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HomeMy WebLinkAbout09-19-2005 ITEM VIII-B-7CITY Of, u, AGENDA BILL APPROVAL FORM WASHINGTON Agenda Subject: Resolution No. 3912 approving an agreement to Date: terminate a prior agreement between the City of Auburn and Les Schwab 9/7/05 Tire Center of Washington, Inc. Department: Legal Attachments: Resolution 3912; Budget Impact: Exhibit A, Agreement Administrative Recommendation: City Council adopt Resolution 3912. Background Summary: The City of Auburn was in the process of planning for a signalization project (a three-legged signalization project) at the intersection of South Auburn Way and South F Street, when it was approached by two businesses in the vicinity, Les Schwab Tire Center of Washington, Inc. and Americo Real Estate Company (UHaul) requesting that the City covert its project into a four-way signalization project. There reasons for doings so were that a four legged signalization project at that intersection would accommodate their needs for access control, and the City met with representatives of these companies and based upon a negotiative solution, agreed to convert its three-legged signalization project to a four - legged signalization project based upon certain contributions by Les Schwab and UHaul (Les Schwab was to pay money and UHaul was to grant an easement to the City and to Les Schwab.) The money received from Les Schwab was to be used approximately one half for planning and the other half for implementation. However, the agreement that the parties reached also provided that in the event that the fourth leg to the signalization project was not built, the portion of the money ear marked for construction would be returned to Les Schwab. Unfortunately, UHaul decided that it no longer was interested in participating in the four -legged signalization project and declined to grant the easements that were called for in connection with the four - leg. Accordingly, the City was in a position where it could not now build the four -leg, notwithstanding the fact that Les Schwab expended resources to convert the project to at four -legged signalization project. However, because the City does not have the easements necessary for the four -leg of the signalization project, and therefore cannot build the four -leg it is appropriate that the funds earmarked for construction of that four -leg of the signalization project be refunded to Les Schwab Tire Center of Washington, Inc. pursuant to the agreement in which the parties entered. In accordance with that refund, Les Schwab and the City of Auburn have agreed to terminate the earlier agreement providing for the fourth leg of the signalization project and refund the money due Les Schwab. The agreement appended to Resolution No. 3912 accomplishes that. Reviewed by Council & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O ❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ❑ Municipal Serv. ❑ 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 Councilmember: Wagner Staff: Dowd Meeting Date: September 19, 2005 Item Number: VIII.B.7 AUBURN * MORE THAN YOU IMAGINED RESOLUTION NO. 3 9 12 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT TO TERMINATE THE PRIOR AGREEMENT BETWEEN THE CITY OF AUBURN AND LES SCHWAB TIRE CENTER OF WASHINGTON, INC. WHEREAS, the City of Auburn was engaged in planning for its traffic signalization project in the vicinity of Auburn Way South and South F Street when it was approached by Americo Real Estate Company (UHaul) and Les Schwab Tire Center of Washington, Inc., (Les Schwab), requesting that the City change its intended three-way configuration (with signalization) along the southerly routes of Auburn Way South, the northerly routes of Auburn Way South and the South route of F Street; and WHEREAS, Les Schwab and UHaul requested that the City reconfigure its signalization plan to provide for a four-way signalization, adding a signal configuration for F Street as extended south, to the Les Schwab and UHaul properties; and WHEREAS, to support this request, Les Schwab had agreed to pay $98,000, with $48,500 of that amount going toward additional planning for the added fourth leg to the signalization project, and $49,500 going towards the actual costs of constructing that fourth leg to the signalization project; and WHEREAS, the parties entered into an agreement with the City to that effect, which agreement also called for Les Schwab and UHaul to reach agreement regarding their access and for UHaul to provide easement property in Resolution No. 3912 September 6, 2005 Page 1 accordance therewith, which agreement was approved by City of Auburn Resolution No. 3713, dated April 19, 2004, a copy of which Resolution and Agreement is attached hereto, marked as Exhibit "A" and incorporated herein by this reference; and WHEREAS, for reasons unknown to the City, UHaul changed its mind in terms of its willingness to perform as was contemplated in the agreement between the parties (to grant the easements to the City and to Les Schwab); and WHEREAS, without the easement and participation of UHaul it is not possible for the City to develop the fourth leg of the signalization project as was contemplated in the revised plans; and WHEREAS, accordingly, Les Schwab has requested the portion of the funds it paid to the City that were dependent upon the actual construction, to wit: $49,500 and asks that that be returned to it; and WHEREAS, pursuant to the agreement between the parties, the $49,500 would be appropriately refunded to Les Schwab, with the balance, $48,500 having been expended by the City and not subject to refund. