Res 1360 - Develop Agrmt Warema
-"""..........'1
COUNCIL BILL NO. 1719
RESOLUTION NO. 1360
A RESOLUTION ENTERING INTO A DEVELOPMENT AGREEMENT WITH WAREMART,
INC. AND AUTHORIZING THE MAYOR TO SIGN SAID AGREEMENT.
WHEREAS, Waremart has applied for Site Plan Review to the City; to allow
construction of a grocery distribution warehouse on 87.98 acres located on tax lot
100, map T5S, R2W, Sec 11, tax account 44158-000, which property is located
approximately 900' south of the intersection of Highway 219 and Woodland Avenue,
Woodburn, Oregon, and is hereinafter referred to as the "subject property," and
WHEREAS, the Woodburn Planning Commission conducted a public hearing on
the application (file #96-05) on May 9, 1996 at which time testimony and written
comments were received; and
WHEREAS, at the conclusion of the public hearing, the Planning Commission
voted to approve the application subject to certain conditions. The Planning
Commission also directed staff to meet with Waremart officials to consider potential
solutions on four different subjects; and
WHEREAS, staff and Waremart officials met on several occasions to discuss
the need for, cost of, and reasonable participation on the part of all parties on the four
subject areas, which included: 1) well site; 2) signal interconnects; 3) western
boundary dedication; and 4) West Woodland extension improvements; and
WHEREAS, after extensive research, discussions and negotiations involving not
only the parties hereto, but the State Economic Department, and others, the parties
reached an agreement, which is manifested in a Development Agreement, that is fair,
reasonable and equitable to all parties on the four subjects referenced above, and
WHEREAS, the purpose of this Development Agreement is to set forth the
detailed terms and conditions of the Letter of Understanding reached between the
parties hereto in a legally binding contract, NOW, THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1. That the City of Woodburn enter into a Development Agreement
with WAREMART, Inc. A copy of said agreement is affixed hereto as Attachment "A"
and is, by this reference, incorporated herein.
Page 1 - COUNCIL BILL NO. 1719
RESOLUTION NO. 1360
_0_
Section 2. That the Mayor is authorized to sign said agreement on behalf of
the City.
Approved as to fOrm';n.n /r~.) (; - 2 t-f-16
City Attorney Date
APPROVED:
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST: flI~ ~..o~
Mary\]'ennant, City Recorder
City of Woodburn, Oregon
Page 2 - COUNCIL BILL NO. 1719
RESOLUTION NO. 1360
.~...._,~,,---- ~
c.-" 0 ./' /
~ ~~
Nancy A. Kir~y, Mayor
June 24, 1996
June 24, 1996
June 24, 1996
June 24, 1996
DUPLICATE ORIGINAL
COPY 1 OF 2
DEVELOPMENT AGREEMENT
'1-tb
This Agreement is made this d day of June, 1996, between the CITY OF
WOODBURN, hereinafter referred to as "City," and WAREMART, INC., hereinafter
referred to as "Waremart."
