HomeMy WebLinkAboutIndemnification Agreement - South 287th Street ImprovementsINDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made as of this
day of November, 2018 ("Effective Date"), by and between NORTH AUBURN LOGISTICS
HOLDINGS LLC, a Delaware limited liability company ("NAL"), and the CITY OF AUBURN,
a Washington municipal corporation (the "City"). NAL and the City may each individually be
referred to as a "Party" and collectively as the "Parties."
Recitals
A. NAL is constructing a warehouse building (the "Building") on the south side of S.
287`" Street and west of West Valley Highway in the City.
B. South 287th Street west of West Valley Highway ("287`"") is a private road, and
the property owners along both sides of 287th are all benefitted by and burdened by access
easements across their properties that collectively comprise 287th
C. The City required NAL as a condition to the development of the Building to
construct improvements to 287th (the "Road Improvements").
D. Some property owners on the north side of 287th are opposed to the improvement
of 287th and the use of property along 287th for warehouse development although none appealed
the rezoning of the land for light industrial uses or the development approvals for the Building.
E. The City is concerned that it may be named in a lawsuit filed by objecting
property owners when the City issues temporary and permanent certificate(s) of occupancy for
the Building.
F. NAL is willing to defend, indemnify, and hold the City harmless if the City is
named in a lawsuit filed on account of the issuance of temporary certificate(s) of occupancy for
the Building if that lawsuit is based on the use of the private road.
Agreement
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, the Parties agree:
1. Issuance of Temporary Certificates of Occupancy. The City will issue temporary
certificate(s) of occupancy for the Building ("TCOs") and extensions/renewals (as allowed by
City Code) on the request of NAL provided the Building is sufficiently complete to obtain TCOs.
The City will not withhold issuance of TCOs on account of NAL not obtaining consents to road
improvements from other property owners who are benefitted by the access easements over
287th.
2. NAL's Indemnification. If the City is named in any lawsuit filed by a property
owner along 287th on account of the City's issuance of TCOs or permanent certificate(s) of
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occupancy, NAL will defend, indemnify, and hold the City harmless from any expense, loss,
liability or damage (but excluding consequential or punitive damages), including, without
limitation, reasonable attorneys' fees, court costs and amounts paid in settlement of any claims,
resulting directly or indirectly from those lawsuit(s).
3. Indemnification Can. NAL will not be obligated to expend more than One
Hundred Thousand and No/ 100 Dollars ($100,000.00) in fulfilling its obligations under Section 2
above.
4. Termination. This Agreement will terminate and be of no further force and
effect on the later of the expiration of the last appeal period for the last permanent certificate of
occupancy for the Building, or the conclusion of any litigation that is commenced during one of
the appeal periods for the TCOs or the permanent certificate(s) of occupancy for the Building.
5. General Provisions.
5.1. Binding Effect. This Agreement will be binding upon the Parties and their
respective successors, assigns, and personal representatives.
5.2. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Washington. Venue for any disputes will be in King
County, Washington.
5.3. Attorneys' Fees. If there is any dispute regarding the Agreement or the
obligations of the Parties, the substantially prevailing Party will be entitled to recover from the
other Party its reasonable attorneys' fees and other costs incurred at trial, on appeal, and in any
alternative dispute resolution proceeding.
5.4. Waiver. The waiver by a Party of a breach of any provision of this
Agreement by the other Party will not operate or be construed as a waiver of any subsequent
breach by that Party. No waiver will be valid unless in writing and signed by the Party against
whom enforcement of the waiver is sought.
5.5. Severability. If for any provision of this Agreement is held to be invalid
or unenforceable, the holding of invalidity or unenforceability of that provision will not affect
any other provision of this Agreement and the remaining provisions of this Agreement will
remain in full force and effect.
Signatures follow on separate page.
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IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as
of the day and year first above written.
NAL:
North Auburn Logistics Holdings LLC, a
Delaware limited liability company
By: North Auburn Logistics Center Holdings
PG, LLC, a Delaware limited liability company,
Managing Member
By: PDC Seattle LLC,
a Delaware limited liabilit
company, Its Manage
By:
Bart Brynestad
Local Partner
CITY:
City of Auburn, a Washington municipal
corporation
By:
Its: mot
Approved asla�=
Steve Gross, City Attorney
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