HomeMy WebLinkAboutITEM VIII-B-3RESOLUTION N0.4254
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF AUBURN AND AUBURN REAL
PROPERTIES LLP AND OLDCASTLE PRECAST, INC. TO
ALLOW CONTINUED OPERATIONS AND VEST CERTAIN
USES FOR PROPERTY LOCATED AT 2808 A STREET. SE
WHEREAS, Auburn City Code Chapter 14.21 allows the CITY to consider
entering into a development agreement whereby the development standards,
including vesting issues and other appropriate development requirements are
defined; and
WHEREAS, the City of Auburn introduced certain comprehensive plan
and zoning amendments for the subject property during the 2006 Comprehensive
Plan amendment cycle; and
WHEREAS, the City of Auburn issued a SEPA determination on the 2006
Comprehensive Plan amendments on September 14, 2006 and Utility Vault filed
a timely appeal on October 16, 2006; and
WHEREAS, the City of Auburn and Oldcastle Precast, Inc. (Utility Vault)
entered into a settlement agreement on November 20, 2006 for the SEPA appeal
filed by Utility Vault; and
WHEREAS, the settlement agreement directed the City of Auburn and
Utility Vault to negotiate in good faith a development agreement regarding the
Utility Vault property pursuant to RCW 36.706.170-.210 that would provide,
among its terms, vesting of the Utility Vault property to the existing M-2, Heavy
Industrial, zone; and
Resolution No. 4254
October 9, 2007
Page 1 of 3
WHEREAS, the proposed development agreement has been reviewed by
the Public Works and Planning and Community Development Committees, and
the City Council; and
WHEREAS, on October 15, 2007, the City Council conducted a duly
noticed public hearing as required by ACC Section 14.21.050; and
WHEREAS, the CITY hereby finds that the proposed development
agreement is consistent with the following provisions of ACC Chapter 14.21:
1. Provide development that is consistent with the goals and policies
of the comprehensive plan;
2. Provide efficient and effective use of land, open space and public
facilities that result in a higher quality of development than is
required by the standards of the applicable zone;
3. Provide building and site design that complement surrounding land
uses and their environment; and
4. Provide for superior protection of critical areas.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, IN A REGULAR MEETING DULY ASSEMBLED, HEREWITH
RESOLVES AS FOLLOWS:
Section 1. The Mayor and City Clerk of the City of Auburn are herewith
authorized to execute a Development Agreement with Auburn Real Properties
LLP and Oldcastle Precast, Inc. for the purposes of identifying vested uses of the
Utility Vault property. A copy of said agreement is attached hereto as Exhibit A
and made a part hereof as thought set forth in full herein.
Resolution No. 4254
October 9, 2007
Page 2 of 3
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of this
legislation.
DATED and SIGNED this day of October, 2007.
PETER B. LEWIS, MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
APPROVED AS TO FORM:
iel Heid, City Attorney
Resolution No. 4254
October 9, 2007
Page 3 of 3
CONTRACT#
DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF AUBURN,
AUBURN REAL PROPERTIES LLP,
AND OLDCASTLE PRECAST, INC. D/B/A UTILITY VAULT
FOR THE OPERATION AND DEVELOPMENT OF UTILITY VAULT
Section 1: Parties
1.1 This Development Agreement ("Agreement") is entered into by and between the
CITY OF AUBURN, a Washington municipal corporation (the "City"), AUBURN REAL
PROPERTIES LLP, a Washington limited liability partnership, the owner of the property (the
"Owner"), and OLDCASTLE PRECAST, INC., a Washington corporation, d/b/a Utility Vault
Company ("Oldcastle"), a lessee, developer and current business operator of the property.
This Agreement is entered into pursuant to the authority of RCW 36.70B.170 through .210
under which a local government. may enter into a development agreement with any entity
having ownership or control of real property within its jurisdiction. Each entity shall be
known individually as a "Party" and all three entities shall be known collectively as the
"Parties" to this Agreement.
Section 2: Recitals
2.1 AUBURN REAL PROPERTIES LLP is the owner of certain real property more
particularly described in Exhibit "A" (Legal Description), which is attached to this instrument
and incorporated herein by this reference (hereinafter, "the Utility Vault Property"). The
Utility Vault Property, comprising approximately 41 acres, is located on land zoned M2
(Heavy Industrial) on the east side of "A" Street S.E. within the City of Auburn. Oldcastle
designs and manufactures precast and custom concrete vaults, pipes and related products
(hereinafter referred to as "Oldcastle's Operations") in the main buildings, outbuildings and
other accessory structures located throughout the Utility Vault Property (hereinafter referred
to as "Oldcastle's Facility"). Oldcastle and its predecessor have been an Auburn business
since 1968, providing services and over 160 jobs to the Auburn community.
2.2 On July 5, 2006, the City adopted Ordinance No. 6033 (the "Ordinance"). The
Ordinance adopted code amendments regarding uses and development standards in the M1
(Light Industrial) and M2 (Heavy Industrial) zones in the City. Among its terms, the
Ordinance removed language from the zoning code that listed various specific permitted uses
in the M2 zone including "Manufacturing, processing, blending and packaging of products
such as the following ...Clay and cement products such as brick, tile, pipe, etc." but retained
DEVELOPMENT AGREEMENT -PAGE 1 of 25
language that listed as a permitted use in the M2 zone "Manufacturing, assembling and
packaging of articles, products, or merchandise."
