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HomeMy WebLinkAbout20110104162820LICENSE THIS LICENSE is made this 19th day of March, 2010 between the CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY; a regional transit authority formed under the laws of the State of Washington, ("Sound Transit"), and the City 'of Auburn, a Washington municipal corporation with its principal office at 25 West Main Street, Auburn, WA 98001- 4998 (the "City"). WHEREAS, Sound Transit owns the property known as the Auburn Multimodal Transit Facility located at 25 "A" Street SW in Auburn, Washington, and more commonly known as Auburn Station (the "Property"); and WHEREAS, Sound Transit and the City entered into that certain Lease dated June 26, 2002 for a portion of the. Property identified as the- Leased Premises as defined in Section 1.5 . of the Lease; and WHEREAS, Section 2.5 (d) of the Lease (the fall text of which is set forth on Exhibit .B) allows the City to request the right to use all or a portion of the Plaza as defined in the Lease, for itself or third persons for special events, including street fairs; and WHEREAS, the City desires to hold a public market in the Plaza area and the Kiss and Ride Spaces of the Property and has requested use of the Plaza area and Kiss and Ride Spaces for this ongoing weekly special event; and WHEREAS, Sound Transit agrees to allow the use of the Plaza area and Kiss and Ride Spaces by City in accordance with the terms and conditions contained in the License. Now, therefore, in consideration of the covenants and promises contained in the License, and other valuable consideration, the parties agree as follows: 1. License. In consideration of good and valuable consideration, the sufficiency of which is hereby acknowledged, Sound Transit hereby permits City, at City's sole risk, cost and expense, to conduct a farmers market in the Plaza area and Kiss and Ride Spaces hereinafter referred to as the "Farmers Market" and that any permit fees charged for vendor space shall not be considered "revenue" as set forth in Exhibit B during the 2010 Season. Any revenue consideration for subsequent Seasons will be evaluated upon the City's request to extend the License. The Plaza area and Kiss and Ride Spaces are more particularly depicted and described on Exhibit A (the "License Area"). 2. Use of License Area. The City may use the License Area to install, access, operate, maintain, repair, replace and remove the Farmers Market for so long as this License remains in effect. The City agrees that its. use of the License Area shall not interfere with the normal operations of the Property as. a transit center and train station, or with any electrically controlled railroad signals, telephone, or other circuits of railroad, and of any telephone or other company or person operating circuits on the Property or along the tracks. Farmer's Market ST final 031910.doc Please Initi4e-Z 3. Term and Hours of Operation. The City may operate the Farmers Market in the License Area weekly on sixteen consecutive Sundays beginning on the second Sunday of June and ending on the last Sunday of September (the "Season") during the. term of this License.' The Hours of Operation for each Sunday shall be from 10:00 AM to 4:00 PM. This six -hour time frame includes time for set-up and take -down. The term of this License shall commence on June 13, 2010. The City shall have the option of extending the -term each year for successive Seasons upon providing written notice to Sound Transit at least ninety (90) days in advance of the beginning of each. successive Season. 4. Conditions of Use. a. The City acknowledges that the License Area consists of two plaza areas separated by a driveway used by King County Metro to provide scheduled bus service to transit riders. This driveway is referred to as the "Bus Loop". To .comply with Sound Transit's and King County Metro's safety requirements, the City, at its sole cost and expense, shall install a barrier approved in advance by Sound Transit to separate the Bus Loop from the two separate plaza areas and the parking garage to prevent random pedestrian access. The barrier will enclose each side of the Bus Loop to prevent pedestrians from crossing. In addition, the City shall install an approved barrier at the west end of the License Area barring access to the railroad tracks. b. The City acknowledges that King Country Metro will be using the Bus Loop during the Hours of Operation of the Farmers Market and agrees that its use of the License Area will not interfere with transit operations. c. The City shall have the use of the restrooms located in the elevator lobby of the parking garage. The City, at its sole cost and expense, shall be responsible for stocking the restrooms with. supplies and for providing janitorial service for the restrooms during the Hours of Operation of the Farmers Market. Additionally, the City shall provide an attendant at the restrooms to oversee their use and operation. The City will coordinate with Sound Transit Facilities and Security to gain access to the restrooms to obtain dispenser keys. d. The City shall have complimentary access to Sound Transit's designated water supply and available electrical outlets during the Hours of Operation ofthe Farmers Market. The City shall beresponsible for reasonable use of these, utilities and shall ensure they are properly shut off at the end of the Hours of Operation. e. The City and Sound