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HomeMy WebLinkAbout5227 ORDINANCE NO. S 2 2 7 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A RIGHT-OF-WAY AGREEMENT WITH GREG GRIFFIS CONSTRUCTION, HEREINAFTER REFERRED TO AS THE "PERMITTEE" FOR CONDITIONED USE OF THE STREET RIGHT-OF-WAY AS DESCRIBED IN EXHIBIT '~". WHEREAS, the Permittee is the owner of the parcel of land at the address of 402 East Main Street (Parcel #869810- 0005) and has made application for a building permit (Bldg 0653-98) for remodeling and constructing an addition to the existing structure on the site for office space; and WHEREAS, the present structure on the site encroaches into the right-of-way of D Street SE; and WHEREAS, the Permittee has petitioned the City for authorization to continue the encroachment of the existing structure in the right-of-way of D Street SE, as described in Exhibit A, which is attached' hereto and incorporated herein by this reference; and WHEREAS, the City has determined that the proposal is in conformance with the City's zoning code; and WHEREAS, the City Council conducted a public hearing on the proposal on April 5, 1999, and based upon the facts presented, determined that current street needs can accommodate the proposed right-of-way encroachment; and Ordinance No. 5227 April 13, 1999 Page I WHEREAS, the City Council directed creation of a right- of-way use agreement providing for a fifty (50) year period or for a sunset should a building permit be required to reconstruct the west wall of the building, whichever is sooner in time; and WHEREAS, the City has determined that current and foreseeable future street needs can be accommodated during the term of the proposed right-of-way encroachment; and WHEREAS, continuance of the right-of-way encroachment allows for economical redevelopment of the site and promotes business development in the Downtown area; and WHEREAS, the Permittee is willing to enter into a no protest Local Improvement District (LID) Agreement to participate in his pro-rata share of public improvements at such time in the future that the City determines such improvements are needed; and WHEREAS, the City has determined that participation in certain public infrastructure improvements now as specified in the agreement is in its best interest; and WHEREAS, the City Council of the City of Auburn has the authority to enact this legislation pursuant to RCW 35A.11.020, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN AS FOLLOWS. Ord~ce No. 5227 April 13, 1999 P~e 2 Section 1. PURPOSE. The City Council directs that the Right-of-way Use Agreement as described in Exhibit "A", as previously incorporated herein, be granted subject to satisfaction of the terms specified in Exhibit "A". Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directions of this legislation. Section 3. CONSTITUTION~I. ITY OR INV~I.IDITY. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance, as it is being hereby expressly declared that this Ordinance and each section, subsection, sentence, clause, and phrase hereof would have been prepared, proposed, adopted, and approved and ratified irrespective of the fact that any one or more section, subsection, sentence, clause, or phrase be declared invalid or unconstitutional. Section 4. This Ordinance shall take effect and be in force five (5) days from and after its passage, approval and publication as provided by law. Ordinance No. 5227 April 13, 1999 Page 3 INTRODUCED: April 19, 1999 PASSED: ADril 19, 1999 APPROVED: April 19, 1999 CHARLES A. BOOTH MAYOR ATTEST: Danielle E 2 Daskam, City Clerk APPROVED AS TO FORM: Michael J. Reynolds, City Attorney Ordinance No. 5227 April 13, 1999 Page 4 EXHIBIT A RIGHT-OF-WAY USE AGREEMENT PERMIT/APPLICATION NO. 19-98 CITY OF AUBURN PUBLIC WORKS DEPARTMENT SECTION I PURPOSE The CITY of Auburn (hereina~er called the "CITY") hereby grants to Gregg Griffis (hereinafter called "Grantee") the right to use that CITY right-of-way hereinafter described in Addendum #1 and Addendum #2 which are attached hereto and incorporated herein by reference, to reconstruct, restore and maintain the existing structure under the specific terms and conditions contained herein. The primary purpose of entering into this Agreement is to provide for conditional authorization for continuance of an existing encroachment into the Right of Way of D Street SE prior to issuance of a building permit to remodel and enlarge an existing structure at 402 East Main Street which currently encroaches into the Right of Way of D Street SE on (Parcel #869810-0005) in accordance with the mitigation requirements of SEP 0050-97. SECTION H SPECIAL PROVISIONS The following special provisions are required as conditions for the granting of this Right-of- way Agreement. A. INSURANCE. Grantee shall, as a condition of this Right of Way Agreement, secure and maintain the following liability insurance policies insuring both the Grantee and the CITY, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the Grantee: 1. Comprehensive general liability insurance, written on an occurrence basis, with limits not less than $1,000,000 combined single limit per occurrence and $2,000,000 in aggregate, for: (a) $1,000,000.00 for personal or bodily injury or death to each person; (b) $1,000,000.00 for property damage resulting from any one accident; and (c) $1,000,000.00 for all other types of liability. REF:H:\Telecom~OW~GriffisROW.doc Exhibit A to Ordinance No. 5227 Revision: #2 Date:04/14/99 Page 1 of 11 2. Automobile liability for owned, non-owned and hired vehicles with a limit of $1,000,000.00 for each person and $2,000,000.00 for each accident; 3. Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.00; 4. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $1,000,000.00; 5. The liability insurance policies required by this Section shall be maintained by the Grantee throughout the term of this Right of Way Agreement until the completion of the proposed building renovation and issuance of an occupancy permit by the City Building Official. The Grantee shall provide an insurance certificate, together with an endorsement naming the CITY, and its elected and appointed officers, elected officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the CITY prior to the commencement of any work pursuant to this Right of Way Agreement. Any deductibles or self-insured retentions must be declared to and approved in writing by the CITY prior to the Right of Way Agreement becoming effective. Payment of deductibles and self-insured retentions shall be the sole responsibility of the Grantee. The insurance certificate required by this Section shall contain a clause stating that coverage Shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. The Grantee's insurance shall be primary insurance as respects the CITY, its officers, elected officials, employees, representatives, engineers, agents, consultants, and volunteers. Any insurance maintained by the CITY, its officers, elected officials, employees, representatives, engineers, agents, consultants, and volunteers shall be in excess of the Grantee's insurance and shall not contribute with it; 6. In addition to the coverage requirements set forth in this Section, each such insurance policy shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be canoeled nor the intention not to renew be stated until 60 days after receipt by the CITY, by registered mail, (return receipt requested) of a written notice addressed to the City Clerk of such intent to cancel or not to renew." 7. Within 30 days after receipt by the CITY of said notice, and in no event later than 15 days prior to said cancellation or intent not to renew, the Grantee shall obtain and furnish to the CITY replacement insurance policies meeting the requirements of this Section. Any lapse in the required insurance coverage shall be cause for termination of this Right of Way Agreement. B. SPECIAL CONDITIONS. REF :H:\TelecomXROWXGriffisROW.doc Exhibit A to Ordinance No. 5227 Revision: #2 Date:04/14/99 Page 2 of 11 1. Grantee agrees to obtain all required special permits, and enter into a Public Facility Extension Agreement, to complete infrastructure improvements as required by the City. 2. Grantee agrees to replace existing sidewalk and driveway along East Main Street SE from the NE comer of building lot at 402 Main Street East. Along 'D' Street SE grantee agrees to replace existing defective 2 foot wide pavement, curbs, sidewalks, and driveways to the SW comer of said lot including the existing alleyway on 'D' Street SE. 3. Grantee agrees to install conduits and J-boxes for future street illumination through limits of construction on 'D' street SE. 4. Grantee also agrees not to protest the formation of a Local Improvement District for any future street improvements, if initiated by the City. SECTION III VALIDITY OF TERMS. If any terms, provisions, condition, or portion of this Agreement shall be held to be invalid or unconstitutional for any reason, the CITY may, at its own option, deem the entire Agreement to be affected and thereby nullified. However, in the event of said determination of invalidity of any part of this Agreement, the CITY may elect to treat the portion declared invalid as severable and enforce the remaining portions of this Agreement until such time as a new Agreement is negotiated and approved by both parties. SECTION IV ENFORCEMENT. If the CITY seeks enforcement of any terms or conditions of this Agreement in court, or if a lawsuit is instituted with respect to this Agreement, Grantee agrees to pay the CITY'S reasonable attomey's fees and costs and other allied expenses incurred by the CITY regarding said enforcement or lawsuit if the CITY is the substantially prevailing party. SECTION V EFFECTIVE DATE. This Agreement shall take effect and be in force upon execution by the undersigned CITY official and the Grantee. SECTION VI INDEMNIFICATION OF THE CITY For and in consideration of being granted permission by the City of Auburn, Washington, to use the City Right of Way within the corporate limits of the City of Auburn, the Grantee hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers from any and all claims, costs, judgments, awards, or liability to any person, including claims by the Grantee's own employees to which the Grantee might otherwise be immune under Title 5 1 RCW, arising from injury or death of any person or damage to property of which the negligent acts or omissions of the Grantee, its agents, servants, officers, or REF:H:\TelecomXROW~Grif~sROW.doc ExhibitA to Ordinance No. 5227 Revision: #2 D ate: 04/14/99 Page 3 of 11 employees in performing under this are the proximate cause. The Grantee further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers from any and all claims, costs, judgments, awards, or liability to any person including claims by the Grantee's own employees, to which the Grantee might otherwise have immunity under Title 51 RCW, arising against the CITY solely by virtue of the CITY's ownership or control of the fights-of-way or other public properties, by virtue of the Grantee's exercise of the fights granted herein, or by virtue of the CITY's permitting the Grantee's use of the CITY's fights-of-way or other public property, based upon the CITY's inspection or lack of inspection of work performed by the Grantee, its agents and servants, officers or employees in connection with work authorized on the CITY's property or property over which the CITY has control, pursuant to this, or pursuant to any other permit or approval issued in connection with this Right of Way Agreement. This covenant of indemnification shall include, but not be limited by this reference, claims against the CITY arising as a result of the negligent acts or omissions of the Grantee, its agents, servants, officers, or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work in any public fight- of- way or other public place in performance of work or services permitted under .this .Right of Way Agreement. Inspection or acceptance by the CITY of any work performed by the Grantee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be tompromised prior to the culmination of any litigation or the institution of any litigation. In the event that the Grantee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to the indemnification clauses contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of the Grantee, then the Grantee shall pay all of the CITY's costs for defense of the action, including all reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of the CITY, including reasonable attorneys' fees for recovering costs under this indemnification clause. In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Grantee, and the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers, the Grantee's liability hereunder shall be only to the extent of the Grantee's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Grantee's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. REF:H:\Telecom\ROWXGrif~sROW.doc Exhibit A to Ordinance No. 5227 Revision: #2 Date:04/14/99 Page 4 of 11 The provisions of this Section shall survive the expiration or termination of this .Right of Way Agreement. Notwithstanding any other provisions of this Section, the Grantee assumes the risk of damage to its facilities located in the CITY's Right-of-Way from activities conducted by the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers. The Grantee releases and waives any and all claims against the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers, for damage to or destruction of the Grantee's facilities caused by or arising out of activities conducted by the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers, in the Rights-of-Way subject to this Right of Way Agreement. except to the extent any such damage or destruction is caused by or arises from the sole negligence or any willful or malicious action on the part of the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers. The Grantee further agrees to indemnify, hold harmless and defend the CITY against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of the Grantee's facilities as the result of any inten'uption of service due to damage or destruction of the user's facilities caused by or arising out of activities conducted by the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers, except to the extent any such damage or destruction is caused by or arises from the sole negligence or any willful or malicious actions on the part of the CITY, its elected and appointed officials, officers, employees, agents, representatives, engineers, consultants, and volunteers. SECTION VII TERM OF RIGHT-OF-WAY AGREEMENT A. Upon completion of the terms of this Agreement to the City's satisfaction, except as provided below, permission to use the City Right-of-way as described herein is granted for a period of fifi~y (50) years, or until such time as it becomes necessary for the site to be redeveloped or a building permit is necessary to reconstruct the encroaching west wall of the structure, whichever comes first. The rights granted herein accrue to the undersigned grantee, their heirs, successors, and assigns, except as hereinafter provided. B. Notwithstanding that the intent of this Agreement is to fulfill the purpose of this Agreement, the City reserves its rights to terminate this Right-of-way Agreement in the event the Grantee shall fail to comply with any of the special provisions which Grantee is required to perform ' pursuant to this Agreement. 