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HomeMy WebLinkAboutITEM VIII-B-4RESOLUTION NO. 4 4 0 0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF AUBURN AND W. H. HUGHES HOMES, INC. FOR A PAYBACK AGREEMENT FOR UTILITY EXTENSIONS WHEREAS, W. H. Hughes Homes, Inc. is the owner of property in the City of Auburn which W. H. Hughes Homes, Inc. is developing; and WHEREAS, in connection with the development of property by W. H. Hughes Homes, Inc., it is necessary that utilities be provided to the property, which the developer is willing to do in exchange for a payback agreement whereby the developer may be able to recoup a portion of the costs of brining the utilities to the property when other properties take advantage of and connect to those utilities; and WHEREAS, this matter was initially considered by the City Council in connection with its proposed Resolution No. 4119, in September of 2007; and WHEREAS, W. H. HUGHES HOMES, INC. has recalculated its repayment amounts to more favorably reflect the costs to and benefits for other properties in the vicinity in connection with the Payback agreement; and WHEREAS, it is in the public interest for the parties to enter into an agreement for a payback agreement as described above and as set forth more particularly in the attachment hereto. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows: Resolution No. 4400 September 15, 2008 Page 1 of 2 Section 1. The Mayor of the City of Auburn and the Auburn City Clerk are hereby authorized to execute an Agreement between the City of Auburn and W. H. Hughes Homes, Inc. for a payback agreement, which agreement shall be in substantial conformity with the Agreement a copy of which is attached hereto, marked as Exhibit "A" and incorporated herein by this reference. Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. This resolution shall be in full force and effect upon passage and signatures hereon. Dated and Signed this day of , 2008. CITY OF AUBURN PETER B. LEWIS MAYOR ATTEST: Danielle E. Daskam, City Clerk APP/ROVEDASS TO FORM: iel Resolution No. 4400 September 15, 2008 Page 2 of 2 Return Address: City of Auburn City Clerk 25 West Main Auburn, WA 98001 Above this line reserved for recording information. PAYBACK AGREEMENT #102 DEVELOPER'S EXTENSION Reference # (if applicable): Grantor : City of Auburn Grantee WH Hughes Homes Inc. Legal Description / STR: SE 05-21-05 Assessor's Tax Parcel ID#: See Exhibit B This Agreement made and entered into this day of , 2008, by and between the City of Auburn, a municipal corporation of King County, Washington, hereinafter called the CITY and WH Hughes Homes, whose address is 15220 Cedar Grove Rd, Issaquah, WA 98027, hereinafter referred to as DEVELOPER. WHEREAS, pursuant to Chapter 35.91 RCW et seq., the CITY has by Resolution No.?GI C adopted by the City Council of the CITY on the 15 day of 2008, approved the execution of this Payback Agreement with the DEVELOPER above and referring to facilities described herein; and WHEREAS, the above-described DEVELOPER has offered and the CITY has agreed to accept a bill of sale for sanitary sewer facilities as part of the utility systems of the CITY; PAYBACK AGREEMENT # 102 DEVELOPER'S EXTENSION FAC04-0013 PAGE 1 OF 8 NOW THEREFORE, IN CONSIDERATION OF THE CONDITIONS AND COVENANTS HEREIN, THE PARTIES AGREE AS FOLLOWS: I. DEVELOPER The above-described DEVELOPER is the record OWNER of real property legally described as shown on Exhibit A. The real property described is also known as the Plat of Auburn Place, King County, Washington. Map showing said property is attached hereto as Exhibit A. II. FACILITIES The facilities which have been constructed by the DEVELOPER herein are as shown in the attached Exhibit A, incorporated herein by this references, and processed as Developer Public Facility Extension, Extension herein referenced as FAC04-0013, originals on file at the office of the City Engineer. The facilities have been constructed in accordance with the ordinances and requirements of the CITY governing the construction specifications for facilities of such type, and have been approved by the City Engineer. III. AREA OF FACILITY SERVICE BENEFIT The properties benefited by the facilities constructed by the DEVELOPER are shown on Exhibits A and B, which are by this reference incorporated herein as if fully set forth herein. Any owner of real estate legally described within the benefit boundary as shown on the attached Exhibits A and B, shall pay as a condition for connecting to the facilities, an amount as identified in Section V. All property within the benefit boundary shall be subject