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows: Section 1. That the agreement to terminate the prior agreement between the City of Auburn and Les Schwab, a copy is in substantial conformity with the form attached hereto, marked as Exhibit 'B" shall be approved and the Mayor is authorized to execute the same on behalf of the City of Auburn. Resolution No. 3912 September 6, 2005 Page 2 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 2005. CITY OF AUBURN PETER B. LEWIS MAYOR ATTEST: Danielle E. Daskam, City Clerk TO FORM: City Attorney Resolution No. 3912 September 6, 2005 Page 3 EXHIBIT "A" to Resolution No. 3912 RESOLUTION NO. 3 71 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN.LES SCHWAB INC, AMERCO REAL ESTATE COMPANY, AND THE CITY OF AUBURN REGARDING MODIFICATIONS TO THE 'F' STREET SIGNAL FOR PROJECT NO. C1014A AUBURN WAY SOUTH SAFETY IMPROVEMENTS WHEREAS, the City of Auburn is engaged in various municipal functions, including Traffic Management; and WHEREAS, in pursuit thereof, the City has received a Hazard Elimination Safety (H.E.S.) grant in the amount of $833,100 for improvements along Auburn Way South to include rechannelization, widening for an additional lane between 'D' Street SE and 6th Street SE, and a new signal at'F' Street SE; and WHEREAS, current design for those improvements includes a three-legged, signalized intersection at 'F' Street SE and Auburn Way South, near the businesses of U -Haul Company at 917 Auburn Way South, Auburn, WA 98002, and Les Schwab Tire Center at 903 Auburn Way South, Auburn, WA 98002; and WHEREAS, Les Schwab Inc., representing Les Schwab Tire Center, and AMERCO, representing U -Haul Company, have requested incorporation of a fourth leg of the intersection into the project plans for the sole benefit of Les Schwab Inc. and AMERCO; and WHEREAS, the City is willing to enter into an agreement, for the benefit of Les Schwab Inc. and AMERCO, to modify the current design; construct the fourth leg of the intersection; and own, operate and maintain the completed traffic signal; and ----------------- Resolution No. 3713 April 6, 2004 Page 1 WHEREAS, Les Schwab Inc. agrees to provide certain funds necessary to modify the current design, obtain agency approvals, and construct the fourth leg of the intersection; and WHEREAS, AMERCO agrees to provide easements to the City as necessary for the City to construct, operate and maintain the signal; and WHEREAS, in order to accomplish the project in light of the above, the City has negotiated a contract with Les Schwab Inc. and AMERCO for their participation. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows: Section 1. That the Mayor and the City Clerk are authorized to execute an agreement between Les Schwab Inc., AMERCO Real Estate Company, and the City of Auburn regarding modifications to the 'F' Street Signal, as a part of the Auburn Way South Safety Improvement, .Project No. C1014A, in substantial conformity with the Agreement 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. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. ----------------- Resolution No. 3713 April 6, 2004 Page 2 Dated and Signed this l� day of 200. CITY OF AUBURN' Y PETER B. LEWIS MAYOR ATTEST: Danielle E. Daskam, City Clerk ----------------- Resolution No. 3713 April 6, 2004 Page 3 EXHIBIT "A" to Resolution No. 3 713 (part of Ex "A' to Res. 3912) AGREEMENT BETWEEN LES SCHWAB INC, AMERCO REAL ESTATE COMPANY, AND THE CITY OF AUBURN REGARDING MODIFICATIONS TO THE F -STREET SIGNAL FOR PROJECT NO. C1014A AUBURN WAY SOUTH SAFETY IMPROVEMENTS THIS AGREEMENT is entered into this L/ day of 200 , between the City of Auburn, a Washington municipal corporation, loca and doing business at 25 West Main Street, Auburn, WA 98001 (the City), Les Schwab Tire Centers of Washington, Inc., located at PO Box 667, Prineville, OR 97754 (Les Schwab Inc.) and AMERCO Real Estate Company located at 2727 N. Central Avenue, Suite 500 -North, Phoenix, AZ 85004 (AMERCO). A. RECITALS WHEREAS, the City has received a $833,100 Hazard Elimination Safety (H.E.S.) grant for improvements along Auburn Way South to include rechannelization, widening for an additional lane between `D' Street SE and 6s' Street SE, and a new signal at F Street SE; WHEREAS, the project is identified as project number C1014A Auburn Way South Safety Improvements; WHEREAS, the City has enlisted consultant services to design the improvements; WHEREAS, current design includes a three-legged, signalized intersection at F -Street SE and Auburn Way South, near the businesses of U -Haul Company at 917 Auburn Way South, Auburn, WA 98002 and Les Schwab Tire Center at 903 Auburn Way South, Auburn, WA 98002; WHEREAS, Les Schwab Inc. representing Les Schwab Tire Centers