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HomeMy WebLinkAbout3391 Contract Number: 3391 Vendor: TRANSPORTATION - DEPT OF (WA STATE) Subject: Airspace - Landscaping - Treatment Plant SR3/304 Department: PW - Util File Class: LEG 16-3 Begin Date: 03/25/1992 End Date: Review Date: 06/15/2010 Vault Date: Comments: #AA-3-09887 Year to year subject to 120 day termination Review date for tracking only AA-3-09887 lC: 3-18-04720 AIRSPACE LEASE THIS IS A LEASE made and entered int° and between the WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, hereinafter called the 'Lessor", and CITY OF BREMERTON, hereinafter called the ,Lessee"; WHEREAS, the land and premises to be leased are not presently needed exclusively for highway purposes: AND WHEREAS the Department of Transportation is granted authority to lease property under RCW 47.12.120: AND WIIEREAS, the Lessor and Lessee deem it to be in the best public interest to enter into this lease; NOw THEREFORE, in consideration of the terms, conditions, covenants and performances contained herein, IT IS MUTUALLY AGREF~D THAT: The Lessor does hereby lease to the Lessee the premises described in Exhibit "A" attached hereto and by this reference inCOrporated herein. TERM. The term of this lease Shall be year to year COMMENCING ON THE DATE OF EXECUTION OF THIS LEASE BY THE STATE. ~. This lease may be terminated by either party on 120 days notice without penalty. In the event that fl!is lease is terminated by the Lessor, the Lessee shall not be entitled to any payment or compensation for damages by r~n Of such termination. Provided, that where mone..t~y, rent is the basis of the lease, the Lessee shall be enufled to a return of rental payment based upon rent pud beyond the effective cancellation date. Furthermore, such leased premises shall not be COnsidered as part of or as contributing to the use Of any adjoining or other properties owned, used or COntrolled by the Lessee in the event such other property or propertY-rights of the Lessee are subject to condemnation subsequent to the execution of this lease. NONAppLICABILITY OF RELOCATION ASSISTANCE. The Lessee acknowledges that the signing of this lease d°es nOt entitle the Les.see to assistance under the Uniform Relocation ~d Real Property Acquisition Policy 0RCW 8.26) Unless PreviOusly eligible for such assistance. ~i The Le~,s hse0f the property for roadside landscaping is hereby deemed of highway benefit and/or as serving a highwaY pflrpose; therefore, no rent will be due. ~[~. No use'other than roadside landscaping shall be permitted without the prior written approval of the Lessor. All landscaping, and irrigation shall be done according to the approved landscape plan as shown as Exhibit B. Also ~ maintenance of the plants and irrigation system shall be the .responsibilitY of the CitY. In using these Prenuses, the Lessee shall COmply with all policies and regulations her. etof.ore or heresy..er promulgated by the Department of Transportation relative t° the location, operation aaa maintenance of xmprovements located on the leased premises. Direct access to ramps or traveled lanes of limited access highways is not permitted. All grading and construction plans and any changes thereof are subject to approval by the Lessor. Furthermore, in using the leased premises, it is expressly agreed that the Lessee must comply with all APPLICABLE Federal, State and Local laws, ordinances, and regulations, including environmental . requirements which are in force or which may hereafter be in force, and 'to secure all necessary permits and licenses. Lessee hereby agrees to hold Lessor harmless from all claims or suits resulting frOm Lessee's failure to comply with such requirements. Ugly OF The use of said prem!ses shall be such that no b~7~rdous or objectionable smoke, fumes, vapor, odors, or d~harge of any kind shall be permitted to rise ~bove the grade line of the highwaY facility. Toxic/or h~us materials as defined under the Comprehensive Environmental Response Compensation and Liability Aft ('CER. CLA or Federal Superfund)(42 U.S.C & 9601 et seq.), or flammable materials, wh!ch flammable materials include but are not limited to ex~lo, sives, petroleum ProductS, paint, solvents, and resins, are not allowed on the site without the express permlsslon of Lessor. In the event written permission to store the~receding materials is granted by Lessor, disposal of such materials