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HomeMy WebLinkAbout07-01-2013 July 1, 2013 Agenda Modification CITY A ° =B=U= �—� WASHINGTON TO Members of the City Council Mayor Lewis Department Directors FROM: Shawn Campbell, Deputy City Clerk SUBJECT: July 1, 2013 Agenda Modification DATE. July 1, 2013 The July 1, 2013, City Council meeting agenda is modified as follows: VII. RESOLUTIONS Resolution No. 4962, Resolution No 4969 and Resolution No. 4970 is added to the agenda. Resolution No. 4962 (Dennis Dowdy) A Resolution of the City Council of the City of Auburn, Washington, authorizing the Mayor and City Clerk to execute a license agreement between the City of Auburn and Boeing for at-grade crossing Resolution No. 4969 (Dennis Dowdy) A Resolution of the City Council of the City of Auburn, Washington, declaring an emergency with respect to repair of the storm drainage facilities at the Hidden Valley Vista Drainage Basin Resolution No. 4970 (Dan Heid) A Resolution of the City Council of the City of Auburn, Washington, approving an interlocal agreement between the City of Auburn and the City of Pacific for municipal services AA-E1-F V AGENDA BILL APPROVAL FORM --� WASHINGTON Agenda Subject: Resolution No. 4970 Date: July 1, 2013 Department: Legal Attachments: Resolution No. 4970 Budget Impact: & Draft Interlocal Agreement Administrative Recommendation: City Council to approve Resolution No. 4970 Background Summary: The City of Pacific recently experienced some political problems whereby its Mayor was subject of a recall vote. As it appears the recall vote held last Tuesday is indicating that the Mayor is being recalled, the presiding official from the City Council of the city of Pacific requested that the City of Auburn be able to provide some assistance with some of tis municipal services, including but not limited to clerical, public works, and information technology, though there may be other services that will be necessary as well. The city of Auburn is willing to provide assistance to its neighbor city and has drafted a proposed Interlocal Agreement whereby municipal services could be provided to the city of Pacific and the City of Pacific would pay for the services on a full-cost- recovery basis (so that all of the City of Auburn's costs and expenses in providing those services would be covered). The proposed resolution authorizes the Mayor to negotiate specific terms that may need to be included but also to execute the agreement so long as it is in general conformity with the draft. Reviewed by Council&Committees: Reviewed by Departments&Divisions: ❑ Arts Commission COUNCIL COMMITTEES ❑ Building ❑ M&O ❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor • Hearing Examiner ❑ Municipal Sew ❑ Finance ❑ Parks • Human Services ❑ Planning &CD ❑ Fire ❑ Planning ❑ Park Board ❑Public Works ❑ Legal ❑ Police ❑ Planning Comm. ❑ Other ❑ Public Works ❑ Human Resources Action: Committee Approval ❑Yes ❑No Council Approval ❑Yes [-]No Call for Public Hearing _/_/_ Referred to Until / / Tabled Until / / Councilmember: Staff: Meeting Date: Item Number: AUBURN * MORE THAN YOU IMAGINED RESOLUTION NO. 4 9 7 0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, APPROVING AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF AUBURN AND THE CITY OF PACIFIC FOR MUNICIPAL SERVICES WHEREAS, the City of Pacific is in need of assistance with various items of municipal services which the City of Auburn may be able to provide on an interim basis, and WHEREAS, the parties are agreeable to an agreement whereby such services shall be provided by the City of Auburn on a full cost recovery bases and are willing to negotiate the specifics of such agreement, and execute an agreement therefor NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows. Section 1. That the Mayor is authorized to negotiate and execute an Interlocal Agreement between the City of Auburn and the City of Pacific whereby the City of Auburn will provide municipal services for the City of Pacific, which Interlocal Agreement shall be is general conformity with the Interlocal Agreement a copy of which is attached hereto, marked as Exhibit "A" and incorporated herein by this reference. Section 2. That the Mayor is authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. ---------------------------- Resolution No. 4970 July 1, 2013 Page 1 of 2 Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. Dated and Signed this day of 2013. CITY OF AUBURN PETER B LEWIS MAYOR ATTEST Danielle E. Daskam, City Clerk APP:ED WAftorney D niel B. He ---------------------------- Resolution No. 4970 July 1, 2013 Page 2 of 2 CITY OF AUBURN — CITY OF PACIFIC INTERLOCAL AGREEMENT FOR MUNICIPAL SERVICES THIS INTERLOCAL AGREEMENT made and entered into, pursuant to the Interlocal Cooperation Act, Chapter 39 34 of the Revised Code of Washington, on the day of 2013, by and between the CITY OF AUBURN, a municipal corporation of the State of Washington (hereinafter referred to as "Auburn"), and the CITY OF PACIFIC, a municipal corporation of the State of Washington (hereinafter referred to as "Pacific"), WITNESSETH WHEREAS, Pacific seeks municipal services including but not limited to Public Works, Planning, Information Technology Service, and City Clerk; and WHEREAS, Auburn has the requisite skills, resources and experience necessary to provide such services and is willing and agreeable to provide such services upon the terms and conditions herein contained. NOW THEREFORE in consideration of their mutual covenants, conditions and promises, the parties hereto do hereby agree as follows: 1 SCOPE OF SERVICES Auburn agrees to perform for Pacific, in a good and professional manner any services required by the Pacific for the administration of the City. Specific tasks shall be designated in writing by Pacific and shall describe the scope of the task to be performed, the expected deliverables, and a date by which the task should be completed. Auburn shall perform the services as an independent contractor and shall not be deemed, by virtue of this Agreement and the performance thereof, to have entered into any partnership, joint venture, employment or other relationship with Pacific. 2. PACIFIC'S RESPONSIBILITIES Pacific shall do the following in a timely manner so as not to delay the services of Auburn: a. Designate in writing a person or persons to act as Pacific's representative with respect to the services to be performed Pacific's designee(s) shall have complete authority to transmit instructions, receive information, interpret and define Pacific's policies and decisions with respect to the services, except in the event of an emergency as described in each Exhibit. AUBURN/PACIFIC INTERLOCAL AGREEMENT July 1, 2013 Page 1 of 7 b Furnish Auburn with all information, criteria, objectives, schedules and standards for the services provided for herein C. Arrange for access to the property or facilities as required for Auburn to perform the services provided for herein d. Examine and evaluate all studies, reports, memoranda, plans, sketches, and other documents prepared by Auburn and render decisions regarding such documents in a timely manner to prevent delay of the services. 5. ACCEPTABLE STANDARDS Auburn shall be responsible to provide, in connection with the services contemplated in this Agreement, work products and services of a quality and professional standard acceptable to Pacific. 6 COMPENSATION Pacific shall compensate Auburn for performance of the services at a full cost recovery rate. This rate shall include basic salary and benefit costs, plus other costs incurred by Auburn on Pacific's behalf in connection herewith. Auburn shall, upon request, provide Pacific with a specific breakdown of its rate calculations. Auburn shall submit to Pacific a monthly invoice and Pacific shall process the invoice or statement in the next billing/claim cycle following receipt of the invoice or statement, and shall remit payment to Auburn thereafter in the normal course, subject to any conditions or provisions in this Agreement or Amendment. 7 TIME FOR PERFORMANCE AND TERM OF AGREEMENT Auburn shall perform the services provided for herein in accordance with the direction and scheduling provided in each task request, unless otherwise agreed to in writing by the parties The term of this Agreement shall be in effect for note more than three (3) years beginning on the date of signing, and may be extended thereafter by written agreement of the Parties not later than 60 days prior to term end. It is provided, however, that either party may cancel this Agreement upon sixty (60) days written notice to the other party consistent with Paragraphs 11 and 12 of this Agreement. 8. OWNERSHIP AND USE OF DOCUMENTS All documents, reports, memoranda, diagrams, sketches, plans, design calculations, working drawings and any other materials created or otherwise prepared by Auburn as part of its performance of this Agreement (the "Work AUBURN/PACIFIC INTERLOCAL AGREEMENT July 1, 2013 Page 2 of 7 Products") shall be owned by and become the property of Pacific, and may be used by Pacific for any purpose beneficial to Pacific. Public records requests shall be the responsibility of Pacific; however, Auburn may assist at Pacific's request at hourly rates provided in this Agreement. 