Loading...
HomeMy WebLinkAboutOrion, Industries and Donovan Brothers, Inc n 3. Ho AIRPORT BOUNDARY COMPLIANCE AGREEMENT This Airport Boundary Compliance Agreement (the "Agreement") is entered into by and the City of Auburn, a Washington municipal corporation ("CITY"), Orion Industries, a Washington nonprofit corporation ("ORION") and Donovan Brothers, Inc., a Washington corporation d/b/a Donovan Brothers Commercial Construction ("DONOVAN"). WITNESSETH WHEREAS, ORION is the owner of record of Parcel No. 000080022 further addressed as 1590 A Street NE, Auburn, WA 98002; and, WHEREAS, ORION has previously developed the subject Parcel for industrial and manufacturing uses; and, WHEREAS, DONOVAN BROTHERS is the contractor of record for the aforementioned development of the subject parcel; and, WHEREAS, in connection with the development of the ORION parcel, certain storm water facilities are required; and. WHEREAS, plans were submitted to the City for the storm water facilities, which included installation of an earthen berm along the ORION parcel property line; and, WHEREAS, the earthen berm was constructed by DONOVAN BROTHERS in connection with the development of the ORION property, which berm was located on and along the southwestern perimeter property line of the Auburn Municipal Airport, partly on the City Airport property; and, WHEREAS, the CITY did not intend that the earthen berm be located on Airport property and did not intend to grant authorization through any easement or license for such use of CITY Airport property; and. WHEREAS, the location of the earthen berm also did not have the concurrence or authorization of the Federal Aviation Administration, who has authority over the development and allowed land uses at the Airport; and, WHEREAS, notwithstanding the CITY's intention, there was a single notation on the approved plans showing the placement of the earthen berm partly on airport property, with all of the rest of the plans not showing the berm on airport property; and WHEREAS, following review of applicable federal rules and regulations, the CITY has determined the earthen berm needs to be removed from the Airport property; and, WHEREAS, ORION and DONOVAN BROTHERS have mutually expressed interest in resolving to the CITY's satisfaction the removal of the earthen berm from the Airport property; and, WHEREAS, the removal of the earthen berm must recognize and address that the earthen berm was constructed as a component of a private stormwater facility and as such, appropriate design and construction efforts are needed to create a functional facility fully on the ORION's property that complies with all applicable CITY design standards and operational requirements; and, WHEREAS, the CITY is willing to work with ORION and DONOVAN BROTHERS to resolve the issues related to the placement of the earthen berm partly on CITY Airport property if, and provided that, they are willing to enter into this Airport Boundary Compliance Agreement. NOW THEREFORE, IT IS HEREBY AGREED by the parties as follows: ORION and DONOVAN BROTHERS shall restore the impacted portion of the Auburn Municipal Airport in full accordance with the following performance measures and timelines, all subject to the CITY's timely responses and approvals: SECTION I. Performance Measures and Timeframes Performance Measure No. 1: Prepared and submitted by May 29, 2015 to-scale detailed engineering drawings, details and documents prepared by a registered engineer in the State of Washington for the removal of the earthen berm and restitution of impacted land on the Municipal Airport. All drawings, details and documents shall he prepared in full accordance with applicable CITY engineering standards and requirements. Performance Measure No. 2: Prepared and submitted by May 29, 2015 to-scale detailed engineering drawings, details and documents prepared by a registered engineer in the State of Washington for the modification and/or reconstitution of the private stormwater facility serving the existing development on Parcel No. 000080022. All drawings, details and documents shall be prepared in full accordance with applicable CITY engineering standards and requirements. Performance Measure No. 3: Coordinate with and respond in a timely manner to CITY staff to obtain CITY review and approval of the drawings, details and documents specified in Performance Measures Nos. 2 and 3 by June 26, 2015. Performance Measure No. 4: Submit any required financial sureties, performance guarantees or other written documentation required by the CITY no later than July 6, 2015. Performance Measure No. 5: Participate in one (I) or more required pre-construction conferences with CITY staff and other relevant parties, as needed, by no later than July 9, 2015. Performance Measure No. 6: Upon CITY approval of information necessary for construction activities to begin, initiate construction activities subject to CITY inspections for the 2 removal of the earthen berm and restitution of impacted land on the Auburn Municipal Airport. If the CITY has not approved information necessary for construction activities to begin, the date for commencement of construction activities shall be extended until the date the CITY approves information necessary for construction activities to begin. All construction is to be completed, inspected and approved by the CITY no later than September 30, 2015 unless the CITY delays construction activities, inspections or approvals, in which case, the date of completion shall be extended commensurate with the CITY's delays. Performance Measure No. 7: Initiate construction activities subject to CITY inspections no later than July 20, 2015 for the modification and/or reconstitution of the private stormwater facility serving the existing development on Parcel No. 000080022 unless the CITY has not timely approved