WHEREAS, Waremart has applied for Site Plan Review to the City; to allow
construction of a grocery distribution warehouse on 87.98 acres located on tax lot
100, map T5S, R2W, Sec 11, tax account 44158-000, which property is located
approximately 900' south of the intersection of Highway 219 and Woodland Avenue,
Woodburn, Oregon, and is hereinafter referred to as the "subject property," and
WHEREAS, the Woodburn Planning Commission conducted a public hearing on
the application (file #96-05) on May 9, 1996 at which time testimony and written
comments were received; and
WHEREAS, at the conclusion of the publiC hearing, the Planning Commission
voted to approve the application subject to certain conditions. The Planning
Commission also directed staff to meet with Ware mart officials to consider potential
solutions on four different subjects; and
WHEREAS, staff and Waremart officials met on several occasions to discuss
the need for, cost of, and reasonable participation on the part of all parties on the four
subject areas, which included: 1) well site; 2) signal interconnects; 3) western
boundary dedication; and 4) West Woodland extension improvements; and
WHEREAS, after extensive research, discussions and negotiations involving not
only the parties hereto, but the State Economic Department, and others, the parties
reached an agreement, which is manifested in a Letter of Understanding, that is fair,
reasonable and equitable to all parties on the four subjects referenced above, and
WHEREAS, on June 13, 1996, the Woodburn Planning Commission adopted
a Final Order approving the Ware mart application subject to certain conditions
enumerated therein, and received a detailed report summarizing the terms of the
settlement and indicated support for the agreement reached by the parties; and
WHEREAS, the purpose of this Development Agreement is to set forth the
detailed terms and conditions of the settlement agreement reached between the
parties hereto in a legally binding contract; now,
Page 1 - Development Agreement (City of Woodburn/Waremart)
ATTACHt1ENT uA II
Page 1 of 8
..-..............-----
-'~,""""'"
DUPLICATE ORIGINAL
COpy 1 OF 2
· · · WITNESSETH · · ·
FOR AND IN CONSIDERATION OF the mutual promises and covenants
contained herein, the parties hereby agree as follows:
1 . The City and Waremart incorporate by reference the WHEREAS provisions
heretofore stated. and acknowledge and agree to said provisions.
2. The parties agree that this Development Agreement is in addition to, and
supplements the land use approval given to Waremart in case #96-05 and the
terms and conditions contained therein. However, it is agreed that
Development Agreement does not apply, construe or interpret any land use
regulations of the city. This Development Agreement is intended to cover
certain contractual and development rights and obligations of the parties as to
the subject property in preparation for issuance of construction permits, and is
neither a "land use decision" nor a "limited land use decision" as those terms
are defined in ORS 197.015
3. Waremart shall install the interconnect facilities between the existing light on
the west side of the freeway interchange, and the new light to be installed by
the City on the east side of the freeway interchange as specified by the Oregon
Department of Transportation in it letter to the City dated April 16, 1996. This
improvement shall be at Waremart's sole and exclusive expense, and shall be
done pursuant to construction plans and drawings that are approved by the
City and by the Oregon Department of Transportation. This interconnect
facility shall be constructed prior to issuance of the Certificate of Occupancy
for the first building constructed on the subject property. Waremart shall not
be required to contribute anything toward construction of any other
interconnect facilities.
4. Waremart shall not be required to dedicate, or otherwise convey any land along
the western boundary of the subject property as part of Phases I, II and III of
this development.
5. Waremart shall purchase the city's contractual right to require dedication of a
one acre well site on the subject property. The price to be paid by Waremart
to the City shall be determined by appraisal. The costs of the appraisal will be
divided equally between the City and Waremart. The City Attorney and the
attorney for Waremart shall jointly agree on a "scope of work" prospectus
which will be used by the appraiser in conducting the appraisal. The parties
shall jointly agree on the appraiser. The price arrived at by the appraiser will
be final and binding on both parties. The purchase price will be paid in cash by
Waremart prior to issuance of the Certificate of Occupancy for the first building
constructed on the subject property. In the event the parties cannot agree on
Page 2 - Development Agreement (City of Woodburn/Waremart)
Attachment "A"
Page 2 of 8
'.' , ._-- --''''r-''----'''''--'' .---,.-. ...,-_..
---
DUPLICATE ORIGINAL
COpy 1 OF 2
the appraiser, or the "scope of work" prospectus, said matter will be referred
to binding arbitration pursuant to the rules of Marion County Circuit Court, the
cost of which shall be borne equally by the parties.
6. Waremart shall dedicate a strip of land 90' in width, to be used for public right
of way purposes, from the terminus of the existing Woodland Avenue right of
way in a westerly direction along the northern property line of the subject
property to the western-most boundary of the subject property. The form of
dedication shall be approved by both parties, and to the extent provided for in
law, Waremart may use this dedication as an income tax deduction. The City
agrees to reasonably cooperate in executing any documents deemed required
by Waremart accountants to adequately assert any income tax reduction
determined to be allowable within the laws of all municipal, county, state and
federal statutes but takes no position on Warernart's income tax liability.
