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