9. RECORDS INSPECTION AND AUDIT All compensation payments shall be subject to the adjustments for any amounts found upon audit or otherwise to have been improperly invoiced, and all records and books of accounts pertaining to any work performed under this Agreement shall be subject to inspection and audit by Pacific for a period of up to three (3) years from the final payment for work performed under this Agreement. 10 CONTINUATION OF PERFORMANCE In the event that any dispute or conflict arises between the parties while this Contract is in effect, Auburn agrees that, notwithstanding such dispute or conflict, Auburn shall continue to make a good faith effort to cooperate and continue work toward successful completion of assigned duties and responsibilities. Provided that, if Pacific fails to pay for the services provided by Auburn, Auburn can cease providing such services until payment is made 11 ADMINISTRATION OF AGREEMENT This Agreement shall be administered by the Mayor of the City of Auburn on behalf of Auburn, or designee, and by on behalf of Pacific, or designee Any written notices required by the terms of this Agreement shall be served on or mailed to the following addresses: CITY OF AUBURN CITY OF PACIFIC Mayor 25 W Main St 100 3` Ave SE Auburn, WA 98001-4998 Pacific, WA 98047 Phone 253-931-3008 Phone 253-929-1108 Fax: 253-288-3132 Fax: 12. NOTICES All notices or communications permitted or required to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered in person or deposited in the United States mail, postage prepaid, for mailing by certified mail, return receipt requested, and addressed, if to a party of this Agreement, to the address for the party set forth above AUBURN/PACIFIC INTERLOCAL AGREEMENT July 1, 2013 Page 3 of 7 Either party may change his, her or its address by giving notice in writing, stating his, her or its new address, to the other party, pursuant to the procedure set forth above 13 INSURANCE Pacific shall maintain in full force throughout the duration of this Agreement comprehensive general liability insurance with a minimum coverage of $1,000,000 per occurrence/aggregate for personal injury and property damage. This requirement shall be deemed satisfied by evidence of Pacific's membership in a municipal self-insurance pool, including evidence of limits of coverages, exclusions and limits of liability satisfactory to Auburn. Auburn shall maintain in full force throughout the duration of this Agreement comprehensive general liability insurance with a minimum coverage of $1,000,000 per occurrence/aggregate for personal injury and property damage This requirement shall be deemed satisfied by evidence of Auburn's membership in a municipal self-insurance pool, including evidence of limits of coverages, exclusions and limits of liability satisfactory to Pacific. 14. INDEMNIFICATION a. Pacific shall indemnify and hold Auburn and its agents, employees, and/or officers, harmless from and shall process and defend at its own expense any and all claims, demands, suits, at law or equity, actions, penalties, losses, damages, or costs, of whatsoever kind or nature, brought against Auburn arising out of, in connection with, or incident to the execution of this Agreement and/or Pacific's performance or failure to perform any aspect of this Agreement; provided, however, that if such claims are caused by or result from the concurrent negligence of Auburn, its agents, employees, and/or officers, this indemnity provision shall be valid and enforceable only to the extent of the negligence of Pacific; and provided further, that nothing herein shall require Pacific to hold harmless or defend Auburn, its agents, employees and/or officers from any claims arising from the sole negligence of Auburn, its agents, employees, and/or officers. No liability shall attach to Auburn by reason of entering into this Agreement except as expressly provided herein. b Auburn shall indemnify and hold Pacific and its agents, employees, and/or officers, harmless from and shall process and defend at its own expense any and all claims, demands, suits, at law or equity, actions, penalties, losses, damages, or costs, of whatsoever kind or nature, brought against Pacific arising out of, in connection with, or incident to the execution of this Agreement and/or Auburn's performance or failure to perform any aspect of this Agreement; provided, however, that if such claims are caused by or result from the concurrent AUBURN/PACIFIC INTERLOCAL AGREEMENT July 1, 2013 Page 4 of 7 negligence of Pacific, its agents, employees, and/or officers, this indemnity provision shall be valid and enforceable only to the extent of the negligence of Auburn; and provided further, that nothing herein shall require Auburn to hold harmless or defend Pacific, its agents, employees and/or officers from any claims arising from the sole negligence of Pacific, its agents, employees, and/or officers. No liability shall attach to Pacific by reason of entering into this Agreement except as expressly provided herein. 15 WAIVER OF SUBROGATION Pacific and Auburn hereby mutually release each other from liability and waive all right of recovery against each other for any loss caused by fire or other perils which can be insured against under fire insurance contracts including any extended coverage endorsements thereto which are customarily available from time to time in the State of Washington, provided, that this paragraph shall be inapplicable to the extent that it would have the effect of invalidating any insurance coverage of Pacific or Auburn. 16. COMPLIANCE WITH REGULATIONS AND LAWS The parties shall comply with all applicable rules and regulations pertaining to them in connection with the matters covered herein. 17 ASSIGNMENT The parties shall not assign this Agreement or any interest, obligation or duty therein without the express written consent of the other party 18 ATTORNEYS' FEES If either party shall be required to bring any action to enforce any provision of this Agreement, or shall be required to defend any action brought by the other party with respect to this Agreement, and in the further event that one party shall substantially prevail in such action, the losing party shall, in addition to all other payments required therein, pay all of the prevailing party's reasonable costs in connection with such action, including such sums as the court or courts may adjudge reasonable as attorney's fees in the trial court and in any appellate courts. 19 NONDISCRIMINATION Each of the parties, for itself, its heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree that it will comply with pertinent statutes, Executive Orders and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, sexual orientation, age, or the presence of any sensory, mental or physical handicap be discriminated against or receive discriminatory treatment by reason thereof AUBURN/PACIFIC INTERLOCAL AGREEMENT July 1, 2013 Page 5 of 7 20 MISCELLANEOUS a. All of the covenants, conditions and agreements in this Agreement shall extend to and bind the legal successors and assigns of the parties hereto b. This Agreement shall be deemed to be made and construed in accordance with the laws of the State of Washington. Jurisdiction and venue for any action arising out of this Agreement shall be in King County, Washington. C. The captions in this Agreement are for convenience only and do not in any way limit or amplify the provisions of this Agreement. d Unless otherwise specifically provided herein, no separate legal entity is created hereby, as each of the parties is contracting in its capacity as a municipal corporation of the State of Washington. The identity of the parties hereto is as set forth hereinabove e The performances of the duties of the parties provided hereby shall be done in accordance with standard operating procedures and customary practices of the parties. Operational review and service meetings shall be held every six (6) months, with representatives from both cities to review and discuss service and support delivery f. No provision of this Agreement shall relieve either party of its public agency obligations and or responsibilities imposed by law g. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held to be invalid or unenforceable by a final decision of any court having jurisdiction on the matter, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and shall continue in full force and effect, unless such court determines that such invalidity or unenforceability materially interferes with or defeats the purposes hereof, at which time either party shall have the right to terminate the Agreement. h. This Agreement constitutes the entire agreement between the parties. There are no terms, obligations, covenants or conditions other than those contained herein. No modifications or amendments of this Agreement shall be valid or effective unless evidenced by an agreement in writing signed by both parties. AUBURN/PACIFIC INTERLOCAL AGREEMENT July 1, 2013 Page 6 of 7 i. Copies of this Agreement shall be filed with the King County Auditor's Office and the respective Clerks of the parties hereto IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day and year first above written. CITY OF AUBURN CITY OF PACIFIC Peter B Lewis Print Name. Auburn Mayor Print Title- Attest: Attest: Danielle Daskam, Print Name Auburn City Clerk Pacific City Clerk Approv as to fo Approved as to form. Daniel B Heid Kenyon E. Luce Auburn City Attorney Pacific City Attorney AUBURN/PACIFIC INTERLOCAL AGREEMENT July 1, 2013 Page 7 of 7 ACITY OF UBUIl1V AGENDA BILL APPROVAL FORM WASHINGTON