Waremart does hereby agree to hold the City harmless from any income tax
liability associated with this transaction.
7. The parties agree and understand that a material component of the
consideration of this agreement is that a normal industrial area street will be
built upon the right of way dedicated by Waremart pursuant to this agreement,
which street will provide access to the parking lot area as designated on the
approved site plan (a copy of which is attached hereto as Exhibit "A"). This
street will be constructed pursuant to design standards of the City for a normal
street in an industrial area, and under the supervision and control of the City.
It is understood that the City may shorten the length of the street (but not its
width or construction style); eliminate some utility lines; modify the sidewalk
location; or eliminate or modify other street amenities (such as light, signage,
landscaping, etc.) in order to bring the overall cost of the project within the
anticipated budget.
8. It is understood by both parties that the Oregon Economic Development
Department (OEDD) has tentatively agreed to fund the West Woodland street
extension contemplated herein through a 50% grant/50% loan combination.
The parties agree to use their best collective effort to obtain grant funds from
the State of Oregon, as administered through the Economic Development
Department to pay for one-half (%) of the total cost of the West Woodland
extension.
9. Waremart shall contribute a sum equal to twenty five percent (25%) of the
total cost of all of the presently contemplated designed improvements to be
constructed within the Woodland Avenue right of way. However, in no event
shall the total contribution by Waremart toward said improvements exceed
$225,000, regardless of the amount or timing of the construction. Waremart's
Page 3 - Development Agreement (City of Woodburn/Waremart)
ATTACHf1ENT "A"
Page 3 of 8
....-"" I..,,>I'<'~'-","""-"~"'"''''--';'''''"''''"'''.'-"''-''_.'--'''-'''"'
-~.
DUPLICATE ORIGINAL
COpy 1 OF 2
financial contribution shall be made to the City within sixty (60) days after the
project bid has been accepted and approved by the City.
10. City shall pay the balance of the cost of the new street that is not otherwise
paid for from state grant funds and the funds contributed by Waremart. Project
budget for new street construction pursuant to this agreement shall be
$900,000, however, the City in its sole discretion may alter the budget or the
construction design as referenced in paragraph 7 hereof. In the event of
modification of either the budget or the construction design, the City shall
notify Waremart in writing as soon as reasonably possible.
11. In the event the grant funds from the State of Oregon to be used to fund one-
half of the presently contemplated design improvements are not realized, the
City does hereby agree to construct at least the vehicular travel surface (street)
portion of the West Woodland extension constructed and ready for use by
Waremart by the time the parking lots served by this road are needed by
Waremart. The street portion shall be designed and constructed in a timely
manner pursuant to city standards for a normal collector street in an industrial
area. In an effort to provide timely construction, Waremart, through its agents
may perform all necessary design engineering (for which budgetary concurrence
has been obtained with the City Engineer) for the street extension project. this
design engineering shall be initially paid for by Waremart, but shall be included
in the maximum cost contribution of $225,000. The difference between the
costs of design engineering and the maximum contribution shall be paid in cash
as otherwise provided for herein. The determination of need shall be made
solely and exclusively by Waremart, however, Waremart agrees to cooperate
with the City, and City contractors who will be constructing the new street, to
identify when said street will be needed and what the factors are that warrant
and justify need for parking lot access as specified by Waremart. In the event
of a dispute as to what constitutes "need" hereunder, the parties agree to
submit that issue to binding arbitration. Because the issue of need is
anticipated to be one of critical nature in timing, the parties agree to use an
expedited arbitration process that will produce an arbitration award within ten
(10) days of the dispute having arisen. This special arbitration shall be paid for
equally by the parties.
12. If the state grant contemplated herein to pay for one-half of the cost of the
street is not awarded to the City, and the project is scaled back pursuant to the
provisions of this agreement, Waremart shall contribute one-half of the cost of
the scaled back project, up to the contract maximum of $225,000, within sixty
(60) days from the date the construction bid is approved and awarded.
Page 4 - Development Agreement (City of Woodburn/Waremart)
ATTACIU1ENT IIA"
Page 4 of 8
._....,.-..".__..._~.__._--_.._.._._.....~_.".
