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HomeMy WebLinkAboutWPO201800069 Executed Construction License Agreement 2019-08-22TEMPORARY CONSTRUCTION LICENSE AGREEMENT (Albemarle County, Virginia) This Temporary Construction License Agreement ("Agreement"), is made August 22, 2019 the "Commencement Date"), by and between COSTCO WHOLESALE CORPORATION, a Washington corporation ("Costco" or "Licensor"), and the Albemarle County Service Authority ("ACSA" "Licensee"). RECITALS A. Costco is the owner of certain real property generally located at3171 District Ave, Charlottesville, VA 22901, depicted on the site plan attached as Exhibit A (the "Costco Property"). B. Licensee desires to access a limited portion of the Costco Property, identified on Exhibit A as the "License Area," for the purpose of performing certain construction work (the "Work") more particularly described and depicted on plans indentified on the schedule attac: as Exhibit B (the "Plans"). (on adjacent property) C. Costco has agreed to allow the ACSA and its contractors, subcontractors and consultants ("Contractors") to access the License Area on the Costco Property in order to complete the Work, upon the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the promises, covenants and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows: 1. Recitals. The foregoing Recitals are true and correct and are hereby incorporated herein by this reference. 2. Grant of License. Costco hereby grants to Licensee and its Contractors, a temporary license to access the License Area on the Costco Property for the purpose of performing the Work in accordance with the Plans. In addition, Costco hereby grants to Licensee and Contractors, a limited right of access over the following portions of the Costco Property: Primary Access #1 or Primary Access #2 (collectively the "Access Area" as shown on Exhibit B). No Work shall be performed in the Access Area and any disturbance to the surface of the Access Area shall be repaired and restored to substantially the condition that existed prior to such disturbance. I Performance of Work; Approval of Plans. All Work shall be performed in accordance with the Plans identified on Exhibit B, which have been approved by Costco. Any changes to the Plans shall require further written approval from Costco, which approval shall not be unreasonably withheld. All Work shall be performed in compliance with all federal, state or local laws, ordinances, regulations or other governmental requirements. 4. Costs. Any and all costs relating to or arising out of this Agreement, or otherwise relating in any way to the Work shall be paid by Licensee. -1- 5. Term. The term of this Agreement shall commence on the Commencement Date and shall terminate upon completion of the Work, provided however, that the Work shall not occur between November 1, 2019 and January 2, 2020 and shall be complete on or before October 31, 2020, 6. Access to the License Area. Licensee's activities on the Costco Property shall be limited to the License Area and Access Area. 7, Coordination: Designated Representative. Licensee designates Jeremy Lynn, (434- 977-4511) Olynn@serviceauthority.org) as its Project Representative to Costco. The Project Representative shall promptly respond to any inquiries from Costco during the Term of this Agreement. Prior to commencement of the work, Licensee will provide Licensor with 30 days prior written notice and also notify the following Costco employees by email: Diane Carter, dfcarter(a,costco.com and Rick Jerabek rierabek(a,costco.com. 8. Disposal of Soils. Licensee shall be responsible for the proper disposal of all soils or other materials removed from the Costco Property. Licensee assumes all risks associated with the condition of the any and all soils or other materials that it encounters or removes from the Costco Property. 9. No Staging or Storage. No portion of the Costco Property shall be used for staging or storage of materials or equipment. 10. Safety and Signage. Licensee shall ensure that its activities on the Costco Property are conducted in a safe manner. Licensee shall erect and maintain safety barriers and any temporary signage, if necessary to ensure a safe site during the term of this Agreement. 11. Due Care and Diligence. Licensee shall use due care and diligence in the exercise of its rights hereunder, and it will at all times exercise its rights hereunder at such times and in such manner as approved by Costco and as will not occasion (a) any interference with the business operations on the Costco Property, (b) any interference with the customary access to or from the Costco Property, or (c) any damage or injury to the Costco Property, or to any agents, servants or employees of Costco. 12. Maintain and Restore. Licensee shall not permit or commit any waste, damage, or destruction to the Costco Property. Prior to termination or expiration of this License, Licensee at its sole cost and expense, shall restore the Costco Property to its original condition and in a manner consistent with all necessary federal, state and local laws, statutes, and rules and consistent with current operation of the Costco Property, including but not limited to the following: a. Restoration of Paved Surfaces. Paved surfaces and all subsurface material supporting paved surfaces shall be replaced using materials, construction means and methods that are sufficient to ensure that the driving surfaces of the Costco Property are restored to the same standards as now constructed. Licensee shall perform all restoration work in a workmanlike manner. 