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HomeMy WebLinkAboutJ&J Kelly Construction - Water System Agreement (Parcel No. 118621028)AFN # 1958716 AGREE 04/01/2022 03:57 PM 10 Page(s) $212.50 Matt Beaton, Auditor Franklin Co., WA FILED FOR RECORD AT REQUEST OF: City of Pasco WHEN RECORDED RETURN TO: City of Pasco, Washington 525 North 3"d Pasco WA 99301 Tax Parcel No. 118-621-028 Legal Description: o.>e l .2 2 h%5 WATER SYSTEM EXTENSION AGREEMENT THIS WATER SYSTEM EXTENSION AGREEMENT is entered into this 30 day of m A r4 , 20'L-2-, by and between J&J Kelly Construction, Inc. hereinafter referred to as "Developer", and the City of Pasco, Washington, a Municipal Corporation, hereinafter referred to as "City" for the purpose of extending water system improvements for the benefit of the properties to be developed by the Developer and to benefit properties to the south to serve the Riverview area. WHEREAS, the Developer owns or controls certain real property specifically described in Exhibit A of this Agreement, and said real property is situated inside the City's municipal boundaries; and WHEREAS, the Developer has submitted an application with the City to subdivide the property for residential use; and WHEREAS, the Developer desires to have City domestic water service for domestic use extended to the residential lots resulting from said plat; and WHEREAS, the City currently possesses the capacity to provide domestic water utility services to the above-mentioned citizens and real properties to be developed; and WHEREAS, adequate and proper domestic water system facilities currently exist nearby and are available to be extended; and WHEREAS, the Developer is willing to construct and install the Water Improvements described in this Agreement upon the expectation that the City will accept the same and permit them to be connected to the municipal domestic water Water System Extension Agreement - 1 system, consistent with the terms of this Agreement. The City is willing to accept the Water Improvements for the project, on the terms and conditions set forth in this Agreement, which the City deems necessary to protect the health, safety and welfare of the public provided that the costs of constructing the Water Improvements for the project are shared by the Developer and the City as agreed upon per the terms of this Agreement; and WHEREAS, this Agreement is made upon the basis of the foregoing provisions, and in consideration of the mutual promises and covenants herein, and the mutual benefits to be derived by the parties therefrom. NOW, THEREFORE, the parties agree as follows: 1. Definitions. The term "utility" means domestic waters and facilities, complete with appurtenances. 2. Developer Obligations. A. Developer shall be required to construct certain utility system improvements (the Water Improvements) as set forth in Exhibit B at its sole cost and expense, with the exception of the contribution by reimbursement from the City as provided in Section 4 of this Agreement. B. Developer shall hire a licensed contractor for the construction of the Water Improvements. Developer shall ensure that its contractor obtains all required permits for the project. Developer shall require its contractor to pay current prevailing wage rates for the project. C. Developer agrees to submit an itemized invoice indicating the work completed and the amount to be reimbursed by check along with sufficient evidence that prevailing wages were paid. 3. Water Improvements. The Developer agrees to construct and pay all costs of designing, reviewing, permitting, engineering, inspecting and constructing the Water Improvements as described in the attached hereto as Exhibit B. The Developer shall construct the Water Improvements in conformity with all the City's development standards and specifications. 4. City Obligations. The City agrees to reimburse Developer for the difference of the costs of construction of 12" water in lieu of 8" water, to include materials and inspection, of approximately 635 feet of the utility beginning at the Water System Extension Agreement - 2 Southeast corner of Parcel 118621028 and heading North on Road 52. In no case will the City's reimbursement obligations under this Section 4 exceed $20,592 (TWENT THOUSAND FIVE HUNDRED NINETY TWO DOLLARS AND 00/100) for the entire project. Final completion of the Sewer Improvements and acceptance by the City per the provisions of this Agreement, including but not limited to itemized invoicing and evidence that prevailing wages were paid, shall be required prior to any reimbursement to Developer. Reimbursement from the City shall be in the form of a check. Prior to reimbursement being made by check. 5. Approval of Plans. Developer shall not begin construction of the Required Improvements until the City Engineer has approved the plans and specifications, and until proper permits have been issued. 6. Construction Close -Out. When the Developer has substantially completed the Water Improvements, they shall notify the City of such completion in writing and request a preliminary inspection prior to the City taking ownership of the water and prior to any further connections to the City domestic water system by the Developer. "Substantial Completion" shall mean that the Water Improvements can perform their intended function and are ready to be conveyed for that purpose, notwithstanding that certain finish elements of the work such as, but not limited to, final restoration of landscaping and irrigation (if any), may remain for completion subsequent to conveyance. The City shall schedule the inspection to occur within fourteen (14) days of receiving such notice. Within fourteen (14) days after the inspection, the City shall provide the Developer with a written list of any items that need completion or correction to conform to the approved Plans and Specifications and to this Agreement. The Developer shall promptly complete the listed items, at which time the Developer may initiate the conveyance of the Water Improvements to the City per Section 7 of this Agreement. The failure of