HomeMy WebLinkAboutJ&J Kelly Construction Sewer System Extension AgreementAFN # 1955974 AGREE
02/09/2022 01:43 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 Avenue
Pasco WA 99301
Tax Parcel No.: 118621028
Legal Description: See Exhibit A 3.2 -1i -dl
SEWER SYSTEM EXTENSION AGREEMENT
THIS SEWER SYSTEM EXTENSION AGREEMENT is entered into this I
day of r� b , 2022, 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 received preliminary plat approval with the City
to subdivide the property for fifty-six (56) residential lots; and
WHEREAS, the density of the proposed subdivision is consistent with the City's
adopted Comprehensive Land Use Plan; and
WHEREAS, as a condition of preliminary plat approval, Developer is required
to connect to City sewer, and the Developer would need to construct an 8 -inch diameter
sanitary sewer connection to serve fifty-six (56) lots; and
WHEREAS, the City has an interest in upsizing the developer -proposed sanitary
sewer improvements to serve the surrounding community; and
Riverview East Lift Station - Sewer System Extension Agreement Page 1 of 11
WHEREAS, the City Council previously approved through adoption of the
City's Comprehensive Sanitary Sewer Plan and its biennial budget, the construction of a
sanitary sewer lift station and associated piping to serve a portion of the Riverview Area,
encompassing the Developer's and surrounding property with sewer; and
WHEREAS, the City recently completed the design of a sanitary sewer lift station
and appurtenant force main piping near the intersection of Road 52 and Pearl Street that
will accommodate sanitary sewer flows from approximately 240 Equivalent Residential
Units (ERU), which sewer lift station would be available to serve the aforementioned plat
provided a gravity sewer line is extended from said plat to said lift station; and
WHEREAS, the cost of the City's lift station and force main project is estimated
at approximately $1.2 million and the Developer's pro rata reimbursement share of the
facility costs, based on ERUs is approximately 23%; and
WHEREAS, once the aforementioned lift station and associated force main
piping is complete, there will be adequate sanitary sewer system available for Developer's
project and other future development activity; 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
surrounding areas including connection to a future sanitary sewer lift station to service
the Riverview area to achieve residential densities consistent with the City's adopted
Comprehensive Land Use Plan; and
WHEREAS, the City wishes to waive the pro rata reimbursement share of the lift
station and force main costs in exchange for the construction and dedication of valuable
12 -inch diameter sanitary sewer infrastructure necessary to serve future urban infill
projects in the City's Urban Growth Area; and
WHEREAS, the Developer is willing to construct and dedicate a 12 -inch
diameter sanitary sewer gravity main and associated appurtenances from Developer's
subject property to City's proposed sanitary sewer lift station (hereinafter referred to as
Gravity Sewer Improvements) as described in this Agreement upon the expectation that
the City will accept the same and permit Developer's 56 lots to be connected to the
municipal sanitary sewer system, consistent with the terms of this Agreement. The City
will accept the Gravity 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, and that the costs of constructing the Gravity Sewer
Improvements are deemed the Developer's pro rata share of the cost of City's lift station
and force main project as agreed upon per the terms of this Agreement; and
Riverview East Lift Station - Sewer System Extension Agreement Page 2 of 11
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 Gravity Sewer Improvements), outside of those required for
the on-site development of the plat, as set forth in Exhibit B at its sole cost and
expense.
B. Developer shall hire a licensed contractor for the construction of
the Gravity Sewer Improvements. Developer shall ensure that its contractor
obtains all required permits, easements, and agreements for the project.
3. Gravity Sewer Improvements. The Developer agrees to construct and
pay all costs associated with permitting, inspecting, and constructing the Gravity Sewer
Improvements from the southeast corner of Developer's plat approximately 850 feet
south to the proposed sanitary sewer lift station to be located on City property near the
southeast corner of Road 52 and Pearl Street. The Developer shall construct the Gravity
Sewer Improvements in conformity with all the City's development standards and
specifications.
4. City Obligations. Upon Developer's completion of the Gravity Sewer
Improvements, the City agrees to credit Developer a proportionate share of the cost of the
sanitary sewer lift station near the southwest corner of west Pearl Street and Road 52. The
Developer's credit shall satsify the Developer's obligation for financial participation in
the cost of the lift station. Nothing herein shall be construed as requiring the City to
provide any money for construction of the Gravity Sewer Improvement project.
Final completion of the Gravity Sewer Improvements by Developer and acceptance by
the City per the provisions of this Agreement shall be required as a condition precedent
prior to any credit to Developer.
5. Annroval of Plans. Developer shall not begin construction of the Gravity
Sewer Improvements until the City has approved the plans and specifications, and until
proper permits have been issued.
Riverview East Lift Station - Sewer System Extension Agreement Page 3 of 11
6. Construction Chanes and Proiect Close -Out. If, during construction
of the Gravity Sewer Improvements by Developer, construction changes are necessary
due to circumstances unforeseen during the design of the improvements and not
addressed on the engineering drawings or in the project specifications, Developer and
City agree to meet to discuss if equitable settlement of costs associated with said changes
are necessary. If it is determined by the City that equitable settlement of costs is
warranted, the City agrees to reimburse Developer said agreed upon settlement within 30
days. Developer shall be responsible for any and all reasonably foreseeable costs
including, but not limited to, increased material and labor costs. Developer shall keep
detailed financial records to support project costs and shall provide such records to the
City as a condition precedent to any equitable adjustment.