Agenda Subject: Date: July 1, 2013 Resolution No. 4969 Department: Attachments: Budget Impact: Public Works Resolution No. 4969 $ 300,000 est Administrative Recommendation: City Council to introduce and adopt Resolution No. 4969. Background Summary: The Hidden Valley Vista drainage outfall system is located between the west end of 111th Place SE and the Green River The existing piped system, annexed from King County, has failed due to significant root blockages in the pipeline causing water to overflow from the system. The root intrusion into the pipeline has occurred due to combination of significantly corroded pipe material and poorly fitting joints. The overflowing water has caused erosion on nearby steep slopes, which if left uncorrected, could become unstable and cause damage to adjacent properties. Given the location and access limitations, staff does not believe the piping system can be successfully repaired and recommends that the entire piping system be replaced before wet weather arrives in the fall The proposed emergency project will replace the existing pipeline and stabilize the eroded slope before such wet weather arrives in the fall Resolution No. 4969 declares an emergency and authorizes the Mayor to negotiate and enter into contracts with qualified contractors and construction service providers to effect the replacement of the damaged drainage system. Costs to complete the work will be paid from Storm Drainage Utility funds Reviewed by Council&Committees: Reviewed by Departments&Divisions: ❑ Arts Commission COUNCIL COMMITTEES. ❑ Building ❑ M&O ❑ Airport ® Finance ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ❑ Municipal Sew ❑ Finance ❑ Parks ❑ Human Services ❑ Planning &CD ❑ Fire ❑ Planning ❑ Park Board ®Public Works ® Legal ❑ Police ❑ Planning Comm. ❑ Other ® Public Works ❑ Human Resources Action: Committee Approval. ❑Yes ❑No Council Approval. (-]Yes ❑No Call for Public Hearing Referred to Until Tabled Until Councilmember: Wagner Staff: Dowd Meeting Date: July 1, 2013 Item Number: AUBURN * MORE THAN YOU IMAGINED RESOLUTION NO. 4 9 6 9 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DECLARING AN EMERGENCY WITH RESPECT TO REPAIR OF THE STORM DRAINAGE FACILITIES AT THE HIDDEN VALLEY VISTA DRAINAGE BASIN WHEREAS, following the Lea Hill annexation, the City of Auburn Storm Drainage crews have made periodic inspections of the Storm Drainage facilities that the City inherited from King County with the annexation, as it does of all of the City's Storm Drainage facilities, and WHEREAS, during a routine check of the Storm Drainage System that the City inherited from King County in the vicinity of the Hidden Valley Vista neighborhood — westerly of the intersection of 110th Ave SE and 111th Ave SE, in Auburn, Washington — the inspection crew noticed a failure of the Storm Drainage facilities which drain the storm water from the territory around the Hidden Valley Vista neighborhood; and WHEREAS, that inspection indicated that the failure was caused by the storm drainage pipes having deteriorated due to their age, and the deteriorated pipes then filled with vegetative matter and tree roots to the point that the pipes could not drain storm water as they were intended to do; and WHEREAS, the inspection crew also noticed that the storm water that would have otherwise been conveyed through the pipes came up through a catch-basin in the vicinity and flooded the area between the catch basin and the territory down-hill, causing significant erosion; and ---------------------------- Resolution No. 4969 June 27, 2013 Page 1 of 3 WHEREAS, in order to prevent further erosion and potential damage to neighboring properties, the Storm Drainage facilities are in need of immediate repair; and WHEREAS, the Storm Drainage facilities impacted by the deteriorated pipes poses a significant problem such that the costs of needed repair could amount to several hundreds of thousands of dollars, due to the extent of the damaged pipes and the steepness of the territory involved, and WHEREAS, the repair is further plagued with the problems of limited time within which to complete the needed repairs before the wet weather months are upon us, in which case the impacts of the failed storm drainage pipes would be more significant and potentially much more consequential; and WHEREAS, in order to protect the property depending on the storm drainage system in the affected area, it is crucial that the City begin repair work as soon as feasibly possible; and WHEREAS, in order to make the storm drainage system repair in as timely a manner as warranted, the City does not have time to put the repair job out for bid as would have been the usual course, and WHEREAS, the emergent circumstances that exist warrant moving forward with the repair work without going out with a public bid process. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows: Section 1. The City Council finds an emergency exists in connection with the need to repair the Storm Drainage System in the vicinity of the Hidden ---------------------------- Resolution No 4969 June 27, 2013 Page 2 of 3 Valley Vista neighborhood — westerly of the intersection of 110th Ave SE and 111th Ave SE, in Auburn, Washington, and that the City needs to enter into a contract or contracts immediately to make the needed repairs, and there is not sufficient time to enable the City to go through the typical bidding and contracting process Section 2. That the Mayor is authorized to negotiate and enter into contracts with qualified contractors and construction service providers to effect the repair of the Storm Drainage System in the vicinity of the Hidden Valley Vista neighborhood, and that any action taken in furtherance thereof is hereby ratified. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. Dated and Signed this day of 12013 CITY OF AUBURN PETER B. LEWIS MAYOR ATTEST Danielle E. Daskam, City Clerk APPROVED A O FOR Daniel B. Hei , City Attorn - ---------------------------- Resolution No 4969 June 27, 2013 Page 3 of 3 AUBUCITY OF_ -1�� /T ItIV AGENDA BILL APPROVAL FORM WASHINGTON Agenda Subject: Date: Resolution No. 4962 July 1, 2013 Department: Attachments: Budget Impact: $0.00 Public Works Resolution, Vicinity Ma Administrative Recommendation: Background Summary: Resolution No. 4962 authorizes the Mayor to execute a License Agreement between the City of Auburn and The Boeing Company to allow for vehicular and utility crossings of an existing Boeing rail easement to/from City property located at 2905 C St Street Systems Engineer Wickstrom. The City acquired the property at 2905 C St SW (which included a building commonly know as the"815 Building") from the General Services Administration (GSA) in December 2006. As part of this property acquisition, the City agreed to separate this properties vehicular access and utility services from the main GSA campus located just north of the property This License Agreement with Boeing will allow the City to eventually construct a new access road and new utility services that will directly connect this property to C St SW across an existing Boeing rail easement. Due to financial considerations, the funds needed to complete the new access road and utility services are currently not budgeted Reviewed by Council&Committees: Reviewed by Departments &Divisions: ❑ Arts Commission COUNCIL COMMITTEES ❑ Building ❑ M&O ❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ❑ Municipal Sery ❑ Finance ❑ Parks ❑ Human Services ❑ Planning&CD ❑ Fire ❑ Planning ❑ Park Board ®Public Works ❑ Legal ❑ Police ❑ Planning Comm ❑ Other ® Public Works ❑ Human Resources Action: Committee Approval. ❑Yes ❑No Council Approval: ❑Yes ❑No Cali for Public Hearing Referred to Until / / Tabled Until_ /_ /_ Councilmember: Wagner Staff: Wickstrom Meeting Date: July 1, 2013 Item Number: AUBURN * MORE THAN YOU IMAGINED RESOLUTION NO. 4 9 6 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LICENSE AGREEMENT BETWEEN THE CITY OF AUBURN AND BOEING FOR AT-GRADE CROSSING WHEREAS, Boeing is the beneficiary of a certain rail easement; and WHEREAS, the City of Auburn is the owner of the real property subject to the easement; and WHEREAS, the parties have negotiated a License Agreement that grants the City license for a public crossing while still addressing Boeing's concerns about its property and its spur NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows. Section 1. That the Mayor and City Clerk are hereby authorized to execute a License Agreement between the City and Boeing for At-Grade Crossing which agreement shall be in substantial conformity with the agreement attached hereto as Exhibit A and incorporated herein by this reference Section 2. That the Mayor is authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. Dated and Signed this day of 2013 ---------------------------- Resolution No. 4962 June 13, 2013 Page 1 of 2 CITY OF AUBURN PETER B LEWIS, MAYOR ATTEST Danielle E. Daskam, City Clerk APPR D A FORM: D n' B Heid, y Attorney --------------------------- Resolution No. 4962 June 13, 2013 Page 2 of 2 LICENSE AGREEMENT FOR AT-GRADE CROSSING THIS LICENSE AGREEMENT FOR AT-GRADE CROSSING ("License"), is made and entered into this day of , 20___), by and between The Boeing Company, a Delaware corporation ("Licensor"), and the City of Auburn, a municipal corporation ("Licensee"). RECITALS A. Licensor is the beneficiary of that certain rail easement (the "Rail Easement") as established pursuant that certain Declaration of Covenants Conditions and Restrictions, dated September 20, 2002 and recorded under King County Recording No. 20020920001614 (the "CC&Rs"). Licensee is the owner of the real property which is burdened by the Rail Easement (the "Licensee's Property"). Licensor uses the Rail Easement to transport/convey rail cars bearing Licensor's goods, material and inventory to and from Licensor's facility located on Licensor's real property ("Licensor's Property") adjacent to the Licensee's Property. B. In order to access C Street SW across Licensee's Property, Licensee plans to cross the Rail Easement. Licensee hereby requests Licensor grant to Licensee the right to cross the Rail Easement for a public Crossing. For and in consideration of the mutual benefits to be derived and other valuable consideration the sufficiency of which is hereby acknowledged, the parties hereby agree as follows. 