Notice shall specify a proposed
purchase price. Grantees shall have 30 days from the Purchase Notice to
accept Grantor's proposed purchase price or elect to cause the purchase
price to be established by independent appraisal by transmitting written
notice (the "Response Notice") to Grantor. If Grantees fail to timely
transmit a Response Notice, Grantees shall be deemed to have accepted
Grantor's proposed purchase price.
8.3 Appraisal. If Grantees have timely transmitted a Response Notice
requesting an appraisal, the property shall be appraised by an MAl
appraisal. If the parties are unable to agree on an appraiser, Grantor, the
City and Transit shall each designate an MAl Appraiser and the three
appraisers shall establish the purchase price. The decision of a majority of
said three appraisers shall be binding on the parties.
8.4 Closing. Not later than 30 days after the Purchase Price has been
established, Grantor shall pay the Purchase Price to Grantees, in cash.
Concurrently therewith, Grantees shall execute an Easement
Extinguishment document in a recordable form designated by Grantor's
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title insurer fully terminating this Agreement and extinguishing Grantees'
rights hereunder.
8.5 Miscellaneous. In the event Grantor fails to exercise its re-purchase rights
under this Section 8, as to the Changed Use specified in the Conversion
Notice, Grantor's re-purchase rights shall continue as to any other
subsequent proposed Changed Use.
9. Grantor's Right Of First Refusal. In the event Grantees propose to sell Grantee's
Easements right for any valuable consideration and receive a bona fide offer for
the purchase thereof (the "Purchase Offer") from any third party (the "Intended
Purchaser"), before accepting such offer, Grantees shall provide written notice
(the "Offer Notice") to Grantor, together with a copy of the Intended Purchaser's
Purchase Offer. For a period of 20 days from the date of the Offer Notice,
Grantor shall have the exclusive right to purchase Grantees' Easement rights for
the price and on the terms set forth in the Intended Purchaser's Purchase Offer, by
transmitting written notice (the "Acceptance Notice") to Grantees. In the event
Grantor fails to timely transmit the Acceptance Notice, Grantees shall be free to
accept the Intended Purchaser's Purchase Offer and consummate the sale of
Grantee's Easement rights on the terms of or substantially equivalent terms of
such Purchase Offer, in which case, the provisions of Sections 8 and 9 of this
Agreement shall automatically terminate. In the event, however, such proposed
sale by Grantee to such Intended Purchaser is not actually consummated,
Grantor's first refusal rights shall continue as to any new Purchase Offer from any
Intended Purchaser.
In the event Grantor timely transmits the Acceptance Notice, Grantor shall
promptly purchase Grantees' Easement rights on the terms and within the time set
forth in the Intended Purchaser's Purchase Offer.
The provisions of this Section 9 do not apply as to a transfer solely between the
City and Transit to each other, or to Grantees' transfer to another unit of
government.
10. Indemnification Obligations.
10.1 By Grantor. Grantor shall save, defend, indemnify and hold Grantees
harmless from all damages, liabilities, obligations, claims and demands
pertaining to or arising from Grantor's ownership, maintenance, use and
operation of all of Grantor's Property and the conduct of Grantor's
business thereon, excluding Grantees' use of and/or exercise of Grantee's
Easement rights.
10.2 By Grantees. Grantees shall save, defend, indemnify and hold Grantor
harmless from all damages, liabilities, obligations, claims and demands
pertaining to or arising from Grantees use of or exercise of Grantees'
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Easement rights, unless caused by Grantor or its agents, employees or
customers.
11. No Public Dedication. The transaction set forth in this Agreement is intended to
operate as a grant of an easement and license in accordance with the terms hereof
and is not intended as a public dedication.
12. Binding Effect. This Agreement shall bind and inure to the benefit of the parties
hereto and their respective legal representatives, successors and assigns. All the
provisions of this Agreement shall constitute running covenants that run with the
land.
13. Termination Or Transfer Of Interest. In the event this Agreement is terminated in
accordance with the provisions of this Agreement, neither party shall have further
obligations hereunder. In the event one party transfer its interests in this
Agreement to a third party, the transferring party shall be relieved of all further
obligations hereunder and the transferee shall assume all the obligations of the
transferor.