When the Developer has substantially completed the Gravity Sewer Improvements, it
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 Gravity 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. Whether "Substantial Completion" has
occurred shall be at the sole discretion of the City.
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.
7. Conveyance to the City. Upon completion of the Gravity Sewer
Improvements, and completion of the Construction Close -Out process set forth in Section
6, Developer shall offer to convey ownership of the Gravity Sewer Improvements to the
City through a Bill of Sale. Upon Developer's offer to convey ownership of the Gravity
Sewer Improvements to the City, the City may accept the same by City Manager
Riverview East Lift Station - Sewer System Extension Agreement Page 4 of 11
approval; provided, that before the City shall give final approval to the acceptance of such
Gravity 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 there are no liens against the property or
improvements.
C. Developer has furnished the City with documents of conveyance
of ownership of the Gravity 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 Gravity Sewer Improvements
and release of associated performance bonds, and that the City engineer shall be
solely responsible for determining the existence of such defects. 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 and all inspection costs required
to be paid under this Agreement.
F. Developer has provided the City with a maintenance or warranty
bond in the amount of [insert appropriate amount here] indemnifying the City
from any and all claims, damages, or injuries caused directly or indirectly by
defects in material or workmanship of the completed project during the one-year
warranty period.
Riverview East Lift Station - Sewer System Extension Agreement Page 5 of 11
8. Connection to City's Public Utility System. After completion,
acceptance and conveyance of the Gravity Sewer Improvements, the City shall permit
connection of the Gravity Sewer Improvements to the City's sanitary sewer lift station.
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 properly 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 or materials
used, and caused or occasioned in whole or in part by reason of errors, acts or omissions
of the Developer, its contractors or suppliers in the performance of this Agreement, except
to the extent any such injuries and damages are 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.
This waiver has been mutually negotiated by the parries, and the provisions of this section
shall survive the expiration or termination of this Agreement.
No liability shall attach to the City by reason of entering into this Agreement except as
expressly provided herein.
Riverview East Lift Station - Sewer System Extension Agreement Page 6 of 11
The indemnification provisions herein shall survive termination or expiration of this
agreement
13. 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 3rd
Pasco, WA 99301
E -Mail: fordd@pasco-wa.gov
Developer:
Jeff Kelly
J&J Construction, Inc.
1802 Road 76
Pasco, WA 99301
E -Mail: kellyfamily87@gmail.com
14. Term. This Agreement shall be effective commencing on the date of final
execution and all improvements, conveyances, and obligations of the parties shall be
complete on or before December 31, 2022. The Agreement shall terminate upon
completion and acceptance of the utility system extension improvements.
15. 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: B. Com:
Entity: J&J Kelly Construction, Inc. City of Pasco, Washington
Name: Jeff Kelly Name: Dave Zabell
Title: Owner Title: City 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.
16. 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.
Riverview East Lift Station - Sewer System Extension Agreement Page 7 of 11
17. 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.
18. 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.
19. Amendment. This Agreement may be modified only by written
instrument duly executed by all parties.
20. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns.
21. 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.
22. 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.
23. 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.
24. Waiver of other Claims. Except as otherwise provided in this agreement,
developer expressly waives any and all claims for damages against the City, its
employees, or agents, with respect to any contribution, compensation, or other damages
arising out of this agreement. This waiver includes, but is not limited to, lost profits and
expectation damages.
Riverview East Lift Station - Sewer System Extension Agreement Page 8 of 11
EXECUTED the day and year fust above written.
CITY OF PASCO: DEVEL (1
By: By:
Dave Zab anager Jeff Iy, J Construction, Inc.
ATTEST:
Debra Barham, City Clerk
APPRO D AS TO FORM:
47?
Derr Ferguson Law, City Attorney
Riverview East Lift Station - Sewer System Extension Agreement Page 9 of 11
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 I day of ��b, uork , 2022.
State of Washington
KRYSTLE LYNN SHANKS
MY COMMISSION EXPIRES
January 5, 2024
Notary Public in and for the State of Washington
Print Name: V� Y.A -,A \ e l S0 0 n tis
Residing at &,S r
My Commission Expires: _ Ta x,, 5, joaj
STATE OF WASHINGTON)
: ss
COUNTY OF FRANKLIN )
On this day personally appeared before me JEFF KELLY, Owner of J&J Kelly
Construction, Inc., a Washington Corporation, 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 1 st day of Fe , 2022.
2�&�C.
ANDREW C. BALES NOTARY PUBLIC in and for the State of Washington
STATE OF WASHINGTON Print Name: m.� C . 66
NOTARY PUBLIC Residing at: parca, WA
LIC. # 148604 My Commission Expires:
COMMISSION EXPIRES
JUNE 8, 2022
Riverview East Lift Station - Sewer System Extension Agreement Page 10 of 11
1:11:
"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.
Riverview East Lift Station - Sewer System Extension Agreement Page 11 of 11