HomeMy WebLinkAboutCittagazze LLC-HD Fowler Co. - Deferral Agreement for Infrastructure Improvements (B21-2723)FRANKLIN COUNTY RECORDING
COVER SHEET
NAME AND RETURN ADDRESS:
City of Pasco
Attn:Carmen Patrick
525 N. 3rd Ave
Pasco, WA 99301
FORM COMPLETED BY: Carmen Patrick
PLEASE PRINT OR TYPE INFORMATION:
AFN # 1963549 AGREE
07/13/2022 10:59 AM
9 Page(s) $211.50
Matt Beaton. Auditor
Franklin Co., WA
PHONE # 509-545-3441
DOCUMENT TITLE(S) (or transaction contained therein)
1. DEFERRAL AGREEMENT FOR INFRASTRUCTURE IMPROVEMENTS
2.
3.
GRANTOR(S) (Last name, first name, middle name/initials):
1. CITTAGAZZE LLC/ HD FOWLER CO.
2.
3.
4.
Additional names on page of document
GRANTEE(S) (Last name, first name, middle name/initials):
1. CITY OF PASCO
2.
3.
4.
Additional names on page of document
LEGAL DESCRIPTION (Abbreviated: ie.lot, block, plat or section, township, range)
BINDING SITE PLAN 2009-02 LOT 2
0 Additional legal is on page of document
AUDITOR'S REFERENCE NUMBER(S)
ASSESSOR'S PROPERTY TAX PARCEL NUMBER
113510088
Additional parcel numbers on page of document
The Auditor/Recorder will rely on the information provided on this form. The staff will not read the
document to verify the accuracy or completeness of the indexing information
EMERGENCY NONSTANDARD REQUEST
I am requesting an emergency nonstandard recording for an additional fee of $50.00 as provided in
RCW 36.18.010. 1 understand that the recording processing requirements may cover up or otherwise
obscure some part of the text of the original document.
Signature Date
FILED FOR RECORD AT REQUEST OF:
City of Pasco, Washington
WHEN RECORDED RETURN TO:
City of Pasco
525 North 3rd
Pasco WA 99301
Tax Parcel No. 113-510-088
Abbreviated Legal Description:
BINDING SITE PLAN 2009-02 LOT 2
Owner: CITTAGAZZE LLC / H.D. FOWLER CO.
DEFERRAL AGREEMENT FOR INFRASTRUCTURE IMPROVEMENTS
THIS DEFERRAL AGREEMENT entered into this 307W day of
,v"6, , 2022, by and between the City of Pasco, Washington, a
municipal corporation, hereinafter referred to as "City", and CITTAGAZZE LLC / H.D.
FOWLER CO., hereinafter referred to as "Owner."
WHEREAS, the City is obligated under the State Growth Management Act to
ensure that the City's transportation and utility systems will be adequate to serve current
and future development, without causing the level of service to decline below the
standards established by the City resulting in each development being required to
construct that portion of the transportation and utility infrastructure as may be necessary
to serve that property at the time of permitting; and
WHEREAS, Owner is the record owner of the real property located within
Pasco, Washington, legally described as follows (the "Property"):
BINDING SITE PLAN 2009-02 LOT 2
WHEREAS, the Owner has sought the approval of a development permit for
the Property which would include the new construction of right-of-way and utility
infrastructure improvements as required by Pasco Municipal Code (PMC) 12.36.050
also described hereinafter; and
113-510-088, Cittagazze LLC / H.D. Fowler Co.
Infrastructure Improvements Deferral Agreement Page 1 of 8
WHEREAS, the Owner has requested a deferral of these infrastructure
improvements and the City Engineer for the City has determined that the installation of
said improvements required for the development could be safely, effectively, and
efficiently implemented if done concurrently with the installation of improvements
required for other developments in the same vicinity; and
WHEREAS, as a condition of granting this deferral of improvements, the
Owner agrees to install such improvements within the deferral period as provided
below, or by participating in a local improvement district, or other similar type of
district formed by the City for the construction of these improvements, while still
subject to the deferral period set forth below; and
WHEREAS, pursuant to PMC 16.15.050, the proposed development meets the
criteria for administrative approval of sewer waivers as set forth in PMC 16.15.060; and
WHEREAS, it is the parties' intent to create a binding agreement that runs with
the Property by recording this agreement as a covenant obligating Owner.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, it is agreed as follows:
1. The City hereby defers the installation by the Owner of the following
described improvements affecting the Property (the "Deferred Improvements"):
The installation of curb/gutter, sidewalks, dedication of half -street road right-of-way,
stormwater facilities, and utility extensions along the Dietrich Road frontage of the
Property; and
Pursuant to PMC 16.15.050, at such time as the sewer main within Dietrich Road is
extended and accessible to the Property, the Owner will be required to connect to City
Sewer.
