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Home My WebLink AboutWest Enterprises - COP East UGA Sewer LID Preformation and Evaluation AgreementCITY OF PASCO EAST UGA SEWER LID PREFORMATION AND EVALUATION AGREEMENT This LID Preformation and Evaluation Agreement ("Agreement") takes effect on the Effective Date, by and between the CITY OF PASCO, a municipal corporation of the State of Washington ("City") and West Enterprises, a Washington corporation ("Entity"). The parties agree as follows: SECTION 1. RECITALS AND FINDINGS 1.1 The City desires to benefit the community by constructing sewer trunk mains and lift station(s) to serve the East UGA expansion area. 1.2 The City has formally recognized the public benefit of the Improvements by including it as a desired new wastewater utility extension in the City comprehensive plan, capital improvement plan, and 2020 Comprehensive Sewer Plan Addendum. 1.3 Entity owns, or has interest in, property that would be benefited by the Improvements, and, in order to benefit the public good as well as its own property, Entity desires to facilitate the Improvements. 1.4 The City may fund the Improvements by forming a local improvement district and, consequently, is authorized by RCW 35.43.184 to enter into a LID preformation agreement with owners of property in the affected area for the purpose of generating preliminary information. Any reimbursable cost incurred by developer under this agreement shall not create a right to reimbursement, by developer, if the LID is not formed within six (6) years of the date this agreement is executed. SECTION 2. DEFINITIONS 2.1 "Effective Date." Effective Date means November 1, 2021. 2.2 "LID." LID means a local improvement district as described in RCW 35.43.042. 2.3 "Owners." Owners means Entity. 2.4 "Preformation Work." Preformation Work means (1) development of preliminary engineering and design drawings for the Project, including utility plans; (2) development of cost estimates for the Project; and, (3) appraisal, financial, legal and other work eligible under RCW 35.43.184 for City regarding the potential for formation of an LID. 2.5 "Project." Project means the Improvements as described in the City's comprehensive plan, capital improvement plan, and 2020 Comprehensive Sewer Plan Addendum, all as amended from time to time. The exact parameters of the Project may be EAST UGA SEWER LID PREFORMATION AGREEMENT - WEST ENTERPRISES - I - determined by the City in its sole discretion. A preliminary map showing the potential LID area and utility improvements is attached to this Agreement as Exhibit A. SECTION 3. LID PREFORMATION ACTIVITIES 3.1 Consultants. Within thirty days of the Effective Date, City shall identify and seek the Entity's approval of one or more consultants to undertake the Preformation Work. City shall obtain the Entity's review and approval of the consultant(s) and the scope of the consultant(s)' work prior to hiring the consultant(s). 3.2 Expenditures. Entity shall pay the fees of the consultant(s). Upon completion of the Preformation Work and delivery to City of the consultant(s)' work products, City shall credit the Entity against future LID assessments, up to a maximum reimbursement of fifty thousand dollars ($50,000). Provided, however, that City shall have no obligation to reimburse any funds until all of the Project design and drawings are delivered to and found acceptable by City; and, the final assessment roll for the LID is approved and in place. City shall have ownership rights over the work products equal to the ownership rights of the Entity. 3.3 Standards; City Supervision. Any Preformation Work conducted pursuant to this Agreement shall be accomplished under the direction and supervision of the City's Public Works Department. All Preformation Work and work product shall be consistent with standard engineering practices. SECTION 4. CREATION OF LID 4.1 Creation of LID. 4.1.1 Subject to compliance with federal and state law, the City shall entertain the creation of a LID pursuant to the "resolution" method provided by law. Should the City elect to proceed with such a LID, (1) Owners shall not protest or in anyway attempt to block or stall the creation of the LID and (2) the City shall order and carry out the construction of the Project as expeditiously as possible. The City shall also exert its best efforts to finance the cost of the Project with proceeds from special benefit assessments levied against the real property within the LID. 4.1.2 It is understood and agreed by the parties to this Agreement that nothing contained herein shall be construed to bind the City to the creation of a LID, levying of assessments, or other action under Title 35 RCW. The City at its sole discretion may order the construction of less than all the Project. 