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HomeMy WebLinkAboutThe Boeing Company LIMITED USE ACCESS AGREEMENT This Limited Use Access Agreement ("Agreement") is made and entered into thisTLIly of , 2011 by and between City of Auburn ("the City"), and The Boeing Company, a Delaware corporation ("Boeing") WHEREAS, the City is the owner of certain real property that includes King County parcel number 2421049073 located at 1305 C Street Southwest, the location of which is depicted in Exhibit A (the "Property"); WHEREAS, Boeing desires to install and sample a groundwater monitoring well on the Property for the purpose of evaluating potential water quality impacts from the Boeing Auburn Plant; and WHEREAS, the City is willing to allow Boeing access to the Property subject to certain terms and conditions. NOW, THEREFORE, for and in consideration of the mutual benefits to be derived and other valuable consideration the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Access. Subject to the terms and conditions of this Agreement, the City grants Boeing, its employees and agents (collectively, "Boeing") and its contractors, subcontractors and consultants ("Contractors") reasonable access to the Property solely for the purposes described in Section 2 of this Agreement. Boeing hereby accepts this Agreement and agrees that its use of the Property shall conform to the terms and conditions of this Agreement. I 2. Use. I Boeing and its Contractors shall use the Property solely for conducting and implementing the sampling activities more particularly described in Exhibit B (the "Work"), subject to the following limitations: (a) Boeing and its Contractors shall exercise all reasonable efforts to assure that any activities on the Property pursuant to this Agreement do not result in any permanent damage or injury to the Property. Boeing shall be responsible for any damage arising from the Work or the activities of Boeing or its Contractors on the Property, and shall repair such damage or, in lieu of repair and only if mutually agreed by the parties, make a cash settlement. (b) Boeing shall defend and hold the City and the Property harmless from and against any liens of Contractors, or other persons supplying goods, services, equipment, materials, or labor to or on behalf of Boeing at the Property. At the request of the City, Boeing shall discharge any such liens. (c) Boeing shall conduct the Work in compliance with all applicable federal, state, and local laws, ordinances, and regulations, including without limitation, any applicable waste handling, and disposal requirements. Boeing is solely responsible at its expense 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. Notwithstanding the foregoing, Boeing acknowledges that the Property is an operating property of the City and the City may use same for the purposes of its business as fully as if this access had not been granted to Boeing. I 7 ' 3. Term. This Agreement shall commence on the date set forth above (the "Commencement Date") and shall continue until the earlier of completion of well abandonment according to all applicable State regulations, or twenty (20) years from the Commencement Date, unless sooner terminated in accordance with this paragraph (the "Term"). Either party may terminate this Agreement without cause upon ninety (90) days written notice to the other specifying the effective date of such termination. 4. Condition; Damages Limitations. 4.1 The City represents that the City has the power and authority to grant the right of access hereunder to Boeing. 4.2 Exclusion of Consequential and Other Damages. The City shall have no 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 special, incidental or consequential damages associated with Boeing's use of the Property or the Work. 5. Relocation, Maintenance & Restoration. Boeing, at its sole cost and expense, shall be responsible for preventing permanent damage to the Property as a result of the Work or the activities of Boeing or its Contractors on the Property. In the event Boeing or its Contractors disturb any portion of the Property, in the course of conducting the Work, Boeing shall promptly repair the Property to substantially its condition prior to such disturbance. 6. Indemnification. As a condition of such right of entry, at the City's request, Boeing hereby agrees to obtain full and irrevocable lien releases (if legally available) from all contractors for work done or to be done on the Property by Boeing or its agents and deliver same to the City prior to entry, and, from time to time, at the City's request, to obtain further releases and deliver same to the City. Boeing hereby agrees to defend, indemnify and save the City harmless from all liability and expense (including attorneys' fees) in connection with all claims, suits and actions of every name, kind and description brought against the City, its agents or employees by any person or entity as a result of or on account of actual or alleged injuries or damages to persons, entities and/or property received or sustained, or alleged to have been received or sustained, in any way arising out of, in connection with, or as a result of the acts or omissions of Boeing, its agents or employees, in exercising its rights under the right of entry granted herein unless and except to the extent the same arise out of the acts or omissions of the City, its invitees, agents or employees. Without limiting the