Transit.agree to meet prior to the opening of the Farmers Market to review safety plans. f. The City agrees to make available to Sound Transit -or, King Country Metro'a location within the License Area where they can install a complimentary booth/stall for promotional purposes. Farmer's Market ST final 031910.doc 2 Please Initia g. The City shall be responsible for enforcing its noise and nuisance codes in the License. Area. h. Open fires. and lighted candles are not permitted in the License Area or at the Property. i. The City shall be responsible for clean-up and removal of any debris and trash from the License Area resulting from the City's use of the License Area for the Farmers Market purposes. j. The City must comply with all federal, state and local laws, and all Sound Transit rules and regulations. k. Sound Transit's authorized representatives shall have free access to the License Area at all times. 5. Construction and Installation of the Farmers Market. The Farmers Market shall be constructed and. installed in accordance with drawings approved by Sound Transit and with all laws, rules, regulations, ordinances and requirements of governmental agencies, offices and boards having jurisdiction. At the conclusion of. each Season and this License, the. City shall promptly restore the License Area to as good or better condition -as existed prior to the commencement of construction and installation. 6. Permits and Licenses. The City, at its.expense, shall be solely responsible for securing any and all required franchises and licenses for the Farmers Market. 7. EntrybyCity. The City may access the License Area provided that such access does not interfere with or delay the operation. of the transit center and train station, or the Property in any manner. Any access required outside of the scheduled Term and Hours of Operation set forth in Section 3 shall be coordinated with Sound Transit's Assistant Property Manager by telephoning 206.398.5355 or 206.999.3122 forty-eight (hours) prior to accessing the License Area. 8. Revocation. Either party may revoke this License at any time by giving the other party thirty (30) days prior notice. 9: Safety. The City shall install- maintain, operate, and repair the Farmers Market in a manner that the City's and the Farmers Market's presence in the License Area shall not at any time be a source of peril or danger to users of the Property. 10. Maintenance and Removal. The City shall, after any installation, construction, maintenance, repair, relocation, or removal of the Farmers Market, promptly restore the License Area to as good or better condition as existed prior to the commencement of such work. Farmer's Market ST final 031910.doo 3 Please Initial 11. Indemnification. The City agrees to defend, -indemnify and hold harmless Sound Transit, its officers, directors and employees from and against any and all claims, demands or causes of action and the resulting losses, costs, expenses, reasonable attorney fees, liabilities, damages, orders, judgments or decrees arising out of the acts, errors, .or omissions of the City or its agents, independent contractors, or employees related to or in any way arising out of the installation, operation, maintenance, repair.or removal of the City's Facilities and/or from the City's failure to obtain necessary property rights and or permission to install, operate, or maintain the Facilities. . In addition to all other indemnities provided in this License, the City agrees to protect, defend, and indemnify and hold Sound Transit harmless for any suits, claims, damages, strict liabilities, and costs or liabilities associated with the presence, removal or remediation of. any Hazardous Substance . (including petroleum and gasoline products) that are released onto or from the License Area, or otherwise come to be located on the License Area as a result of the City's use of the License Area, including the construction, reconstruction, alteration, maintenance, operation, repair, removal or relocation of the City's Facilities, whether (1) made, commenced . or incurred during the term of this License, or (2) made, commenced or incurred after the expiration or termination of this License if arising out of events occurring during the term of this License. "Hazardous substances" for purposes of this section Include, but are not limited to, those substances included within the definition of "hazardous substances;" "hazardous materials," "toxic substances," "hazardous wastes" or solid wastes in any federal, state or local law, statute, ordinance, regulation, order, or rule pertaining to health, . industrial hygiene, environmental conditions or hazardous substances. "Costs shall include, but not be limited to, all response or remediation costs, disposal fees, investigation costs, monitoring. costs, civil or criminal penalties, attorneys' fees; and other litigation costs incurred in connection with such response or remediation. 