and AMERCO representing U -Haul Company have requested incorporation of a fourth leg of the intersection into the project plans for the sole benefit of Les Schwab Inc. and AMERCO; WHEREAS, the City is willing to enter into an agreement, for the benefit of Les Schwab Inc. and AMERCO, to modify the current design, construct the fourth leg of the intersection, and own, operate and maintain the completed traffic signal; WHEREAS, Les Schwab Inc. agrees to provide certain funds necessary to modify the current design, obtain agency approvals, and construct the fourth leg of the intersection; WHEREAS, AMERCO agrees to provide easements to the City as necessary for the City to construct, operate and maintain the signal. NOW, THEREFORE, in consideration of the recitals contained herein and in order to design and construct the proposed intersection modifications, IT IS HEREBY AGREED AS FOLLOWS: Page 1 of 6 B. THE CITY OF AUBURN'S ROLE IN MODIFICATIONS TO THE F -STREET SE AND AUBURN WAY SOUTH INTERSECTION The City of Auburn agrees: 1. To design and construct an Auburn Way South west -bound left turn pocket at F - Street SE with protected, signalized entry into the AMERCO and Les Schwab Inc. sites. The currently proposed median at this location will be extended southeast on Auburn Way South as necessary to create a "zero net increase in impervious surface". 2. To design and construct a fourth, signalized approach to the current intersection at F Street SE, centered on the "F" Street SE centerline. The approach will be approximately 30 feet wide and 40 feet long, measured from the south curb face of Auburn Way South. Curbs will be constructed as a "street type" curb cut rather than a commercial driveway approach, with 35 -feet corner radii terminating at the radius returns. 3. To develop right-of-way plans and legal descriptions where easements are required for City maintenance of signal equipment. Easements are to be provided at no cost to the City. 4. To evaluate and address drainage within City right-of-way and City easement areas. 5. To design and construct a crosswalk across the new intersection approach. All other proposed crosswalks will remain. 6. To serve as the contracting agent for all activities associated with design, bidding and construction. The City will utilize its staff resources or professional services as determined by the City to be appropriate for the implementation of the project. Direction to the consultant and contractor shall be through the City. The City shall follow normal contracting rules, procedures, and standards as commonly accepted by the public works industry, except as might be modified by this Agreement. 7. To own, operate and maintain the traffic signal upon completion of the project. C. LES SCHWAB INC.'S ROLE IN MODIFICATIONS TO THE F -STREET SE AND AUBURN WAY SOUTH INTERSECTION Les Schwab Inc. agrees: 1. To secure all easements with AMERCO to permit access by Les Schwab Inc. clientele across the AMERCO property and onto the Les Schwab Tire Center site by May 31, 2004. 2. To assume all private on-site improvement costs in a separate agreement with AMERCO to modify current parking layout, circulation, or drainage in order to access and use the proposed intersection. Page 2 of 6 3. To allow reasonable access to the City and its consultants for the purposes of site surveying, investigations, or other information gathering. 4. To allow the City to restrict the Les Schwab Tire Center site, located at 903 Auburn Way South, to one access, not including the signalized intersection. 5. To contribute funds to the City in the amount of $98,000 for the design, management and construction of the intersection modifications. Les Schwab Inc. shall transfer funds for the full amount to the City within 10 business days of this agreement's execution. See Section E, Project Costs and Funding, for further description of financial arrangements. D. AMERCO REAL ESTATE COMPANY'S ROLE IN MODIFICATIONS TO THE F -STREET SE AND AUBURN WAY SOUTH INTERSECTION AMERCO Real Estate Company agrees: 1. To donate easements, for the benefit of the City and at no cost to the City or Les Schwab Inc., for purposes of installing and maintaining the signal and associated signal equipment. AMERCO must provide the easement to the City and record it with King County Office of Records and Elections by May 31, 2004. 2. To assume all private on-site improvement costs in a separate agreement with Les Schwab Inc. to modify current parking layout, circulation, or drainage in order to access and use the proposed intersection. 