14. Arbitration. In the event any dispute arises under this Agreement, such dispute
shall be settled by binding arbitration. Such arbitration shall be before one
disinterested arbitrator if one can be agreed upon, otherwise before three
disinterested arbitrators, one named by Grantor and one by Grantees, and one by
the two thus chosen; provided, that if said two arbitrators cannot agree upon a
third arbitrator within 15 days, then said third arbitrator shall be appointed by the
Presiding Judge of Kitsap County Superior Court upon motion of either party. A
"disinterested arbitrator" shall be a person who shall not have a direct or indirect
financial interest in the decisions to be made by the board of arbitrators and who
shall not be an officer, director, employee or agent of any party. The arbitrator or
arbitrators shall determine the controversy in accordance with the laws of the
State of Washington as applied to the facts found by him, her or them, and in
accordance with the rules of Mandatory Arbitration Rules. If the arbitration is
conducted by a panel of three arbitrators, a majority decision of the three shall
constitute the binding final and conclusive award. All arbitration proceedings
hereunder shall be conducted in Kitsap County, Washington. The appointment of
arbitrators shall be signified in writing by each party to the other. If one party
shall fail to so appoint an arbitrator for a period of 15 days after written notice
from the other party to make such appointment, then the arbitrator appointed by
the party who has made such appointment shall serve as the arbitrator. The award
of the arbitrator or arbitrators shall be binding, final and conclusive on the parties,
and judgment on such award rendered in any court having jurisdiction thereof.
Fees of the arbitrator or arbitrators and the expenses incident to the proceeding
shall be borne one-half by Grantor and one-half by Grantees, provided the
substantially prevailing party in any such proceeding shall be entitled to an award
of and to recover its costs and expenses incurred, including reasonable attorney's
fees, and its share of the fees of the arbitrator(s).
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15. Notices. Any notices required in accordance with any of the provisions herein or
desired to be given hereunder to be given either party shall be delivered
personally or, if mailed, then mailed by registered or certified mail or via a
nationally recognized overnight delivery service and addressed to such party at
the address set forth below. Notices shall be deemed given when delivered, if
delivered personally, or three (3) business days after deposit in the United States
mail as set forth above.
KCFCU:
Kitsap Community Federal Credit Union
President
1025 Burwell Street
Bremerton, W A 98337
Fax #
Email:
Kitsap Transit:
Executive Director
Kitsap Transit
200 Charleston Blvd.
Bremerton, WA 98312
Fax #478-0140
Email: cathiekb@kitsaptransit.com
With Copy to:
General Counsel
Kitsap Transit
200 Charleston Blvd.
Bremerton, WA 98312
City of Bremerton:
Director of Economic Development
City of Bremerton
239 4th Street
Bremerton, W A 98337
Fax #473-5282
Email:gsexton@ci.bremerton.wa.us
With Copy to:
Bremerton City Attorney
239 4th Street
Bremerton, W A 98337
Fax #478-5161
Email:rlubovich@ci.bremerton.wa.us
16. Miscellaneous Provisions.
16.1 Corporate Authority. Each individual executing this Agreement on behalf
of said corporation, except for the Mayor of the City of Bremerton who's
signature is conditioned upon subsequent final acceptance and approval by
KISS N RIDE EASEMENT AND LICENSE AGREEMENT - Page 6 of 9
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the Bremerton City Council, represents and warrants that he is duly
authorized to execute and deliver this Agreement on behalf of said
corporation, in accordance with a duly adopted resolution of the board of
directors of said corporation authorizing and consenting to this
Agreement; authorizing the specific officers signing this Agreement to
execute, acknowledge and deliver the same without the consent of any
other officer or officers; resolving that such action and execution is in
accordance with the bylaws of said corporation; and resolving that this
Agreement is binding upon said corporation in accordance with its terms.
16.2 Choice Of Law. This Agreement shall be governed by the laws of the
State of Washington and in the event any action is instituted on account of
this Agreement, the venue of any such action shall lie exclusively in the
state Courts for Kitsap County, Washington.