2- b. Restoration of Landscaping. Upon completion of the Work, Licensee shall restore all landscaping to its original condition. Landscape restoration may occur during Licensor's business hours so long as Licensee coordinates the dates and times of landscape restoration with Licensor and there is no interference with Licensor's business operations. 13. No Hazardous Wastes. Licensee shall not to allow any toxic, hazardous or petroleum products to be released, discharged or deposited onto the Costco Property in connection with Licensee's activities hereunder. 14. Liens. Licensee shall keep the Costco Property free from all liens or other encumbrances arising out of any work performed, materials furnished or obligations incurred by Licensee. Licensee covenants and agrees that it will pay or cause to be paid all sums legally due and payable by it on account of any labor performed or materials furnished in connection with any work performed on the Costco Property, and that Licensee will indemnify and hold the Costco harmless from all loss, cost or expense based on or arising out of asserted claims or liens against the Costco Property, to the fullest extent permitted by law. Licensee, to the extent it has notice itself, shall give Costco immediate written notice of the placing of any lien or encumbrance against the Costco Property and Licensee shall cause such lien or encumbrance to be discharged within thirty (30) days of the filing or recording thereof; provided, however, Licensee may contest such liens or encumbrances as long as such contest prevents foreclosure of the lien or encumbrance and Licensee causes such lien or encumbrance to be bonded or insured over in a manner satisfactory to Costco, within such thirty (30) day period. 15, Insurance. Licensee and any of its Contractors accessing the Costco Property shall procure and maintain in effect during the term hereof, the following: a. Commercial General Liability. Commercial general liability insurance and property damage insurance, including a contractual liability endorsement covering Licensee's obligations under Section 16, in the minimum amount of $1,000,000 per occurrence, $2,000,000 aggregate, together with an additional $1,000,000 umbrella. b. Automobile Liability. Commercial Auto Liability Insurance with a combined single limit of not less $1,000,000 for bodily injury and property damage liability, together with an additional $1,000,000 umbrella. Coverage shall be provided for all owned, leased, non -owned and hired vehicles. Auto liability insurance requirements shall apply to all operations of Licensee and its Contractors. If umbrella or excess liability policies are required to achieve necessary total limits coverage shall be no less broad in scope than underlying general and automobile liability insurance. Damage recoverable by Costco shall not be limited by amount or scope of the required insurance coverage. c. Workers' Compensation with statutory limits and minimum Emplo)w's Liability limits of not less than $1,000,000 d. At least three (3) days prior to entry onto the Costco Property, Licensee shall furnish Costco with a certificate of such policies of insurance. Costco shall be named as additional insured. All policies shall contain a waiver of insurer's rights to subrogate against Costco. Insurance -3- policies maintained by Licensee shall be primary and noncontributory. Policies maintained by Costco shall be excess and noncontributory to policies maintained by Licensee. The obligation to carry insurance shall not limit or modify any other obligations assumed by Licensee hereunder, nor shall Costco be under any duty to examine such certificate or to advise Licensee in the event its insurance is not in compliance with this Agreement. All policies shall be placed with insurance carriers rated by AM Best at B+ VII or better and such policy shall provide that it is not subject to cancellation or reduction in coverage except after thirty (30) days' prior written notice to Costco. 16. hidemni .Licensee covenants and agrees that agrees that Costco shall not at any time or to any extent whatsoever be liable, responsible or held accountable for, and Licensee agrees to indemnify and hold harmless and, at Costco's option, defend Costco, its officers, agents, employees, successors and assigns from and against any and all suits, actions, legal proceedings, claims, demands, and expenses (including attorneys' fees and expenses) of whatever kind or character relating to Licensee's, and its contractors, subcontractors, consultants, employees, agents, representatives, guests or invitees use of the Costco Property, including, but not limited to: (a) personal injury (including death) to any person; (b) property damage of any kind; (c) claims of lien from Licensee's contractors, subcontractors, agents, or representatives or