to the connection fee as provided in this agreement as a condition of issuance of the connection permit by the CITY. IV. TERMS For a period of 15 years from the date that the City formally accepts the developer's utility extension, any owner (latecomer) of real estate legally described in Section III, and which owner has not fully contributed their pro rata share to the original cost of the above-described facility, shall pay to the CITY the amounts shown in Exhibit B attached hereto. The charge herein represents the fair pro rata share of the cost of construction of said facilities payable by properties benefited. Such properties are shown in Exhibits A and B. Payment of the latecomers pro rata share is a condition of issuance of the connection permit by the CITY. The CITY shall reimburse the DEVELOPER at six (6) month intervals any such amounts collected. PAYBACK AGREEMENT # 102 DEVELOPER'S EXTENSION FAC04-0013 PAGE 2 OF 8 Upon the expiration of the 15-year term, any moneys collected by the CITY will not be reimbursed to the DEVELOPER. V. AMOUNT OF REIMBURSEMENT Sanitary sewer collection facilities: The DEVELOPER, his successors, heirs and assigns, agrees that the amounts which the DEVELOPER is reimbursed from the property owners as specified in Section III of this Agreement, represents a fair pro rata share reimbursement for the DEVELOPER'S construction of the facilities described in Section II of this Agreement. The amounts per parcel are separately itemized as shown in Exhibit B attached hereto, and totaling to not more than $203,124.00 in full amount. In addition to sum set forth above, the City collected fees in lieu of assessment for four properties (tax parcel nos. 221240-0010, 221240-0140, 221240-0200, and 052105-9062) within the benefited area prior to execution of this Agreement, totaling $8,240.29, which the CITY shall pay to the DEVELOPER. Prior to recordation by the DEVELOPER as described in Section X, the CITY, shall mail to the property owners, as reflected in the records of the King County Assessors Office, as specified in Section III, notification of the allocation of costs to be levied against the properties which are payable prior to connection to the systems. The property owner shall have the right to a review of the costs with the City Engineer within 21 days from the date of said notice for the purpose of requesting an adjustment in the allocation of the charge to the property. If the City Engineer, upon requested review by a notified property owner(s), does find cause for adjustment in the allocation of the charge to the benefited property(s), such adjustment will be made and the DEVELOPER will be notified of the adjusted amount(s) prior to recordation. The resulting adjusted Exhibits A and B shall govern reimbursement amounts to be received by the DEVELOPER. VI. EFFECT OF AGREEMENT The provisions of this Agreement shall not be effective as to any owner of real estate not a parry hereto unless this Agreement has been recorded in the office of the County Auditor of the County in which the real estate is located prior to the time such owner receives a permit to tap into or connect to said facilities. If for any reason, the CITY fails to secure a latecomer payment for Owner's fair pro rata share of the cost of the facilities, before connection to the extension, the CITY is not liable for payment to the DEVELOPER. The entire responsibility for notices, recordation and completion of this Agreement is upon the DEVELOPER, who agrees to do all and to hold the CITY harmless. VII. OWNERSHIP OF FACILITY PAYBACK AGREEMENT # 102 DEVELOPER'S EXTENSION FAC04-0013 PAGE 3 OF 8 The DEVELOPER has constructed the facilities described in Section II of this Agreement, which facilities have been accepted by the CITY as satisfactory. The facilities have become a part of the municipal system of the CITY. All maintenance and operation costs of said facility shall be borne by the CITY, except as noted otherwise in FAC04-0013. VIII. UNAUTHORIZED CONNECTION Whenever any connection is made into the facilities described in Exhibit A under this Agreement which is not authorized by the CITY, the CITY shall have the absolute authority to remove or cause to be removed such unauthorized connections and all connecting lines or pipes located in the facility's right-of-way. The CITY shall incur no liability for any damage to any person or property resulting from removal of the unauthorized connection. IX. CURRENT ADDRESS & TELEPHONE NUMBER The DEVELOPER shall keep a current record of his/her address and telephone number on file with the Director of Public Works of the