16.3 Excluding the guaranty set forth in Section 7 of the Agreement For
Purchase Of Kiss N Ride Easement dated JulyZil;~004, this Agreement
contains all of the oral and written agreements and understandings,
correspondence, representations and statements of the parties hereto with
respect to the Easement, and no prior matters shall be effective for any
purpose. No provision of this Agreement may be amended or added to
except by an agreement in writing signed by the parties hereto or their
respective successors in interest. This Agreement shall not be effective or
binding on any party until fully executed by both parties hereto.
16.4 Partial Invalidity. If any term, covenant or condition of this Agreement or
the application thereof to any person or circumstance is, to any extent,
invalid or unenforceable, the remainder of this Agreement, or the
application of such term, covenant or condition to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or
condition of this Agreement shall be valid and be enforced to the fullest
extent permitted by law.
16.5 Negotiation; Representation And Construction. This Agreement and each
of its terms and provisions are deemed to have been explicitly negotiated
between the parties, and the language in all parts of this Agreement will,
in all cases, be construed according to its fair meaning and not strictly for
or against either party. Prior to signing this Agreement, each party was
represented by independent legal counsel.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of
the day and year first above set forth.
KCFCU
KISS N RIDE EASEMENT AND LICENSE AGREEMENT - Page 7 of 9
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U.'-'
,-;-/
Ili",/ /
By ~ewj c <-,/ \.
ELLIOT GREGG, Presi
KITSAP TRANSIT
cutive Director
CITY OF BREMERTON
Bye~
Its /JJ r}- 'J b~
")
STATE OF WASHINGTON)
: ss.
COUNTY OF KITSAP )
I hereby certify that I know or have satisfactory evidence that ELLIOT GREGG is
the person who appeared before me, and said person ackowledged that he signed this
instrument, on oath stated that he is authorized to execute the instrument and
acknowledged it as the President of KITSAP COMMUNITY FEDERAL CREDIT
UNION to be the free and voluntary act of such party for the uses and purposes
mentioned in this instrument.
Residing at:
My appointment expires:
Print Name
Dated:
'7-23- t)<f
STATE OF WASHINGTON)
: ss.
COUNTY OF KITSAP )
I hereby certify that I know or have satisfactory evidence that RICHARD HAYES
is the person who appeared before me, and said person acknowledged that he signed this
instrument, on oath stated that he is authorized to execute the instrument and
acknowledged it as the Executive Director of KITSAP TRANSIT to be the free and
KISS N RIDE EASEMENT AND LICENSE AGREEMENT - Page 8 of 9
(7-8-04) ,
, .
voluntary act of such party for the uses and purposes mentioned in this instrument.
& I
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Notary Pu. blic in and for the State of~~
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person who appeared before me, and said person acknowledged that hel e signed this
instrument, on oath st ed that helshe is authorized to execute the instrument and
acknowledged it as the of CITY OF BREMERTON to be the free and
voluntary act of such pa y t r the uses and purposes mentioned in this instrument.
Dated: ~I T3 h~LI
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STATE OF WASHINGTON)
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KISS N RIDE EASEMENT AND LICENSE AGREEMENT - Page 9 of 9
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Exhibits
Legal Description - Credit Union Property
* Exhibit 1 of Purchase Agreement
Site Plan
* Exhibit 2 of the Purchase Agreement
* Exhibits 1 and 2 of Easement Agreement
Title Exceptions - none
* Exhibit 3 of Purchase Agreement
* Exhibit 3 of Easement Agreement
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EXHIBIT 3
TITLE EXCEPTIONS
None
AGREEMENT FOR PURCHASE OF KISS N RIDE EASEMENT
THIS AGREEMENT is made as of the"2S tZOday of:}/-;{ L~ ' 2004 by and
between the City of Bremerton, a Municipal Corporation ("City"); SAP TRANSIT, a
Washington Municipal Corporation ("Transit") and KlTSAP COMMUNITY FEDERAL
CREDIT UNION ("KCFCU").
SECTION ONE
Recitals
1.1 KCFCU has acquired certain property (the "Property") located at the corner of
Washington Avenue and Second Avenue in Bremerton, legally described in
Exhibit 1 hereto, on which it intends to develop an office building and corporate
headquarters (the "KCFCU Project"). As part of the KCFCU Project, KCFCU
desires to build an underground parking garage beneath the Property and certain
ground level parking, landscaping and drive aisle improvements. As part of the
KCFCU Project, KCFCU has acquired certain abutting property, part of which it
will use to access KCFCU's underground parking garage.