2.3 On September 6, 2006, the City's Department of Planning, Building and Community
Development (the "Department") issued proposed amendments to the text of the City's
Comprehensive Plan (the "Text Amendments"). Among the Text Amendments are proposed
revisions to Policy LU-116 on Page 3-40 and revisions to the text on Page 14-16; both
changes are referred to hereinafter as .the "A Street Text Amendments" and are shown in
Exhibit "B" attached to this instrument and incorporated herein by this ° reference. On
September 6, 2006 and October 3, 2006, the Department issued proposed amendments to the
Comprehensive Plan land use designations for various properties in the City (the "Land Use
Map Amendments"). Among the proposed Land Use Map Amendments were changes to Area
20, which is the Utility Vault Property, that would revise the designation from "Heavy
Industrial" to "Heavy Commercial" ("CPM #20 Map Amendment"). On ,the
Department issued proposed amendments to the City's Zoning Map (the "Zoning Map
Amendments"). Among the proposed Zoning Map Amendments were changes to Area W,
which is the Utility Vault Property, that would revise the zoning from M2 to C3 (the "Area W
Zoning Map Amendment"). The A Street Text Amendments, the CPM #20 Map Amendment
and the Area W Zoning Map Amendment are collectively referred to as the "Utility Vault
Related Amendments."
2:4 On November 22, 2006 Auburn City Attorney Daniel B. Heid issued an opinion letter,
a copy of which is attached to this instrument as Exhibit "C" (Opinion Letter) and
incorporated herein by this reference, which stated as follows:
Ordinance No. 6033 was not intended, and shall not be
interpreted by the City, to prohibit or limit Oldcastle's use of
the Utility Vault property for any of the following uses:
manufacturing, processing, blending and packaging. of clay and
cement products including but not limited to brick, tile, pipe,
etc.; and uses accessory thereto, including but not limited to
concrete mixing and batching, outside storage yards, and retail
and wholesale trade of products manufactured, processed or
assembled on-site.
2.5 On December 18, 2006, the City adopted Resolution No. 4129, which extended an
existing six-month moratorium on the filing of applications for licenses, permits and
approvals for commercial and industrial land uses of properties zoned Ml and M2 on or along
the east side of "A" Street S.E., including the Utility Vault Property, for an additional six
months in order to allow the City time to take action on the Utility Vault Related
Amendments and to negotiate a Development Agreement with Oldcastle and Owner.
DEVELOPMENT AGREEMENT -PAGE 2 of 25
2.6 The Parties agree that Oldcastle's presence in the community provides significant
economic and. community benefit to the City and its residents.
2.7 The Parties agree that the City's anticipated adoption of the Utility Vault Related
Amendments after the execution of this Agreement is an appropriate and proper exercise of
the City's police power.
2.8 The purpose of this Agreement is to address the continuation. of Oldcastle's
Operations and the maintenance, repair, alteration, enlargement and/or expansion of
Oldcastle's Facility on the Utility Vault property in accordance with development agreements
under Washington State law (RCW 36.70B.170 et seq.), which authorizes local governments
to enter into Development Agreements with any entity having ownership or control of real
property within a local government's jurisdiction. Development Agreements are specifically
authorized by RCW 36.70B.170 through .210 and by Auburn City Code (ACC) 14.21.020.D
as a proper exercise of the City's police power.
2.9 Oldcastle and Owner-ate-desire assurances that they and their successors or assigns
(as defined herein) may continue Oldcastle's Operations and maintain, repair, alter, enlarge
and/or expand the Oldcastle Facility on the Utility Vault Property (hereinafter referred to as
"Future Projects or "Future Project"").
2.10 The Parties desire assurance that Future Projects will be developed in accordance with
certain ordinances, resolutions, codes, rules, regulations and official policies of the City
governing the development and use of land existing on the date of the this Agreement. This
Agreement reduces risk for all Parties and provides certainty that Future Projects will be
developed under the terms and conditions set forth herein.
2.11 The Parties recognize that Oldcastle's Operations require the operation of trucks rated
in excess of 30,000 pounds gross weight (as defined by RCW 46.16.111, as amended) on "A"
Street S.E./East Valley Highway from 6th Street S.E. to the southern end of the city limits; on
6th Street S.E. from "A" Street S.E. to State Route 18; and on Ellingson Road from "A" Street
S.E. to "C" Street S.W. (the "Utility Vault Truck Routes").
2.12 The Parties desire to memorialize Oldcastle's and Owner's vested right to develop
Future Projects consistent with the terms and conditions of this Agreement and to operate
trucks on the Utility Vault Truck Routes; all subject to future review and mitigation of
environmental impacts under the State Environmental Policy Act, RCW Ch. 43.21 (SEPA),
with any substantive SEPA conditions based on vested codes and polices.
2.13 The City issued a Determination ofNonsignificance (DNS) relating to this Agreement
on q • (7. O ? determining that this Agreement does not have a probable significant
adverse impact on the environment.
DEVELOPMENT AGREEMENT -PAGE 3 of 25
2.14 The Auburn City Council held a public hearing to consider this Agreement
pursuant to RCW 36.70B.200 and ACC 14.21.050 on ~ p.15 • ~7 .
2.15 The City, Oldcastle and Owner agree that each has entered into this Agreement
knowingly and voluntarily, and agree to be bound by the terms and conditions of this
Agreement.
2.16 Pursuant to RCW 36.70B.170, Oldcastle and Owner represent that they are vested
with ownership or control over that real property identified in the attached Exhibit "A."
2.17 The Parties agree that the foregoing terms and recitals are material to this Agreement,
and that each Party has relied on the material nature of such terms and recitals in entering into
this Agreement.
Section 3: The Agreement
THEREFORE, in consideration of the mutual promises and covenants set forth below,
and for other good and valuable consideration, the receipt of which is hereby acknowledged,
the Parties acknowledge and agree as follows:
3.1 Effective Date. This Agreement shall become effective on the first date on which all
Parties have executed this Agreement ("Effective Date").
