Mofified Agreement as to Waiver 12 04 2009AGREEMENT AS TO WAIVER AND RELEASE
1. Parties. This Agreement is entered into between Andrew and Cynthia Smith (the Smiths), the owners of Lot 15 of Palisades West, and the City of Yelm (City).
2. Purpose. The purpose of this Agreement is to release the City from liability as to any claim that could be made against the City by the Smiths arising from inadequate fire suppression
water flow volumes at Lot 15 in the subdivision of Palisades West.
3. Duration. This Agreement shall expire at the time the water booster pump and pressure sustaining valve have been installed for the subdivision of Palisades West and serves Lot 15
therein.
4. Recitals.
a. The subdivision of Palisades West is located on a bench that is higher than the rest of the City. Because of this elevation difference with the rest of the City water infrastructure,
certain improvements are required in order to provide the minimum potable water pressures as required by the Washington State Health Codes, and minimum fire flows as required by the
International Fire Codes. Additionally, certain improvements are required to the sewer system in order to avoid the generation and release of dangerous gases into the atmosphere.
b. The City of Yelm required as part of the subdivision approval process that the developer install these required improvements. To date, the developer has received civil plan approvals
and building permits to install the required infrastructure, but has failed to do so.
c. The City, at the request of Dan Lee, agent for the Smith’s, issued a building permit for the construction of the Smith’s home on Lot 15, in lieu of construction of a model home
as allowed for by the condition of final subdivision approval. The approved building plans, part of the permit approval, condition occupancy of the home on the installation of the required
improvements.
d. Upon completion of the home in April of 2009, the improvements had not been installed and the City withheld the occupancy certificate pursuant to the condition of the building permit
approval.
c. August 24, 2009, four months after completion of the home, the Smith’s requested a subdivision alteration in order to remove the condition requiring water and sewer system improvements
for lot 15. The City Council considered the subdivision alteration on October 11.
d. The Smiths submitted a conceptual plan for providing the required potable water pressure to lot 15 as well as providing odor control for the sewer system. on November 11th. The
conceptual plans were resubmitted after the City’s review on November 17th and approved by the City on November 24th. The individual booster pump was approved by the Washington Department
of Health on December 3rd.
e. The Yelm City Attorney, at the direction of the City Council, prepared a release and waiver of liability that addressed liability to the City for not providing required fire flow
to serve the home, damage to the City water or sewer system caused by the interim fixes provided by the Smith’s, and the cost of
installing the required potable water system improvements should the Washington Department of Health no longer allow for the interim solution.
5. Amendment to Final Subdivision. Based on the foregoing recitals, the Parties agree to an amendment of Notes #1 and #2 to the final subdivision of Palisades West, as follows:
1. No building permit shall be issued within this subdivision, except for Lot 15, until a booster pump is installed by the developer and approved by the City of Yelm which provides adequate
fire flow per the Internal Fire Code and City of Yelm standards, provided that a building permit may be issued for a model home if a fire protection plan is approved by the City of Yelm
Fire Marshal and SE Thurston Fire/EMS.
2. No certificate of occupancy for any habitable structure shall be issued, except for Lot 15, until a sewer roll seal is installed by the developer and approved by the City of Yelm.
6. Waiver and Release. The Smith’s, for themselves, their heirs, successors, assigns, agents and representatives (both individually and in their representative capacities) hereby release
and discharge the City of Yelm (the “City”) its officials, directors, attorneys, employees, staff, insurers, heirs, successors, assigns, agents, and representatives (both individually
and in their representative capacities), of all past, present or future claims, penalties, damages, obligations, demands, costs and causes of action of every kind or nature whatsoever,
known or unknown, liquidated or unliquidated, matured or contingent, choate or inchoate, whether based in statute, tort,
contract or other theory of recovery, which may now exist or hereafter accrue by reason of any acts, omissions or transactions, occurring to the date of this Agreement or occurring hereafter
and arising out of or relating to the approval of a subdivision amendment to Palisades West and the permitting of the Smith’s residence located on Lot 15, therein.