4.2 Non -Formation or Non -Completion. In the event a LID is not formed, Owners shall have no claim against the City for failure to create a LID or for reimbursement of funds spent under the terms of this Agreement. 4.3 Credit for Expenditures. As part of the ordinance creating the LID, the City shall provide that moneys paid under this Agreement or the cost of facilities constructed by a property owner in the district in satisfaction of obligations under chapter 39.92 RCW, shall be credited against assessments due from the Entity as owner of such property at the time the credit is made, EAST UGA SEWER LID PREFORMATION AGREEMENT - WEST ENTERPRISES - 2 - if those moneys paid or facilities constructed directly defray the cost of the specified improvements under the LID and if credit for such amounts is reflected in the final assessment roll confirmed for the LID. SECTION 5. GENERAL. 5.1 Indemnification. Owners shall indemnify, defend, and hold harmless City and its officials and employees from and against any claims, liability, damages, losses, causes of action, costs, and expenses brought against City by, or incurred by City due to an action of, a consultant hired under the terms of this Agreement. 5.2 Waiver. Any waiver of a right to enforce a provision of this Agreement by either the City or Owners shall not constitute a waiver of any similar or other subsequent right to enforce the same or any other provision of this Agreement. 5.3 Notices. Any notice, demand, request, consent, or other communication required or permitted under this Agreement shall be in writing and be (a) delivered personally to the parties, (b) sent by certified mail, return receipt requested, or by private overnight courier to the parties at their respective addresses listed below, or (c) sent by regular mail with back-up transmission to the parties at their respective facsimile numbers listed below. Any such communication shall be deemed given when so delivered, deposited in a U.S. Postal service mail box with first-class postage prepaid or deposited with the private courier, or transmitted, unless receipt is expressly required elsewhere in this Agreement. Any party may give to the other party notice of a change of address in the manner provided in this section. If to City: City of Pasco Steve M. Worley, Public Works Director P.O. Box 293 Pasco, WA 99301 (509) 543-5738 If to Entity: West Enterprises Steve West, Owner 2699 Road 68 Pasco, WA, 99301-1967 (509) 547-4130 5.4 Choice of Law — Venue. This Agreement shall be governed and construed in accordance with the laws of the State of Washington, and venue in connection with any legal proceeding affecting or arising out of this Agreement shall be in the Superior court of the State of Washington in Franklin County. 5.5 Binding, Successors. This Agreement shall be binding on the successors, assigns, heirs, administrators, and executors of the parties hereto. EAST UGA SEWER LID PREFORMATION AGREEMENT - WEST ENTERPRISES - 3 - 5.6 Termination. Prior to City's approval of the consultant(s) under section 3.1 of this Agreement, either party may terminate this Agreement upon five (5) days notice to the other party- 5.7 ly 5.7 Entire Understanding and Severability. This Agreement is the entire understanding between the parties and no changes, amendments, or alterations shall be effective unless agreed to in writing and signed by all parties. If any provision of this Agreement is finally determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect, provided, however, in the event the invalid or unenforceable provision is a material part of the consideration for this Agreement, this Agreement shall thereby be rendered voidable at the option of either party. The option to void this Agreement shall be exercised by sending written notice to the other party no later than ten (10) business days after the court's determination becomes final or the option shall thereafter be deemed to be waived. SECTION 6. EXECUTION. IN WITNESS WHEREOF, the parties hereby indicate their agreement to the terms written above by the signatures of their authorized representatives. ATTEST: Debra Barham City Clerk APPROVED AS TO FORM: Kerr guson Law, PPLC Attorney CITY OF PASCO Dave Zabel City Manager Owner EAST UGA SEWER LID PREFORMATION AGREEMENT - WEST ENTERPRISES -4- Exhibit A — East UGA Sewer LID Map )C. t3CJFtTVA Rb i S:Lb-7�.dfp7.[b� `a4 Yi ZFi y , :;j! 39 rr _ 4 l7 - �� tz tz w Z5O r C3 Y a • _ mv, �3-U! Y [- p e iL.7. kC r - aiCIL P �•-_ 7 os ae r{r r -y„ s a fr C f H ` y a s -- a� IK. uJ_ n u WIJA _ )C. t3CJFtTVA Rb i S:Lb-7�.dfp7.[b� `a4 Yi ZFi y , :;j! 39 rr _ 4 l7 - �� tz tz w Z5O r C3 Y a • _ mv, �3-U! 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