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