3.2 Term. This Agreement shall commence on the Effective Date and shall remain in
effect for seventeen (17) years thereafter. unless the Parties sooner agree in writing to
terminate this Agreement; provided, however, that if Oldcastle extends its lease with Owner,
this Agreement shall remain in effect for up to an additional twenty-five (25) years after the
initial seventeen-year period (`"Term"). The Term of this Agreement shall be tolled pending
any appeals of any land use permits or approvals granted by the City necessary to complete
Future Projects, and pending any appeals of any state or federal agency necessary to complete
Future Projects. If Oldcastle or Owner submits a complete building permit application for a
Future Project prior to end of the Term of this Agreement but the Term is reached prior to
occupancy, this Agreement shall continue until building permits (including any extension to
the terms thereo fl for such Future Project expire, or until the City issues all required
certificates of occupancy, whichever occurs first. This Agreement may not be extended or its
Term lengthened. At the conclusion of the Term of this Agreement, Oldcastle and Owner
shall have status as a legally established nonconforming use ("Nonconforming Status")
pursuant to the provisions of ACC Chapter 18.54 as codified on the Effective Date; provided,
however, that such Nonconforming Status shall extend only to the specific uses permitted
under this Agreement. This Section 3.2 shall survive termination of this Agreement.
DEVELOPMENT AGREEMENT -PAGE 4 of 25
3.3 No Opposition to Utility Vault Related Amendments. Oldcastle and Owner shall not
appeal, challenge, contest or oppose the City's adoption of the Utility Vault Related
Amendments, including appeals of related environmental reviews under SEPA.
3.4 Lifting of Development Moratorium. Prior to or concurrent with the execution of this
Agreement, the City shall repeal the development moratorium extended by Resolution No.
4129 as it applies to the Utility Vault Property.
3.5 Development Agreement Fee. Prior to or concurrent with the execution of this
Agreement, Oldcastle or Owner shall pay the Development Agreement Fee set forth by
Reso lution No. ~~.
3.6 Permitted Uses.
a. The following uses shall be permitted on the Utility Vault Property throughout the
Term of this Agreement: Manufacturing, processing, blending and packaging of
clay and cement products including but not limited to brick, tile, pipe, etc., and
uses accessory thereto, including but not limited to associated metal fabrication,
concrete mixing and hatching; outside storage yards; and retail and wholesale trade
of products manufactured, processed or assembled on-site (e.g., distribution,
warehousing and trucking of materials and products) (the "Existing Uses").
b. In the event that the City adopts a zoning designation other than the current M2
zoning for the Utility Vault Property, Oldcastle and Owner may elect to terminate
this Agreement in part as to any legal lot or lots within the Property by giving the
City ninety (90) days written notice of their intent to do so. Upon such partial
termination, any and all uses allowed by then-current zoning shall be permitted on
such legal lot or lots in lieu of the Existing Uses.
3.7 Vested Rights.
a. .Vested Rules. Future Projects shall be vested to the provisions of the City of
Auburn Comprehensive Plan and the ACC identified in Exhibit D hereto that are
in effect on the Effective Date (the "Vested Rules"). Vested Rules shall not
include any provisions of Chapter 19.27 RCW (the State Building Code),
including any building, fire, plumbing or electrical codes. Vested Rules shall also
not include any parking requirements set forth in any of the following: the
Americans with Disabilities Act (ADA), the State Building Code, or
administrative regulations adopted pursuant to either the ADA or the State
Building Code.
b. Subsequent Rules. Except as expressly provided herein, Future Projects shall not
be subject to any ordinances, resolutions, codes, rules, regulations and official
DEVELOPMENT AGREEMENT -PAGE 5 of 25
policies of the City amended or adopted after the Effective Date and prior to the
expiration or termination of this Agreement which amend any Vested Rules or are
inconsistent with any Vested Rules (collectively referred to herein as the
"Subsequent Rules").
c. New Applicable Rules. Future Projects shall be subject to any code provisions
adopted after the Effective Date, excluding Subsequent Rules (the "New
Applicable Rules").
d. Right to Develop Future Projects. Oldcastle and Owner shall have a vested right to
develop the Property in accordance with, and to the extent of the Vested Rules and
New Applicable Rules, except as otherwise provided in this Agreement or by state
or federally mandated laws preempting the City's authority to vest regulations for
Oldcastle's Operations or Future Projects. Future Projects shall remain subject to
all subsequent project approvals required by law or city policy to develop Future
Projects, including but not limited to clearing and grading permits and building
permits; provided, however, that such subsequent project approvals shall be made
pursuant to the Vested-Rules and New Applicable Rules. Future Projects shall not
be subject to any development moratoria the City may adopt subsequent to the date
of this Agreement unless necessitated by a serious threat to the public health,
safety and welfare.
e. Timing of Development. The parties acknowledge that Oldcastle and Owner cannot
at this time- predict when or the rate at which Future Projects will be developed.
Such decision depends upon numerous factors, which are not within the control of
Oldcastle and Owner, such as market orientation and demand, interest rates, and
other similar factors. During the Term of this Agreement, Oldcastle and Owner
shall have the right to develop the Property in such order, in such phases, at such
rate and at such times as Oldcastle and Owner deem appropriate within the
exercise of their subjective business judgment, subject only to any timing or
phasing requirements set forth in the Vested Rules and New Applicable Rules.
f. SEPA Review. For any aspect of development of Future Projects that triggers
SEPA review, such review shall be processed subject to the normal procedures set
forth in ACC Title 16, as amended; provided, however, that any substantive
conditions imposed under SEPA shall be made pursuant to the, Vested Rules and
New Applicable Rules.
g. Truck Tra~c. Oldcastle and Owner shall have the right to operate its trucks, and
to allow operation of its suppliers', vendors' and customers' trucks, on the Utility
Vault Truck Routes. The City retains the right to manage its transportation system
by identifying comparable alternative routes that may be used in lieu of the Utility
Vault Truck Routes and to temporarily disrupt such routes to allow for
DEVELOPMENT AGREEMENT -PAGE 6 of 25
maintenance and operations, construction, and emergency activities. Oldcastle's
and Owner's right to use the Utility Vault Truck Routes shall be subject to SEPA
review as provided in section 3.7(f) and any mitigation permitted under city, state,
or federal codes.
h. Access to 29'h Street S.E. The City agrees to grant Oldcastle and Owner direct
access to 29th Street S.E. for trucks and other vehicles so that Oldcastle and Owner
may utilize the signalized intersection of "A" Street S.E. and 29th Street S.E. to
access "A" Street S.E., provided the 29th Street access meets the Auburn Design
Standards and Construction Standards (currently referenced at ACC (,hAa7~ la•~1~"'
in effect at the time of development. Oldcastle and the City should continue _ to
work towards maximizing the number of vehicles that are able to leave the Utility
Vault Property by utilizing the intersection of 29th Street S.E. and "A" Street S.E.
for left turns onto "A" Street S.E.
