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HomeMy WebLinkAboutR-1994-077 Outside Utility Agreement77 RESOLUTION NO. R 94 A RESOLUTION approving amended Outside Utility Agreement. WHEREAS, the City of Yakima's existing Outside Utility Agreement was challenged in the courts, and WHEREAS, in 1993, the Washington State Supreme Court unanimously upheld the validity of the City's Outside Utility Agreement except for a clause requiring the landowner to "actively promote" annexation, and WHEREAS, in light of the Outside Utility Agreement litigation, the City needs to revise and update the Outside Utility Agreement, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The attached and incorporated "Outside Utility Agreement, Annexation Covenant, and Special Power of Attorney" is herebyApproved for use by thg City ADOPTED BY THE CITY COUNCIL this _ day of JUN .� , 1994 ATTEST Mayor . echo,„, ,� ) • City Clerk (1s)res/OVA rp Filed For Record at the Request of and Return to: (position titlel City of Yakima Yakima. Washington OUTSIDE UTILITY AGREEMENT, ANNEXATION COVENANT, AND SPECIAL POWER OF ATTORNEY THIS AGREEMENT is made between the City of Yakima (hereinafter "City") and the undersigned Owner(s) and/or Occupant(s) (hereinafter collectively "Owner"). WHEREAS, Owner owns and/or occupies the following -described real property located within Yakima County, Washington, to wit: [insert legal description] and, WHEREAS, Owner has applied to the City for City domestic water and/or sewer service for the above-described real property: NOW, THEREFORE, in consideration of the furnishing of such water and/or sewer service, Owner for himself and on behalf of his heirs, successors and assigns, does hereby promise and agree as follows: 1. Incorporation of Recitals. The foregoing recitals are incorporated herein by reference. 2. Charges and Fees. Owner shall pay to the City of Yakima, when due, all connection charges, service fees, future local improvement district assessments, Page 1 of 8 Outside Utility Agreement capital cost recovery charges, if any, and any and all other charges and fees required by law to be paid for the service hereby applied for. Connection to or extension of a public utility system will be at Owner's expense and liability. Owner is responsible to obtain and record any necessary easements. 3. Property Alterations and Improvements. Owner promises and agrees to make all alterations, improvements, and repairs on and to such property and the buildings, structures, and other improvements thereon as specified on the attachment hereto marked "EXHIBIT AN and by reference made a part hereof (including, but not limited to, the service connection from the City's Main to the property), which alterations, improvements, and repairs shall be completed within the time specified on EXHIBIT A and shall be the property of Owner. Any future new construction or future alterations, additions or repairs shall conform to any and all then applicable construction and zoning codes as if the property affected by this Agreement were situated within the boundaries of the City of Yakima. The City shall have the right at any and all reasonable times to inspect the property described above, and any existing buildings, structures, and other improvements thereon. 4. Annexation Covenant. For purposes of this paragraph only, the term "Owner" shall exclude an occupant who does not own the real property legally described above. Owner has been informed of and understands that the City intends to commence annexation proceedings to annex certain property to the City of Yakima, including, but not limited to, the property legally described above. Information about the proposed annexation is available for public review at the City of Yakima Department of Community and Economic Development at 129 North 2nd Street, Yakima, Washington. Owner may review this information upon reasonable notice. Owner has a presently existing legal right not to sign a petition for annexation of the property legally described above. The purposes of this Agreement include but are not limited to Owner waiving such right and creation of such waiver as a covenant Page 2 of 8 Outside Utility Agreement running with the land in the event that the City, in its discretion, furnishes water and/or sewer service to the above-described land. In consideration and as a condition of such furnishing of water and/or sewer service, Owner, for himself and for his heirs, successors and assigns, agrees and covenants with the City of Yakima, and to the present and future owners of any property affected by the furnishing of City water and/or sewer service to which this covenant relates, such agreement to constitute a covenant running with the land, that they shall, whenever so requested, sign any letter, notice, petition, documents, or other instruments initiating, furthering or accomplishing the annexation of the above-described property to the City of Yakima, whether or not the annexation involves the assumption by the area to be annexed of existing City indebtedness, the application to the area to be annexed of the comprehensive plan and land use controls of the City, and such other conditions as the City may lawfully impose, and the Owner will not protest the future formation of any local improvement district for domestic water and/or sewer service for any district which includes the property affected by this Agreement. Furthermore, this instrument shall be considered both a valid Notice of Intent to Commence Annexation and a valid Petition for Annexation, signed by the Owner, and by Owner's heirs, successors and assigns, for the above-described real property. 