1. THE LICENSE (a) Licensor does hereby grant to Licensee a non-exclusive license to cross, subject to the terms and conditions of this License, the Rail Easement at the location described and depicted in Exhibit A (the "Licensed Property"), such property to be used by Licensee solely for the purposes described in Section 2 of this License. (b) This License does not constitute an interest in real property, and Licensor shall not be deemed to have granted, conveyed, or transferred an interest in the Property to Licensee by reason of the execution and delivery of this License or the performance by either party of its obligations under this License. Licensee hereby accepts this License and agrees that Licensee's use of the Licensed Property shall conform to the terms and conditions of this License. (c) The license granted by this License is for a public crossing for Licensee's Property, and may not be assigned or sublicensed by Licensee (by operation of law, interlocal agreement or otherwise) or used for uses inconsistent with the purposes hereof without prior written consent of Licensor, which prior written consent shall not be unreasonably withheld. Notwithstanding the terms of the foregoing sentence to the contrary, it shall be reasonable for Licensor to withhold consent if Licensee requests permission to assign or sublicense this License to any party for non-municipal purposes. Absent assignment or sublicensing, as described above, Licensee shall not grant permission to any other person to use LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE I 03003-0182/LEGA L 1 5294225 1 5/31/13 the Licensed Property, provided that Licensee's officers, agents, employees and other persons having business with Licensee may use the Licensed Property as a crossing during ingress to and egress from Licensee's Property. 2. USE Licensee shall use the Licensed Property solely for construction, installation, operation, maintenance and repair, at Licensee's sole cost and expense of (a) an at-grade public access crossing for pedestrians and vehicles and any and all associated facilities, including but not limited to Crossing signage, warning and safety devices (the "Crossing") and (b) underground utility lines, subject to the following limitations: (a) Licensee's use hereunder is non-exclusive and Licensee shall use the Licensed Property in common with Licensor and all other licensees and tenants of Licensor. For the purposes hereof, "Licensee" includes its agents, employees, guests and invitees; (b) Licensee is prohibited from using the Licensed Property for any other use without the express, prior written consent of Licensor. (c) Licensee acknowledges that Licensor uses the Rail Easement on a continuous and ongoing basis, such rail operations are critical to Licensor's operations at Licensor's Property and any interruption or cessation of such rail operations will result in immediate, irreparable harm to Licensor. Licensee also acknowledges that railroad traffic has right-of-way over vehicular and pedestrian traffic. Accordingly, Licensee shall exercise best efforts to assure any activities on, under, at, adjacent to or across the Licensed Property pursuant to this License shall not result in any damage or injury to the Licensed Property or any improvements located thereon, including, without limitation, rails, tracks, ties and any other improvement in connection with the Rail Easement (the "Trackage"). Licensee shall be responsible for any damage to the Licensed Property or the Trackage arising from the activity of Licensee, or (without limitation) its contractors, employees, agents or the general public on, under, at, adjacent to or across the Licensed Property in the exercise of the rights of Licensee hereunder, and shall repair such damage within a reasonable time when requested to do so by the Licensor or, in lieu thereof and at Licensor's sole discretion, make a cash settlement therefor. In addition, Licensee shall be obligated to immediately remove any stalled or otherwise inoperable vehicle from the Trackage upon Licensor giving notice to the City Representative (as defined in Section 16(b) below), provided that such obligation shall not extend to vehicles owned by Licensor. In the event that Licensee fails to timely remove such vehicles from the Crossing, Licensor shall have the right to effect immediate removal and Licensee shall be obligated to Licensor for its cost involved therewith. It is further provided that notwithstanding anything else in this Agreement, if such removal by Licensor is called for, Licensor shall be entitled to reasonably enter onto the property of Licensee to effect such removal. LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 2 03003-0182/1-EGAL 15294225 1 5/31/13 (d) Licensee shall not make any improvements or alterations to the Licensed Property other than those improvements and alterations specifically related to the construction, installation, operation, maintenance and repair of(a) the Crossing or (b) underground utility lines. (i) All plans and specifications for improvements and alterations, including without limitation, the Crossing, shall (A) be pursuant to the then current railroad design standards applicable to commercial railroads such as Burlington Northern Santa Fe, Union Pacific and the like; and (B) be submitted to Licensor for review and approval prior to Licensee's commencement of any work on the Licensed Property. Any other requirements shall be as determined at the time of design in accordance with applicable engineering standards. (ii) The Crossing shall include adequate drainage facilities necessary or appropriate for the prevention of ponding and/or flooding or any other kind of water damage in the general area where the Crossing is located. Any such drainage facilities shall be installed, repaired, maintained and cleaned by Licensee at Licensee's sole cost and expense. (iii) Within forty-five (45) days of final acceptance of any improvements at the Licensed Property, Licensee shall provide Licensor with a set of"as-built" drawings of all underground utilities and any other at grade or above ground improvements, including without limitation, the Crossing, installed at the Licensed Property. (iv) From time to time, Licensor may, but shall not be obligated to, review the safety and traffic patterns at the Licensed Property and reasonably require that Licensee, at Licensee's sole cost and expense, modify or improve the Crossing in accordance with applicable law. Any required modifications or improvements to the Crossing shall be reasonable if supported by an engineering study performed by an engineer competent to perform the study and agreed to by Licensor and Licensee. No authorization, consent, modification or approval granted or required by Licensor regarding the Crossing or Licensee's plans therefor shall be (A) deemed a representation or a warranty that such plans and specifications are or Licensee's project is in compliance with applicable law or (B) construed to impose any liability upon said Licensor Licensee shall hold Licensor and the Licensed Property harmless from and against any liens of contractors, subcontractors, or other persons supplying goods, services, equipment, materials, or labor to or on behalf of Licensee at the Licensed Property At the request of Licensor, Licensee shall discharge any such liens. (v) Licensee, when performing work at the Licensed Property, either pursuant to this Section 2 or Section 7 below, shall ensure that people, equipment and materials are kept a safe distance away from the Trackage on the LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 3 03003-0182/LEGAL 15294225 1 5/31/13 approach of any moving equipment on the tracks and shall otherwise comply with applicable safety requirements. (e) In its use of the Licensed Property, the Licensee shall not violate any applicable law, ordinance, deed, restriction or regulation affecting the Licensed Property or any part thereof, including without limitation, the CC&Rs. Licensee is solely responsible for obtaining all necessary permits, licenses, and approvals required from any governmental authority or agency and shall conduct its business and operations at the Licensed Property strictly in conformance with all requirements of any applicable permits, licenses, and approvals. Licensee shall reasonably provide Licensor with notice of Licensee's applications for any such permits, licenses, or regulatory approvals upon request. (f) Licensee may erect signs or barricades on the Licensed Property only with the prior written consent of Licensor, which Licensor may withhold in its sole discretion. Any signs or barricades allowed by Licensor shall be removed by Licensee at the termination of this License. Notwithstanding the foregoing, Licensee shall install Licensor-approved signage at the Crossing to identify the location of the Crossing. If, during the Term, applicable laws or regulations require certain signage, gates or automatic protection at the Crossing, Licensee shall, as soon as reasonable, take steps to comply with such law or regulation and install the required protection at Licensee's sole cost and expense. For the purposes hereof, "applicable laws or regulations requiring certain signage, gates or automatic protection at the Crossing," means a law or regulation (as opposed to, for example, an optional agency guideline or standard) that mandates a change in signage or other safety features provided at the Crossing. (g) Licensee shall timely reimburse Licensor's costs of designing, constructing, installing, maintaining, operating or repairing Licensee's Crossing across the Licensed Property, whether such costs are based on requirements of the Washington Utilities and Transportation Commission ("WUTC") or this License Agreement. 