3. To allow reasonable access to the City and its consultants for the purposes of site surveying, investigations, or other information gathering. E. PROJECT COSTS AND FUNDING 1. "Additional Project Costs" include project management, design engineering, construction, permitting, inspection, contract administration services and other miscellaneous cost items to modify and construct a fourth intersection approach at F -Street SE as described above. These costs may include City of Auburn, Washington State Department of Transportation and other agency expenses and will not be individually tracked from costs to the overall project C1014 Auburn Way South Safety Improvements. As such, the following estimates and assumptions serve as the basis for the $98,000 in additional project costs: $39,500 The amount for consultant design services that Les Schwab Inc. agrees to pay the City. In the event that the project is not constructed or consultant design fees are lower than shown here, the City agrees to return, without interest, any remaining funds associated with this effort, $9,000 The amount for City project management, engineering, and surveying services, including the Washington State Department of Transportation services that Les Schwab Inc. agrees to pay the City. In the event that the project Page 3 of 6 is not constructed or City project management, engineering, and surveying expenses are lower than shown here, the City agrees to return, without interest, any remaining funds associated with this effort, The City's project management, engineering, and surveying expenses will then be calculated proportional to the consultant design costs used. $45,000 The amount of the construction contract that Les Schwab Inc. agrees to pay the City. If the project is constructed, the City will not return any portion of these funds. In the event that the project isnot constructed, the City agrees to return, without interest, the entire amount of funds associated with this effort. $4,500 The amount for construction inspection services that Les Schwab Inc. agrees to pay the City. If the project is constructed, the City will not return any portion of these funds. In the event that the project is not constructed, the City agrees to return, without interest, the entire amount of funds associated with this effort. F. COORDINATION EFFORTS BETWEEN LES SCHWAB INC, AMERCO REAL ESTATE COMPANY AND THE CITY OF AUBURN 1. The City, Les Schwab Inc. and AMERCO will designate project coordinators who will conduct routine project coordination. The representatives and advisors will work to minimize areas of dispute, and to resolve issues as they arise and, as far as possible, minimize the need for recourse to dispute resolution provisions of this Agreement. 2. The City will make reasonable efforts to coordinate design and construction issues at the F -Street SE intersection, as required, to produce safe and effective transitions between City -constructed and private -constructed improvements. G. ADDITIONAL AGREEMENT PROVISIONS 1. Termination. This agreement shall terminate on the date of construction physical completion. 2. Governing Law. This agreement shall be governed and construed in accordance with the laws of the State of Washington. If any dispute arises between the parties under any of the provisions of this agreement, resolution of that dispute shall be available exclusively through the jurisdiction and venue of the King County Superior Court, King County, Washington. 3. Modification. No waiver, alteration, or modification of any of the provisions of this agreement shall be binding unless in writing and signed by a duly authorized representative of each party. 4. Severability. If any one or more sections, subsections or sentences of this agreement are held to be unconstitutional or invalid, that decision shall not affect the validity Page 4 of 6 of the remaining portions of this agreement and the remainder shall remain in full force and effect. 5. Indemnification. Washington State law shall govern the respective liability between the parties to this Agreement for any loss due to property damage or injury to persons arising out of the activities conducted pursuant to this Agreement. To the extent allowed by law, each party shall defend, indemnify and hold harmless the other party, its elected officials, employees and agents from and against any and all suits, claims, actions, losses, costs, expenses of litigation, attorney's fees, penalties, and damages of whatsoever kind or nature arising out of, in connection with, or incident to any act of omission of the party, it's employees, agents, and contractors in the exercise of the rights granted and conveyed to the party by this agreement. This indemnification obligation shall include, but is not limited to, all claims against the other party by an employee or former employee of the party or its contractors and, as to such claims, the patty expressly waives, as respects the other party only, all immunity and limitation of liability under Title 51 RCW. 6. Dispute Resolution. Should a dispute arise between the participants regarding the technical aspects and/or a decision related to the management of the project, the project coordinators will attempt to narrow the issue in dispute for consideration by the City Engineer and respective business owner representatives. The City Engineer and respective business representatives will determine if the dispute may be resolved by mediation. 