the City to act within the time period set forth in this Section shall not alleviate the obligation of Developer to construct the Water Improvements in accordance with the approved plans and specifications, nor constitute a waiver of any rights on the part of the City. 7. Conveyance to the City. Upon completion of the Water Improvements, and completion of the Construction Close -Out process set forth in Section 6, Developer shall offer to convey ownership of the Water Improvements to the City through a Bill of Sale. Upon Developer's offer to convey ownership of the Water Improvements to the City, the City shall accept the same by Resolution of the City Council, provided, that before the City shall give final approval to the acceptance of such Water Improvements, the Developer shall demonstrate the following: Water System Extension Agreement - 3 A. Developer has conveyed required Rights -of -Way to the City and/or secured and recorded all required easements, in a form acceptable to the City Attorney, providing a warranty that the grantor has the right to grant such easement, and will indemnify and defend the City against all claims that the grantor does not have such right. B. Developer has furnished the City with an affidavit, in a form acceptable to the City, stating that all charges incurred for materials and labor at prevailing wage rates have been paid, and there are no liens against the property or improvements. C. Developer has furnished the City with documents of conveyance of ownership of the Water Improvements, in a form acceptable to the City Attorney, providing a warranty that the Developer has the right to convey such Improvements and will indemnify and defend the City against all claims that the Developer does not have such right, and further providing that the Improvements will be free of defects in material and workmanship for a period of one (1) year from the date of the City's final acceptance of the Water Improvements and release of associated performance bonds. If the conveyance includes one or more incomplete work elements subject to completion under a performance bond or bonds issued pursuant to this Agreement, then the conveyance documents shall address for each incomplete element the riming and criteria for completion and initiating the warranty period. D. Developer has submitted to the City, in a form acceptable to the City Engineer, Final Drawings or "As-Builts" meeting City Development Standards. E. Developer has paid all permit fees, connection charges and all other fees and charges for City costs required to be paid under this Agreement. F. Developer has submitted an itemized invoice to the City, in a form acceptable to the City Engineer or designee, of all costs incurred on the Water Improvements for the Project. 8. Connection to City's Public Utility System. After completion, acceptance and conveyance of the Water Improvements, the City shall permit connection of the Water Improvements to the City's public utility systems. All public utilities shall be tested per methods established in the City's standards and specifications, WSDOT Standard Specifications, AWWA test methods, and as described in the pre -construction meeting minutes. Procedures for and timing of the various tests for different utilities shall be determined in the pre -construction meeting and recorded in the minutes of such meeting. Water System Extension Agreement - 4 9. Insurance. The Developer or its contractor shall maintain in full force and effect during the time this Agreement is in effect public liability insurance, covering bodily injury and property damage, which insurance shall name the City and its employees and contracted consultants as additional insureds. Such insurance shall provide limits of liability of $500,000 per person and $1,000,000 per occurrence for bodily injury and $100,000 per person and $300,000 per occurrence for property damage. 10. Indemnification. The Developer shall defend, indemnify, and hold harmless the City, its officers, officials, agents, employees, and volunteers from any and all claims and causes of action, including, but not limited to, actions of law or administrative proceedings for all injuries to persons or damages to property, and all losses, damages, demands, suits, judgments, including attorney fees, arising out of, or as a result of, or in connection with the work performed under this Agreement, and caused or occasioned in whole or in part by reason of errors, negligent acts or omissions of the Developer or its contractors in the performance of this Agreement, except for injuries and damages caused by the sole negligence of the City, its officers, employees, agents, and volunteers. Should a Court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injuries or damages to property caused by or resulting from the concurrent negligence of the Developer or its contractors, and the City, its officers, employees, agents and volunteers, the Developer's liability and obligation to defend hereunder shall only be the proportionate extent of the Developer's negligence. It is further agreed that the indemnification provided herein constitutes the Developer's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. No liability shall attach to the City by reason of entering into this Agreement except as expressly provided herein. This waiver has been mutually negotiated by the parties, and the provisions of this section shall survive the expiration or termination of this Agreement. 11. Costs Incurred by the City. The Developer shall pay to the City all costs incurred by the City prior to conveyance that are associated with review and approval of the Water Improvements, including, but not limited to, engineering, legal, and administrative costs, and including costs associated with the creation of this Water System Extension Agreement. In lieu of Developer's payment of said costs under this Water System Extension Agreement - 5 Section, any said costs incurred by the City may be credited against the amount to be reimbursed by City to Developer under Section 4 of this Agreement. 