3. TERM (a) This License shall commence on 2013 (the "Commencement Date") and continue until 2038. So long as Licensee is not in default hereunder, Licensee shall have the right to renew this License for two (2) consecutive renewal periods of twenty-five (25) years each, subject to Licensee's prior written notice to Licensor at least thirty (30) days prior to the first day of each renewal period. Thereafter, at the conclusion of the three (3) twenty- five (25) year initial term and extensions, the parties may negotiate any further license or extensions. (b) Notwithstanding the provisions of Section 3(a) above, Licensor may terminate this License upon an Event of Default hereunder in accordance with the LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 4 03003-0182/LEGAL 15294225 1 5/31/13 provisions of Section 14 below and Licensor and Licensee may terminate this License at any time upon mutual agreement. 4. LICENSE FEE; TAXES (a) The License is granted to Licensee for an annual fee of Two Hundred and 00/100 Dollars ($200) (the "Annual Fee"). (b) In addition to the Annual Fee, Licensee shall assume and pay, prior to delinquency, any and all taxes and assessments which may be levied upon the Licensee's facilities located at the Licensed Property, including, without limitation, the Crossing, pursuant to this License and Licensee shall indemnify, defend and hold Licensor harmless therefrom. 5. SERVICES AND UTILITIES Licensor shall have no obligation to provide any services or utilities to the Licensed Property. Licensee is responsible, at its sole risk and expense, to supply all services, utilities, infrastructure and improvements in connection with Licensee's use of the Licensed Property. Licensee shall pay when due all charges for utilities and other services provided to or on behalf of Licensee at the Licensed Property. 6 CONDITION; "AS IS"; DISCLAIMER (a) Representation. Licensor represents that it holds an exclusive and perpetual easement in the location of the Licensed Property and that Licensor has the power and right to grant the License hereunder to Licensee. (b) DISCLAIMER AND RELEASE. EXCEPT FOR THE REPRESENTATION IN PARAGRAPH 6(a), THE LICENSED PROPERTY, AND ALL OTHER GOODS OR SERVICES PROVIDED OR TO BE PROVIDED IN CONNECTION WITH THIS LICENSE ARE BEING PROVIDED TO THE LICENSEE "AS IS, WHERE IS" WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF LICENSOR AND THE REMEDIES OF THE LICENSEE SET FORTH IN THIS LICENSE ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND EACH PARTY HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF LICENSOR AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF THE LICENSEE AGAINST LICENSOR, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN THE LICENSED PROPERTY, ANY SERVICES, OR ANY OTHER ITEM PROVIDED UNDER THIS CONTRACT, INCLUDING BUT NOT LIMITED TO: (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 5 03003-0182/LEGAL 15294225 1 5/31/13 (ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF ANY PARTY (WHETHER ACTIVE, PASSIVE OR IMPUTED) (iv) ANY WARRANTY OF SUITABILITY FOR A PARTICULAR PURPOSE; AND (v) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY PROPERTY. (c) EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES LICENSOR SHALL HAVE NO OBLIGATION OR LIABILITY TO LICENSEE OR ANY THIRD PARTY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE) OR OTHERWISE, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES. 7 MAINTENANCE (a) Any improvements constructed by Licensee at the Licensed Property, pursuant to this License, including without limitation the Crossing, shall be the property of Licensee during the Term and Licensor shall have no interest to or liability in respect of such improvements. (b) Licensee, at Licensee's sole cost and expense, shall be responsible throughout the Term for preventing damage to the Licensed Property as a result of the use of the Licensed Property by Licensee or (without limitation) Licensee's agents, Contractors, employees and the general public. (c) Licensee, at Licensee's sole cost and expense, shall maintain the Licensed Property and the Crossing in a clean and safe condition at all times, free and clear of all obstructions, and shall make repairs as necessary. No ice, snow, rubbish, trash, waste, residue, brush, weeds, undergrowth or debris of any kind shall be placed or permitted to accumulate upon the Licensed Property or the Crossing. If Licensee fails to maintain the Licensed Property or the Crossing, then Licensor, for the purpose of protecting and safeguarding its property, and use of the Rail Easement, may perform any required maintenance, repair or cleaning at the Licensed Property upon five (5) business days notice to Licensee. Licensee shall reimburse Licensor for any and all costs related to Licensor's action within thirty (30) days of receipt of Licensor's invoice therefor 8 LICENSOR'S ACCESS LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 6 03003-0182/LEGA L 1 5294225 1 5/31/13 (a) Licensor shall have the continuing right of access to the Licensed Property (including the Crossing) PROVIDED that Licensor shall not unreasonably interfere with Licensee's use of the property, so long as Licensee is not in default hereunder (b) Notwithstanding the foregoing provisions of this Section 8, Licensor and Licensee acknowledge and agree that Licensor maintains the Rail Easement on a regular basis and such maintenance can involve the removal of the Trackage and closure of the Crossing. If Licensor anticipates that any maintenance work will involve removing the Trackage, closing the Crossing or otherwise substantially interfering with the use of the Crossing by pedestrians and vehicles, then Licensor shall coordinate with Licensee to schedule such maintenance at mutually convenient times. Nothing in this Section 8 shall prohibit or prevent Licensor from closing the Crossing or maintaining the Trackage in accordance with Licensor's procedures. If Licensor's maintenance work requires Licensee to relocate, reposition or realign the Crossing in order to work with the new Trackage, then Licensee shall make the required adjustments to the Crossing at Licensee's sole cost and expense. (c) In addition to the foregoing, at any time if Licensor determines that watchmen, flagmen or other security personnel are required at the Crossing to properly protect Licensor's operations along, at and across the Rail Easement, the Licensor may, but has no duty to, place as many such individuals at the Crossing as Licensor deems reasonable. The furnishing or failure to furnish flagmen, watchmen or other security personnel by Licensor shall not release Licensee from any and all other obligations and liabilities assumed by Licensee under the terms of this License. (d) Licensor shall make reasonable best efforts to remove any stalled or otherwise inoperable railroad cars or railroad related equipment from the Crossing upon Licensee giving notice to the Licensor's Representative (as defined in Section 16(b) below), provided that such obligation shall not extend to railroad cars or railroad related equipment owned by Licensee. In the event that Licensor is unable or otherwise fails to remove such inoperable railroad cars or railroad related equipment from the crossing within four (4) hours of Licensee's notice, Licensee may elect to contact BNSF to effect such removal and Licensor shall be obligated to Licensee for the reasonable costs billed by BNSF to Licensee to effect such removal. 