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HomeMy WebLinkAboutLicense and Use Agreement - Legacy Plaza Senior LivingLICENSE AND USE AGREEMENT This License and Use Agreement ("Agreement"), dated April 3, 2020, is by and between the City of Auburn, a Washington municipal corporation ("City"), and Auburn City Center Senior Living Associates, LLC a Washington limited liability company, doing business as Legacy Plaza Senior Living ("Legacy"). RECITALS A. Legacy is constructing a senior living rental apartment project on certain real property it owns in the downtown area of the City (the "Legacy Property"), as legally described on Exhibit A attached hereto. B. The City owns a parcel of property immediately adjacent to the Legacy Property commonly designated as King County Parcel No. 781570-0085 (the "City Parcel"). C. Legacy has requested the use of the City Parcel during construction. AGREEMENT In consideration of the promises, covenants and conditions contained in this Agreement, the parties agree as follows: 1. Grant of License. City grants to Legacy the right to enter and license to use the City Parcel for the purpose of access to the Legacy Property, placement of construction trailers and containers, and limited construction staging including laydown and storage of construction materials and equipment, and the installation of temporary power. The use or storage of heavy trailers, containers, materials or equipment in excess of the maximum point load specified by the City is prohibited. This grant is not intended to be and shall not be construed by either party as an easement over the City Parcel ora lease of the parcel. No use, however extended, of the Parcel or payment of any fees or charges shall create or vest any easements or any other property rights in such Parcel. 2. Term and Purpose. The term of this Agreement shall commence on the date last signed by a party (the "Commencement_Date") and shall continue for 18 months (the "Term"). Such Term may be extended by written agreement of both parties. The City shall have the right to terminate this agreement upon 30 days written notice to Legacy. Upon termination, the payment in section 3, including any leasehold excise tax, shall be pro -rated In the event Legacy shall use the Parcel for any unauthorized purpose, or otherwise breach any term of this Agreement all rights hereunder shall be terminated after a five day cure period initiated by written notice by the City to Legacy. License & Use Agreement Page 1 of 8 [Execution Version] 3. Consideration. Legacy shall pay the City Twenty Eight Thousand, Five Hundred Dollars and no cents ($28,500.00) as a base payment the right to enter and license to use the City Parcel. Legacy shall also pay a Leasehold Excise Tax at the rate of 12.84% o on the base payment of Three Thousand Six Hundred Sixty Dollars and no cents ($3,660.00), for a total payment of Thirty - Two Thousand, One Hundred Sixty Dollars and no cents ($32,160.00) for the eighteen -month Term. If Legacy fails to vacate and return possession of the City Parcel back over to the City at the end of the Term, Legacy shall pay the City an additional One Thousand, Five Hundred Eighty -One Dollars and no cents ($1,581.00) plus 12.84% Leasehold Excise Tax per month. Payment shall be made in advance to the City of Auburn Finance Department at 25 W. Main St., Auburn, WA 98001, ATTN: Finance Department, before Legacy occupies the City Parcel. 4. Maintain and Restore. Legacy shall not cause or permit any waste, damage, or destruction to occur on the City Parcel. Before taking occupancy, Legacy shall provide the following for City approval: a) a list of uses, and materials and equipment to be stored on the City Parcel; b) a layout and security plan, including security fencing; c) proposed measures to protect the City Parcel (including the underground storm facilities) from damage and contaminants. The City has provided Legacy with the maximum point load data and all other documents needed relating to the City Parcel. On termination or expiration of this Agreement, Legacy (at its sole cost and expense) shall remove its materials and equipment from the City Parcel and shall restore the City Parcel to its original condition as of the Commencement Date. The preceding restoration provision may be modified and superseded by the parties if they agree on a program for improvement with respect to the City Parcel. 5. Temporary Use Permit. Auburn City Code (ACC) 18.46A requires that construction staging not occurring on the proposed construction site be subject to issuance of a Temporary Use Permit. The chapter exempts city improvement projects. The City plans to use the City Parcel for a city improvement project and Legacy has agreed to be either financially or fully responsible for the future improvements to the adjacent City Parcel. Therefore, this Agreement shall satisfy the city's temporary use permit requirement, and any impacts that would be reviewed as part of ACC 18.46A Temporary Uses, will be addressed as part of the public facility extension and Building Permit review for the project and this License and Use Agreement. 6. Due Care and Diligence. Legacy shall use due care and diligence in the exercise of its rights under this Agreement, and it shall not interfere with the ongoing business operations (if any) on the City Parcel or with other customary or emergency access to or from the City Parcel. 