generality of the foregoing, Boeing's obligations extend to matters otherwise within the scope of Title 51, RCW with respect to any actions against the City, its agents or employees by Boeing's employees. To the extent Boeing is successful in proving that the foregoing indemnity is limited by applicable law (including RCW 4.24.115), Boeing shall defend, indemnify and hold harmless Indemnitees to the full extent allowed by applicable law. Boeing's obligations under this Section 6 shall survive for a period of five (5) years following expiration or earlier termination of this Agreement, and ( shall continue to apply following such fifth (5th) year with respect to any claim for defense, indemnification or to be held harmless under this Section 6, notice of which is given to Boeing within such five (5) year period. Boeing's indemnification obligation under this Section is conditioned upon (1) the City giving Boeing timely notice of any claim or any circumstances that may give rise to a claim under the foregoing indemnity; (2) Boeing having the opportunity to defend or settle any claim covered by the foregoing indemnity; and (3) the City cooperating fully in any such defense or settlement. 7. Enforcement. 7.1 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, 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. 7.2 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 anyone 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. 8. Miscellaneous. ~i 8.1 Successors and Assigns. Subject to the provisions of this Section 8, 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 nor grant any right of access to the Property in whole or in part without the prior written consent of the City, which the City may withhold in its sole discretion. 8.2 Notices. Where provision is made herein for notice of any kind, it shall be deemed sufficient, if such notice is addressed as shown below: The City: L%_5o,7k).: re s 25 West Main Street i Auburn, WA 98001 j i Boeing: Manager, Environmental Remediation The Boeing Company P.O. Box 3707 M/C 6R4-26 Seattle, WA 98124 i 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 twenty-four (24) hours after delivery to an overnight delivery service with next business day delivery charges prepaid. i I 8.3 Severability. If a court of competent jurisdiction shall determine, to any extent, that any provision, tern or condition of this Agreement is 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. 8.4 Amb4witics. Each party and its counsel have participated fully in the review and revision of this Agreement. Ambiguities or uncertainties in the wording of this Agreement shall be construed according to its fair j meaning, will not be construed for or against any party, and there shall be no presumption that this Agreement or any provision hereof be construed against the party that drafted this Agreement. 8.5 Captions. i j 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. 8.6 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute a duplicate original of this Agreement, and which together shall constitute one instrument. 8.7 Choicc of Law. This Agreement shall be governed by the Laws of the State of Washington, without reference to its choice of law rules. 8.8 Complete Agreement. This Agreement, including all exhibits, contains the entire understanding between the parties regarding the subject matter of this Agreement and replaces any and all prior and contemporaneous communications and understandings with respect thereto. No modification of, or exception to, this Agreement will be binding on a party hereto unless first agreed to in writing by such party. This Agreement may be executed in counterparts, each of which shall constitute a duplicate original of this Agreement, and which together shall constitute one instrument. I irst written above. to f IN WITNESS WHEREOF, the parties have executed ee oeing Co ny r I Si Signature gnto " Printed Name Printed Name Title L-Dt fa~C:v Title it ~I a LANDAU ASSOCIATES, INC. I V:\025\164\070\075\Proposed Winter 2011\BOA Access Exhibit A-t.dwg (A) TiWe 1"42612011 Legend \ Proposed Well Location \ \ I - King County Parcels \ N a / City of Auburn \ \ 1305 C Street SW - I \ \ Notes 1. Locations are approximate. Final locations j will be determined based on utility locates. 2. Black and white reproduction of this color original may reduce its effectiveness and Base map source: Geometrix 2003; Aerial Photo Source: Google Earth Professional 2009; Parcel Data Source: King County GIS 2010 lead to incorrect interpretation. 0 100 200 Boeing Site Figure LANDAU Access Request Exhibit A - Site Map A_1 ASSOCIATES Scale in Feet Auburn, Washington EXHIBIT B Boeing and/or its Contractors will install one groundwater monitoring well at, or near, the location shown in Exhibit A and collect groundwater samples. Well installation includes drilling and installation of a 2-inch diameter PVC well screen and casing. A steel protective monument will be installed flush with the ground surface. Any soil or groundwater generated during well installation or sampling will be managed by Boeing according to applicable regulations. Well installation will be performed according to all applicable State regulations. When the Washington State Department of I Ecology ("Ecology") determines that groundwater sampling is no longer needed at the Property, well abandonment will be performed according to all applicable State regulations. I I I I i i I I