shall be in a legal manner. Signs, display lights, or advertising media/materials are not permitted unless completely detailed on a separate plan sheet and require specific prior written approval. Fences in place at the time of execution of this lease or tel .o?a. ted to separate the leased premises from the traveled roadway will be maintained by the state for the duration of the lease. Nothing is to be attached to Lessor's fence without prior written approval. If any fence is damaged as a result of Lessee's activities, Lessee will repair such damage at itS cost to Lessor's satistaction.i .The Lessee shall perform or cause to be performed at itS expense all maintenance of the premises which will include, but not be limited to, keeping the premises in good condition, both as to safety and appearance, to the satisfaction of the Lessor. LESSOR'S RESERVATION OF RIGHT TO MAINTAIN AND GRANT UTILITY FRANCHISES AND PERMITS. The Lessor reserves the fight for utility franchise and permit holders to enter upon the leased premises to maintain existing facilities and, for itself, to grant utility franchises and/or permitS across the leased premises. Such installation will be accomplished in such a manner as to minimize any disruption to the Lessee. Thc franchise/permit holder will be required to restore paving and grading damaged by the instailation~ The Le ..s:s~e. will not disturb markers installed by a franchise/permit holder and will contact the franchise/~t holder prior to any excavation in order that the franchise/permit holder may locate the ulility. It is~eLessee's responsibility to protect legally installed underground utilities. TAXES. ASSESSMENTS AND UTILITIF~q. The Lessee agrees to pay all taxes and assessmentS which benefit the leased premises an/or which may hereafter become a lien on the interest of the Lessee in accordance with RCW 79.44.010, and also all taxes which may hereafter be levied or imposed upon the interest Of the Lessee or by reason of this agreement. The Lessee is responsible for and agrees to pay for utilities Which serve the leased premises. LESSOR'S APPROVAL OF DESIGN AND CONSTRUCTION. Tbe Lessee covenantS that any r.eg...rading or~ improvements to be constructed on the premises will not at any time during or after construction e~ther damage, threaten to damage or Otherwise adversely affect any ~ or element of the highway facility or the 6peration thereof. The Lessor shall be furnished with two sets of ComPlete plans,~ details and specification~ and revisions thereto for grading and all imprOVements proposed to be placed on the premises, and no work shall be done without prior written approval of such plans by the Lessor. ~All construction work shall be done in conformity with the plans and specifications as approved. The Lessor ~nay take any action necessary, including directing that work be temporarily stopped or that additional wOr.l~.be done, to ensure obServation of the plans and specifications, protection of all parts and elements of the H~ghway facility and compliance With Lessor's construction and safety standards. The improvements shall be designed and constructed in a manner which will permit access to the highway facility for the purpose of inspection, maintenance, and construction when necessary. LIENS. Nothing in this lease shall be deemed to make the Lessee the agent of the Lessor for purposes of construction, repair, alteration, or installation of structures, improvements, equipment, or facilities on the premises. The Lessee acknowledges that the Lessor may not, and shall not, be subject to claims or liens for labor or materials in connection with such activities by the Lessee. 2 The Lessee shall at all times indemnify and save I.~ssor harmless from ail claims for labor or materials in connection with construction,-repair, alteration, or installation of structures, improvements, ,equipment, or facilities within the demised premises, and from the cost of defending against such claims, including attorney fees2 ' In the event a lien is filed upon the leased premises, Lessee shail either: 1. ReCOrd a valid Release of Lien, or 2. Deposit sufficient cash with Lessor to cover the amount of the claim on the lien in question and authorize payment to the extent of said d.el~sit to any subsequent judgment holder that may arise as a matter of public record from liugation with regard to lienholder claim, or 3. Procure ~nd record a bond