The Smith’s, for themselves, their heirs, successors, assigns, agents and representatives (both individually and in their representative capacities) do hereby agree to indemnify and
hold the City harmless from and against and agrees to defend the City against any and all losses, claims, damages, liabilities and obligations of any kind and description, including
any attorney fees incurred by the City in investing, defending or settling such losses, damages, liabilities and obligations, arising out of the Palisades West Subdivision Amendment
dated ______ and matters directly related thereto including any future Department of Health requirements should additional water system improvements be required to provide adequate water
pressure at the meter of Lot 15, approval of occupancy of the home without providing required fire flows, and any and all liability associated with sewer system improvements required
due to damage to the sewer system from operation of a STEP tank on lot 15 without the required pressure sustaining valve, including claims against the City by the homeowners for odors
or damage to the internal home plumbing
The City agrees to give prompt notice to Smith once the City has actual knowledge of any claims as to which indemnity shall be sought, and shall permit Smiths (at their expense) to assume
the defense of any such claim or any litigation resulting there from;
provided that counsel for the Smiths, who shall conduct the defense of said claim or litigation (including appeals), shall be reasonably satisfactory to the City, and the City may participate
in such defense at its own expense; provided, further, that the failure by the City to give notice as provided herein shall not relieve Smith of their obligations hereunder. The City,
in the defense of any such claim or litigation, shall, except with the consent of Smith, consent to the entry of any judgment or enter into any settlement that does not include as an
unconditional term, the giving by the claimant or plaintiff to Smith of a release from all liability in respect to such claim or litigation.
7. Insurance. The Smith’s, for themselves, their heirs, successors, assigns, agents and representatives (both individually and in their representative capacities) shall maintain
the following coverage in the following amounts:
a. Commercial General Liability Insurance covering the insured against claims of Bodily Injury, Personal Injury and Property Damage, arising out of Smith’s assumed liabilities or
use of the their property, including the performance by Smith of the indemnity agreements (including liability for complying with any Department of Health requirements) as set forth
in this Agreement, for limits of liability not less than: (i) Bodily Injury and Property Damage Liability $1,000,000.00 Each
Occurrence and $2,000,000.00 Annual Aggregate; and (ii) Personal Injury Liability $1,000,000.00 Each Occurrence and $2,000,000.00 Annual Aggregate. Liability policies obtained should
be extended to include Contractual Liability, Fire Legal Liability and Premises Medical Expenses.
b. Property Damage Insurance covering any damage to the City’s sewer system due to lack of a sewer pressure sustaining valve or claims by others for claims against the City by the
homeowners, including but not limited to, for odors or the cost of installing the booster pump station previously approved for the Palisades West subdivision in the event the station
is required to be installed by the Department of Health or damage to the internal home plumbing or due to insufficient fire flow to the Palisades West plat, loss caused by fire. Such
insurance shall be written on an all risks of physical loss or damage basis, for the full replacement cost value new without deduction for depreciation of the covered items.
Form of Policies. The minimum limits of policies of insurance required of Smith under this Agreement shall in no event limit the liability of Smith under this Agreement. Such insurance
shall (i) name the City of Yelm, and any other party so specified, as an
additional insured; (ii) specifically covering the liability assumed by Smith under this Agreement; (iii) be issued by an insurance company licensed in Washington State and rated A +
XII or better in “Bests” Insurance Guide, or such other companies as approved by the City in its sole discretion; (iv) be primary insurance as to all claims thereunder and provide that
any insurance carried by the City is not excess and noncontributing with any insurance requirement of Smith; (v) provide that said insurance shall not be canceled or coverage changed
unless thirty (30) days prior written notice shall have been given to the City; and (vi) contain a cross liability endorsement or severability of interest clause acceptable to the City.
Certificate of Insurance. A certificate of insurance coverage issued by the insurance carrier for each policy of insurance required to be maintained by the Smiths under this Agreement
shall be delivered to the City upon or before the approval of the plat amendment and thereafter, with respect to policy renewals, within thirty (30) days prior to the expiration of the
term of each such policy. Each of said certificates of insurance and each such policy of insurance required to be maintained by the Smith’s hereunder shall expressly evidence insurance
coverage as required by this Agreement. All such policies shall be written as primary policies not contributing with and not in excess of coverage which the City may carry.
In the event any insurance premium remains delinquent for more than seven (7) days, the City may, upon ten (10) days written notice to the Smiths of such delinquency, elect to
pay the insurance premium and the amount of any premium, plus interest at the rate of twelve percent (12%) per annum, and costs, including reasonable attorney’s fees, shall, in accordance
with RCW _____________, shall be a lien upon the Smith property. The said lien for payment of such insurance premiums and charges shall have priority over all other liens and encumbrances
recorded or unrecorded. Suit to recover a money judgment for unpaid insurance premiums shall be maintainable without foreclosure or waiving the lien securing the same.
DATED this ____ day of September, 2009.
_________________________________ ______________________________
Andrew Smith Cynthia Smith
DATED this _____ day of ____________________, 2009.
CITY OF YELM
_____________________________________
Ron Harding, Mayor