12. Notices. All notices required to be given under this Agreement shall be in writing and shall be deemed served when mailed via certified mail, return receipt requested, to the attention of the individual or position identified below. The parties may, upon mutual agreement, determine to accept notice via e-mail. City of Pasco: City Engineer 525 North 3d Pasco, WA 99301 E -Mail: fordd@pasco-wa.gov Developer: Jeff Kelly J&J Construction, Inc. 1006 Christopher Lane Pasco, WA 99301 E -Mail: kellyfamily87@gmail.com 13. Term. This Agreement shall be effective commencing on the 30 day of M P� rcA , 2022, and all improvements, conveyances, and obligations of the parties shall be complete on or before December 30, 2023. The Agreement shall terminate on December 31, 2023, or with completion and acceptance of the utility system extension improvements, whichever shall occur first. 14. Authority to Approve Agreement. The parties represent and warrant that all steps necessary for the approval of this Agreement have been completed by: A. Developer: Entity: J&J Construction, Inc. Name: Jeff Kelly Title: Owner B. City: Entity: City of Pasco, Washington Name: Dave Zabell Water System Extension Agreement - 6 Title: City Manager The officers signing below are authorized to do so and the execution of this Water System Extension Agreement is valid and binding for all purposes. 15. Dispute Resolution. Should any dispute arise concerning the enforcement, interpretation, breach or any other term of this Agreement, the parties shall first meet in a good faith effort to resolve the dispute. In the event the dispute cannot be resolved by agreement of the parties or by mediation, the dispute shall be resolved by binding arbitration pursuant to RCW 7.04A, as amended, and the Mandatory Rules of Arbitration (MAR). Venue shall be placed in Franklin County, Washington; the laws of the State of Washington shall apply; and the substantially prevailing party shall be entitled to its reasonable attorney fees and costs. 16. Governing Law. This Agreement is entered into under the laws of the State of Washington, and the parties intend that Washington law shall apply to the interpretation hereof. 17. Severability. In the event a non -material provision of this Agreement is declared invalid, unconstitutional, or otherwise unenforceable, such provisions hereof as are not affected by such declaration, shall remain in full force and effect. 18. Amendment. This Agreement may be modified only by written instrument duly executed by all parties. 19. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. 20. Agreement Construction. This Agreement sets forth the entire understanding and agreement of the parties relating to the subject matter hereof. This Agreement shall be construed as a whole. The captions and headings herein are for convenience only and shall not be relied upon or used to interpret/construe this Agreement or any portion thereof. Each party signing this Agreement acknowledges that they participated in the drafting of this Agreement and, as such, this Agreement shall not be presumptively interpreted/construed in favor of nor against any particular party, but rather this Agreement shall be given an objectively fair and reasonable interpretation and construction in light of and in accordance with its express terms and provisions. 21. General Provisions. Water System Extension Agreement - 7 A. This Water System Extension Agreement constitutes the entire agreement between the parties and no prior oral or written agreement shall be valid. B. For the purpose of this Agreement, time is of the essence. 22. Mutual Cooperation and Further Agreements. When in compliance with the Pasco Municipal Code and State and Federal laws, the parties agree to cooperate in good faith with regard to each and every aspect required for the completion of the construction of the water system improvements which are the subject of this Agreement and the transfer of property; and to further sign all documents, deeds, and permits reasonably necessary to accomplish the purpose of this Agreement. EXECUTED the day and year first above written. CITY OF PASCO: DEVELOPER: By: ?,� ,f By: Dave Zabell, Cify anagen Jeff Kell , er ATTEST: De ra Barham, City Clerk AS TO FORM: r Fe son Law, City Attorney Water System Extension Agreement - 8 I WA : I I: Y II_1 "Legal Description" THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 9 NORTH, RANGE 29 EAST, W.M., EXCEPT THE EAST 151.13 FEET OF NORTH 165.77 FEET THEREOF; AND EXCEPT PORTION CONVEYED TO FRANKLIN COUNTY BY INSTRUMENT RECORDED UNDER AUDITOR'S FILE NO. 48051; TOGETHER WITH THE EAST HALF OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 9 NORTH, RANGE 29 EAST, W.M., EXCEPT THE NORTH 165.77 FEET OF WEST 242.26 FEET THEREOF; ALL RECORDS OF FRANKLIN COUNTY, WASHINGTON. Water System Extension Agreement - 10 STATE OF WASHINGTON ) : ss COUNTY OF FRANKLIN ) On this day personally appeared before me DAVE ZABELL, City Manager of the City of Pasco, Washington, described in and who executed the within and foregoing instrument, and acknowledged that he signed the same as his free and voluntary act and deed for the uses and purposes therein mentioned. GIVEN under my hand and official seal this 3� day of APRIL CULWELL NOTARY PUBLIC #208573 STATE OF WASHINGTON COMMISSION EXPIRES JULY 19, 2023 Notary Public in and for the State of Washington Print Name: -KPtZ\L- CtA L-1 )E1, L - Residing at Qa.Sc O My Commission Expires: `T %x1!A la , 2 X23 A ����� STATE OF WASHINGTON)ss , .. • .. , ,b.,� s. COUNTY OF FRANKLIN On this day personally appeared'l��rhn� , FF KELLY, Owner of J&J Kelly Construction, Inc., a Washington (�' �. a n ftbjq? in and who executed the within and foregoing instrument, and ac�v�N t*Se signed the same as his free and voluntary act and deed for the uses an�'�Shmpue�%lt'�ere*mentioned. / GIVEN under my hand and official seal this JU qday of a v4u , 26i' ab oZ a (1�� NOTARY PUBLIC u and for the State of Washington Print Name: !iL V 1 e -S Residing at: My Commission Expires: F710 �- 3,? (�Z Z Water System Extension Agreement - 9