which releases the leased premises from the claim of the lien and from any' action'brought to foreclose the lien. Should Lesgee fail to accomplish either 1, 2; or 3 above within, 15 days after the filing of such a lien, the lease shall be in default. L~OR'S RIGHT OF ENTRY AND INSPECTION. The Lessor, for itself and for the Federal Highway Administration, reserv.e:s, the rii~ht to enter upon the premises at any time without notice to the Lessee for the purpose of inspection, mmntenance, construction or reconstruction of the highway facility or any element thereof. Any 10ss of the use of the leased premises due to the Lessor's exercise of such right will be compensated for solely by a pro rata reduction of rent. The Lessor shail in no way be responsible for any incid.en, tal ~ consequen~tiai damages dUe to such loss of use by Lessee. The Lessor and the Federal Highway Adm~mstration may from time to time go upon the premises for'the purpose of inspecting any excavation, cbnstruction or'mmn{enance work being done bythe I~ssee. Entry .iii)on the premises for any other puq~ose by the Lessor and the Federal Highway Administration shall be conducted with reasonable notice to the Lessee and during the hOurs of 8:00 a.m. to 5:00 p.m. HOLD HARMLESS/INDEMNIFICATION. Lessee, its successors or assigns, will protect, save, and hold harmless the Washington State Department of Transportation, its authorized agents and employees, from all claims, actions; COsts, damages, or expenses of any nature whatsoever by reason of the acts or omission of the Lessee, its assigns, agents, contractors, licensees, invitees, employees, or any person whomsoever, arising out of or in conne/:tion with any acts or activities authorized by this lease. The lessee further agrees to defend the Washington Sta~ DePa~riment of TranSpOrtation, its agents or employees in any li.tigation, including payment of any .c~.stslo~atto~ney's fees, for any claims or action.commenced, arising out ot or in connection with acts or activities autho~ bY tl!i.'s Iease, whether those claim.S, actions, costs, damages, or expenses r~ult from acts Or activities ~urring on Or off the leased prenuses. This obligation shall not include such claims, costs, damages, or expenses w.hich may be caused by the sole negligen.ce~ of the Washington State Department of Transportation Or its authorized agents or employees; Provided that if the claims or damages are caused b.y or result from the concurrent negligence of (a) the Lessor, its agents or employees and.(b) the.Lessee, Its agents or employees, and involves those actions covered by RCW 4.24.115, this mdemmty provision shall be Valid and enforceable only to the extent of the negligence of the Lessee or Lessee's agents or employees. NON-COMPLETION OF CONSTRUCTION. In the event that this lease ailows for the construction of improvements, unless the time or times for completion are extended in writing, the Lessor may, at its option, terminate this lease if: a. Construction of the facility is not begun within 90-days of the date hereof; and 3 b. Construction of the facility is not prosecuted to completion with reaSOnable adherence to a construction schedule which allows not more than 120-days from the start to the finish of -COnstruction. Delays prior to and during construction mused by fires, earthquakes, acts of God, war or civil distu.~.ancez, demonstrations, strikes, or other interference with labor on the project by picketing or similar activiues, economic controls which make labor or material unavailable, injunctions, restraining orders or other delays due to litigation challenging the validity of this lease or related agreements, and similar contingencies shall, for the number of days as the duration of Such delay, postpone the LeSsor,s right to terminate this lease. NON-DISCRIMINATION. The Lessee, for itself, its successors, and assigns as a part of the . consideration hereof, does hereby covenant and agree, as a covenant running with the land, that no person, on the grounds of race, shall be excluded from participation in, be denied the benefits of, or be otherwise unlawfully subjected to discrimination in. the use of the facility now or hereafter on the premises, that in connection with. the. construction of any improvements on said lands and the furnishing of services thereon, no such discrimma~on shall be practiced in the selection of employee~ or contractors, or by contractors