3.8 Reservations of Authority. Notwithstanding any other provision of this Agreement,
the following shall apply to the development of the Property; provided, however, that nothing
in this Agreement shall diminish Oldcastle's or Owner's rights for vesting by submission of a
complete building permit application pursuant to RCW 19.27.095:
a. Regulations governing. construction standards and specifications as follows: the
International Building Code, Uniform Plumbing Code, National Electric Code, and
Uniform Fire Code as maybe amended ("Construction Regulations").
b. Conditions imposed pursuant to Construction Regulations on building permits
.issued for Future Projects.
c. New or different officially adopted regulations of general applicability, even if in
conflict with the Vested Rules and New Applicable Rules, but only if, and to the
extent required by a serious threat to public health, safety, and welfare, as
determined by the City Council, .and only after notice and a meaningful
opportunity to be heard has been provided to Oldcastle and Owner.
d. Regulations which the City, Oldcastle and Owner mutually agree, by written
consent, can be applied to development of Future Projects. In the event that the
City, Oldcastle and Owner desire to apply a Subsequent Rule to Future Projects,
the City shall provide public notice of the proposed application of the Subsequent
Rule to Future Projects and shall provide an opportunity for public comment. The
City shall take any public comments into account prior to written consent to apply
such regulation to the Development.
e. Applicable fees in effect at such time the building permit application for a Future
Project is submitted and deemed complete by the City.
DEVELOPMENT AGREEMENT -PAGE 7 of 25
Section 4: Transfer of Property by Oldcastle or Owner
4.1 Authority to Transfer. Oldcastle's and Owner's right to sell, transfer, mortgage,
hypothecate, convey or take any other similar action regarding real property interests in the
Property or any financing thereto shall not be infringed by this Agreement; provided,
however, that any such sale, transfer, sale, lease, etc. shall be subject to the terms and
conditions, rights and obligations of this Agreement.
4.2 Obligations of Successors. This Agreement shall be binding upon all subsequent
heirs, successors, assigns, purchasers, owners, lessees or lessors and transferees of every
nature and kind. Upon transfer of all interest in the Property, Oldcastle and/or Owner, as the
case may be, shall be released from all obligations under this Agreement.
4.3 Estoppel Certificate. Oldcastle or Owner may, at any time, and from time to time,
deliver written notice to the City ,requesting the City to certify in writing that, to the
knowledge of the City (i) this Agreement is in full force and effect and a binding obligation of
the Parties; (ii) this Agreement has not been amended or modified either orally or in writing,
and if so amended, identifying the amendments; and (iii) the requesting Party is not in default
in the performance of its obligations under this Agreement, or if in default, to describe therein
the nature and amount of any such defaults. The City shall execute and return such cert~cate
within thirty (30) days following the receipt thereo£ The City shall not have any liability to
the requesting Party or to any third party for inaccurate information if it provides the estoppel
certificate in good faith and with reasonable care.
Section 5: Binding Nature; Modification; Termination
5.1 Binding Nature. Once executed, this Agreement shall be binding on the Parties to this
Agreement and their heirs, successors and assigns, from the effective date through the Term
of the Agreement.
5.2 Modification or Termination of Agreement.
a. Modification. This Agreement may be modified only upon the mutual written
agreement of the City Council, Oldcastle and Owner and their respective successors and/or
assigns.
b. Termination. The Parties may mutually agree to terminate this agreement in
whole or in part at any time, upon terms and conditions agreed to by the Parties. Oldcastle and
Owner may terminate the effect of this Agreement as to any legal lot within the Property
pursuant to Section 3.6(b) of this Agreement. Oldcastle, Owner or the City may record a
notice of such complete or partial termination against the Property. Termination of this
Agreement, whether in whole or in part, shall not constitute termination of any other land use
entitlements approved for the Property.
DEVELOPMENT AGREEMENT -PAGE 8 of 25
5.3 Other Agreements. The Parties acknowledge that this Agreement is complete and sets
forth and contains the entire understanding and agreement between the Parties with respect to
the development of Future Projects, and that there are no oral or written representations,
understandings or ancillary covenants, undertakings or agreements that are not contained or
expressly referred to herein. No testimony or evidence of any such representations,
understandings or covenants shall be admissible in any proceeding of any kind or nature.
Section 6: General Terms
6.1 Venue. Venue for all disputes arising under or connected with this Agreement and its
component parts shall be the Superior Court of King. County. This Agreement shall be
governed and interpreted in accordance with the laws of the State of Washington.
6.2 No Waiver of Police Power or Condemnation Authority. The City does not waive its
police power or condemnation authority by entering into this Agreement, but shall not
exercise its police power in any manner inconsistent with this Agreement.
6.3 Covenant Running. with the Land. This Agreement and its component parts shall be
covenants running with the land and/or equitable servitudes, and shall be binding on the
Parties and their successors and assigns, and on all subsequent owners, purchasers, lessees or
lessors, and transferees of every nature as set forth herein. Oldcastle shall record a full and
complete original of this Agreement against title to the Property within five- (5) days
following the Effective Date of this Agreement with the Real Property Records Division of
the King County Records and Elections Department.
6.4 Oldcastle's and Owner's Responsibih~. Any act or omission required of or permitted
by the Oldcastle or Owner may be taken by Oldcastle or Owner or by their agents, contractors
or employees; provided that the Oldcastle and Owner shall not thereby be relieved of their
responsibility or liability to the City under this Agreement.
