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Res 1069 - Exe Storm Drain Line COUNCIL BILL NO. 1321 RESOLUTION NO.1069 A RESOLUTION AUTHORIZING EXECUTION OF A STORM DRAIN LINE AGREEMENT. WHEREAS, the involved parties have received development approval from City on their respective parcels located in the incorporated limits of Woodburn, Marion County. Oregon; and WHEREAS, development approval was conditioned upon installation and construction of an appropriate storm water drain line; and WHEREAS, the City has the legal authority to assess the involved properties for the costs of a storm water drain line; and WHEREAS, the parties desire to agree upon an efficient and equitable method of constructing and installing said storm water drain line; NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: SECTION 1. The Mayor is authorized to sign the Storm Drain Line Agreement on behalf of the City of ~urn, a copy of ~ a~reto for refere~ce. Approved as to form: I l~ 6' r ( /- '2 71 City Attorney Date APPROVED: l./Uvf W k!u~ , FRED W. KYs'ER,&VOR- Passed by the Council July 22, 1991 Submitted to the Mayor Jul v 23. 1991 Approved by the Mayor July 23, 1991 Filed in the Office of the Recorder ATTEST: ;1l~~~ Mary Tenn t, Deputy Recorder City of Woodburn, Oregon July 25, 1991 Page 1 - COUNCIL BILL NO. 1321 RESOLUTION NO. 1069 ~~ ''!lI'' "~,___"",,,_,'.'~_~~'_M___...__...~--t-- AGREEMENT THIS AGREEMENT is made this day of , 1991, by and between the City of Woodburn, an Oregon municipal corporation (hereinafter "CITY"), Bi- Mart Corporation, a California corporation registered to do business in Oregon (hereinafter "BI-MART"), WWDM Partnership, an Oregon partnership (hereinafter ''WWDM''), GFI-Woodburn Investments, Ltd., a Utah limited partnership (hereinafter "GFI- WOODBURN") and Pizza Hut of Southeast Kansas, Inc, a Kansas corporation registered in Oregon (hereinafter "PIZZA HUT"). WITNESSETH WHEREAS, the above parties have received development approval from CITY on their respective parcels located in the incorporated limits of Woodburn, Marion County, Oregon; and WHEREAS, development approval was conditioned upon installation and construction of an appropriate storm water drain line; and WHEREAS, the parties agree CITY has the legal authority to assess the involved properties for the costs of the storm water drain line; and WHEREAS, the parties desire to agree upon an efficient and equitable method of constructing and installing said storm water drain line; NOW, THEREFORE, the parties agree as follows: SECTION 1. BI-MART PROPERTY. BI-MART represents and covenants that it owns certain real property subject to this Agreement which is described as follows: Marion County Tax Lot Numbers 42504-143, 42504-704 and 42504-859. SECTION 2. WWDM PROPERTY. WWDM represents and covenants that it owns certain real property subject to this Agreement which is described as follows: Beginning at the intersection of the Northerly right-of-way of Mt. Hood Avenue and the East right-of-way of Progress Way; thence North 1051'59" East along the East line of Progress Way, a distance of 459.89 feet to a point on the North line of Lot 6, Block 1, of WALlLALE HOME TRACTS; thence south 89038'30" East along the North line of said lot and the easterly extension thereof a distance of 424.66 feet; thence South 1055'00" West 57.51 feet; thence south 88005'00" East 47.00 feet; thence South 1055'00" West 149.96 feet; thence North 88005'00" West 56.62 feet to the East line of Lot 5 Block 1, of WALlLALE HOME TRACTS; thence South 1051'17" West along the lot line between Lots 5 and 4, WALlLALE HOME TRACTS 102.00 feet to the Northeast corner of the parcel conveyed to J. L. Fugate as described in Reel 668, Page 0198, Marion county Deed Records; thence North 88005'00" West along the North line of J. L. Fugate parcel 185.0 feet to the Northwest corner; thence South 1051'17" West 162.00 feet to the Northerly right-of-way of Mt. Hood Avenue; thence North 88005'00" West 230.76 feet along the Northerly right-of-way 230.76 feet to the point of beginning situated in Lots 4, 5, and 6, Page 1 - AGREEMENT '., ,. .._.