1.2 KCFCU proposes to construct a portion of its proposed underground parking
garage below the south 12 feet of the Second Street right-of-way abutting the
Property, which portion shall hereafter be referred to as the Second Avenue
Subsurface Right-Of-Way and specifically means the area of land beginning 2
feet below the existing surface and extending 21 feet below the existing surface of
the portion of the Second Avenue right-of-way abutting and north of Lots 8
through 18 inclusive, Block 9, Town of Bremerton, according to Plat recorded in
Volume 2 of Plats, page 30, records of Kitsap County, Washington (the
"Property"), a distance of 12 feet 0 inches from the north boundary of the
Property.
1.3 City and Transit desire the right to use part of the Property for vehicular dropping
off and picking up ferry passengers, hereafter referred to as the "Kiss N Ride
Area". The "Kiss N Ride Area" is depicted on the rough site plan attached as
Exhibit 2.
1.4 KCFCU is, with the assistance of its architect, Rice, Fergus & Miller, and its
developer, Opus NW, LLC, designing a preliminary site plan (the "Preliminary
Plan") for the completion of the KCFCU Project which includes the
improvements to the Kiss N Ride Area necessary for use by City and Transit.
SECTION TWO
Substantive Terms
2.1 Preliminary Plans. Not later than June 30, 2004, KCFCU will deliver to Transit
and the City, for their review and approval, the Preliminary Plan for the
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completion of the KCFCU Project. The Preliminary Plan will identify the
approximate location of the Kiss N Ride Area and Improvements and the Second
Avenue Subsurface Easement. This Agreement is subject to the City's and ~~
Transit's written approval of the Preliminary Plan. If the City and Transit do not
provide such written approval byJuly 15,2004, this Agreement shall terminate. ....., ";
4c- Apf>J2..0YED X Q,Y lii'}:~t'
2.2 City Approvals. Not later than August 30, 2004, the City shall procure the written
approval of the City's City Council to the terms of this Agreement and lawfully
vacate the Second Avenue Subsurface Right-Of-Way. If such approvals (the
"Legislative Approvals") are not procured by said date, any party may terminate
this Agreement.
2.3 Final Plans. Once the City and Transit have approved the Preliminary Plan and
procured the Legislative Approvals in accordance with the provisions of Sections
2.1 and 2.2, KCFCU will, at its sole cost and expense, and with the assistance of
its Architect and Developer, prepare final plans and specifications (the "Final
Plans") for the completion of the KCFCU Project. KCFCU and its Architect and
Developer will (a) seek the input of the City and Transit to insure the Kiss N Ride
Area is properly designed to accommodate the long-term needs and uses of the
City and Transit for Kiss N Ride usage; and (b) seek the input of the City to
insure (i) the portion of the underground parking garage within the Second
Avenue Subsurface Right-Of-Way has been properly designed to avoid the risk of
damage to the surface improvements (the "Right of Way Surface Improvements")
KCFCU will construct over the Second Avenue Subsurface Right-Of-Way; and
(ii) the Right of Way Surface Improvements over the KCFCU Easement have
been properly designed in accordance with the Preliminary Plan and the City's
standards. The Final Plans will incorporate the intended Kiss N Ride Area
Improvements and Right of Way Surface Improvements in substantial
conformance with the Preliminary Plan and the requirements of the City and
Transit. The Final Plans will be subject to the review and approval of the City
and Transit, which approval will not be unreasonably withheld.
2.4 Permitting And Construction. Excluding the duties specifically allocated to the
City pursuant to Section 2.5, KCFCU will be solely responsible for (i) procuring
all building permits required for the construction and completion of the KCFCU
Project; and (ii) the timely construction and completion of the KCFCU Project,
including the Kiss N Ride Area Improvements and Right of Way Surface
Improvements in accordance with the Final Plans, all applicable building and
zoning codes and acceptable industry standards for good workmanship.
2.5 Clarification Of Certain Duties. KCFCU acknowledges that it is responsible for
the removal of the three (3) existing power poles on the Property at its expense.