CITY, and shall within 30 days of any change of said address and/or telephone number, notify the Director of Public Works of the CITY in writing. If the DEVELOPER fails to do so, the parties agree that the CITY may authorize connections resulting therefrom and not incur any liability for the non-collection and/or non-reimbursement of charges to the DEVELOPER under this Agreement. X. COVENANT RUNNING WITH THE LAND This Agreement shall be binding on the DEVELOPER, its successors, heirs and assigns and shall so be binding on the legal owners of all properties described within the benefit boundary of the area as shown in the attached Exhibits A and B, their successors, heirs and assigns. The DEVELOPER agrees to pay all fees for recording this Agreement with the County Auditor. The DEVELOPER shall make the actual recording and provide the CITY with confirmation thereof, but such recordation shall only be made after expiration of review period specified in Section V. XI. HOLD HARMLESS The DEVELOPER will indemnify and save the CITY and the CITY'S officials and agents harmless from all claims and costs of defense, arising out of this agreement, as a result of DEVELOPER actions, misconduct or breach of contract, including but not limited to attorney's fees, expert witness fees, and the cost of the services of engineering and other personnel who's time is reasonably devoted to the preparation and attendance of depositions, hearings, arbitration proceedings, PAYBACK AGREEMENT 4102 DEVELOPER'S EXTENSION FAC04-0013 PAGE 4 OF 8 settlement conferences and trials growing out of the demands and/or actions of property owners incurred in the performance or completion of this Agreement. XI. CONSTITUTIONALITY OR INVALIDITY If any section, subsection, clause or phrase of this Agreement is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Agreement, as it being hereby expressly declared that this Agreement and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, adopted and approved and ratified irrespective of the fact that any one or more section, subsection, sentence, clause or phrase be declared invalid or unconstitutional. CITY OF AUBURN Tom. Pet r B. Lewis, Mayor ATTEST: APP ED A FORM: el 1B. i C' y ey Danielle Daskam, City Clerk STATE OF WASHINGTON) )SS. County of King ) I certify that I know or have satisfactory evidence that Peter B. Lewis and Danielle E. Daskam were the persons who appeared before me, and said persons acknowledged that they signed this instrument, on oath stated that they were authorized to execute the instrument and acknowledged it as the MAYOR and CITY CLERK of the CITY OF AUBURN to be the free and voluntary act of such parties for the uses and purposes mentioned in this instrument. Dated Notary Public in and for the State of Washington My appointment expires PAYBACK AGREEMENT # 102 DEVELOPER'S EXTENSION FAC04-0013 PAGE 5 OF 8 DEVELOPER: Signature Signature TITLE: TITLE: STATE OF WASHINGTON) ) ss COUNTY OF KING ) I certify that I know or have satisfactory evidence that and are the persons who appeared before me, and said persons acknowledged that they signed this instrument, on oath stated that they were authorized to execute the instrument and acknowledged it as the and of a corporation, to be the free and voluntary act of such parties for the uses and purposes mentioned in this instrument. Dated Notary Public in and for the State of Washington Residing at My appointment expires PAYBACK AGREEMENT # 102 DEVELOPER'S EXTENSION FAC04-0013 PAGE 6 OF 8 EXHIBIT "A ,, ear t e172frtiJpGG .., r i a52gJag?fa3 ? Hughes - fotiviedy saa?aT sT 0521059019 :? _, ,ro ms's^'13;1 AEI m1sPa ? , 1 ? me '?? F YJ ? t » 7 1 f i tl ? Sr 227T f 37 J _ 17; : 4 ,;iR7 ? Larson,. ,<u?.fe ? r??a? A b -- 4 L.lOCT01 cossio ._,_ ,?, uJ ?_? r'ai0 ,r?•u 700171 r'. Herren G'v2!059."lti Norh k17:+5T B1 al limp (,I 1Ja9 h `? jC1N9 'Fi9 ^? ?_ f ,lill ?_ =d^'4i l?l tJ.' Y? WJ 3'J ftJ aZ 2:1 1 u.?.':'124i3!]f340 J 0 1 4..L. dJ PAYBACK AGREEMENT # 102 DEVELOPER'S EXTENSION FAC04-0013 PAGE 7 OF 8 Exhibit B PAYBACK AGREEMENT #102 DEVELOPERS FACILITY EXTENSION FAC #040013 Auburn Place Off-Site Sewer Extension Sanitary Sewer Assessment Distribution Tax Lot Assessed Front Fair /Pro-Rata Share ($) Footage (LF) 052105-9066 30 Toomb $4,791.00 221240-0130 Brammeier 100 $15,969.00 221240-0150 Cossio 100 $15,969.00 221240-0160 Larson 100 $15,969.00 052105-9019 Hughes 269 $42,956.00 221240-0170 Adamski 229 $36,569.00 052105-9015 Potter 145 $23,155.00 052105-9057 Herren 199 $31,788.00 221240-0210 - Lanctot 100 $15,969 TOTALS 1272 $203,124.00 PAYBACK AGREEMENT # 102 DEVELOPER'S EXTENSION FAC04-0013 PAGE 8 OF 8