the information necessary for construction activities to begin. In such case, the date for commencement of construction activities shall be extended until the date the CITY approves information necessary for construction activities to begin. . All construction is to be completed, inspected and approved by the CITY no later than September 30, 2015 unless the CITY delays construction activities, inspections or approvals, in which case, the date of completion shall be extended commensurate with the CITY's delays. SECTION II. Default Subject to extensions of time by mutual consent in writing, failure or delay by ORION, DONOVAN BROTHERS, or the CITY to perform any term or provision of this Agreement shall constitute a default. In the event of alleged default or breach of any terms or conditions of this Agreement the Party alleging such default or breach shall give the other Party not less than seven (7) calendar days notice in writing specifying the nature of the alleged default and the manner in which said default may be cured. During this seven (7) calendar day notice period, the Party charged shall not be considered in default for purposes of termination or institution of legal proceedings. After notice and expiration of the seven (7) calendar day notice period if such default has not been cured or is not being diligently cured in the manner set forth in the notice the other Party may at its option institute legal proceedings pursuant to this Agreement. SECTION III. Cost of Work Costs associated with the work to be completed under this Agreement will be addressed by ORION and DONOVAN BROTHERS pursuant to a separate agreement. SECTION IV. Dispute Resolution In the event of a dispute regarding the interpretation of this Agreement where there is not already a procedure provided for in the Agreement each party will attempt to resolve the dispute. If the Parties cannot resolve the dispute, any of the Parties may request mediation. The Parties will agree on a mediator. If Parties cannot agree on a mediator within ten (10) calendar days of any party requesting mediation each Party will choose a mediator and the two mediators will choose a third to mediate the dispute. If mediation fails this matter shall be heard in the Superior Court of King County Washington. 3 SECTION V. Extensions This Agreement and all terms, timeframes and conditions stated herein may only be extended by the CITY. SECTION VI. Termination This Agreement shall automatically terminate upon full completion of all Performance Measures. SECTION VII. Parties in Interest This Agreement shall be binding upon and the benefits and obligations provided for herein shall inure to and bind the parties hereto and their respective successors and assigns provided that this section shall not be deemed to permit any transfer or assignment otherwise prohibited by this Agreement. This Agreement is for the exclusive benefit of the parties hereto and it does not create a contractual relationship with or exist for the benefit of any third party including contractors sub contractors and their sureties. This Agreement may not be recorded without the express written consent of ORION. SECTION VIII. Costs to Prevailing Party(ies) In the event of such litigation or other legal action to enforce any rights, responsibilities or obligations under this Agreement, the prevailing party(ies) shall be entitled to receive its reasonable costs and attorney's fees. SECTION IX. Applicable Law This Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Washington and venue for any action hereunder shall be in King County Washington provided however that it is agreed and understood that any applicable statute of limitation shall commence no later than the last day of the date of termination as specified herein. SECTION X. Nondiscrimination None of the Parties shall discriminate on the basis of any protected class as defined by any state, federal or local ordinance including but not limited to race color national origin disability age or sex in the performance of this Agreement. SECTION XI. Captions, Headlines and Titles All captions headings or titles in the paragraphs or sections of this Agreement are inserted for convenience of reference only and shall not constitute a part of this Agreement or act as a limitation of the scope of the particular paragraph or sections to which they apply. Terms not specifically defined in this Agreement shall have the same definition as in the applicable section of the Auburn City Code. As used herein, where appropriate, the singular shall include the plural 4 and vice versa and masculine, feminine and neuter expressions shall be interchangeable. Interpretation or construction of this Agreement shall not be affected by any determination as to who is the drafter of this Agreement, this Agreement having been drafted by mutual agreement of the parties. SECTION XII. Severable Provisions Each provision of this Agreement is intended to be severable. If any provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this Agreement. SECTION XIII. Entire Agreement This Agreement contains the entire understanding of the parties hereto in respect to the transactions contemplated hereby and supersedes all prior agreements and understandings between the parties with respect to such subject matter. SECTION XIV. Counterparts This Agreement may be executed in multiple counterparts, each of which shall be one and the same Agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. CITY OF AUBURN: Dated and Signed this day of _ , 20\S AME or 1\1111.9 —YE APPROVED AS TO FORM: t 410 .Danielle E. Daskam, City Clerk Daniel B. 1-lei , 'ity Attorney 5 ORION INDUSTRIES Dated and Signed this /--day of W , 20/ NAME PAP S d CEO TITLE DONOVAN BROTHERS, INC. / Dated and Signed this day of all/ (� • 20 Af its 01141.-M/".---.) NAME 2/1//J-, TITLE 6