7. Costs to Prevailing Party. In the event of such litigation or other legal action, to enforce any rights, responsibilities or obligations under this Agreement, the prevailing parties shall be entitled to receive its reasonable costs and attorney's fees. Page 5 of 6 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed effective the day and year first set forth above. CITY OF AUBURN Peter 11, Lewis, Mayor Z : Danielle E. Daskam, City Clerk LES SCHWAB, INC. Richard B. Bo4man, Senior Execuffive Vice President Les Schwab Tire Centers of Washington, Inc. A ERCO Real Estate ompany T tl�e a ' Preside, it Page 6 of 6 EXHIBIT `B" to Resolution No, 3912 AGREEMENT TO TERMINATE PRIOR AGREEMENT This Agreement to Terminate Prior Agreement (the "Agreement") is made on this day of September, 2005, by and between Les Schwab Tire Centers of Washington, Inc. ("Les Schwab") and the City of Auburn, Washington ("City"), as follows: r�txyyr��y WHEREAS, Les Schwab and the City were signatories to an April 19, 2004 Agreement (the "2004 Agreement") with AMERCO Real Estate Company ("AMERCO"). A true and correct copy of the 2004 Agreement is attached to this Agreement as Exhibit A. WHEREAS, Les Schwab paid to the City the sum of $98,000.00 as required by the 2004 Agreement for the design, management, and construction of the intersection modifications described in the 2004 Agreement. WHEREAS, Les Schwab and the City are currently co -plaintiffs in litigation against AMERCO, seeking to compel AMERCO's compliance with the terms of the 2004 Agreement. This litigation is styled as "Les Schwab Tire Centers of Washington, Inc., et ux. v. AMERCO Real Estate Company," venued in the King County Superior Court for the State of Washington, Cause No. 04-2-37320-4 KNT (the "Litigation"). WHEREAS, rulings on certain motions in the Litigation have made it impossible or impractical for the City to construct the intersection modifications described in the 2004 Agreement. WHEREAS, the City believes that all issues of interest to the City have been adjudicated in the Litigation, and the City now desires to be dismissed as a party to the Litigation. WHEREAS, Les Schwab and the City mutually desire to terminate any remaining rights and obligations of Les Schwab and the City set forth in the 2004 Agreement, subject to the conditions below. NOW, THEREFORE, in consideration of the above recitals and in order to clearly express the mutual understanding of Les Schwab and the City with regard to the 2004 Agreement and the Litigation, IT IS HEREBY AGREED AS FOLLOWS: B. AGREEMENT I. The City agrees to return to Les Schwab the sum of $49,500.00 no later than forty-five (45) days after the full execution of this Agreement. The City and Les Schwab agree that this sum represents the amount that the City is obligated to return to Les Schwab under the terms of the 2004 Agreement. 2. Les Schwab agrees not to oppose the City's dismissal as a party to the Litigation, and agrees to waive, terminate, and relinquish any and all claims that Les Schwab may have 109038.017811228792.2 against the City for the City's inability to construct the intersection modifications described in the 2004 Agreement. 3. The City agrees to cooperate with Les Schwab in furtherance of Les Schwab's claims against AMERCO in the Litigation. - 4. Les Schwab and the City agree to waive, terminate, and relinquish all of their respective rights and obligations vis a vis each other as set forth in the 2004 Agreement. Neither party to this Agreement waives, terminates, or relinquishes any of of their respective rights vis a vis AMERCO. It is the mutual intent of the City and Les Schwab that this Agreement shall supersede and replace the rights and obligations of the City and Les Schwab under the 2004 Agreement, This Agreement constitutes the entire agreement between Les Schwab and the City and shall be binding upon and inure to the benefit of the representatives, successors or assigns of each. 5. AMERCO is not a party to this Agreement and nothing in this Agreement shall affect the rights and obligations of AMERCO under the 2004 Agreement. Nothing in this Agreement should be construed as a waiver by the City or Les Schwab of any rights or claims against AMERCO. C. ADDITIONAL AGREEMENT PROVISIONS 1. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Washington. 2. Modification. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless they are made in writing and signed by a duly authorized representative of each party. 3. Severability. In the event that any provision or part of this Agreement shall for any reason be determined to be unconstitutional, invalid, or unenforceable, the remaining provisions or parts of this Agreement shall remain in full force and effect. 4. Enforcement. In the event that any party hereto shall institute litigation to enforce any provision of this Agreement, the substantially prevailing party shall be entitled to be reimbursed for its reasonable costs, expenses and attorneys fees from the other party. 5. Additional Documents. The parties agree to cooperate fully and execute any and all supplementary documents and take all additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement. 2 10903 8.0178/1228792.2 DATED on the date first above written. CITY OF AUBURN By Peter B. Lewis, Mayor City of Auburn, Washington Attest: Danielle Daskam, City Clerk Approved as to Form: Daniel B. Heid, City Attorney 3 10903 8.017811228792.2 LES SCHWAB TIRE CENTERS OF WASHINGTON, INC. By Richard B. Borgman Senior Executive Vice President