6.5 Attorney's Fees. In any action arising under or related to this Agreement, each Party
shall bear. its own attorney fees and expenses, whether at trial or on appeal, or in any
bankruptcy proceeding.
6.6 Specific Performance. In the event that any Party fails to perform as set forth in this
Agreement, the non-defaulting Party or Parties shall be entitled to pursue specific
performance against the defaulting Party. The Parties acknowledge that money damages and
remedies at law generally are inadequate to compensate the Parties for the unique benefits
available through this Agreement and specific performance and other non-monetary relief are
particularly appropriate remedies for the enforcement of this Agreement and should be
available to the Parties.
DEVELOPMENT AGREEMENT -PAGE 9 of 25
6.7 No Third Party BeneficiarX. This Agreement is for the benefit of the Parties hereto
only and is not intended to benefit any other person or entity, and no person or entity a
signatory to this Agreement shall have any third party beneficiary or other rights whatsoever
under this Agreement. No other person or entity not a Party to this Agreement may enforce
the terms and provisions of this Agreement.
6.8 Severability. If any section, sentence, clause, provision or portion of this Agreement
is declared unlawful or unconstitutional for any reason, the remainder of this Agreement shall
continue in full force and effect.
6,9 Notice. All notices or communications provided for by this Agreement must be in
writing, and may either be delivered personally, by certified mail, or by express delivery
service, return receipt requested. Such notices shall be deemed delivered on the date of
receipt, as evidenced by the return receipt or the equivalent (e.g., date stamp of recipient). All
notices or communications shall be given to the Parties at their addresses set forth below:
For the City of Auburn:
For Oldcastle:
Oldcastle Precast, Inc.
c/o Utility Vault Company
Attn: Gary Venn
P.O. Box 588
Auburn, WA 98071
For Owner:
Auburn Real Properties LLP
Attn: James Schack
P.O. Box 8289
Covington, WA 98042-8289
Any Party may, upon ten (10) days written notice to the other Parties, substitute an alternative
address for that listed above, either for a particular duration or permanently.
DEVELOPMENT AGREEMENT -PAGE 10 of 25
6.10 Mutual Drafting and Construction. The Parties agree that each of them participated
fully in the negotiation and drafting of this Agreement and the rules of construction of
ambiguities against the drafter shall not apply to any Party.
6.11 Section Headines. All section headings and subheadings are inserted for convenience
only and shall not affect any construction or interpretation of this Agreement.
6.12 Authority to Execute. The City, Oldcastle and Owner represent and warrant that they
have the respective power and authority, and are duly authorized to execute, deliver, and
perform all of the obligations under this Agreement.
6.13 Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original.
Section 7: List of Exhibits
Exhibit Description
A. Legal Description for the Utility Vault Property
B. "A" Street Text Amendments
C. Opinion Letter
D. Vested Rules
[REMAINDER OF PAGE IS INTENTIONALLY BLANK]
DEVELOPMENT AGREEMENT -PAGE 11 of 25
CITY OF AUBURN:
Date of Execution:
Peter Lewis, Mayor
ATTEST:
City Clerk
FO
City Atto`r~ey~ v _'
STATE OF WASHINGTON
ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Peter Lewis is the person who appeared
before me, and said person acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as the Mayor of the City of Auburn, a
Washington municipal corporation, and acknowledged said instrument to be the free and voluntary act and
deed of said municipal corporation for the uses and purposes therein mentioned, and on oath stated that he
was duly elected, qualified and acting as said office of the municipal corporation, that he was authorized to
execute said instrument and that the seal affixed, if any, is the corporate seal of said municipal corporation.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notarial stamp/seal)
DEVELOPMENT AGREEMENT -PAGE 12 of 25
AUBURN REAL PROPERTIES LLP:
By and through each of its partners:
Charles d Ellen Harley
~~ ~ ~ ~~ ~` 2~ ~ ~~
(,~ Date of Execution:
Charles E. Harley ~
~Q,~t,~ ~ ~ ~ Date of Execution: ~ ~" ZZ `"
Ellen S. Harley /
Date of Execution: ~O 2~'
et .Davis
L Date of Execution: 6 2.2 2csa~
argaret avis I
Date of Execution: ~ - ~' d~'' " ~ ~`
e neth Davis
~~ o Execution: vµe. ~ Z,vO'7
James B. Schac
Date of Execution:
John B. Schack II
Date of Execution:
Jacob D. Schack
~c~,.t~,l~~e gf~Ex~ecution: 6 -~ O `~
0 ~.,,~-A t,~-
Idamae Schack
QTIP Exempt Trust u/w John B. Schack
o~rw ~ ~ w-c.tC.~
gy. Date of Execution: ~O Z~
Idamae Schack, Trustee
Non~QTIP Exe pt Trust u/w John B. Schack
By: ~~.c.k. a.,LjL/.~- Date of Execution: to Z~
Idamae Schack, Trustee
DEVELOPMENT AGREEMENT -PAGE 13 of 25
STATE OF WASHINGTON )
ss.
COUNTY OF Iona )
I certify that I know or have satisfactory evidence that Charles Harley and Ellen Harley are the
persons who appeared before me, and they acknowledged that they signed this instrument, on oath stated
that they were authorized to execute the instrument and acknowledged it as a partner of Auburn Real
Properties LLP, a Washington limited liability partnership, and acknowledged it to be the free and
voluntary act of such partner for the uses and purposes mentioned in the instrument.
Dated: ,~ ~ 1,r1Q c~'~ _ Gam!
(Use this space far notarial stampJseat)
Notary PublicG,,''
Print Naine C,t l~;rt . ~~lt~~ t Q S
My commission expires U~/tom I 1
STATE OF WASHINGTON )
ss.