12. Insurance. The City warrants that it is self -insured for public liability, including bodily injury and property damage, through a self-insurance program sufficient to meet the City's indemnity obligations under Section 11 herein and at a minimum for Two- Million and no/100 Dollars ($2,000,000.00) per occurrence and agrees to provide acceptable evidence of its self -insured status to Sound Transit. In the event the City, after commencement of this Agreement elects to terminate its self - insured status and secure commercial liability coverage, the City will promptly notify Sound Transit and provide a certificate of insurance from an insurer licensed to conduct business in the State of Washington in the amounts and types specified below: - The City shall at its expense procure and maintain throughout the term of the License, the following insurance policies: a. Commercial Liability insurance in amounts of not less than a combined single limit of $2,000,600 or in such other amounts as Sound Transit may from time to time reasonably require, insuring the City, Sound Transit, Sound Transit's agents and their respective affiliates against all liability for injury to or death of a person Farmer's Market ST find 031910.doe Please Initial or persons or damage to property arising from the use and occupancy of the License Area; b. Commercial Liability insurance described in (a) above, shall include coverage for Bodily Injury and Property Damage Liability, Personal Injury' liability and containing endorsements covering Contractual Liability, Railroad Exclusion Deleted to include coverage for work in or around railroads, Fire Legal Liability and Stop -Gap coverage endorsements sufficient to cover the City's indemnity obligations hereunder; C. Automobile Liability insurance in amounts of not less than, a combined single limit of $1,000,000 covering the City's owned, non -owned, leased or rented vehicles; d. All-risk Property insurance covering the full value of the City's property and improvements (including 'all initial improvements), and other property (including property of others), in the License Area; e. Workers' Compensation and Employers' Liability in accordance with the provisions of Title 51 of the Revised Code of Washington and covering the City's employee's industrial accidents and injuries. f.. Prior to taking occupancy, the City shall furnish Sound Transit with a Certificate(s) of Insurance, executed by a duly authorized representative of each insurer, or other acceptable evidence of insurance showing compliance with the insurance requirements set forth above and naming Sound Transit as an additional insured. 13.. Liens. The City shall pay for all materials and labor used on the Property and shall not allow any liens to attach to the Property. 14. Attorneys' Fees. In the event that either party commences litigation or arbitration proceedings against the other. party relating to the performance or alleged breach of this License, the prevailing party shall be entitled to all costs, including reasonable attorneys' fees incurred, relating to such. litigation, including those incurred in the event of any appeal. 15. . Jurisdiction and Venue. Any litigation filed by either party arising of or relating to this License shall be filed in King County Superior Court except as to matters which are exclusively within the jurisdiction of the Federal Court and as to such matters venue shall be in the Western District of the United States District Court at Seattle, Washington. 16. Notice. Unless expressly otherwise agreed between the parties every notice or response required by this License to be served upon Sound Transit or the City shall be in writing . and shall be deemed to have been duly given to the required party: (a) five (5) business days after being posted in a properly sealed and correctly addressed envelope when hand delivered or sent by mail, postage prepaid, or (b) upon receipt when sent by Farmer's Market ST fma1031910.doe Please initia overnight delivery through a nationally recognized courier service which provides a receipt of delivery, or (c) upon receipt when hand delivered. The notices or responses to Sound Transit shall be addressed as follows: Sound Transit Union Station 401 S. Jackson Street Seattle, WA 98104 Attn: Property Manager The notices or responses to the City shall be addressed as follows: City of Auburn 25 West Main Street Auburn, WA 98001 Attn: Parks, Arts and Recreation Director Sound Transit and the .City may designate such other addresses from time to time by giving written notice to the other but notice cannot be required to more than one address. 17. Miscellaneous. The headings and sections and paragraphs of this License are for convenience of reference only and are not intended to restrict, affect or be . of any weight in the interpretation of construction or the, provisions of such sections or paragraphs. This License contains* the entire agreement between - the parties and, in executing it, Sound Transit and the City do not rely upon any statement, promise, or representation, whether oral or written, not expressed herein. 18. Assignment. This License and the rights, duties and obligations given hereunder may not be assigned, transferred, or otherwise conveyed by the. City, without the. prior written. consent of Sound Transit. Farmer's Market ST final 031910.doe 6 Please l itia IN WITNESS WHEREOF the parties hereto have signed this License as of the day and year first above written. SOUND TRANSIT: CITY: CENTRAL PUGET SOUND REGIONAL CITY OF AUBURN TRANSIT AUTHORITY Signature Signature Title Title Date Attest: Signature Name/Title Approved as to Form: Signature Name Sound Transit Legal Counsel Date Attest: Signature Name/Title Approved as to Form: Name Auburn City Attorney Farmer's Market ST &W 031910.doc 7 2 fill Idols all .0 EXHIBIT B 2.5 (d) Special Events. City may request the right to use all or a portion of the Plaza, for itself or third persons for special