Loading...
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 113-510-088, Cittagazze LLC / H.D. Fowler Co. 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 113-510-088, Cittagazze LLC / H.D. Fowler Co. 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 113-510-088, Cittagazze LLC / H.D. Fowler Co. 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 113-510-088, Cittagazze LLC / H.D. Fowler Co. 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 G 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