The City agrees that it will construct or install, at the sole expense of the City,
new sidewalks, trees and lighting along W ashington Avenue. KCFCU agrees that
it will construct or install, at the sole expense of KCFCU, new sidewalks, trees
and lighting along Second Avenue. All such sidewalks, trees and lighting
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(collectively, the "Right-Of-Way Surface Improvements") will conform to the
City's standards and applicable building codes.
2.6 Vacation Of Second Avenue Subsurface Easement. Subject to the approval of the
Bremerton City Council, the City shall vacate the Second Avenue Subsurface
Right-Of-Way. The agreed value of the Second Avenue Subsurface Right-Of-
Way is $90,000.00, which shall be offset from the City's share of the purchase
price for the Kiss N Ride Easement. If KCFCU does not construct its proposed
underground parking garage, KCFCU will dedicate back to the City for right-of-
way the vacated area.
2.7 Completion Date. KCFCU shall fully complete the KCFCU Project, including
the Kiss N Ride Area Improvements and Right-Of-Way Surface Improvements
required of KCFCU pursuant to Section 2.5, not later than December 31,2005,
provided such completion date shall be extended by reason of unforeseen delays
not within the reasonable control of KCFCU. KCFCU and the City will
coordinate the concurrent completion ofthe Right-Of-Way Surface Improvements
required under Section 2.5 to insure the timely completion of the KCFCU Project.
2.8 Final Inspection. Once the KCFCU Project is substantially complete, the City and
Transit will mutually inspect the Kiss N Ride Area and Improvements to insure
the improvements comport with the Final Plans, applicable building codes and
industry standards. The City will inspect the Right of Way Surface Improvements
to insure such Improvements comport with the Final Plans, the construction
permits, applicable building codes and industry standards. In the event of any
nonconformity or deficiency, the City and Transit will develop a corrective punch
list and KCFCU shall, within thirty (30) days, correct any deficient work set forth
on the punch list.
2.9 Grant Of Kiss N Ride Easement And License; Payment.
2.9.1 Execution And Delivery Of Easement. Within thirty (30) days of the
completion of the KCFCU Project and Kiss N Ride Area Improvements in
accordance with this Agreement, KCFCU, the City and Transit shall
execute and deliver to Transit's Attorney the Kiss N Ride Easement And
License Agreement in the form attached as Exhibit 4.
2.9.2 Purchase Price And Deposit Of Funds. The agreed value of the Kiss N
Ride Easement is $450,000.00. This sum shall be payable by Transit and
the City in equal shares. Transit's share shall be paid in cash. The City's
share shall be paid as follows:
a. $90,000.00 by way of exchange offset for the City's prior vacation of
the Second Avenue Subsurface Right-Of-Way.
b. $135,000.00 payable in cash.
AGREEMENT FOR PURCHASE OF KISS N RIDE EASEMENT - Page 3 of 7
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Concurrently with KCFCU's execution and delivery of said Kiss N Ride
Easement And License Agreement, the City and Transit shall execute and
deliver to Transit's Attorney, checks made payable to KCFCU in the
principal sum of $135,000.00 and $225,000.00, respectively (the
"Funds"). At the City's sole option, the City's payment shall be made on
or before January 15,2005.
2.9.3 Title Clearance. On Transit's Attorney's receipt of the Kiss N Ride
Easement And License Agreement and Funds, Attorney shall procure a
final title policy (the "Title Policy") issued by Pacific Northwest Title
Insurance Company (the "Title Company") insuring the easement interest
of the City and Transit, subject only to the Permitted Title Exceptions
described in Exhibit 5 hereto.
2.9.4 Recording, Payment Of Excise Tax And Release Of Funds. Once the Title
Company issues clearance for the issuance of the title Policy, Attorney
shall cause the original Kiss N Ride Easement And License Agreement to
be recorded and release the Funds to KCFCU. The real estate excise tax
shall be paid by KCFCU. The City and Transit shall pay the title
premiums and recording fees in equal shares.