9. CONDITION AT SURRENDER At the termination of the Term of this License, Licensee shall surrender the Licensed Property to Licensor in the same condition as at the Commencement Date, excepting normal wear and tear, casualty, condemnation, and alterations permitted by Licensor, and damage caused by other tenants or licensees of Licensor Licensee shall not be obligated to remove any underground utilities serving Licensee's Property, provided that if such utilities are abandoned in place, Licensee shall cut and cap such utility lines to the reasonable satisfaction of Licensor. LICENSE AGREEMENT FOR A"F-GRADE CROSSING PAGE 7 03003-01821LEGAL 1 5294225.1 5/31/13 10 INDEMNIFICATION AND INSURANCE (a) Indemnity. Licensee acknowledges that Licensor transports rail cars at, along, across and over the Rail Easement on a regular and ongoing basis in support of Licensor's operations at Licensor's Property, and Licensor's use of the Rail Easement is critical to Licensor's operations at Licensor's Property Licensee will indemnify, defend, and hold harmless, Licensor, its subsidiaries, and their respective directors, officers, employees, agents, attorneys and assigns (hereinafter "Indemnitees") from and against all actions, causes of action, liabilities, claims, suits, penalties, fines,judgments, liens, awards and damages of any kind whatsoever (hereinafter "Claims"), for injury to or death of any person (including without limitation claims brought by (i) the general public, (ii) employees, licensees or invitees of Licensee or (iii) employees, licensees or invitees of any Contractor of Licensee (hereinafter "Contractor")) or damage to or loss of any property or clean up of any discharge or release by Licensee or any Contractor, and expenses, costs of litigation, and reasonable attorneys' fees related thereto, or incident to establishing the right to indemnification, arising out of or in any way related to this License or the presence on the Licensed Property by (1) Licensee, (2) a Contractor or (3) the respective employees, licensees or invitees of Licensee or a Contractor, or (4) the general public. Licensee expressly waives any immunity under industrial insurance whether arising from Title 51 of the Revised Code of Washington or any other statute or source, to the extent of the indemnity set forth in this paragraph. This waiver was mutually negotiated by the parties. In the event that Licensee is successful in proving that the foregoing indemnity is limited by RCW 4.24.115, Licensee shall defend, indemnify and hold harmless the Indemnitees to the full extent allowed by RCW 4.24.115. In no event shall Licensee's obligations hereunder be limited to the extent of any insurance available to or provided by Licensee. Licensee shall require each Contractor who desires access to the Licensed Property to provide an indemnity, enforceable by and for the benefit of the Indemnitees, to the same extent required of the Licensee. (b) Insurance Policies. Licensee shall, at its own cost and expense, carry and maintain, and shall ensure that any Contractor carries and maintains during the Term of this License, Commercial General Liability Insurance with available limits of not less than Five Million Dollars ($5,000,000) per occurrence for bodily injury, including death, and property damage combined, Five Million Dollars ($5,000,000) general aggregate. Such insurance shall be in a form and with insurers acceptable to Licensor and shall contain coverage for all premises and operations, broad form property damage and contractual liability (including without limitation, that specifically assumed herein). Any policy which provides the insurance required under this paragraph shall: (i) be endorsed to name The Boeing Company and its subsidiaries and their respective directors, officers, employees, agents, attorneys and assigns" as additional insureds (hereinafter "Additional Insured") with respect to any liability arising out of Licensee's presence on the Licensed Property, (ii) be endorsed to be primary to any insurance maintained by The Boeing Company, (iii) contain a severability of interest LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 8 03003-0182/LEGA L 1 5294225 I 5/31/13 provision in favor of the Additional Insured and (iv) contain a waiver of any rights of subrogation against the Additional Insured. A certificate evidencing such insurance coverage shall be delivered to Licensor not less than fifteen (15) days prior to the commencement of the Term. Such certificate of insurance will provide for fifteen (15) days advance notice in the event of cancellation. (c) Automobiles. If licensed vehicles will be used in connection with this License, Licensee shall carry and maintain, and shall ensure that any Contractor who uses licensed vehicles in connection with this License carries and maintains, Automobile Liability insurance covering all vehicles, whether owned, hired, rented, borrowed or otherwise, with limits of liability of not less than Ten Million Dollars ($10,000,000) per occurrence combined single limit for bodily injury and property damage. (d) Workers' Compensation. Licensee shall cover or maintain, and shall ensure that any Contractor covers or maintains, insurance in accordance with the applicable laws relating to workers' compensation, with respect to all of their respective employees working on or about the Licensed Property, regardless of whether such coverage of insurance is mandatory or merely elective under the law (e) Proof of Contractor Coverage. Licensee shall ensure that no Contractor shall access the Licensed Property unless such Contractor shall have provided a certificate of insurance to Licensor reflecting full compliance with the requirements set forth in this Section 10 Such certificate shall list the Boeing Company as certificate holder and shall be kept current and in compliance throughout the Term and shall provide for thirty (30) days advance written notice to Licensor in the event of cancellation. (f) Review Licensor shall have the right to periodically review the adequacy of the insurance requirements provided for in this Section 10 every five (5) years during the Term. If Licensor determines that the insurance requirements hereunder, as may be amended from time to time, no longer provide adequate protection to Licensor, then Licensor may give Licensee notice (the "Insurance Notice") that Licensee must, within thirty (30) calendar days, obtain such additional insurance as Licensor reasonably requires. 11. WAIVER OF GOVERNMENTAL IMMUNITY Licensee expressly waives any immunity, including, without limitation, governmental immunity, whether arising from Title 51 of the Revised Code of Washington, or any other source, to the extent it is necessary to effectuate the indemnity set forth in Section 10 above. This waiver was mutually negotiated by the parties. 12. ENVIRONMENTAL MATTERS (a) Compliance with Laws and Requirements. LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 9 03003-0182/LEGA 1.1 5294225 1 5/31/13 (i) Except as otherwise agreed by Licensor in writing, Licensee shall be solely responsible at its expense for obtaining any permits, licenses or approvals, and for preparing, maintaining and submitting any records or reports, as required under applicable Environmental Laws and Requirements for its operations hereunder Licensee shall comply with any and all Environmental Laws and Requirements and shall not cause, permit or allow the presence of and shall not generate, release, store, or deposit any Hazardous Substances on or about the Licensed Property in violation of any Environmental Laws and Requirements, or in a manner which may give rise to liability for environmental cleanup, damage to property, or personal injury to Licensor, or any other person. Without limiting the generality of the foregoing, polluting, releasing, spilling, dumping or discharging any Hazardous Substance into any drain, storm drain, stream, waterway, wetland or pond, or upon the ground surface, on or about the Licensed Property is prohibited. (ii) In the event of a spill or other release of Hazardous Substances caused by Licensee, its agents, employees, contractors or invitees at or from the Licensed Property, Licensee shall undertake immediate response as required by law, including but not limited to providing and properly using appropriate spill response materials and reporting to appropriate agencies, and shall notify Licensor's site services dispatch organization of same as soon as possible (and, to the extent practicable in light of applicable Environmental Laws and Requirements, before Licensee reports the spill or other release to appropriate agencies). (b) Prohibited Activities. (i) Without limiting the generality of Licensee's obligations under this Article 12, Licensee shall not cause or permit any of the following activities to occur in connection with its use of the Licensed Property: (i) generating or storing any "dangerous waste" (as defined in WAC 173-303-040) on or about the Licensed Property; (ii) fueling of motor vehicles within 25 feet of any drain, storm drain, stream, waterway, wetland or pond on or about the Licensed Property; (iii) fueling of motor vehicles other than directly from five-gallon containers; (iv) storing fuel, motor oil, or any other motor vehicle fluids overnight on or about the Licensed Property; (v) performing maintenance on motor vehicles on our about the Licensed Property; (vi) possessing or using any pesticides or herbicides for purposes of weed control on or about the Licensed Property; (vii) application of coatings or paint on or about the Licensed Property, other than for purposes of temporary pavement markings necessary for Licensee's intended use of the Licensed Property; and (viii) introducing to or using any Hazardous Substance (or any product containing a Hazardous Substance) on or about the Licensed Property unless properly containerized and labeled. LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 10 03003-0192/LEGAL 15294225 1 5/31/13 (ii) Notwithstanding any provision of this License Agreement to the contrary, neither the restrictions listed above, nor any requirement