1. In the event the City believes that the Grantee has failed to adequately perform any of the special provisions required on his/her part to be performed pursuant to this Agreement, the City shall give written notice to the Grantee, setting forth in specific detail what special provisions the Grantee has failed to perform. The Grantee shall then have a period of sixty REF:H:\TelecomXROWNGriffisROW.doc Exhibit A to Ordinance No. 5227 Revision: #2 Date:04/14/99 Page 5 of 11 (60) days in which to complete the special provisions required on its part to be performed. In the event the Grantee shall have not completed the performance of the special conditions which the City has designated are incomplete at the expiration of this sixty (60) day time period, the City shall then have the option to terminate this Agreement. 2. If the Grantee disputes the City's claim that it has failed to adequately perform any of the special provisions contained in this Agreement or has failed to complete those conditions which the City has claimed they have failed to perform at the end of the sixty (60) day time period, such disputes shall be resolved by action of the City Council. C. The City reserves its fight to review the needs of the Agreement in the event the Grantee or their heirs, successors and assigns request any change of zoning use classification for their property in the futttre. REF :H :\Telecom~OWXGriffisROW.doc Exhibit A to Ordinance No. 5227 Revision: #2 Date:04/14/99 Page 6 of 11 · IN WITNESS WHEREOF, the parties hereto have reached agreement regarding approval of this Right of Way Agreement pursuant to Application # 19-98. Gregg ' ~/Developer MRSG~fi~Owner/Developer STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) On this day personally appeared before me Gregg Griffis-and MR8 Grif~s ??, who on oath state that they are the Owners/Developers of the property, as shown on the Exhibits of this Right- of-Way Agreement, and that they are authorized to executed the within and foregoing instrument and acknowledged to me that they signed the same as their flee and voluntary act and deed for the purposes therein mentioned. Given under my hand and official seal this~9 '~ay of~.g_;{, ,/4~Y.~' REF:H:\Telecom\ROW\Grif~sROW.doc Exhibit A to Ordinance No. 5227 Revision: #2 Date:04/14/99 Page 7 of 11 CITY OF AUBURN CHARLES A. BOOTH, MA~OR ATTEST: DANIELLE E. DASKAM City Clerk APPROVED AS TO FORM: MICHAEL J. REYNOLDS City Attomey STATE OF WASHINGTON ) COUNTY OF KING ) On this day personally appeared before me Charles A. Booth and Danielle E. Daskam were the persons who appeared before me, and said persons acknowledged that they signed this instrument, on oath stated that they were authorized to execute the instrument and acknowledged it as the MAYOR and CITY CLERK of the CITY OF AUBURN to be the flee and voluntary act of such parties for the uses and purposes mentioned in this instnm~ent. ~. -/'-..v?~. c~ q; '~ $ NO ARY PUBLIC~in~ for the State of ¥,,r.,~ .......:,.~,~..e Washington, residing at ~/'t./rce Co.. ";~,,,,,,o~,;'~ My appointment expires tt/q/ol . REF:H:\TelecomXROWXGrif~sROW.doc Exhibit A to Ordinance No. 5227 Revision: #2 Date:04/14/99 Page 8 of 11 STATEMENT OF ACCEPTANCE Gregg Griffis, his successors and assigns, hereby accepts and agrees to be bound by all terms, conditions and provisions of the Right of Way Agreement granted pursuant to Ordinance No. ~',2--Z-'1, attached hereto and incorporated herein by this reference. By:' ~ ~ Title: Attached hereto is a copy of the executed Ordinance approving the execution of the Right of Way Agreement by the CITY and a corporate resolution or corporate secretary certificate therefor duly executed and approving this Statement of Acceptance, the execution thereof and authorizing the officer executing this Statement of Acceptance to do so. REF:H :\TelecomLROWXGriffisROW.doc Exhibit A to Ordinance No. 5227 Revision: #2 Date: 04/14/99 Page 9 of 11 ADDENDUM 1 Site Plan of Proposed Development REF:H:\TelecomLROWXGriffisROW.doc Exhibit A to Ordinance No. 5227 Revision: #2 Date:04/14/99 Page 10 of 11 ADDENDUM 2 Legal Description of Property ..--.. ~. i i _ _ ~,~, ,.,,.,.,,r t ~ ~ ' _ ~TS A, B ~ C, B~Cl 1, ~'S FIRST ~DITION ~ A~,-ACCO~ING P~T ~I=OF, l~ IN VOB~ 14 ~F P~TS, PAGElS) S1, IN K~G W~ ~IN~N; : . EXCEPT ~T PORTION OF ~A ~e ~ CI~ OF. A~' m~' B=GI~ING AT ~ NOR~ST ~l dr S~D ~T A; T~ NOR~' 86~S0'13' ~ ~NG ~ NOR~ BI~ OF ~ID ~T A, A DIST~ OF ~.S3 F~, '~ A ~I~ ON A ~ ~V~ A ~S OF 13.00 ~, SKID ~ ~VING'A ~I~ B~ING OF SO~ 25e~6'59' ~T; ' DIST~ OF 14.76 ~, ~ A ~I~ ~'~E WE~ LI~ OF SAID ~T A; ~ NOl~'O0eS0'47' ~ST ~ S~D ~ST LII, A DIST~CE OF 11.49.-~.~ ~F :H :NTelecom~O~G~ffisROW-doc Exhibit A to Ordinate No. 5227 Revision: ~2 D ate:04/14/99 Page 11 ofll