COUNTY OF I~~~ )
I certify that I know or have satisfactory evidence that Margaret S. Davis is the person who
appeared before me, and she acknowledged that she signed this instrument, on oath stated that she was
authorized to execute the instrument and acknowledged it as a partner of Auburn Real Properties LLP, a
Washington limited .liability partnership, and acknowledged it to be the free and voluntary act of such
partner for the uses and purposes mentioned in the instrument.
Dated: ~~~.'~
space for notarial
.Notary Public `~~{~ C
Print Name ~r t ~-, ~ r' C t t ~,1 Q J
My commission expires 0(.a/OG I~aO11
DEVELOPMENT AGREEMENT -PAGE 14 of 25
STATE OF WASHINGTON }
) ss.
COUNTY OF i n )
I certify that I know or have Satisfactory evidence that Margaret E. Davis is the person who
appeared before me, and she acknowledged that she signed this instrument, on oath stated that she was
authorized to execute the instrument and acknowledged it as a partner of Auburn Real Properties LLP, a
Washington limited liability partnership, and acknowledged it to be the free and voluntary act of such
partner for the uses and purposes mentioned in the instrument.
Dated: ~~t~11~ ~ ~~
(Use this spacc for notarial stampJseal)
~1i1 ~ G~~,r~
Notary Public ~j,,
Print Name ~~~t ~. Y)',t~~tpS
My commission expires CS..o~ CA 120t 1
STATE OF WASHIlVGTON )
ss.
COUNTY OF _ ~~ i~_
I certify that I know or have satisfactory evidence that Kenneth Davis is the person who
appeared before me, and he acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as a partner of Auburn Real Properties LLP, a
Washington limited liability partnership, and acknowledged it to be the free and voluntary act of such
partner for the uses and purposes mentioned in the instrument.
Dated:` L.ll11Q.. ~`-` ~~
~~~
(Use this space for notarial stamp/seal)
T
Notary Public c~ ~~ y ~,, n C
Print Name `,]' ~1;-~ (... `t'[ `1',13" J
My commission expires ~~,! 9(Z 1201 ~
DEVELOPMENT AGREEMENT -PAGE 15 of 25
STATE OF WASHINGTON )
ss.
COUNTY OF ~ .{ J1G 1
I certify that I know or have satisfactory evidence that James B. Schack is the person who
appeared before me, and he acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as a partner of Auburn Real Properties LLP, a
Washington limited liability partnership, and acknowledged it to be the free and voluntary act of such
partner for the uses and purposes mentioned in the instrument
Dated: \ ~~ ~Q r~~~.
spas
Notary Public~j~
Print Name i:!' !Jt^1 1... ~~t~~y~~
My commission expires (X,s~Q /2b1~
STATE OF WASHINGTON )
ss.
COUNTY OF )
I certify that I know or have satisfadory evidence that John $. Schack II is the person who
appeared before me, and he acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as a partner of Auburn Real Properties LLP, a
Washington limited liability partnership, and acknowledged it to be the free and voluntary act of such
partner for the uses and purposes mentioned in the instrument.
Dated:
~~
Notary Public
Print Name
My commission expires
DEVELOPMENT AGREEMENT -PAGE 16 of 25
,STATE OF WASHINGTON )
ss.
COUNTY OF )
I certify that I know or have satisfactory evidence that 3acob D. Schack is the person who
appeared before me, and he acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as a partner of Auburn Real Properties I.L.P, a
Washington limited liability partnership, and acknowledged it to be the free and voluntary act of such
partner for the uses and purposes mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
acac~
[REMAINDER OF PAGE IS INTENTIONALLY BLANK]
DEVELOPMENT AGREEMENT -PAGE 17 of 2S
STATE OP WASHINGTON )
ss.
COUNTY OP~o„~~~6 ~ )
I certify that I know or have satisfactory evidence that Idamae Schack is the person who
appeared before me, and she acknowledged that she signed this instrument, on oath stated that she was
authorized to execute the instrument and acknowledged it as a partner of Auburn Real Properties LLP, a
Washington limited liability partnership, and acknowledged it as Trustee of the QTIP Exempt Marital
Trust under the Will of John B. Schack, a partner of Auburn Real Properties LLP, a Washington limited
liability partnership, and acknowledged it as Trustee of the Non-QT1:P Exempt Marital Trust under the
Will of John B. Schack, a partner of Auburn Real Properties LLP, a Washington limited liability
partnership, and acknowledged each act to be the free and voluntary act of each said partner for the uses
and purposes mentioned in the instrument.
Dated:
~O \SS~pty E CD Notary blic .
/ P ~ ~~ _ v
v ~~` '~'Oi~ ~ Print Name ~,~~~'/ ~~ 2-
U N47ARY F~ My commission expires C.~ r?4a`~
pU$l1C
~'~' i 0-25-2007 ~O
'Y~.
F o~ wRS~'\~
his space for Ea stamp/sea!)
[REMAINDER OF PAGE IS INTENTIONALLY BLANK]
DEVELOPMENT AGREEMENT -PAGE 18 of 25
AUBURN REAL PROPERTIES LLP:
By and through each of its partners:
Charles and Ellen Harley
Charles E. Harley
Date of Execution:
Ellen S. Harley
Margaret S. Davis
Margaret E. Davis
Kenneth Davis
James B. Schack
~_ ~'-~~_
John B. Schack II
Jacob D. Schack
Idamae Schack
QTiP Exempt Trust u/w John B. Schack
By:
Idamae Schack, Trustee
Date of Execution:
Date of Execution:
Date of Execution:
Date of Execution:
Date of Execution:
Date of Execution: ~ 2$ o
Date of Execution:
Date of Execution:
Date of Execution:
Non-QTIP Exempt Trust u/w John B. Schack
gy; Date of Execution:
Idamae Schack, Trustee
DEVELOPMENT AGREEMENT -PAGE 13 of 25
STATE OP WASHINGTON )
ss.