contained in this Article 12 requiring Licensee to notify Licensor or obtain Licensor's review or approval of any of Licensee's plans, procedures, policies or performance relating to any aspect of environmental, health or safety, shall in any way- (i) relieve Licensee in any manner of its sole responsibility, at its sole expense, for environmental, health and safety matters in connection with its use of the Licensed Property; (ii) be construed as limiting in any manner Licensee's obligations under this Article 12; (iii) indicate Licensor's control over the manner in which Licensee performs its work, or supervises, directs, or instructs its employees, agents, contractors or invitees; or (iv) create any liability whatsoever for Licensor (c) Definitions. (i) As used herein, the term "Hazardous Substances" means any hazardous, toxic, chemical, or dangerous substance, pollutant, contaminant, waste or material, including petroleum, which is regulated under any and all federal, state, or local statute, ordinance, rule, regulation, or common law relating to chemical management, environmental protection, contamination, or cleanup including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended (42 U.S.C. § 9601 et seq.), the Resource Conservation and Recovery Act as amended (42 U.S.C. § 6901 et seq.) or any other federal, state, county, or city law, or any other ordinance or regulation existing or which may exist. (ii) As used herein the term "Environmental Laws and Requirements" means any and all federal, state, local laws, statutes (including without limitation the statutes referred to in Paragraph 12.3 1 above), ordinances, rules, regulations and/or common law relating to environmental protection, contamination, the release, generation, production, transport, treatment, processing, use, disposal, or storage of Hazardous Substances, or relating to worker health or safety or industrial hygiene, and the regulations promulgated by regulatory agencies pursuant to these laws, and any applicable federal, state, and/or local regulatory agency-initiated orders, requirements, obligations, directives, notices, approvals, licenses, conditions or permits, including but not limited to those for the reporting, investigation, cleaning, or remediation of Hazardous Substances on the Licensed Property (d) Remediation. Should Licensee fail to perform any of its obligations pursuant to this License or to any and all Environmental Laws and Requirements, Licensee shall at its own expense promptly remedy such noncompliance. Licensee shall at its own expense remove or remediate any unsafe condition that Licensee has caused to occur and clean up or remediate any Hazardous Substance which Licensee has caused to be released at or from the Licensed Property Should LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE I1 03003-0182/1,EGAL 15294225 1 5/31/13 Licensee fail so to do, Licensor shall have the right, but not the duty, to enter the Licensed Property personally or through its agents, consultants, or contractors to perform the same. Further, Licensee shall hold Licensor harmless from any losses, including claims of third parties, resulting from any noncompliance with Environmental Laws and Requirements, or from any unsafe condition or release of Hazardous Substances caused by Licensee. (e) Documentation and Right to Inspect. Licensee shall provide copies to Licensor of any reports regarding its operations at the Licensed Property which are submitted to governmental agencies pursuant to any Environmental Laws and Requirements. Licensee shall also make available to Licensor upon request all permits and approvals, and all records maintained by Licensee pursuant to any Environmental Laws and Requirements. During the Term of this License, Licensor and/or its agents or employees shall have the right to periodically inspect the Licensed Property at reasonable times to confirm that Licensee is in compliance with the terms of this License, including compliance with any and all Environmental Laws and Requirements. Further, if Licensor at any time should have any cause to believe that any Hazardous Substances are or at any time during the term of this License have been released at or from the Licensed Property without strict compliance with all Environmental Laws and Requirements or in a manner which may give rise to liability for environmental cleanup, damage to property, or personal injury to Licensor or any other person, Licensor shall have the right at its discretion, but not the duty, to enter, at any reasonable time, and conduct an inspection of the Licensed Property including invasive tests to determine whether, and the extent to which, Hazardous Substances have been released. Licensee hereby grants to Licensor, and its employees, agents, employees, consultants, and contractors the right to enter the Licensed Property upon reasonable notice to Licensee and to perform such tests on the Licensed Property as are reasonably necessary in the opinion of Licensor to conduct such investigations. Licensor may retain any independent qualified professional consultant to enter the Licensed Property to conduct such inspections. Such consultant's reasonable fee shall be payable by Licensee if such consultant determines that Licensee's activities constitute a material violation of Environmental Laws and Requirements or have resulted in the release of Hazardous Substances into the environment which may give rise to liability for environmental cleanup, damage to property, or personal injury to Licensor or any other person, otherwise such fee shall be payable by Licensor (f) Indemnification. Licensee shall indemnify, hold harmless, and defend Licensor, and its directors, officers, employees, agents, assigns, and attorneys from any and all claims, losses, damages, response costs, and expenses arising out of or in any way relating to the violation of any Environmental Laws and Requirements, or to the generation, release, storage, deposit or disposal of Hazardous Substances, arising out of(1) Licensee's presence at the Licensed Property, including, without limitation the presence of Licensee's agents, employees, contractors and invitees and the general public or (2) the use of the Crossing at any time during the term of this License, including but not limited to: (x) claims of third parties, including LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 12 03003-0182/LEGAL15294225 1 5/31/13 governmental agencies, for damages (including personal injury and/or property damage), response costs, fines, penalties, injunctive or other relief; (y) the cost, expense, or loss to Licensor of any injunctive relief, including preliminary or temporary injunctive relief, applicable to the Licensor or the Licensed Property; and (z) the expense of reporting the existence of Hazardous Substances to any agency of any local government, state government or the United States as required by applicable laws or regulations, before and after any trial or appeal therefrom whether or not taxable as costs; all of which shall be paid by Licensee when accrued. 13. DEFAULT OF LICENSEE The following shall constitute events of default by Licensee, each, an "Event of Default": (a) Any assignment or sublicense of this License in violation of Section 1(c) above; (b) GSA enforces its reversionary interest in Licensee's Property under the USA Deed; (c) Licensee's failure to maintain in force or pay the premium for any policy of insurance required to be obtained or maintained by Licensee pursuant to this License; (d) Any default by Licensee of its obligations under Section 10 (Insurance and Indemnification) or Section 12 (Environmental Matters); or (e) Licensee's failure to observe and perform any other provision, term or condition in this License within sixty (60) days after Licensor delivers written notice of the failure to Licensee, or if the cure cannot reasonably be concluded within sixty (60) days, then if Licensee fails to commence to cure the failure within such sixty (60) day period and thereafter proceed diligently to complete the cure. 14. REMEDIES OF LICENSOR (a) Termination and Removal by Licensor In the Event of Default by Licensee that Licensee does not cure as provided elsewhere in this Agreement or within sixty (60) days of written notice by Licensor, whichever period is shorter, Licensor may in addition to all other legal or equitable remedies, (i) terminate this License and Licensee's right to use the Licensed Property by delivering written notice of termination to Licensee, and that action shall concurrently terminate the rights of Licensee under this License, or (ii) with or without terminating this License, re- enter the Licensed Property by summary proceedings, proceedings in unlawful detainer, eviction, or otherwise, and may dispossess Licensee. (b) Payment of Costs. Licensee agrees to be liable for and to pay Licensor all costs incurred by Licensor in connection with the enforcement of Licensor's rights hereunder, including the reasonable fees and disbursements of Licensor's attorneys. Such liability shall survive the termination of this License, the re-entry LICENSE AGREEMENT FOR.AT-GRADE CROSSING PAGE 13 03003-0182/LEGAL 15294225 1 5/31/13 into the Licensed Property by Licensor, and the commencement of the action to secure possession of the Licensed Property All amounts not paid to Licensor when due shall bear interest at the annual rate of twelve percent (12%) or, if less, the maximum rate permitted by law 15 ENFORCEMENT (a) Nonwaiver. No failure by either party to insist upon the strict performance of any agreement, term, covenant or condition hereof or to exercise any right or remedy consequent upon a breach thereof, and no acceptance of full or partial licensee fees by Licensor during the continuance of any such breach, shall constitute a waiver of any such breach or of such agreement, term, covenant, or condition. No agreement, term, covenant, or condition hereof to be performed or complied with by either party, and no breach thereof, shall be waived, altered or modified except by a written instrument executed by the parties. No waiver of any breach shall affect or alter this License, but each and every agreement, term, covenant and condition hereof shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. (b) Remedies Cumulative. Each right and remedy provided for in this License shall be cumulative and shall be in addition to every other right or remedy provided for in this License or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by either party of any one or more of the rights or remedies provided for in this License or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by such party of any or all other rights or remedies provided for in this License or now or hereafter existing at law or in equity or by statute or otherwise. 