Limits for the deferral will be the installation of the described improvements for parcel:
113-510-088
The City acknowledges the following permit:
Permit Number
R71-7771
2. In consideration of the grant of the above permit and deferral of the
Deferred Improvements, the Owner shall locate and construct the Deferred
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Infrastructure Improvements Deferral Agreement Page 2 of 8
Improvements, in accordance with the City standards in effect at the time the
improvements are to be constructed.
3. Deferral Period. The deferral period shall commence upon final
acceptance of the work occurring pursuant City of Pasco Permit Number B21-2723.
The Deferred Improvements shall be completed as follows:
a) Owner shall construct those roadway/frontage improvements as required
along the length of the right-of-way abutting the Property in accordance
with City standards concurrently with the installation of similar
improvements required for other developments in the same vicinity,
unless the frontage of adjacent properties have not been developed
within ten (10) years from recording of this agreement, in which event
the timing of completion of such Deferred Improvements is at the
discretion of the City Engineer per Section 5. Following commencement
of construction, completion of the deferred right-of-way
roadway/frontage improvements as described herein within the abutting
right of way shall be done within the standard time frame for right-of-
way permits. Final acceptance of the right-of-way work by the City is
subject to approved engineering plans and completion of final
construction inspections. Deferred Improvements shall be constructed in
accordance with the Pasco Construction and Design Standards, Pasco
Municipal Code in effect at the time of construction.
b) This agreement shall terminate upon completion of the Deferred
Improvements. Failure by the City to require construction within ten (10)
years shall not constitute a waiver of this condition. The obligation to
construct these improvements after ten (10) years shall be enforceable to
the full extent of the law, notwithstanding termination of any LID waiver
obligations.
c) Pursuant to PMC 16.15.050, at such time as the sewer main within
Dietrich Road is extended within 200 feet to this property, the owner will
be required to decommission septic systems and connect to City Sewer at
owner's sole expense and consistent with Pasco Municipal Code and
Pasco Construction and Design Standards.
4. It is further provided that in consideration City allowing Owner to delay
construction of the Deferred Improvements, should the City wish to pursue construction
of the Deferred Improvements through a Local Improvement District (LID), Owner
hereby waives all rights to protest formation of such LID for the construction of said
improvement. For purposes of this Instrument, "rights of protest" shall mean only those
formal rights to protest contained within the LID statutes, except, however, nothing
herein shall constitute a waiver by the Owner(s) or the heirs, assigns or successors in
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Infrastructure Improvements Deferral Agreement Page 3 of 8
interest of the Owner(s), of the right to object to the individual assessment amount or to
appeal to the Superior Court for the County in which the property is located the decision
of the Council affirming the final assessment role, which rights are specifically
preserved.
This foregoing waiver is granted in consideration of the approval hereby given by the
City described above and may not be terminated except at such time as the above
approval be withdrawn or rescinded by the City.
The LID waiver portion of this agreement constitutes a waiver of protest as provided by
RCW 35.43.182 and shall be effective for ten years. This ten-year limitation shall apply
only to the LID waiver portion of this agreement.
Owner hereby grants and conveys to the City through its City Manager (or designee), a
special power of attorney to exercise any and all rights held by Owner its heirs,
assignees, transferees or successors in interest, including any purchaser, mortgage
holder, lien holder or other persons who may claim an interest in the above-described
real property, to commit said property to an improvement district which includes within
its area the above-described property and covers the improvements described above.
This special power of attorney is subject to limitations set forth in paragraph 6.
5. Upon determination by the City Engineer that construction of the
Deferred Improvements is required after expiration of the 10 year deferral period , the
City shall provide the Owner(s) written notice requiring the construction of said
improvements. Upon such notice, and after final decision of the City Engineer, the
Owner(s) shall have ninety (90) days to commence construction of those improvements
in accordance with City standards and specifications. The construction period may be
extended by the City Engineer or their designee for an additional period of ninety (90)
days upon good cause such as inclement weather or the unavailability of materials or
services.
6. In the event Owner fails to construct the deferred improvements or fails
to complete construction of the deferred improvements within the time provided above,
the City shall have the right to enter into the property and construct or complete the
construction of the required improvements, with the actual costs of such improvements
being assessed against the Owner. Such assessment for costs shall constitute a lien
against the property to the maximum extent allowed under the law, including as
provided in RCW 35.80.030 (1) (h). Such costs shall also create a personal obligation of
any and all owners, assigns, or successors in interest of the property on the date of
assessment.