.--....,
DUPLICATE ORIGINAL
COpy 1 OF 2
13. It is understood and agreed that regardless of what funds are available; what
portion of the entire street project contemplated herein is actually constructed;
or when various components of the street project are actually built, the total
contribution toward the entire street project by Waremart will not exceed the
total sum of $225,000.00. The City agrees that it will not at any time in the
future request or seek legal action or use any official process to have Waremart
contribute any additional funds, directly or indirectly, for improvements to this
street project. This limitation does not extend to other street improvement
projects that might arise in the future at other locations on the subject property.
14. It is the intent of the parties to provide as many design components to the
West Woodland extension as available funds will allow. In the event of
elimination of any such amenities, Waremart is excused from cost participation
(in excess of the maximum $225,000 provided for herein) for the construction
of any future improvements. It being agreed by the parties that the cost of
such amenities would be borne by new development. In the event Waremart
determined it needed any such additional amenities, such as the water line,
Waremart would pay its fair share of the cost of such additional amenities.
15. Waremart shall not now, or in the future, obtain any ownership rights in or to
the street improvements involved herein, or any part thereof, and that all of
said improvements will be owned and controlled solely and exclusively by City
or the State as the case may be, without claim from Waremart.
16. The parties agree that this Development Agreement and the covenants and
representations made herein constitute covenants running with the land, and
shall bind and inure to the benefit of the City and Waremart, their respective
heirs, devisees, personal representatives, executors, administrators,
representatives, successors, and assigns.
17. This document is the entire, final, and complete agreement of the parties and
supersedes and replaces all prior or existing written or oral agreements, or both,
between the parties or their representatives relating to the property.
18. This Development Agreement has been entered into in the State of Oregon; and
the property is located in the City of Woodburn, Marion County, State of
Oregon. The parties agree that the laws of the State of Oregon and ordinances
of Marion County and the City of Woodburn, where applicable, shall be utilized
in construing this Development Agreement and in enforcing the rights and
remedies of the parties.
19. In the event either party shall take any action, judicial or otherwise, to enforce
or interpret any of the terms of this Development Agreement, the prevailing
party shall be entitled to recover from the other party all expenses which it may
Page 5 - Development Agreement (City of Woodburn/Waremart)
ATTACHrtENT "All
Page 5 of 8
I....._.__"__._____.__~~_.".~'---~.__.,--""'...,-"._-_.,---___'--..-..
DUPLICATE ORIGINAL
COpy 1 OF 2
reasonably incur in taking such action, including, but not limited to, costs
incurred in searching records, the cost of title reports, surveyors' reports and
foreclosure reports, and attorneys' fees, costs, and disbursement, whether
incurred in a suit or action, or appeal from a judgment or decree therein, or in
connection with nonjudicial action.
20. This document has been prepared jointly by the parties hereto, in consultation
with their respective legal counsel. No legal construction of this document shall
be construed against either party solely because of draftsmanship.
DATED AND EXECUTED on the date first above written, at Woodburn, Marion
County, Oregon.
/'---
\ W AREMt\
r
CITY OF WOODBURN:
c
By:
2J~_ti~~ cn.~ ~
Wallace W. lien, Attorney for Waremart N. Robert Shields, City Attorney
STATE OF OREGON
ss.
County of Marion
-f1...
On this ;JJ/ - day of June, 1996, personally appeared before me the above-
named NANCY A. KIRKSEY, Mayor of the City, and acknowledged the foregoing
Development Agreement has been duly approved by the City Council of the City of
Woodburn, and that she has full authority to execute said agreement on behalf of the
City of Woodburn, and that her action in executing this Development Agreement is
her voluntary act and deed.
/1 E.~-
N~ Public for Oregon
OFFICIAL SEAL
MARY E TENNANT
NOTARVPUBUK>OREGON
COMMISSION NO. 049288
MY COMMISSION EXPIRES NOV. 27. 1999
<<I
r
Page 6 - Development Agreement (City of Woodburn/Waremart)
ATTACHr.1ENT IIAII
Page 6 of 6
" ------_._-,~-"-"-_._""-.