otherwise related to the Work; (d) the presence of hazardous, toxic or petroleum products on the Costco Property caused by Licensee, or its contractors, subcontractors, consultants, employees, agents or representatives; or (e) the violation of any federal, state or local law, ordinance, regulation or other governmental requirement caused by Licensee, or its contractors, subcontractors, consultants, employees, agents, representatives, guests or invitees. Pursuant to Virginia Code § 15.2-5102 and other relevant authorities, Licensee is a political subdivision of the Commonwealth of Virginia and this Indemnity clause applies only to the fullest extent permitted by law. 17. Assumption of Risk. Licensee assumes all risks and liabilities arising out of Licensee's entry onto the Costco Property and all activities performed on the Costco Property by Licensee, its contractors, subcontractors, employees, agents or representatives. 18. General Provisions. a. Entire Agreement —No Oral Modifications. This Agreement and the exhibits hereto constitute the final and complete agreement, and supersede all prior correspondence, memoranda or agreements between the parties relating to the subject matter hereof This Agreement cannot be changed or modified other than by a written agreement executed by all parties. b. Counterparts. This Agreement maybe executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The Parties further agree that a copy of or a facsimile signature shall be treated as an original. c. Assigmnent. This Agreement is personal to Licensee and Licensee shall not have any right to assign its rights or obligations hereunder. Any attempt by Licensee to assign this license shall terminate this Agreement. Costco shall have the right to assign any and all of its rights and obligations hereunder. d. Attorneys' Fees. hi the event that any party hereto 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 or the transactions contemplated hereby, the prevailing party in any such action shall be entitled to an award of reasonable attorneys' fees and any court costs incurred in such action or proceeding, in addition to any other damages or relief awarded, regardless of whether such action proceeds to final judgment. e. Severability. If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable, the remaining terms and provisions of this Agreement shall not be affected thereby, but each remaining term and provision shall be valid and enforced to the fullest extent permitted by law. f. Successors Bound. Subject to the restrictions on assignment contained herein, the provisions of this Agreement shall extend to, bind and inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors, and assigns. g. Governing _Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia. h. Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. i. Captions. The captions of this Agreement are inserted solely for convenience of reference only and do not define, describe or limit the scope or intent of this Agreement or any term hereof. j. Exhibits. All exhibits attached hereto are hereby incorporated herein by reference and made a part hereof. k. Construction. Licensee and Costco 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 the exhibits) or any amendments thereto, and the same shall be construed neither for nor against Licensee or Costco, but shall be given a reasonable interpretation in accordance with the plain meaning of its terms and the intent of the parties. 1. Survival of Terms. The covenants and indemnity of Licensee contained in this Agreement shall survive the termination of this Agreement. 19. Notices. All notices, demands, consents, approvals and other communications (each, a "Notice") which are required or desired to be given by either party to the other under this Agreement shall be in writing and shall be (a) hand delivered, (b) sent by U. S. registered or certified mail, postage prepaid, return receipt requested, or (c) sent by reputable overnight courier service, addressed to the appropriate party at its address set forth below, or at such other address as such party -5- shall have last designated by Notice to the other. Notices shall be deemed given when delivered, if delivered by hand or by overnight courier; or five business days after mailing, if given by U.S. registered or certified 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 shall be deemed to be receipt of the Notice sent. Notice addresses for the parties are as follows: To Licensee: Albemarle County Service Authority 168 Spotnap Rd. Charlottesville, VA 22911 Attention: Gary O'Connell, Executive Director To Costco: Costco Wholesale Corporation 999 Lake Drive Issaquah, WA 98027 Attention: Legal Department/Property Management DATED as of the day and year first set forth above. COSTCO: COSTCO WHOLESALE CORPORATION, a Washm on corporation By: . Its: �P �it�isF-dn�' �te✓[ %i✓�j ALBEMARLE COUNTY SERVICE AUTHORITY By: U -6- EXHIBIT A LOSTCO PROPERTY EASEMENT PLAT) Attached -7- Z\ c k} J [ 4 )2}\ ;6 0» !;}§ *f \ >` ``�■ z /\(/ @ , U.- z.j§ \mm< \ �/ j (k C)®\ƒ3:w kw 0 §3 \(\ / k , : �8 , K §2Mf!40 ;®2&« /§ _!(::ma����� » «_r(k j � a CO \! ; g;X n wo ¢§M<■! 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