~......__N'__~._~.,..."."'__"~'_ Block 1, WALlLALE HOME TRACTS as recorded in volume 5, Page 64, Book of Town Plats for Marion County, Oregon, situated in Township 5 south, Range 1 West, Willamette Meridian, Marion County, Oregon. SECTION 3. GFI-WOODBURN PROPERTY. GFI-WOODBURN represents and covenants that it owns certain real property subject to this Agreement which is described as follows: Beginning at a point on the North line of Lot 3, Block 1, WALlLALE HOME TRACTS as said subdivision is platted and recorded in Volume 5, Page 64, Book of Town Plats for Marion County, Oregon, situated in Township 5 south, Range 1 West of the Willamette Meridian, which point marks the Northwest corner of that tract of land conveyed to DON- SUSIE ENTERPRISES, INC. by deed recorded in Reel 358, Page 0668, Marion County Deed Records, which point bears North 89038'30" West 267.02 feet from the Northeast corner of said Lot 3; thence South 1051'45" West along the West line of said DON-SUSIE tract, and the Southerly extension thereof, a distance of 485.81 feet to an iron rod on the Northerly right-of-way line of Mt. Hood Avenue; thence North 88005'00" West along said right-of-way line a distance of 536.92 feet to an iron rod marking the intersection of the Southwest corner of Lot 4, and also the Southeast corner of that parcel conveyed to J. L. Fugate as described in Reel 668, Page 0198, Marion County Deed Records; thence North 1051'17" East 264.00 feet along the West line of Lot 4; thence south 88005'00" East 56.62 feet; thence North 1 055'00" East 149.96 feet; thence North 88005'00" West 47.00 feet; thence North 1 055'00" East 57.51 feet to a point on the North line of said Lot 4; thence running North 1 055'00" West 130.03 feet; thence South 88005'00" East 408.73 feet over the Southerly portions of Tax Lots 42522-770 and 42526-000 to the Southwesterly line of Tax Lot 42508-000; thence South 48044'38" East along the line between Tax Lots 42526-000 and Tax Lot 42508-000 181.56 feet to a point on the North line of Lot 3, WALlLALE HOME TRACTS; thence North 89038'30" West 22.03 feet along said North line of Lot 3 to the point of beginning, situated in Section 8, Township 5 south, Range 1 West, Willamette Meridian, Marion County, Oregon. SECTION 4. PIZZA HUT PROPERTY. PIZZA HUT represents and covenants that it owns certain real property subject to this Agreement which is described as follows: Tax Lot Number 92840-041 SECTION 5. ASSIGNMENT. The parties agree that the terms of this Agreement are binding upon them as well as any successors in interest or assigns. SECTION 6. CONSTRUCTION OF PUBLIC STORM WATER DRAIN LINE. BI- MART agrees to construct at its initial expense, and according to CITY engineering standards, a storm water drain line located in the public right-of-way and in public easements. Said storm water drain line will benefit the approximately 14.0 acres owned by BI-MART, the approximately 4.0 acres owned by WWDM, the approximately .7 acres owned by PIZZA HUT, and the approximately 7.0 acres owned by GFI-WOODBURN. SECTION 7. LOCATION OF PUBLIC STORM DRAIN LINE. BI-MART agrees to construct the public storm water drain line from a point beginning at the northeast corner of the intersection of Mt. Hood Avenue and Progress Way, adjacent to the corner location Page 2 - AGREEMENT ... ._...h"....'+,._"_,,.._.____~_,.,.~+.__~_~~~-_-'----~."".~_._,_ ,_.....~_."."."~..._._"' of the southwest corner of property owned by WWDM, in a northerly and westerly direction to completion of the project at Mill Creek. The location of the storm drain line shall be more or less as described in the attached exhibit "A", and designated as "shared public systems." SECTION 8. CERTIFICATION OF APPLICABLE CONSTRUCTION COSTS. Within 15 days of completion of the public storm drain line, BI-MART shall certify to CITY a statement of "applicable construction costs." For purposes of this section, "applicable construction costs" are defined as engineering, permits, easement acquisition and recording, and other related costs utilized to facilitate the construction