Agreement to Modify PlatAGREEMENT TO AMEND SUBDIVISION AND WAIVER AND RELEASE
This Agreement is made and entered into this day of December,
2009, by and between Andrew and Cynthia Smith (the "Smiths"), the owners of
Lot 15 of Palisades West, and the City of Yelm ("City").
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 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, 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 11 t". The conceptual plan for the water system was
resubmitted after the City's review on November 17t" and approved by the City
on November 24t". The individual booster pump was approved by the
Washington Department of Health on December 3rd. The conceptual plan for the
sewer system was resubmitted after the City's review on December 7t" and
approved by the City the same day.
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.
Now, therefore, for good and valuable consideration, the sufficiency is here by
acknowledged, the parties agree as follows:
1. Amendment to Final Subdivision. Notes #1 and #2 to the final
subdivision of Palisades West, shall be amended 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.
Prior to occupancy of any building on Lot 15, the interim individual
booster pump as shown on the civil engineering plans approved by the
Washington Department of Health on December 3, 2009, shall be installed
by property owner and approved by the City of Yelm. Pursuant to the
approved engineering plans, the interim booster pump shall be removed
by the property owner within 30 calendar days of the City approval of the
required booster pump serving the entire subdivision.
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.
Prior to occupancy of any building on Lot 15, the sewer odor control
modifications as shown on the civil engineeering plans approved by the
City on November 17, 2009, shall be installed by the property owner and
approved by the City of Yelm.
3. Occupancy of any building on Lot 15 is subject to the terms
of the Agreement to Amend Subdivision and Waiver and Release as
recorded under Thurston County Auditor's File No.
2. Release by Smith's. The Smith's, for themselves, their heirs,
successors, assigns, agents and representatives (both individually and in their
representative capac ities) hereby release and discharge the City of Ye lm (the
"City") its officials, directors, a ttorneys, 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 plat
amendment to Palisades West and the permitting of the Smith's residence
located on Lot 15, therein.
Indemnification. Smith's, their heirs, successors and assigns, do hereby
agree to indemnify and hold the City harmless from and against, and agree 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 investigating, defending or settling such losses, damages, liabilities
and obligations, arising out of the agreed Palisades West Plat Amendment and
matters directly related thereto including any future Department of Health
requirements related to providing 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 due to damage
to the sewer system caused by operation of a STEP tank on lot 15 without the
required pressure sustaining valve.
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.
Insurance.
Smith's Insurance Requirements. Smith shall maintain the following
coverage in the following amounts:
(1) Commercial General Liability Insurance covering the
insured against claims of Bodily Injury', Personal Injury2 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
Aggregate3; 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 Liability4, Fire Legal Liability5 and Premises Medical
Expenses6.
(2) 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 bit 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.
'Injury to the body of a person. The term is usually specifically defined in
liability and health insurance policies and there are variations in individual
definitions.
Injury to a person other than bodily injury. Liability for personal injury
from such wrongs as defamation, false arrest, invasion of privacy and other
intentional torts usually can be insured through an endorsement to a standard
general liability policy.
~'I'he maximum amount of coverage that an insurer will pay for all losses
during a specific period of time, usually the contract period, no matter how many
separate accidents may occur.
°Liability assumed by contract or agreement, and which would not otherwise
exist.
5 Coverage for bodily injury and property damage as a result of fire to
premises to you.
6 Coverage which responds regardless of fault and will pay reasonable
expenses for the following: first aid; medical; surgical and dental services;
ambulance, hospital, nursing and funeral services.
(3) 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.
3. Termination. This Agreement shall terminate at the time the water
booster pump and pressure sustaining valve have been installed for the entire
subdivision of Palisades West.
4. Notices. Notice under this Agreement shall be in writing and shall be
effective when actually delivered. If mailed, notice shall be deemed effective 48
hours after mailing as registered or certified mail, postage prepaid, directed to the
other party at the address set forth below or such other address as the party may
indicate by written notice to the other:
If to City of Yelm:
And to
If to Smith:
Tim Petersen, Public Works Director
105 Yelm Avenue West
Yelm, WA 98597
Brent Dille, City Attorney
P.O. Box 187
Olympia, WA 98507
5. Time. Time is of the essence of this Agreement.
6. No Release. Both parties agree that the termination of this Agreement or
the expiration of the term of this Agreement shall not release either party from
any obligations under Section 3 herein.
7. Waiver. Failure of either party at any time to require performance of any
provision of this Agreement shall not limit the party's right to enforce the
provision, nor shall any waiver of any breach of any provision be a waiver of any
succeeding breach of any provision or a waiver of the provision itself for any
other provision.
8. Law Governing and Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington. Any action to
enforce, arising out of, or relating in any way to, any of the provisions of this
Agreement and documents delivered in connection herewith, shall be brought
and prosecuted in Thurston County Superior Court and the parties hereby
consent to the jurisdiction of and venue in said court.
9. Attorney Fees. In the event an arbitration, suit or action is brought by any
party under this Agreement to enforce any of its terms, or in any appeal
therefrom, it is agreed that the prevailing party shall be entitled to reasonable
attorneys fees to be fixed by the arbitrator, trial court, and/or appellate court.
10. Presumption. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
11. Titles and Captions. All article, section and paragraph titles or captions
contained in this Agreement are for convenience only and shall not be deemed
part of the context nor affect the interpretation of this Agreement.
12. Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
13. Agreement Binding. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
14. Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of this Agreement.
15. Counterparts. This Agreement may be executed in several counterparts
and all so executed shall constitute one Agreement, binding on all the parties
hereto even though all the parties are not signatories to the original or the same
counterpart.
16. Savings Clause. If any provision of this Agreement, or the application of
such provision to any person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to persons or
circumstances other than those as to which it is held invalid, shall not be affected
thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
City of Yelm
Mayor Ron Harding
Andrew Smith
Approved as to Form Cynthia Smith
Brent Dille, City Attorney