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 11th. The
conceptual plan for the water system was 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. The conceptual plan for the sewer system was resubmitted after the City’s review on December 7th 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 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 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 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 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.
(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:
Tim Petersen, Public Works Director
105 Yelm Avenue West
Yelm, WA 98597
And to
Brent Dille, City Attorney
P.O. Box 187
Olympia, WA 98507
If to Smith:
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