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Agenda - 09/19/1995 Spec Mtg CITY OF WOODBURN 270 Montgomery Street . Woodburn, Oregon 97071 · (503) 982-5222 TDD (503) 982-7433 · FAX (503) 982-5244 - - - - - - - NOTICE - - - - - -- I, Nancy A. Kirksey, the duly elected Mayor of the City of Woodburn, Oregon do hereby call a special meeting of the Woodburn City Council to be held on Tuesday, September 19, 1995 at 6:00 p.m. at Woodburn City Hall, 270 Montgomery Street, Woodburn, Oregon, specifically to consider entering into a Hold Harmless Agreement with Miles Chevrolet. Dated this / Y day of September, 1995. ~/'? ~/w/) . NANCY .KIRKSEY, MAY - - ,... - - - - - - - - - - - - - - - - - - - - - - - AGENDA 1. CAlL TO ORDER 2. ROU CAlL 3. GENERAL BUSINESS: Consideration of Hold Harmless Agreement with Miles Chevrolet. 4. ADJOURNMENr - MEMO TO: Mayor and City Council FROM: Chris Childs, City Administrator tuv SUBJ.: Miles Chevrolet Hold Harmless Agreement DATE: September 19, 1995 RECOMMENDATION: By motion, authorize the City Administrator to sign on behalf of the City the Hold Harmless Agreement with Miles Chevrolet in the form presented. BACKGROUND: Miles Chevrolet (Miles) previously received approval to construct an automobile sales facility at a location adjacent to State Highway 214 between Arney Road and Woodland Avenue. The original site plan called for a two-story structure with an actual ground "footprint" of some 14,000 square feet. As Councilors will recall, the Miles Chevrolet application was initially denied by the Woodburn Planning Commission and appealed (by Miles) to the City Council. At its February 27, 1995 public hearing, the Council received what it deemed "significant new information" and remanded the matter back to the Planning Commission for further consideration. The application was subsequently approved by the Planning Commission and brought back to the Council for approval as to the necessary zone change, etc. At the February 27, 1995 hearing, a Miles spokesman noted that, to accomodate neighborhood concerns, the company would be willing to alter the site plan by making the structure a single story building. The spokesman stated that such a change"... would only add a couple of thousand square feet to the footprint of the building. " Following ultimate approval of the application, no more contact was had with Miles' representatives until a building permit application was submitted, along with "final" design plans, on or about September 7, 1995. In the interim, the project's contractors had already begun site excavation, setting forms, installing reinforcement metal, etc. Upon comparison, it was discovered that the final site plan for which a building permit was sought included a revised "footprint" in excess of 30,000 square feet. Miles representatives admit that they erred in the approval process by not submitting for review a revised site plan showing the expanded footprint. All records throughout the process consistently refer to the original 14,000 (+ 1-) square foot footprint. Miles readily acknowledged the mistake and immediately filed necessary - Page 2 - Memo/Hold Harmless Agreement (9/19/95) paperwork with the Community Development Department to seek a site plan modification from the Planning Commission. The revised site plan appears to meet applicable City standards, but that is properly a determination that can only be made by the Planning Commission. Concurrent with applying for the site plan modification, Miles representatives also requested permission, out of economic considerations, to proceed at the company's own risk with some construction activities based on the expanded footprint, and for that purpose provided a preliminary draft of a Hold Harmless Agreement for the City's consideration. Miles spokesmen cite potential damage from inclement weather in requesting to proceed with pouring foundations and footings for which forms and "rebar" have already been installed. The activities requested go beyond "site preparation" and require a building permit, which cannot normally be issued until a final site plan is approved by the Planning Commission. Under the terms of the proposed agreement, Miles would be responsible for concrete removal or other site restoration efforts if the revised site plan is not approved by the Planning Commission. The site plan modification described herein is tentatively scheduled for Planning Commission consideration on October 12, 1995. The Commission can potentially approve Q[ deny the application, making appeal to the Council, by either proponents or opponents, at least a remote possibility. Therefore, in terms of a site-specific land use action, the Council is potentially back in the position of being a "decision-maker" in the matter. Accordingly, to protect the Council's role in the land use process, you are being asked merely to authorize the City Administrator to consider the functional merits of this request and enter into such agreement as a business decision, outside of the land use orocess, as it may affect this parcel or any activities conducted on it. The proposed Hold Harmless Agreement has been carefully reviewed by Staff and the City Attorney, with changes incorporated into this final draft that we believe specifically describes the construction work that would be allowed to proceed and more clearly reflects the potential liabilities incumbent on Miles in proceeding with any further activities. As with any site-specific land use matter, direct ex-parte contacts with parties involved should be avoided to the greatest extent possible. ~ HOLD HARMLESS AGREEMENT This agreement is made this _ day of September, 1995 by and between Robert Miles, dba Miles Chevrolet, hereinafter referred to as "Miles", and the City of Woodburn, a municipal corporation of the State of Oregon, hereinafter referred to as "City". WHEREAS Miles owns property located in the City of Woodburn at the corner of Highway 219 and Arney Road, which property is under the jurisdiction of the City as to land use planning and administration of building codes; and WHEREAS Miles applied for a site plan approval from the City, which application carried Case No. 94-14, and which proposed a two story building, oriented on the eastern portion of the property, containing a building footprint of 14,605 square feet; and WHEREAS this original design was modified over the course of several months of hearings to satisfy objections of the Woodburn Planning Commission and residents of the area around the subject property. Changes