In the event a local improvement district, or other similar improvement district,
is organized to construct the improvements described in this Agreement, Owner hereby
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Infrastructure Improvements Deferral Agreement Page 4 of 8
waives any and all rights to protest the creation by the City of a local improvement
district or other similar district to construct the above-described improvements, insofar
as said improvement district includes within its area the above-described property and
to the extent that said improvements benefit the property above described; provided,
nothing herein shall limit the ability of Owner to (i) contest its individual assessment
amount or the final assessment role, which rights are specifically preserved, or (ii)
contest a petition under the special power of attorney provision prior to the City
exercising this right, which the City may exercise after providing 30 days advance
written notice to the agent of Owner listed in Paragraph 9; and, provided further, that
the City shall work with the parties to amicably resolve any disputes regarding the
extent of benefit to Owner's property. In the event the parties are unable to reach an
agreement under this paragraph, the City and Owner agree to resolve the dispute as
provided in Paragraph 8.
Owner further agrees that if the City includes the Deferred Improvements within
a project not supported by a local improvement district, Owner, its transferees and any
successors in interests hereby agree to participate in said project by paying their pro -rata
share of the cost thereof.
7. Covenant Recital. This Agreement touches and concerns the real
property described above and hereby binds Owner, and its assignees, heirs, transferees,
donees, and/or successors in interest to said property. This Agreement shall be recorded
in the Franklin County Auditor's Office, by the City, and the terms and conditions of
this Agreement shall run with the land. The Owner shall bear the cost of recording this
document with the Franklin County Auditor, and shall provide said payment of
estimated recording costs to the City at the time of submittal of the deferral request.
This agreement shall not be effective until the date of recording with the Auditor.
8. Arbitration and Venue. Should any dispute arise concerning the
enforcement, breach or interpretation of this Agreement, the parties shall first meet in a
good faith attempt to resolve the dispute. In the event the dispute is not resolved, it
shall be resolved by binding arbitration pursuant to RCW 7.04A, as amended, and the
Mandatory Rules of Arbitration (MAR); and venue shall be placed in Franklin County,
Superior Court, and the laws of the State of Washington shall apply, and the prevailing
party shall be entitled to its reasonable attorney fees and costs.
9. Authority to Approve Agreement. The parties represent and warrant
that all steps necessary for the approval of this Deferral Agreement have been
completed by:
A. CITTAGAZZE LLC / H.D. FOWLER CO.
B. City of Pasco
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Infrastructure Improvements Deferral Agreement Page 5 of 8
The officers signing below are authorized to do so and that the execution of this
Deferral Agreement is valid and binding for all purposes.
10. Nonwaiver. Failure to timely enforce any provision in this agreement
shall not constitute a waiver of that condition.
11. Severability. If any portion of this agreement is found to be
unenforceable by a court of competent jurisdiction, the remaining provisions shall
apply.
12. Supplemental. The provisions in this agreement are supplemental in
nature and are not designed to limit any existing authority of the City under other
applicable law including, but not limited to, RCW 3 5.6 8 and RCW 35.91.
City of Pasco, Washington:
UA
Title:
City Manager
City of Pasco
113-510-088, Cittagazze LLC / H.D. Fowler Co.
Infrastructure Improvements Deferral Agreement
Page 6 of 8
525 N. 3rd Avenue
Pasco, WA. 99301
City/State/Zip Code
STATE OF WASHINGTON
: ss
COUNTY OF FRANKLIN
I certify that I know or have
satisfactory evidence that D. -N& is the person who appeared before
me, and said person acknowledged that (he/Awy signed this instrument and
acknowledged it to be (hisAer) free and voluntary act for the uses and purposes
mentioned in the instrument.
GIVEN under my hand and official seal this � day of 4A'l 2022.
c) FAR CULWELL
NOTAR PUBLIC in and for the State of Washington UBLIC #208573
Residing at• S c.0 WASHINGTON
M Commission Ex ires: on OZ SION EXPIRES
Y P• 79, 2023
Developer:
By: CITTAGAZZE LLC / H.D. FOWLER CO. w
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Title:
Address .36 3 130- PL SE
113-510-088, Cittagazze LLC / H.D. Fowler Co.
Infrastructure Improvements Deferral Agreement Page 7 of 8
STATE OF WASHINGTON )
: ss
COUNTY OF T ,K1 N 6- -.- )
I certify that I know or have
satisfactory evidence that J�W05 F0 W LE�-is the person who appeared before me,
and said person acknowledged that he/she signed this instrument and
acknowledged it to be their free and voluntary act for the uses and purposes
mentioned in the instrument.
GIVEN under my hand and official seal this 2eday of ✓U #0 E- 2022.
IMDn NoyNOTARY PUBLIC in and for the State of Washington ublichingtonResiding at: Q (C -kA �N ber 159808on Expires 2024
ATTEST:
k4i A, -A J/)t-LQ-- 0 _
Debby Barham
City of Pasco City Clerk
APPRO
City Attorney
113-510-088, Cittagazze LLC / H.D. Fowler Co.
Infrastructure Improvements Deferral Agreement Page 8 of 8