7. Assumption of Risk. Legacy assumes all risks and liabilities arising out of its use of the City Parcel or use of the City Parcel by its employees, agents, representatives, guests or invitees. 8. Indemnification / Insurance A. Legacy shall defend, indemnify, and hold harmless the City, its officers, officials, employees and volunteers from and against any and all claims, suits, actions, or liabilities for injury or death of any person, or for loss or damage to property, that arises out of its use of the City Parcel, License & Use Agreement Page 2 of 8 [Execution Version] or from the conduct of its business, or from any activity, work or thing done, permitted, or suffered by it in or about the City Parcel, except only that injury or damage caused by the sole negligence of the City. The foregoing indemnification constitutes Legacy's waiver of immunity under Title 51 RCW (Industrial Insurance), solely for the purposes of this indemnification. This waiver has been mutually negotiated and agreed to by Legacy and City. The provisions of this section shall survive the expiration or termination of this Agreement. B. Insurance Term Legacy shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property that may arise from or in connection with its operation and use of the City Parcel. C. No Limitation Legacy's maintenance of insurance as required by this Agreement shall not be construed to limit the liability of Legacy to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. D. Minimum Scope of Insurance Legacy shall obtain insurance of the types and coverage described below: 1. Commercial General Liability insurance will be at least as broad as Insurance Services Office (ISO) occurrence form CG 00 01 and will cover premises and contractual liability. The City will be named as an additional insured on Legacy's Commercial General Liability insurance policy using ISO Additional Insured -Managers or Lessors of Premises Form CG 20 1.1 or a substitute endorsement providing at least as broad coverage. 2. Property insurance shall be written on an all risk basis. E. Minimum Amounts of Insurance Legacy shall maintain the following insurance limits: 1. Commercial General Liability insurance will be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. 2. Property insurance shall be written covering the full replacement value of the Legacy Property and improvements with no coinsurance provisions. F. Other Insurance Provisions License & Use Agreement Page 3 of 8 [Execution Version] Legacy's Commercial General Liability insurance policy or policies shall provide, or be endorsed to provide, that they will be primary insurance coverage with respect to the City. Any insurance, self-insurance, or self-insured pool coverage maintained by the City shall be in excess of Legacy's insurance and shall be non-contributory with respect to it. G. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII. H Verification of Coverage Legacy shall furnish the City with original certificates of insurance and any applicable amendatory endorsements, including but not limited to the additional insured endorsement, evidencing that such insurance meets the requirements of the City. I. Waiver of Subrogation Legacy and City hereby release and discharge each other from all claims, losses and liabilities arising from or caused by any hazard covered by property insurance on or in connection with the City Parcel. This release shall apply only to the extent that such claim, loss or liability is covered by insurance. Notice of Cancellation Legacy shall provide City with written notice of any policy cancellation within two (2) business days of their receipt of such notice. L. Failure to Maintain Insurance Failure on the part of Legacy to maintain the insurance as required shall constitute a material breach of this Agreement. The City may, after giving five (5) business _days' notice to Legacyto correct the breach, terminate the Agreement or, at its discretion, procure or renew insurance and pay any and all premiums for that insurance, with any sums so expended to be reimbursed to the City by Legacy on demand. M. City Full Availability of Legacy's Insurance Limits Notwithstanding that Legacy maintains higher insurance limits than the minimum limits referenced above, the City shall be insured for the full available limits of such Commercial General and Excess or Umbrella liability maintained by Legacy, irrespective of whether the limits maintained by Legacy are greater than those required by this Agreement or whether any certificate of insurance furnished to the City by Legacy evidences limits of liability lower than those maintained by Legacy. License & Use Agreement Page 4 of 8 [Execution Version] 9. Compliance with Laws. Legacy agrees to comply with all requirements of federal, state or local law, ordinances or regulations and shall defend and save harmless the City from and against any liabilities or claims arising out of or from any alleged breach of those laws, ordinances or regulations. 10. Costs. Legacy agrees to pay or reimburse all costs, including attorney's fees, incurred by City in enforcing this Agreement. 