--'~.
DUPLICATE ORIGINAL
COpy 1 OF 2
STATE OF OREGON
ss.
County of Marion
On this 2 tfIf, day of June, 1996, personally appeared before me the above-
named Paul Simmons and being first duly sworn did say that he is the Vice President
of WARE MART, INC. and that he signed the foregoing Development Agreement on
behalf of WAREMART, INC., and does hereby represent that he is fully authorized to
act on behalf of this company, and that all ap ropriate resolutio have been adopted.
Notary Public for Oregon
C:\K\AGMNTS\WMART
_OFFICIAL SEAL
WALLACE W. LIEN
. . i NOTARY PUBLIC. OREGON
'... ;c...... COMMISSION NO. 0451?!.
tl( COMMISSION EXPIRES SEPT. 24. 1';1:1: I
Page 7 - Development Agreement (City of Woodburn/Waremart)
AlTACHf-ENT IIAII
Page 7 of 8
, -......~,'.- ,-.' ----~.._--
~s:
f""U
:;19
l;
Rlt;
=;
O:z
-41....
= .
>
.
· 'J
iIo":
~
J-J
;~~
~ .
*
~
"~
'--
.-/ ------..J \...
/
- ,
1...[1....' '."-1f7
.....w.w.TCIMI(.-rMCI.II'I..GUT1IJl
j-
it
!i
I
.~
~ .
n
i
! i
,
I~
z~
'"
1
~.
j~ I
~, i
I I
I ~ I
I I~ :
L_u_~
I
, .
· II
,
~
~~
Ii s
0
Z
~6 ~
::<l 1'1'1
C1 >c
a:: ::
....
'1:1 3: =
....
)> -I
-0 ,;
.
:.~~l=
~~":.T:-=
~~-=..-.:.::
2E:~
1D1I1'1l1D1I1'1
WOODBURN FOlltls OREGON
MASTER SITE PLAN
:~ THE FAOllTY GRouP INC
Southeast Facility Engineers Inc.
nn.....'lIkllltloo._lOO
.........eo...,._
......-...... . ..._._.~~ _...,--~-,~...~--.-,"
,
LEITER OF UNDERSTANDING
This Letter of Understanding is made this 7th day of June, 1996 by and between
Waremart, Inc., hereinafter referred to as "Waremart", and the City of Woodburn, by and
through its staff, hereinafter referred to as the "City". The purpose of this agreement is to set
forth understandings reached between the parties as to certain future actions.
WHEREAS Waremart has filed an application for Site Plan Review to allow construction
of grocery distribution warehouse on property located approximately 900' south of the
intersection of Woodland Drive and Highway 219 in the City of Woodburn; and
WHEREAS the Planning Commission has approved the land use application (Case No.
96-05, and instructed Waremart and City to confer on several issues, including the need for
signal interconnects; dedication of right of way; well site; and certain road improvements; and
WHEREAS the parties hereto have engaged in several meetings and other discussions
regarding the need for and allocation of expense of such improvements; and
WHEREAS the participants to these discussions have reached what they believe to be
fair and equitable resolutions to the areas of concern, and wish to reduce these understandings
to writing; now
*** WITNESSETH ***
THE PARTIES DO HEREBY UNDERSTAND that the following compromise resolution
will be carried out to the best our of ability within the confines of our respective authority:
1. This Document is not legally binding, and no legal action shall be intitiated on the basis
of this Letter of Understanding. It does however, represent the current status of
settlement resolution of development conditions to be required of Waremart in the
development of its warehouse project. The parties hereto do however agree to carry
forward the implementation of the concepts contained herein.
2. Planning Commission - The Planning Commission Order will be prepared for execution
on June 13, 1996. This Order will approve the site plan, with all of the conditions
contained in the staff report, except for the four conditions relating to the interconnects;
dedication of right of way along the western boundary; conversion of the well site; and
construction of improvements for the West Woodland extension.