events. Sound Transit shall grant such right provided that the requested use is consistent with Sound Transit's reasonable written policies for public use of the Plaza in effect at the time of the request and that the proposed use will not unreasonably interfere with the use of the Station for public transit purposes. "Special events" include. but are not limited to street fairs. City shall give Sound Transit not less than thirty (30) days prior written notice of each special .event proposed to be held in the Plaza. If Sound Transit determines the special event is inconsistent with its policies or would unreasonably interfere with Sound Transit's use of the Station for public transit purposes, Sound Transit shall so notify City not later than seven (7) days after receipt of City's request. At its expense, City shall provide, perform or cause to be performed all security, maintenance, set up, take -down, appropriate cleaning and refuse pickup and all other services required or desired by City and those reasonably required by Sound Transit for each special event, both during the special event and promptly after the end of each special event. authorized under this Section 2.5(d). Any damage to the Plaza suffered during such special event shall be repaired by City at its expense unless (i) caused by Sound Transit or its customers, contractors, invitees or licensees in which case Sound Transit shall repair such damage at its expense or (ii) caused by an occurrence that is unrelated to the special event. If City derives any revenue from a special event under this Section and such revenue exceeds City's costs of the special event, then unless otherwise agreed Sound Transit shall be entitled to fifty percent (50%) of such excess in exchange for City's use of the Plaza for such special event. For such purposes, City's "revenue" means those charges collected by City from third parties in exchange for use of the Plaza or part thereof during the special event and does not include derivative benefits such as tax revenues and City's "costs" includes overhead such as but not limited to the salaries, wages and benefits paid to City's employees reasonably allocable to the amount of time spent by them iri connection with the special event. On Sound Transifs request, City shall permit Sound Transit to inspect and copy City's books and records related to a special event. Farmer's Market ST final 031910.doc 9 Please Initial LICENSE THIS LICENSE is made this 19th day of March, 2010 between the CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY; a regional transit authority formed under the laws of the State of Washington, ("Sound Transit"), and the City of Auburn, a Washington municipal corporation. with its principal office at 25 West Main Street, Auburn, WA 98001- 4998 (the "City"). WHEREAS, Sound Transit owns the property known as the Auburn Multimodal Transit Facility located at 25 "A" Street SW in Auburn, Washington, and more commonly known as Auburn Station (the "Property"); and WHEREAS, Sound Transit and the City entered into that certain Lease dated June 26, 2002 for a portion of the. Property identified as the- Leased Premises as defined in Section 1.5 . of the Lease; and WHEREAS, Section 2.5 (d) of the Lease (the full text of which is set forth on Exhibit B) allows the City to request the right to use all or.a portion of the Plaza as defined in the Lease, for itself or third persons for special events, including street fairs; and WHEREAS, the City desires to hold a public market in the Plaza area and the Kiss and Ride Spaces of the Property and has requested use of the Plaza area and Kiss and Ride Spaces for this ongoing weekly special event; and WHEREAS, Sound Transit agrees to allow the use of the Plaza area and Kiss and Ride Spaces by City in accordance with the terms and conditions contained in the License. Now, therefore, in consideration of the covenants and promises contained in the License, and other valuable consideration, the parties agree as follows: License. In consideration of good and valuable consideration, the sufficiency of which is hereby acknowledged, Sound Transit hereby permits City, at City's sole risk, cost and expense, to conduct a farmers market in the Plaza area and Kiss and Ride Spaces hereinafter referred to as the "Farmers Market" and that any permit fees charged for vendor space shall not be considered "revenue" as set forth in Exhibit B during the 2010 Season. Any revenue consideration for subsequent Seasons will be evaluated upon the City's request to extend the License. The Plaza area and Kiss and Ride Spaces are more particularly depicted and described on Exhibit A (the "License Area"). 2. Use of License Area. The City may use the License Area to install; access, operate, maintain, repair, replace and remove the' Farmers Market for so long as this License remains in effect. The City agrees that its use of the License Area shall not interfere with the normal operations of the Property as. a transit center and train station, or with any electrically controlled railroad signals, telephone, or other circuits of railroad, and of any telephone or other company or person operating circuits on the Property or along the tracks. Farmer's Market ST final 031910.doc 1 Please Initials/ g. The City shall be responsible for enforcing its noise and nuisance codes in the License. Area. h. Open fires. and lighted candles are not permitted in the License Area or at the Property. i. The City shall be responsible for clean-up and removal of any debris and trash from the License Area resulting from the City's use of the License Area for the Farmers Market purposes. j. The City must comply with all federal, state and local laws; and all Sound Transit rules and regulations. k. Sound TransiVs authorized representatives shall have free access to the License Area at all times. 