of the public storm water drain line. It is also intended that prior engineering fees related to prior design plans on the Mill Creek storm drain and subsequent changes necessitated by elevation changes be considered "applicable construction costs." For purposes of this Agreement, final determination of what qualifies as "applicable construction costs" shall be determined by the Woodburn City Engineer. SECTION 9. REIMBURSEMENT TO BI-MART FOR ITS COSTS. After BI-MART certifies to CITY its applicable construction costs, CITY will require reimbursement to BI- MART from the remaining properties for their respective shares of these costs based upon a benefit percentage using ownership of acreage as a percentage of total acreage served. BI-MART agrees its property is responsible for 54.5% of the shared project costs and shall receive no reimbursement for this portion of the project: GFI-WOODBURN agrees its property is responsible for 27.2% of the shared project costs. WWDM agrees its property is responsible for 15.6% of the shared project costs. PIZZA HUT agrees its property is responsible for 2.7% of the shared project costs. SECTION 10. PAYMENT. Upon certification of applicable construction costs, and written notice by CITY, GFI-WOODBURN agrees to pay CITY the respective amounts for the GFI-WOODBURN and WWDM pro rated costs and PIZZA HUT agrees to pay CITY their respective prorated cost in full and CITY shall reimburse BI-MART for these costs. Alternatively, at its option, GFI-WOODBURN shall pay CITY in annual installments with the first due on January 1 0, 1992 and continuing annually for 1993 and 1994 on the same date and bearing interest at a rate determined annually by the prime rate plus 1.5% as determined by Bank of America, Woodburn Branch on December, 1991, 1992, and 1993 respectively and BI-MART shall be reimbursed by CITY together with interest received. In no event, however, shall CITY be liable to BI-MART for payments not actually received from GFI-WOODBURN and PIZZA HUT. SECTION 11. UNSHARED COSTS OF BI-MART. BI-MART shall pay, as an unshared cost, the expenses of engineering, construction, and related costs to extend the storm water main from its property westerly along the right-at-way on Mt. Hood Avenue and thence northerly via an underground bore under Mt. Hood Avenue to the point of beginningl previously identified as shared construction as defined in Section 9. This unshared cost of construction is identified in exhibit "A" as "Privately Funded Public System" for BI-MART. SECTION 12. UNSHARED COSTS OF GFI-WOODBURN. Private storm drain systems constructed by GFI-WOODBURN, or WWDM, or PIZZA HUT and used to Page 3 - AGREEMENT '.. transport storm water from private properties to the public storm drain system are not part of this Agreement and will not be subject to its cost distribution formula The private system constructed by GFI-WOODBURN which does not qualify for cost sharing, according to this Agreement, is identified in exhibit "A" as "private system" for K- Mart. SECTION 13. PGE CONNECTION TO PUBLIC STORM DRAIN LINE. In the event that PGE should connect to the public storm drain line in the future, CITY shall require PGE to execute a reimbursement agreement, separate from this document, to assist in reasonable payment of the shared costs associated with construction of the public storm water drain line as determined by CITY. PGE's share of costs shall be determined by adding the total acreage of the PGE property benefitted by said public storm water drain line to 25 acres which shall be the denominator. The numerator shall be the total acreage of the PGE property benefitted. This percentage will then be multiplied by the total applicable construction costs as determined in Section 8 above. The PGE shared costs will then be used to reimburse BI-MART, GFI-WOODBURN and PIZZA HUT based on the percentages paid by BI-MART, GFI-WOODBURN, and PIZZA HUT in Sections 9 and 10 above. SECTION 14. TERMS OF AGREEMENT ARE COVENANTS. It is intended by all parties to this Agreement that all terms of the Agreement shall constitute