5. Special Power of Attorney. The undersigned Owner of the above-described real property, on behalf of himself, his heirs successors and assigns, hereby designates the City of Yakima as Owner's true and lawful attorney-in-fact for the purpose of signing any petition leading to the annexation of said real property to the City of Yakima, with full power to do and perform any proper act which Owner may do with respect to the annexation of said real property. The City of Yakima may exercise this power through its City Clerk or otherwise as the city Council may direct. This Special Power of Attorney is given for the valuable consideration of the furnishing of water and/or sewer service by the City of Yakima, and this Special Power of Attorney is Page 3 of 8 Outside Utility Agreement further given as security for performance of the annexation covenant obligation set forth above. This Special Power of Attorney is not revocable and shall not be affected by the disability of the principal. 6. Additional Conditions. Owner further agrees to perform and otherwise comply with the conditions, requirements, restrictions, and other provisions contained on the attachment hereto marked "EXHII3IT B" and by reference made a part hereof in order that this property be used and/or developed in accordance with the Comprehensive Plan of the City, as the Plan now exists or may be amended from time to time, and as if the property were situated within the boundaries of the City of Yakima, all of which are conditions of the granting by the City of the service(s) applied for by Owner. Utility services are being requested for the following described future or existing land use (check the appropriate box) as defined in the Yakima Urban Area Zoning Ordinance: R-1 Single -Family Residential R-2 Two -Family Residential R-3 Multi -Family Residential Other Describe: Any change in current land use will require the execution of a new Outside Utility Agreement. 7. Bond. Owner further agrees that the City may require the Owner to file with the City a bond conditioned so as to insure the performance by Owner of Owner's obligations under this Agreement; and in the event the City so requires, the undersigned will file such a bond in the amount specified on EXHIBIT B, which bond Page 4 of 8 Outside Utility Agreement shall be issued by a corporate surety company authorized to do business in the State of Washington, and which bond shall be subject to the approval of the Yakima City Attorney. 8. Property Sale or Transfer. Owner agrees that in the event of a sale or transfer of the property affected by this Agreement, Owner shall, as a condition of such sale or transfer, require the purchaser, or other new Owner, to sign a duplicate of this Outside Utility Agreement; and that this Agreement and the promises made herein, do constitute a covenant running with the land described above and shall be binding on Owner and Owner's successors in interests to such property, and that this Agreement shall be filed for record in the office of the Yakima County Auditor. 9. Fire Protection Flow Requirements. The City's approval of water service does not guarantee fire protection flow requirements. 10. Litigation; Governing Law. In the event of any suit or action is instituted by either party to enforce compliance with or interpret any of the terms, covenants, or conditions of this Agreement, the prevailing party shall be entitled to collect, in addition to necessary court costs, such sums as the court may adjudge as reasonable attorney's fees. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. This Agreement shall be governed by the laws of the State of Washington. 11. Non -Severability. In the event that any material provision is found unenforceable by a court of competent jurisdiction, this Agreement shall be null and void and the City shall have no further obligation to provide water or sewer service to the property that is legally described above; provided, however, Owner shall make all payments as provided under this Agreement for services rendered prior to termination of service pursuant to this provision. 12. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. Page 5 of 8 Outside Utility Agreement DATED this day of , 19 OWNER CITY OF YAKIMA By: By: By: Authorization No.: STATE OF WASHINGTON COUNTY OF YAKIMA ) ) ss. certify that I know or have satisfactory evidence that signed this instrument and acknowledged it to be his/her free and voluntary act for the use and purposes mentioned in the instrument. DATED this day of _ , 19_ . Printed Name: NOTARY PUBLIC in and for the State of Washington, residing at My commission expires: Page 6 of 8 Outside Utility Agreement IMPROVEMENTS, ALTERATIONS AND REPAIRS TO BE MADE BY OWNER EXHIBIT "A" Page 7 of 8 Outside Utility Agreement OWNER OWNER CONDITIONS OF UTILITY SERVICE APPROVAL EXHIBIT "B" Page 8 of 8 Outside Utility Agreement OWNER OWNER