Mofified Agreement as to Waiver 12 04 2009AGREEMENT AS TO WAIVER AND RELEASE
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.
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.
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.
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 3ra
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
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installing the required potable water system improvements should the Washington
Department of Health no longer allow for the interim solution.
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
or Lot 1 S 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 1 S, 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;
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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 Injuryi, 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
' 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.
z 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.
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 Liabilitys and
Premises Medical Expenses6.
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
s The 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.
a Liability assumed by contract or agreement, and which would not otherwise exist.
s 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.
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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
'Liability between two different insurers of a single liability insurance policy. A cross liability clause says
that each insured will be treated as though the policy applied separately to each.
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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
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