2.10 Guarantv And Correction Of Defective Work. KCFCU guarantees the Kiss N
Ride Area and Improvements and the Right of Way Surface Improvements will be
of good quality and in conformance with the provisions of this Agreement. For a
period of one (1) year from the recording of the Kiss N Ride Easement And
License Agreement, KCFCU warrants the Kiss N Ride Area Improvements and
Right of Way Surface Improvements will be free of defects (excluding damage
caused by Transit and/or the City and/or the public from causes other than normal
Kiss N Ride use) and such Improvements will be in conformance with the Final
Plans, applicable building codes and acceptable industry standards for good
workmanship. In the event of any non-conformity or deficiency, KCFCU shall
promptly repair or correct any non-conforming or deficient work. During this one
(1) year warranty period, KCFCU, Transit and the City will perform routine and
regular maintenance of the Kiss N Ride Area and Improvements in accordance
with the Maintenance provisions of the Kiss N Ride Easement And License
Agreement.
2.11 Arbitration. In the event any dispute arises under this Agreement, such dispute
shall be settled by binding arbitration. Such arbitration shall be before one
disinterested arbitrator if one can be agreed upon, otherwise before three
disinterested arbitrators, one named by KCFCU, one by the City and Transit, and
one by the two thus chosen; provided, that if said two arbitrators cannot agree
,upon a third arbitrator within fifteen (15) days, then said third arbitrator shall be
appointed by the presiding Judge of Kitsap County Superior Court upon motion of
either party. A "disinterested arbitrator" shall be a person who shall not have a
AGREEMENT FOR PURCHASE OF KISS N RIDE EASEMENT - Page 4 of 7
(7-8-04)
direct or indirect financial interest in the decisions to be made by the board of
arbitrators and who shall not be an officer, director, employee or agent of any
party. The arbitrator or arbitrators shall determine the controversy in accordance
with the laws of the State of Washington as applied to the facts found by him, her
or them, and in accordance with the rules of Mandatory Arbitration Rules. If the
arbitration is conducted by a panel of three arbitrators, a majority decision of the
three shall constitute the binding final and conclusive award. All arbitration
proceedings hereunder shall be conducted in Kitsap County, Washington. The
appointment of arbitrators shall be signified in writing by each party to the other.
If one party shall fail to so appoint an arbitrator for a period of fifteen (15) days
after written notice from the other party to make such appointment, then the
arbitrator appointed by the party who has made such appointment shall serve as
the arbitrator. The award of the arbitrator or arbitrators shall be binding, final and
conclusive on the parties. Fees of the arbitrator or arbitrators and the expenses
incident to the proceeding shall be borne one-half by KCFCU and one-half by the
City and Transit, provided the substantially prevailing party in any such
proceeding shall be entitled to an award of and to recover its costs and expenses
incurred, including reasonable attorney's fees, and its share of the fees of the
arbitrator(s).
2.12 Miscellaneous Provisions.
2.12.1 Successors Or Assigns. All the terms, conditions, covenants and
agreements of this Agreement shall extend to and be binding upon the
parties and their respective successors and assigns.
2.12.2 Corporate Authority. Each individual executing this Agreement on behalf
of said corporation, except for the Mayor of the City of Bremerton who's
signature is conditioned upon subsequent final acceptance and approval by the
Bremerton City Council, represents and warrants that he is duly authorized to
execute and deliver this Agreement on behalf of said corporation, in accordance
with a duly adopted resolution of the board of directors of said corporation
authorizing and consenting to this Agreement; authorizing the specific officers
signing this Agreement to execute, acknowledge and deliver the same without the
consent of any other officer or officers; resolving that such action and execution is
in accordance with the bylaws of said corporation; and resolving that this
Agreement is binding upon said corporation in accordance with its terms.
2.12.3 Choice Of Law. This Agreement shall be governed by the laws of the
State of Washington and in the event any action is instituted on account of
this Agreement, the venue of any such action shall lie exclusively in the
State Courts for Kitsap County, Washington.
AGREEMENT FOR PURCHASE OF KISS N RIDE EASEMENT - Page 5 of 7
(7 -8-04)
2.12.4 Prior Agreements. This Agreement contains all of the oral and written
agreements and understandings, correspondence, representations and
statements of the parties hereto with respect to the Kiss N Ride Area and
Improvements, and no prior matters shall be effective for any purpose. No
provision of this Agreement may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective
successors in interest. This Agreement shall not be effective or binding on
any party until fully executed by both parties hereto.