covenants, conditions, and restrictions running with title to the real properties covered by this Agreement, and shall be binding upon parties to the Agreement, their heirs, executors, and assigns, and shall be a benefit and burden upon the properties described herein. The parties agree that CITY may, for purposes of recovering the costs of improvements described herein, levy assessments against the properties described and may enforce payment of said assessments in the manner provided by ORS Chapter 223. SECTION 15. RECORDATION. Promptly after its execution by the parties, this Agreement shall be recorded in the records of Marion County to provide public notice, and especially notice to future owners of property described herein of the conditions, covenants, and restrictions against title to the properties imposed by this agreement. SECTION 16. ENFORCEMENT. CITY may enforce the terms of this Agreement in any court of competent jurisdiction. In addition to any other legal remedies, the parties' failure or refusal to comply with this Agreement shall constitute a violation of Ordinance 1807, the Woodburn Zoning Ordinance, and remedies and penalties provided therein may also be enforced. SECTION 17. NON-LIABILITY OF CITY. Because the parties agree that CITY has the legal authority to assess the involved properties for all costs associated with the storm water drain line, BI-MART, WWDM, GFI-WOODBURN, and PIZZA HUT, and each of them agree that CITY can not be held liable for damages under this Agreement and shall hold CITY and its agents harmless from any claim or legal action of any type under this Agreement including any applicable costs and attorneys fees. Page 4 - AGREEMENT . -r <. .~..t. ""_~__"~__"e""'_~_'"'__'~" "'_'_'"_"~_'"'~~~'_ SECTION 18. ATTORNEYS FEES. In the event of any suit or action to enforce this Agreement, the prevailing party shall be entitled to, in addition to the statutory costs and disbursements, reasonable attorneys fees to be fixed by trial and appellate courts. SECTION 19. SEVERABILITY. If any provision or part hereof is for any reason determined by a court of competent jurisdiction to be invalid or unenforceable, then such part shall be severed from this Agreement and the remainder of the Agreement shall remain fully enforceable. SECTION 20. COMPLETION OF AGREEMENT. Except for reasonable delays which are not the fault of BI-MART in obtaining permits or easements, BI-MART shall consummate the sale of their property on Tab Food Store not later than July 31, 1991, award a contract for the construction of the storm water drain line not later than August 9, 1991, and commence construction of said storm water drain line not later than August 12, 1991, or this agreement shall be terminated and become null and void. THE CITY OF WOODBURN, an Oregon municipal corporation By: Fred W. Kyser, Mayor STATE OF OREGON ) ) ss. ) County of Marion On this day of , 1991, personally appeared before me Fred W. Kyser, the signer of the within instrument, who duly acknowledged to me that he is the Mayor of the City of Woodburn, an Oregon municipal corporation, and that he executed the same on behalf of said corporation. Notary Public for Oregon My Commission Expires: Page 5 - AGREEMENT . .or . -'~""""-""<+""'.~-------'-'-"~"-->"'-_.-- ...,-....-.--..... .-.-..,"' BI-MART CORPORATION, an Oregon corporation By: Its County of Marion ) ) ss. ) STATE OF OREGON On this day of , 1991, personally appeared before me , the signer of the within instrument, who duly acknowledged to me that he is the of BI-MART CORPORATION, an Oregon corporation, and that he executed the same on behalf of said corporation. Notary Public for Oregon My Commission Expires: WWDM PARTNERSHIP, an Oregon partnership By: Its County of Marion ) ) ss. ) STATE OF OREGON On this day of , 1991, personally appeared before me , the signer of the within instrument, who duly acknowledged to me that he is the of WWDM PARTNERSHIP, an Oregon partnership, and that he executed the same on behalf of said corporation. Notary Public for Oregon My Commission Expires: Page 6 - AGREEMENT -, ..~'