COUNTY OF )
I certify that I know or have satisfactory evidence that James B. Schack is the person who
appeared before me, and he acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as a partner of Auburn Real Properties LLP, a
Washington limited liability partnership, and acknowledged it to be the free and voluntary .act of such
partner for the uses and purposes mentioned in the instrument.
Dated:
Notary Public -
PrintName
My commission expires
STATE OF WASHINGTON )
COUNTY OF ~~.~ ~G, } ss.
)
I certify that I know or have sadsfactory evidence that Sohn B. Schack II is the person who
appeared before me, and he acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrumenrt and acknowledged it as a partner of Auburn Real Properties LLP, a
Washington limited liability partnership, and acknowledged it to be the free and voluntary act of such
partner for the uses and purposes mentioned in the instrument.
Dated:~~~~- 015 a,Ut~7
:_ _ NoTaRY >au131_~c
STATE OF WASNINGTC7N
T A Pwi~.t,sps
dv Aouointment Expires ?/2212010
space
. (.~•
Notary Pu c ` ~' {fit ,'
Print Name 1' h • ~ ~~5
My commission expires ~t.n a ~ ~.1 c ~
DEVELOPMENT AGREEMENT -PAGE 16 of 25
AUBURN REAL PRQPERTI[l~ LLP:
By and t11~ough each of its partners:
Cliartes anti Ellen Harlep
Date of Execution:
i~xarles E. Harley
Date of Execution:
Eden S. Harley
Margaret S. Davis
Date of fixeraitioa:
Date of Execution•
Margaret E, Da~+is
Kenneth Dams
bate of Execution:
darner B. hack
Joha B. S+~baek IX . .
J b D. Schack
><daucae Schactc
QTIP Exempt Trust uhv Jahn B. Schack
By .
Tdatnae Schat±k, ''I3rustee
Date of Execution:
Nort•QTD' Exempt Trust alvP Jtrhu B. Schack
gy; Date of Execution;
Idatnae Schack, 'Trustee
DEVELOPM~IT AGREEMENT - PAG813 of 2S
Date of Execution: ,~_
Date of Bxeecution:
9~
Date of Execution: G- ~ ~
Date of Execution: ~_.____.-
1 certify that I know or have satisfactory evidence that Jacob 0. Schack is the person who
appeared before me, and he acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as a partner of Auburn Real Properties LLP, a
Washington limited liability partnership, and acknowledged it to be.the free and voluntary act of such
partner for the uses and purposes mentioned in the instrument.
Dated: V~1,~ D , 0~7
OFFICIAL SEAL
JILL THQMAS Notary Public
NOTARY Pll8lIC - State ~ Arimna
MARICOPA GOt/My
My Comm. ExpiFes~,5,2008 PrintName:,~~,~ ~ G~~
My commission expires: i~a~g
OLDCASTLE PRECAST, INC.
By:
Gary Venn, Vice President /General Manager
STATE OF WASHINGTON )
ss.
COUNTY OF )
Date of Execution:
I certify that I know or have satisfactory evidence that Gary Venn is the person who appeared.
before me, and he acknowledged that he signed this instrument, on oath stated that he was.authorized to
execute the instrument and acknowledged it as the Vice President /Genera! Manager of Oldcastle
Precast, Inc., a Washington corporation, d/b/a Utility Vault Company, to be the free and voluntary act of
such corporation for the uses and purposes mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
svace
DEVELOPMENT AGREEMENT -PAGE 19 of 25
Exhibit A
Legal Description
Parcel A
THAT PORTION OF SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER
SECTION 19, TOWNSHIP 21 NORTH, RANGE 5 EAST, W M ,DESCRIBED AS
BEGINNING ON THE SOUTHWEST CORNER OF SAID SECTION 19,
THENCE NORTH ALONG THE WEST LINE THEREOF 328.20,
THENCE EAST PARALLEL WITH THE SOUTH LINE OF SAID SECTION 320
FEET TO TRUE POINT OF BEGINNING,
THENCE EAST PARALLEL WITH SAID SOUTH LINE 100 FEET,
THENCE SOUTH PARALLEL WITH SAID WEST LINE 328.20 FEET TO THE.
SOUTH LINE OF SAID SECTION,
THENCE WEST ALONG SAID SOUTH LINE 100 FEET,
THENCE NORTH 328.20 FEET TO THE POINT OF BEGINNING.
Parcel B
A PORTION OF GOVERNMENT LOT 4, SECTION 19, TOWNSHIP 21
NORTH, RANGE 5 EAST W M DESCRIBED AS FOLLOWS
BEGINNING ON THE SOUTH LINE 597.4 EAST OF THE SW CORNER OF
SAID GOVT LOT, THENCE NORTH 328.75 FEET; THENCE EAST 597.4
FEET TO A POINT 129.3 FEET NORTH OF THE SOUTHEAST CORNER OF
LOT 4,
THENCE SOUTH 129.3 FEET TO SOUTHEAST CORNER,
THENCE WEST 597.4 FEET TO.BEGINNING,
ALSO SOUTH 328.75 FEET OF THE EAST 177.4 FEET OF THE WEST 597.4
FEET OF SAID GOVERNMIENT LOT 4, EXCEPT ROADS
Parcel C
WEST 2 ACRES OF NORTH 6 ACRES GOVERNMENT LOT 1 LESS STATE
HIGHWAY,
SECTION 30, TOWNSHIP 21 NORTH, RANGE 5 EAST, W M IN KING COUNTY,
WASHINGTON
DEVELOPMENT AGREEMENT -PAGE 20 of 25
Exhibit A
Legal Description (continued)
Parcel D
GOVERNMENT LOT 1, SECTION 30, TOWNSHIP 21 NORTH, RANGE 5 EAST, W M
APPROXIMATELY NORTH 6 ACRES OF GL 1 LESS THE WEST 2 ACRES, 1N KING
COUNTY, WASHINGTON
Parcel E
GOVERNMENT LOT 1, SECTION 30, TOWNSHIP 21 NORTH, RANGE 5 EAST, W M
APPROXIMATLY SOUTH 30 ACRES OR GL 1 LESS CO RD LESS STATE RD, IN KING
COUNTY, WASHINGTON
DEVELOPMENT AGREEMENT -PAGE 21 of 2S
Exhibit B
"A" Street Text Amendments
Chapter 3
LU-113 Heavy industrial uses shall be separated from lighter industrial,
wmmercial and residential areas.