2.12.5 Partial Invalidity. If any term, covenant or condition of this Agreement or
the application thereof to any person or circumstance is, to any extent,
invalid or unenforceable, the remainder of this Agreement, or the
application of such term, covenant or condition to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or
condition of this Agreement shall be valid and be enforced to the fullest
extent permitted by law.
2.12.6 Notices. Any notices required in accordance with any of the provisions
herein or desired to be given hereunder to be given either party shall be
delivered personally or, if mailed, then mailed by registered or certified
mail or via a nationally recognized overnight delivery service and
addressed to such party at the address set forth below. Notices shall be
deemed given when delivered, if delivered personally, or three (3)
business days after deposit in the United States mail as set forth above.
KCFCU:
Kitsap Community Federal Credit Union
Elliot Gregg, President
1025 Burwell Street
Bremerton, W A 98337
Fax #
Email:
Kitsap Transit:
Richard Hayes, Executive Director
Kitsap Transit
200 Charleston Blvd.,
Bremerton, W A 98312
Fax #478-0140
Email: cathiekb@kitsaptransit.com
With Copy to:
Ronald C. Templeton
Matty & Templeton
3212 NW Byron Street #104
Silverdale, W A 98383
Fax #692-1257
Email: rctempleton@telebyte.com
AGREEMENT FOR PURCHASE OF KISS N RIDE EASEMENT - Page 6 of 7
(7 -8-04)
City of Bremerton:
Gary Sexton, Director of Economic
Development
City of Bremerton
239 4th Street
Brernerton, W A 98337
Fax #473-5282
Email: gsexton@ci.bremerton.wa.us
With Copy to:
Roger Lubovich
Bremerton City Attorney
239 4th Street
Brernerton, W A 98337
Fax #478-5161
Email:rlubovich@ci.brernerton.wa.us
2.12.7 Negotiation; Representation And Construction. This Agreement and each
of its terms and provisions are deemed to have been explicitly negotiated
between the parties, and the language in all parts of this Agreement will,
in all cases, be construed according to its fair meaning and not strictly for
or against either party. Prior to signing this Agreement, each party was
represented by independent legal counsel.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of
the day and year first above set forth.
KCFCU
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KITSAP TRANSIT
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AGREEMENT FOR PURCHASE OF KISS N RIDE EASEMENT - Page 7 of 7
(7-8-04)
AGENDA BILL
CITY OF BREMERTON
CITY COUNCIL
BILL # 04 -llD2._
DATE SUBMITTED: August 2, 2004
........................................................m..............................,
SUBJECT: Agreement for Purchase and
Sale of Kiss N Ride Easement and Kiss N
Ride Easement and License Agreement
Committee Meeting Date: 8/11/04
COUNCIL MEETING Date: 8/18/04
Department: City Attorney's Office
Presenter: Roger A. Lubovich
Phone: 473-2345
SUMMARY: Kitsap Community Federal Credit Union has acquired property which it intends to
develop and improve. The City of Bremerton and Kitsap Transit desire to purchase an easement on
part of the property after improvement for vehicular dropping off and picking up ferry passengers.
The Agreement for Purchase and Sale of Kiss N Ride Easement and Kiss N Ride Easement and
License Agreement provide for the purchase ofthe easement and use of the area designated as the
Kiss N Ride.
ATTACHMENTS:
(1) Agreement for Purchase and Sale of Kiss N Ride Easement
(2) Kiss N Ride Easement and License Agreement
FISCAL IMPACTS (Include Budgeted Amount): The purchase price for the easement is $450,000,
of which the City will be responsible for the payment of $225,000. $90,000 of the $225,000 will be
paid by way of exchange offset for the City's vacation of the underground portion of 2nd Street. The
remaining $135,000 shall be paid by the City on or before January 15,2005.
APPROVALS:
DEPARTMENT DIRECTOR:
CITY ATTORNEY:
FINANCE DIRECTOR:
MAYOR:
FISCAL/BUDGET:
OPERATIONS:
COUNCIL PRESIDENT:
RECOMMENDED MOTION:
I CONSENT AGENDP
~
I move to approve (a) the Agreement for Purchase and Sale of Kiss N Ride Easement and (b) the Kiss
N Ride Easement and License Agreement
COUNCIL ACTION: ~rove
o Deny 0 Table
o Continue 0 No Action