in the selection and retention of their subcontractors, that such discrimination Shall not be practice against the public in their access to and use of the facility and services provided for public aCCOmmodation constructed or operated on, over, or, under the right of way, and that the Lessee shall use the premises in compliance with all other requirements imposed pursuant to the Revised Code of Washington Chapter 49.60 and Title 49, Code of Federal Regulations, Subtitle A, Office of the Secretary of Transportation, part 21 (49 C.F.R. Part 21), and as said.Regulations may be amended. The breach of any of the above nondiscrimination covenants shall be a material act of default entitling the Lessor to terminate this 1ease in accordance with the procedures set forth herein. ASSIGNMENTS. Neither this lease nor any fights created by it may .be assigned, sublet, or transferred without written permission from the LesSOr, which shall not be withheld unreasonably. If~e Lessee is a corporation, then the transfer of 40 percent of the stock is deemed an assignment for the purposes of this lease and requires Lessor's approval. In the event that the Lessor consents in writing to any assignment, then all of the provisions of this lease apply to the assignee and to subsequent assignees and/or subtenants. The Lessee hereby covenants that it is acting as Principal for himself, and not as an agent for any undisclosed principal. If the leased premises are used as an adjunct to abutting property owned or otherwise under the control of the Lessee, any transfer of ownership or control of the property oWned or controlled by the Lessee t0a third party .may be understood to serve as an assignment Of the lease and requires the Lessor's written approval. Lessee will therefore notify Lessor of the :sale within 30 days Of Ll°sing or change of control in Lessee's property and request approval of the assignment of this lease. BINDING CONTRACT. This lease is hereby tendered, but the terms and obligations contained herein shall not become binding upon the State of Washington unless and until accepted and approved hereon in writing for the Washington State Department of Transportation by the Secretary or his duly authorized representative. ~. In the event of any controversy, claim, or dispute arising out of this lease, the substantially prevailing p.a~.y shall, in addition to any other remedy, be entire to recover any reasonable costs or attorneys' fees which it recurs. MODIFICATIONS. This instrument contains all the agreements and conditions made between the parties hereto and may not be modified orally or in any manner other than by an agreement in writing signed by all parties thereto. NOTICES. Wherever in this lease written notices are to be given or made, they will be sent by certified mail addressed to the parties at the address listed below unless a different address shall be designated in writing and Oe~ered to the other party. ~OR: DEPARTMENT OF TRANSPORTATION DISTRICT 3 REAL ESTATE SERVICES P. O. BOX 4 7440 OLYMPIA, WA 98504-7440 ~F_,E: CITY OF BREMERTON 3027 OLYMPUS DRIVE BREMERTON, WA 98310-4799 It WASHINGTON STATE Louis M6ntor~, Mayor DEPARTMENT OF TRANSPORTATION APPROVED AS TO FORM STATE OF WASHINGTON ) COUNTY OF ) On fltis I Or- day of ~'~ ~-~-~ I?i2, before me personally appeared L. OUIS MENTOR, to me .kn°wn ..... to ~ the~ .du!y -...elected .... and qualified'May, or of the. . tyCi of Bremerton, Washm. gton, that executed the wRhin and foregomg instrument and acknowledged said mgtrument to be the free and voluntary act and deed of said City, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument by resolution of the City Council of said City, and that the seal affixed is the official seal of said City. GIVEN under my hand and official seal the day and year last above written. ff&?~;~ U O ~ A R ¥ ~¢¢:~ [ of Washington,~ ~.~y~... PUB~.I0 &f~] My commission expires 5 STATE OE~WASI-~It~ON ) c%m¥ OF' ) On this day of ~.g~ ~ ~ qz.- , befor~ me ~n~y ap~ loac~m P~ger, ~ me ~own to ~ ~e duly ap~in~ Dk~tor, R~ Esa~ Se~c~ for ~e W~hington S~te De. merit of T~s~fion, ~d ~at h~ ex~u~ ~e ~ ~d foregoing ~s~m~t, ~d ac~owl~g~ ~d ~s~ment to ~ ~e fr~ ~d volun~ act ~d d~ of ~d S~ of W~h~gton, for ~ uses ~d pu~s ~erein ~t fo~, ~d on ~th s~t~ ~at he w~ au~o~ to ex.ute ~d ms~ment. ~IV~ under my h~d ~d offici~ ~ ~e day ~d y~ l~t ~ove written. My commission exp~ ~ ~d for eSmte . ~mmg at C~ ~ /