11. Notices. All notices, demands, consents, approvals and other communications (each, a "Notice") that are required or desired to be given by either party to the other under this Agreement will be in writing and will be (a) hand delivered, (b) sent by U.S. registered or certified mail, postage prepaid, return receipt requested, (c) sent by reputable overnight courier service, or (d) transmitted by facsimile machine (with a copy, including the transmission sheet indicating successful transmission of the Notice by facsimile machine, to follow by regular mail), addressed to the appropriate party at its address, or at such other address as such party will have last designated by Notice to the other. Notices will be deemed given when delivered, if delivered by hand or by overnight courier; at the time and on the date of machine transmittal, if given by facsimile; or three days after mailing, if given by U.S. mail. Rejection or other refusal by the addressee to accept a Notice or the inability to deliver the Notice because of a changed address of which no Notice was given will be deemed to be receipt of the Notice sent. Notice addresses for the parties are as follows: To Legacy: Auburn City Center Senior Living Associates, LLC 14400 Tukwila International Blvd., Suite 100 Tukwila, WA 98168 Attention: Bryan M. Park Facsimile: (253) 231-5010 To City: City of Auburn 25 West Main Street Auburn, WA 98001 Attention: Real Property Management Facsimile: (253) 804-3114 12. Miscellaneous. (a) Entire Agreement — No Oral Modifications. This Agreement and its exhibits constitute the final and complete agreement, and supersede all prior correspondence, memoranda or agreements between the parties relating to the use of the City Parcel. This Agreement cannot be changed or modified other than by a written agreement executed by all parties. (b) Successors Bound. Subject to the restrictions on assignment contained in Paragraph 12(c) hereof, the provisions of this Agreement shall extend to, bind and inure to the benefit of the parties and their respective personal representatives, heirs, successors, and assigns. License & Use Agreement Page 5 of 8 [Execution Version] (c) Assigning . This Agreement may not be assigned by Legacy without the prior written consent of the City. (d) Governing Law. This Agreement will be governed by and construed in accordance with the laws of Washington. Venue will be in King County, Washington. (e) Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed an original, and all of which together will constitute one and the same instrument. (f) Attorneys' Fees. If any party brings an action or proceeding for a declaration of the rights of the parties under this Agreement, for injunctive relief, or for an alleged breach or default of this Agreement, or any other action arising out of this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees and any court costs incurred in the action or proceeding, in addition to any other damages or relief awarded, regardless of whether the action proceeds to final judgment. (g) Severability. If any term or provision of this Agreement is held invalid or unenforceable, the remaining terms and provisions of this Agreement will not be affected, but each remaining term and provision will be valid and enforced to the fullest extent permitted by law. (h) Captions. The captions of this Agreement are inserted solely for convenience of reference only and do not define, describe or limit the scope, intent, or any term of this Agreement. (i) Construction. Legacy and City acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement (including any exhibits or amendments thereto), and the same shall be construed neither for nor against Legacy or City, but shall be given a reasonable interpretation in accordance with the plain meaning of its terms and the intent of the parties. (k) Survival of Terms. The covenants and indemnity of Legacy contained in this Agreement shall survive the termination of Legacy's rights to utilize the City Parcel. (1) Authority. Each person executing this Agreement represents and warrants that he or she has the authority to execute this Agreement and that no further approval of any kind is necessary to bind the respective parties. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. THE EXECUTING SIGNATURES OF THE PARTIES ARE ON THE FOLLOWING PAGE] License & Use Agreement Page 6 of 8 [Execution Version] DATED as of the day and year first set forth above. CITY: CITY OF AUBURN, WASHINGTON, a -Washington municipal corporation Signature: WN Val 4K Printed Name: Its:r Ro rwe,d k L LEGACY: AUBURN CITY CENTER SENIOR LIVING ASSOCIATES, LLC, a Washington limited liability companyof / 4--k- Printed Signature: ��l, Name: r V akl .-Fa r Its: Gk oV 6f ArMfiqth License & Use Agreement Page 7 of 8 [Execution Version] LEGAL DESCRIPTION .. � •, • , ;; �„• l �.. • • � 1 111 "401•'• • •'�.�.11 llTIBEI' 0200305000063 DESCRIBEI, AS • • ALL OF LOTS 2, 3, 4, 7 AND 8, BLOCK 2, TOWN OF SLAUGHTER, ACCORDING TO THE PLAT ' OF RECORDED IN VOLUMEOF S , RECORDS OF WASHINGTON; EXCEPT EAST 4 FEET OF D LOT EXCEPT THAT PORTION OF LOT 8 AS CONVEYED TO THE CITY OF AUBURN BY DEEDS RECORDED UNDER RECORDING NOS. 20100409001191 AND 20110712000838; TOGETHER WITH THAT PORTION OF THE VACATED ALLEY IN SAID BLOCK 2 AS WOULD ATTACH BY OPERATION OF LAW, PURSUANT TO ORDINANCE THE CITY • RECORDED SEPTEMBER 01RECORDING • 20080912001319; SITUATEOF AUBURN,•"NTY, WASHINGTON. License & Use Agreement Page 8 of 8 [Execution Version]