3. Development Agreement Process - The city and Waremart will enter into a development
agreement covering the four areas eliminated from the Planning Commission's decision,
which will be completed in a form agreeable to all parties before the PlanningdCommission's meeting on June 13, 1996. We will report to the Planning Commission
that we had been meeting pursuant to their instructions, and that subject to the final
approval of the City Council, agreements on the four conditions have been reached.
112.
............. .....,~,._w,_~,....___'_.,_"".,,~...-______~
4. Development Aereement Substance - The Development Agreement would provide in
substance the following terms:
A. Interconnect - Waremart will install the interconnect facilities between the
existing light on the west side of the freeway interchange, and the new
light to be installed by the city on the east side of the freeway interchange.
B. Dedication - The city agrees to remove any requirement from this project
that involves dedication or any other conveyance of land along the western
boundary of the subject property.
C. Well Site - Waremart agrees to purchase the city's contractual right to
dedication of a one acre well site on the subject property. The price will
be determined by appraisal. The costs of the appraisal will be divided
equally between the city and Waremart. The City Attorney and the
attorney for Waremart will work out a "scope of work" prospectus which
will be used by the appraiser in conducting the appraisal. The parties
shall jointly agree on the appraiser. The price arrived at by the appraiser
will be final and binding on on both parties. The purchase price will be
paid in cash by Waremart prior to issuance of the certificate of occupancy
for the first building.
D. West Woodland Extension - Waremart shall dedicate 90' of right of way
from the terminus of the existing Woodland right of way in a westerly
direction along the northern property line to the western-most boundary
of the subject property.
Waremart shall pay in cash to the city a sum equal to twenty five percent
(25 %) of the total cost of all of the presently contemplated designed
improvements to be constructed within said right of way, however in no
event shall the total contribution by Waremart toward said improvements
exceed $225,000, regardless of the amount or timing of the construction.
Waremart's financial contribution shall be made to the city within sixty
(60) days after the project bid has been accepted and approved by the city.
The city shall agree to have at a minimum the street portion of the West
Woodland extension constructed and ready for travel by the time the
parking lots served by this road are needed by Waremart. The road
project design shall be substantially as submitted by Waremart on its
second site plan revision, however it is understood that the parties may
agree to the elimination of the sidewalk or other street amenities at this
time in order to reduce the overall cost of the project. In the event of
elimination of any such amenities, Waremart is excused from future cost
participation for the construction of
."."""",
those amenities. It being the intent of the parties that the cost of such
amenities would be born by new development that would generate the
need for these amenities.
It is understood and agreed that the Development Agreement shall contain
a special provision providing that in the event the grant funds from the
state of Oregon to be used to fund one half of the presently contemplated
design improvments are not realized, the City will construct at least the
street portion of the project to allow access to the Waremart parking lot,
and Waremart will contribute one half of the costs of all construction of
the street portion of the project, not to exceed the $225,000, as provided
for herein.
5. City Council Action - Staff will recommend to the city Council that the action of the
Planning Commission will stand as the final action of the city on the Waremart
application. There would be no staff appeal.
On June 24, 1996, we would report to Council that the action of the Planning
Commission had not been appealed, that no one had standing to appeal because
there has been no objection lodged at all to the project, and that subject to the
City Council's decision not to call up the case the decision of the Planning
Commission would represent the final land use action of the city.
We would also report that pursuant to the direction of the Planning Commission,
staff and the applicant had negotiated a Development Agreement, which would
then be presented to them for approval.
Council would then vote on the decision of the Planning Commission and the
execution of the Development Agreement. The Development Agreement would
then be signed by all parties and filed with the City Recorder.
DATED AND EXECUTED on the date first above written, at Woodburn, Marion
County, Oregon.
W AREMART
CITY OF WOODBURN
By:
//
~~~
Ken Greg
By:
~=
Chris Childs, City Administrator
Approved at to Form:
........-" .-"".-..-.-""' ...-.-...,........---.
uJai/~1 ~
Wallace W. Lien, A rney for
Waremart
------~-- 'If
ry; :)r'd- ~
N. Robert Shields, City Attorney