LU-114 The most appropriate areas for heavy industrial uses are in the
central part of the Region Serving Area adjoining the rail lines.
LU-115 Heavy industrial uses are appropriate in the southern portion of
the Region Serving Area which is now developed in large scale
industrial facilities.
LU-116 Heavy industrial uses shall be strictly prohibited from the
Community Serving Area of Auburn (see Map 3.2). Tke-enly
Redevelopment
and Infill A major goal of the Growth Management Act is to reduce urban sprawl.
One way to minimize sprawl is to fully develop areas already receiving
urban services prior to extending these services to additional areas. A
further benefit of redevelopment is that it may lead to the removal of
buildings and uses that detract from an area. Redevelopment can serve as
a major catalyst in the stabilization and revitalization of areas throughout
the city.
Page 3-40
DEVELOPMENT AGREEMENT -PAGE 22 of 25
Exhibit B
"A" Street Text Amendments (continued)
ct t4
which is now developed in large scale industrial facilities (the Boeing and
the Crceeral Services Administration facilities).
Considerations Against Applying this Designation: This designation
should not beean~en{y~e applied in the Community Serving Area-Le-sites
:t,:.. ..1 .........:......1...... n C:....~ c C TI..,.... .. ..I.....l.i
...... ....... ~j.~u u.
_ .:.,1 ..:.i~..a:.,i Ge :..,i....a... ..I.....l.i 1.
''°"` " `•' '~°'•• ~-a• ' ' It is not an appropriate designation for
highly visible areas.
Appropriate Implementation: This designation is implemented by the
M-2 zone.
Planned Areas
Special Plan Areas (See Map 14.2)
Purpose: To allow large areas within the City, under a single or a
coordinated management, to be developed as a planned unit. This
designation can also be used to provide flexibility when there is
uncertainty regarding how an area may be most appropriately developed in
the future.
Descriptfon: This designation applies to specific areas identified as being
appropriate for mixed, urban level development on a planned basis. It is
int~ded that the future development of these areas will be guided by
individual "elements" of the Comprehensive Plan, to be developed and
adopted at a later date. The Plan elements should be consistent with the
following.
Compatible Uses: Uses and intensities within Special Planning Areas
shall be determined for each area through individual planning processes.
Each individual planning process will result in the adoption of a
Cam;xehensive Plan element for that particular Special Planning Area.
Each Plan element shall be wnsistent with the general goals, objectives
and policies of the Comprehensive Plan. Development of the individual
Plan elements shall also be based upon the following guidelines:
Academy Special Planning Area: The Aubum Adventist Academy Plan
was adopted by resolution No. 2254 in November 199E The Plan applies
to the- area within the property owned by the Academy and allows for a
diversity of uses on the site, primarily those related to the' mission and
objectives of the Academy. As part of the adopfion of the Plan, the area
was zoned under the I-Institutional Use District which pemrits uses such
Page 1416
DEVELOPMENT AGREEMENT -PAGE 23 of 25
Exhibit C
Opinion Letter
R_ .L •- , ~ ~ Peter B. Lewis, fVtayor
WASHINGTON 25 Wes! Main Sh®et ~ Aubum WA 98001 ~d998 ~ www.aubumwa,9av * 253.931-3000
November 22, 2006
Duncan Greene
Budc $ Gordon l.!_P
2025 First Ave; Ste 500
Seattle WA 98121
RE: Confidential Draft Settlement Agreement
bear Mr. Gr~ne:
Pursuant to our earlier discussions and the agreement between the parties
calling for an opinion letter to address an issue related to Ordinance No. 6033, 1
am sending this to you.
Ordinance No. 6033 was not intended, and shall not be interpreted by the City, to
prohibit or limit Oldcastle's use of the Utility Vault property for any of the following
uses: manufacturing, processing, blending and packaging of clay and cement
products including but not limited to brick, tile, pipe, etc.; and uses accessory
thereto, including but not limited to concrete mixing and hatching, outside storage
yards, and retail and wholesale trade of products manufactured, processed or
assembled on-site.
If you have any questions, or wish to discuss this matter further, please do not
hesitate to contact me.
Very truly yours,
aniel B. Heid
City Attorney
DBH:mbs
tLUBUR.IV'k MURE THAN YOU IMAGINED
DEVELOPMENT AGREEMENT -PAGE 24 of 25
Exhibit D
Vested Rules
ACC Sections 18.34.050-.060
ACC Section 18.48.070
ACC Chapter 18.54
ACC Chapter 18.58
The following provisions of the City of Auburn Comprehensive Plan are vested to the extent
they are regulatory and related to the permitted uses in this Agreement: City of Auburn
Comprehensive Plan, Chapter 1; City of Auburn Comprehensive Plan, Chapter 3 and -Map
3.2; City of Auburn Comprehensive Plan, Chapter 14 and Map ~14. L
The provisions of the City of Auburn Comprehensive Plan and the ACC attached as Exhibit D
(the "Vested Rules") are not in a form suitable for recording. Copies of the Vested Rules have
been provided to Oldcastle, Owner and the City-with this Agreement. Any person wanting
copies of this Exhibit D may obtain such copies by contacting the City of Auburn Planning,
Building and Community Department, 25 West Main Street, Auburn, WA 98001, (253) 931-
3090; or by contacting Utility Vault Company, P.O. Box 588, Auburn, WA 98071, (253) 839-
3500.
DEVELOPMENT AGREEMENT -PAGE 25 of 25