HomeMy WebLinkAboutJ&J Kelly Construction - Sewer System Extension Agreement (Parcel No. 118621028)AFN # 1958715 AGREE
04/01/2022 03:57 PM
11 Page(s) $213.50
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: t4/ 22/9 laq
SEWER SYSTEM EXTENSION AGREEMENT
THIS SEWER SYSTEM EXTENSION AGREEMENT is entered into this
.30 day of "AA, , 20 Z2, , 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 sewer system
improvements for the benefit of the properties to be developed by the Developer and to
benefit properties to the north with a sewer to discharge from a future sanitary sewer lift
station 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 sanitary sewer service for
domestic use extended to the residential lots resulting from said plat; and
WHEREAS, the City currently possesses the capacity to provide sanitary sewer
utility services to the above-mentioned citizens and real properties to be developed; and
WHEREAS, adequate and proper sanitary sewer system facilities currently
exist nearby and are available to be extended; and
WHEREAS, the City has identified certain benefits to the City that will be
received by the construction of the facilities identified herein, to include a benefit to
Sewer System Extension Agreement - 1
surrounding areas including connection to a future sanitary sewer lift station to service
the Riverview area.
WHEREAS, the Developer is willing to construct and install the Sewer
Improvements described in this Agreement upon the expectation that the City will
accept the same and permit them to be connected to the municipal sanitary sewer
system, consistent with the terms of this Agreement. The City is willing to accept the
Sewer 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 Sewer 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 sanitary sewers and facilities,
complete with appurtenances.
2. Developer Obligations.
A. Developer shall be required to construct certain utility system
improvements (the Sewer 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 Sewer 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.
Sewer System Extension Agreement - 2
3. Sewer Improvements. The Developer agrees to construct and pay all
costs of designing, reviewing, permitting, engineering, inspecting, and constructing the
Sewer Improvements as described in the attached hereto as Exhibit B. The Developer
shall construct the Sewer 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" sewer in lieu of 8" sewer, to include
materials and inspection, of approximately 444 feet of the utility beginning at the
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 $10,618 (TEN
THOUSAND SIX HUNDRED AND EIGHTTEEN 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 -Ont. When the Developer has substantially
completed the Sewer Improvements, they shall notify the City of such completion in
writing and request a preliminary inspection prior to the City taking ownership of the
sewer and prior to any further connections to the City sanitary sewer system by the
Developer. "Substantial Completion" shall mean that the Sewer 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 Sewer 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 Sewer Improvements in
accordance with the approved plans and specifications, nor constitute a waiver of any
rights on the part of the City.
Sewer System Extension Agreement - 3
7. Conveyance to the City. Upon completion of the Sewer Improvements,
and completion of the Construction Close -Out process set forth in Section 6, Developer
shall offer to convey ownership of the Sewer Improvements to the City through a Bill of
Sale. Upon Developer's offer to convey ownership of the Sewer 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 Sewer Improvements,
the Developer shall demonstrate the following:
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 Sewer 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 Sewer
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 timing 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
Sewer Improvements for the Project.
Sewer System Extension Agreement - 4
8. Connection to City's Public Utility System. After completion,
acceptance and conveyance of the Sewer Improvements, the City shall permit
connection of the Sewer 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.
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.
Sewer System Extension Agreement - 5
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 Sewer Improvements, including, but not limited to, engineering, legal,
and administrative costs, and including costs associated with the creation of this Sewer
System Extension Agreement. In lieu of Developer's payment of said costs under this
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 3'd
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 '90 day
of M A rL% , 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:
Sewer System Extension Agreement - 6
Entity:
J&J Construction, Inc.
Name:
Jeff Kelly
Title:
Owner
B. City:
Entity: City of Pasco, Washington
Name: Dave Zabell
Title: Cily Manager
The officers signing below are authorized to do so and the execution of this
Sewer 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
Sewer System Extension Agreement - 7
shall not be presumptively interpreted/construed in favor of nor against any particular
parry, 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.
A. This Sewer 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 sewer 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.
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CITY OF PASCO: DEVELO s.
80 Y.
By: 4 By: : d N ' �►
Dave Zabell, City ager k Jeff KA;,bWr �;• �F2� 1 ON
. � a avna a••
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ATTEST:
De ra Barham, City Clerk
APPRO AS TO RM:
Kerr Fer Law, City Attorney
Sewer System Extension Agreement - 8
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 30 day of M&V4, ,
APRIL CULWELL
NOTARY PUBLIC 0208573
STATE OF WASHINGTON
COMMISSION EXPIRES
JULY 19, 2023
e4aclk�
Notary P blic in and for the State of Washington
Print Name: p'(N 1 U CA t -W -e:- L
Residing at V -r' S'e�
My Commission Expires: Ju Ll-( 1q , 202.3
STATE OF WASHINGTON)
ss
COUNTY OF FRANKLIN
w,
:�o'�bbinni s.
On this day personally appeared b4m6 ,Owner of J&J Kelly
Construction, Inc., a Washington Corpora(layd�i'd•�dd'�i.�nd who executed the
within and foregoing instrument, and acknowfaW 1i'Ai ned the same as his free
and voluntary act and deed for the uses and purposes Werem mentioned.
GIVEN under my hand and official seal thisday of M4,
NOTARY F
Print Name:
Residing at:
My Commi:
Sewer System Extension Agreement - 9
in and fqr the State -of Washington
Expires:
1*14:111-3m.
"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 15 1. 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.
Sewer System Extension Agreement - 10
EXffiBIT B
"Required Improvements"
Site Maps, Engineering Drawings and Other Project Details Required by City
Sewer System Extension Agreement - 1 I