to the site plan made by Miles consultants included elimination of the second floor, enlargement of the ground floor to make up for the floor space that was to be on the second floor; moving the building west to provide a better buffer, and to direct traffic and loading activities away from the residential area on the western side of Woodland; reorienting the building to eliminate the multiple side service bay doors, in favor of one door at each end of the building; reorienting the load out areas to the eastern portion of the property; and focusing the primary business orientation and activity toward the intersection of Arney Road and Highway 219; and WHEREAS all of these conceptual changes were presented to the Woodburn City Council in a revised site plan, and explained in a public hearing, and approved by the City in Council Bill 1612; and WHEREAS the actual square footage of the newly revised one story building design was not known by Miles at the time of the Council hearing, however conversion of the second floor area to the ground floor was estimated by Miles consultants to have increased the total square footage of the building to approximately 18,000 square feet. Once the final engineering drawings were prepared by Miles consultants, the actual square footage, including all shop and bay space is 30,288 square feet. It was not determined that this square footage deviation necessitated a technical correction in the site plan approval until September 7, 1995; and Page 1 - Hold Harmless Agreement (Miles and City of Woodburn) - WHEREAS between the approval of the modified site plan by the City Council in March, 1995, and discovery of the deviation in September, 1995, the building plans have been reviewed and approved and significant site preparation and other construction activities have been undertaken on the site pursuant to the approved building plans; and WHEREAS contracts are in place for construction activities on the site, and forms are ready for cement foundation to be poured. Any delay in construction at this time will result in an enormous loss of revenue and extraordinary hardship to the contractors and to Miles, including the potential for losing financing for the project; and WHEREAS the parties have agreed that, Miles (without admission or waiver of any legal position) will immediately pursue a modification of the approval in Case No. 94-14 to clarify that the actual floor space on the revised building is 30,288 square feet; and WHEREAS Miles is in need of immediate approval for the pouring of concrete and pursuit of other construction activities on site, which the City is unwilling to allow until the modification of the site plan is formally approved; and WHEREAS the purpose of this agreement is to set forth the terms and conditions upon which Miles will be allowed, at their own risk, to proceed with limited construction activities pending approval of the technical corrections to the site plan by the Woodburn Planning Commission; now *** WITNESSETH *** FOR AND IN CONSIDERATION OF the mutual promises and covenants contained herein, the parties hereto do hereby agree as follows: 1. City does hereby authorize Miles to perform the following specified construction activities on the property located between Highway 219, Arney Road and Woodland Avenue, pursuant to the building plans that have been previously approved by the building insPection department: A. Complete identified site plan and off-site improvements outside of the perimeter of the tentatively modified foot print. B. Complete and pour perimeter footings, including any necessary reinforcements. Page 2 - Hold Hann1ess Agreement (Miles and City of Woodburn) C. Pour interior column. footings throughout. D. Complete and pour monolithic slab in the area identified on the current plans as the "Showroom Floor" (at the south end of the proposed building footprint). Miles does hereby understand and agree that no other construction activities, other than those specified in this section, shall be performed related to the proposed site plan or building under the terms of this agreement. Full construction activities may proceed only after approval of a modified site plan. 2. Miles, and Miles agents, shall perform said construction and make all of said improvements in a good and workmanlike manner, and in accordance with the Uniform Building Code. 3. City retains the right to routinely inspect said construction, and to administer the provisions of the Uniform Building Code, including any enforcement provisions thereof. 4. Miles shall immediately file all necessary applications, documents and pay such fees as are required to seek approval of the revised building size specification, and shall use due diligence in pursuing said approval. 5. Miles does hereby agree, understand and acknowledge that any construction activities conducted on the site after the date of this agreement are done at Miles own risk, and in the event the revised site plan is not approved, or if the revised site plan is modified or approved with conditions, that Miles shall in a timely fashion remove all of said construction and improvements to conform to the City's decision on the revised site plan. 6. Miles does hereby further agree to hold harmless, defend, and indemnify the City, its officers, agents, and employees, against all claims, demands, actions, and suits (including reasonable attorneys fees and costs), that may arise as a result of continued construction during pendency of the site plan modification, and that Miles will not bring any suit, action or claim against the City arising out of these circumstances. 7. Miles does hereby further understand that the City in no way guarantees or warrants what the outcome of the site plan modification application might be. 8. In any suit or action brought to enforce this agreement, the court may allow a reasonable attorneys fee to the prevaiIing party of the suit or action, or appeal therefrom. 9. Upon final approval of a new or modified site plan, construction on the subject property may proceed in accordance thereto and this agreement shall automatically terminate and be of no further force and effect. Page 3 - Hold Hannless Agreement (Miles and City of Woodburn) EXECUTED the date first above written, at Woodburn, Marion County, Oregon. CITY OF WOODBURN MILES CHEVROLET By: City Administrator By: Robert Miles APPROVED AS TO FORM: N. Robert Shields, City Attorney Wallace W. Lien, Attorney for Miles Page 4 - Hold Hannless Agreement (Miles and City of Woodburn)