16. MISCELLANEOUS (a) Successors and Assigns. Subject to the provisions of this Section 16 and Section 1(c) above, all of the provisions of this License shall bind and inure to the benefit of the parties and their respective heirs, legal representatives, successors and assigns. (b) Notices. Where provision is made herein for notice of any kind, it shall be deemed sufficient, if such notice is addressed as shown below: Licensor: The Boeing Company Boeing Commercial Airplane Group P.O. Box 3707 MS SR-15 Seattle, WA 98124-2207 Licensee. City of Auburn 25 West Main Street LICENSE AGREEML'N'r FOR A'1'-GRADE CROSSING PAGE 14 03003-0182/LEGAL 1 5294225.1 5/31/13 Auburn, WA 98001 All such notices shall be given either by hand or by recognized overnight delivery service, with all fees for next business day delivery prepaid. Notices shall be deemed given when delivered if given by hand or 24 hours after delivery to an overnight delivery service with next business day delivery charges prepaid. For the purposes of this License the "Licensor's Representative" shall be the Boeing Auburn Civic and Land Use Planner, Doug McIntyre, tel: 206-225-5435, e-mail: douu,.mcintyre a boeing.com and the "City Representative" shall be the City of Auburn Public Works Director, tel: (253) 931-3010, and notices to such individuals delivered by email or telephone shall be deemed effective when received. Any change in either the name of contact information of either the Boeing Representative or the City Representative shall be provided to Licensor or License, as applicable in accordance with such party's notice details set forth above. (c) Severability. If a court of competent jurisdiction shall determine, to any extent, that any provision, term or condition of this License shall be invalid or unenforceable, that determination shall not affect the remainder of this License, and each provision, term or condition in the remainder of this License shall be valid and enforceable to the extent permitted by law. (d) Licensee's Interest; Holdover. Licensee has no right in the Licensed Property other than the license to use the Licensed Property as set out in this License. Licensee has no right to hold over after the end of the Term and agrees that Licensor may use all legal means to remove Licensee and its property and all Licensee Vehicles from the Licensed Property at and following the end of the Term, and that Licensee shall reimburse Licensor for all of Licensor's reasonable out-of-pocket expenses in so doing. (e) Costs; Attorney's Fees. Except for actions by Licensor pursuant to Paragraph 14 of this License upon a default by Licensee, if a dispute between Licensor and Licensee arises under this License, each party shall bear its own costs, including but not limited to attorneys' fees. (f) Captions. The marginal headings or titles to the sections of this License are not a part of the License but are inserted only for convenience. They shall have no effect on the construction or interpretation of any part of this License. (g) Time is of the Essence. Time is of the essence in the performance of all covenants and conditions of this License in which time is a factor. (h) Counterparts. This License may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original License, but all of which together shall constitute one and the same License. LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 15 03003-0182/LEGAL 15294225 1 5/31/13 (i) Choice of Law. This License shall be governed by the Laws of the State of Washington, without reference to its choice of law rules. (j) Agents and Brokers. Each party represents that it has hired or retained no agent or broker in connection with this License and shall hold the other party harmless from any claim by any agent or broker claiming payment of any commission, finders' fee or the like in connection with this License. (k) No Recording. Neither party shall record this License, nor any memorandum of this License. (1) Complete Agreement. This License, including the Exhibits hereto contains the entire and complete agreement between the parties hereto, with all previous negotiations, warranties, covenants, conditions and promises being merged herein. Licensor and Licensee further agree that no alteration, amendment or modification to this License shall be binding upon Licensor or Licensee unless same is first reduced to writing and signed by both Licensor and Licensee. (m) Survival. Licensee's indemnification obligations set forth in this License shall survive the expiration or early termination of this License and shall not be limited by any provision of this License. Executed in duplicate as of the date first written above. LICENSOR: LICENSEE: The Boeing Company City of Auburn By: By: Title: Title: Attest: Danielle E. Daskam, Auburn City Clerk Ap71' s hto Da 'el B. Hei , urn City Attorney LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 16 03003-0182/LEGAL 15294225 1 5/31/13 Exhibit A Licensed Property Rail Crossing Exhibit LEGAL DESCRIPTION OF THE 25' WIDE RAIL CROSSING That portion of Lot 1 of City of Auburn Lot Line Adjustment Number LLA02-0015, recorded under recording number 20020725001632, records of King County, Washington, said portion more particularly described as follows: Commencing at the most northerly northeast corner of said Lot 1, Thence South 11 017' 51" East along the east line of said Lot 1 a distance of 177.93 feet to the most northerly point of the centerline of a 25.00 foot wide Rail Easement described in Exhibit "E" of document recorded under King County Recording Number 20020920001614 and the beginning of a non-tangent curve to the right, from which point the radius point bears North 68° 45' 18"West, 720 00 feet distant; Thence southwesterly along the centerline of said rail easement and along the arc of said curve, passing through a central angle of 150 20' 44", an arc distance of 192.84 feet; Thence South 36° 35' 25"West along said centerline a distance of 13.95 feet to the True Point of Beginning of this Rail Crossing; Thence leaving said centerline South 780 37' 49" East a distance of 13.82 feet to the easterly margin of said rail easement; Thence South 360 35' 25" West along said easterly margin a distance of 89.51 feet to the south line of the lands described in Exhibit A of deed recorded under recording number 20100219001442, records of said County; Thence North 89° 12' 14" West along said south line a distance of 30 82 feet to the westerly margin of said rail easement; Thence along said westerly margin North 360 35' 25" East a distance of 95 76 feet; Thence South 780 37' 49" East a distance of 13 82 feet to the True Point of Beginning. (The basis of bearings for this description is City of Auburn Lot Line Adjustment LL02-0015 recorded under King County Recording Number 20020725001632.) R. Ff'•.9FQ��0:��J4r s2�n'AL L ANA SJ LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 17 03003-0182/LEGAL 15293225 1 7/1/13 Exhibit A THE MOST NORTHERLY NORTHEAST CORNER OF LOT 1 OF LLA02-0015 S 89'12'14" E 57.79' e LINE BEARING DISTANCE io n 1_1 S 36'35'25' W 13.95 L2 S 78'37 49" E 13.82' Z L3 S 36'35'25' W 89.51 L4 N 89'1214' W 30.82' L5 N 36'35'25 E 95.76 L6 S 78'37'49" E 13.82' 6 (Ap Is-IV CENTERLINE CURVE DATA 25' RAIL EASEMENT L=192.84' / / AREA PER EXHIBIT "E' R=720.00' IN DOCUMENT RECORDED D' 100' 200' 6-15'20'4�/ UNDER�ffR 20020920001614 8ER 2 crry / r Q00 l pp o0 1"=100' °jolrs°y44�gN <z 1 0 \� Rail C(0881 �7 EMERGENCY ACCESS ROAD PER 20100219001442 c 1 G L4 L=630.88' R=603.11' ?s• 6=59'56'03" O� �\N�Po0050�2y00,6�2 2 PvgJONO FE P� eER�•R8N9T SOS 12 \001 OF EZ OWN R 5 F.•.•�, •'�' THIS EXHIBIT MAP IS BASED ON CITY OF AUBURN ss FG 22854 2954 LOT LINE ADJUSTMENT LLA02-0015 RECORDED UNDER pNALI-M0 KING COUNTY RECORDING NUMBER 20020725001632 AND DOES NOT REPRESENT A BOUNDARY SURVEY. C1YOF �' . Exhibit for Rail Crossing EXHIBIT MAP TO ACCOMPANY LEGAL DESCRIPTION WASHINGTON CITY OF AUBURN PUBLIC WORKS 25 WEST MAIN STREET September 27, 2012 AUBURN, WA 98001 LICENSE AGREEMENT FOR AT-GRADE CROSSING PAGE 18 03003-0182/LEGAL 15294225 1 7/1/13