5. Construction and Installation of the Farmers Market. The Farmers Market shall be constructed and. installed in accordance with drawings approved by Sound Transit and with all laws, rules, regulations, ordinances and requirements of governmental agencies, offices and boards having jurisdiction. At the conclusion of each Seasonand this License, the. City shall promptly restore the License Area to as good or better condition -as existed prior to the commencement of construction and installation. 6. Permits and Licenses. The City, at its expense, shall be solely responsible for securing any and all required franchises and licenses for the Farmers Market. 7. Entry by City. The City may access the License Area provided that such access does not interfere with or delay the operation. of the transit center and train station, or the Property in any manner. Any access required outside of the scheduled Term and Hours of Operation set forth in Section 3 shall be coordinated with Sound Transifs Assistant Property Manager by telephoning 206.398.5355 or 206.999.3122 forty-eight (hours) prior to accessing the License, Area. 8. Revocation. Either party may revoke this License at any time by giving the other party thirty (30) days prior notice. 9. Safety. The City shall install maintain, operate, and repair the Farmers Market in a manner that the City's and the Farmers Market's presence in the License Area shall not at any time be a source of peril or danger to users of the Property. 10. Maintenance and Removal. The City shall, after any installation, construction, maintenance, repair, relocation, or removal of the Farmers Market, promptly restore the License Area to as good or better condition as existed prior to the commencement of such work. Farmer's Market sT final o3191o.doc 3 Please Initial - or persons or damage to property arising from the use and occupancy of the License Area; b. Commercial Liability insurance described in (a) above, shall include coverage for Bodily Injury and Property Damage Liability, Personal Injury liability and containing endorsements covering Contractual Liability, Railroad Exclusion Deleted to include coverage for work in or around railroads, Fire Legal Liability and Stop -Gap coverage endorsements sufficient to cover the City's indemnity obligations hereunder; C. Automobile Liability insurance in amounts of not less than a combined single limit of $1,000,000 covering the City's owned,, non -owned, leased or rented vehicles; d. All-risk Property insurance covering the full value of the City's property and improvements (including all initial improvements), and other property (including property of others), in the License Area; C. Workers' Compensation and Employers' Liability in accordance with . the provisions of Title 51 of the Revised Code of Washington and covering the City's employee's industrial accidents 'and injuries. f.. Prior to taking occupancy, the City shall furnish Sound Transit with a Certificate(s) of Insurance, executed by a duly authorized representative of each insurer, or other acceptable evidence of insurance showing compliance with the insurance requirements set forth above and naming Sound Transit as an additional insured. 13. Liens. The City shall pay for all materials and labor used on the Property and shall not allow any liens to attach to the Property. 14. Attorneys' Fees. In the event that either party commences litigation or arbitration proceedings against the other party relating to the performance or alleged breach of this License, the prevailing party shall be entitled to all costs, including reasonable attorneys' fees incurred, relating to such -litigation, including those incurred in the event of any appeal 15. . Jurisdiction and Venue. Any litigation filed by either party arising of or relating to this License shall be filed in King County Superior Court except as to matters which are exclusively within the jurisdiction of the Federal Court and as to such matters venue shall be in the Western District of the United States District Court at Seattle, Washington. 16. Notice. Unless expressly otherwise agreed between the parties every notice or response required by this License to be served upon Sound Transit or the City shall be in writing and shall be deemed to have been duly given to the required party: (a) five (5) business days after being posted in a properly sealed and correctly addressed envelope when hand delivered or sent by mail, postage prepaid; or (b) upon receipt when sent by Farmer's Market ST fina1031910.doc Please lnitia IN WITNESS WHEREOF the parties hereto have signed this License as of the day and year first above written. SOUND TRANSIT: CITY: CENTRAL PUGET SOUND REGIONAL CITY OF AUBURN TRANSIT AUTHORITY Signature Signature Title Title Date Date Attest: Attest: Signature Signature Name/Title Approved as to Form: Signature Name Sound Transit Legal Counsel Name/Title Approved as to Fonn: Signature Name Auburn City Attorney Farmer's Market ST final 031910.doe 7 EXHIBIT B Farmer's Market ST final 031910.doc 9 Please Initial