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07/16/2019 06G Sewer and Infrastructure Development Agreement with Catalyss, LLC ti i..asxntntj kd d 141 .. x°'naa.x,,4n BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 6.G. For Meeting of: July 16, 2019 ITEM TITLE: Resolution authorizing an Agreement for Sewer and Infrastructure Development and Easement with Catalyss, LLC SUBMITTED BY: Scott Schafer, Director of Public Works Mike Price, Wastewater/Stormwater Division Manager, 249-6815 SUMMARY EXPLANATION: The City of Yakima (City) currently has a lift station for wastewater West of Catalyss property that it would like to decommission. To replace the decommissioned lift station with gravity sewer, it is most efficient to run a gravity sewer line downslope through the Catalyss property. There also is currently a City stormwater facility that needs to be updated on the property. Catalyss would like the easement for the stormwater facility to be moved and the City would like to use that newly- located easement for the new wastewater gravity line and stormwater facilities. Catalyss has agreed to do the engineering and specification work and the City Public Works Department will construct the wastewater and stormwater facilities in the agreed-upon new easement location. This project has been contemplated since at least 2012 and is budgeted in the Public Works budget. ITEM BUDGETED: Yes STRATEGIC PRIORITY: Public Safety APPROVED FOR SUBMITTAL: frff City Manager STAFF RECOMMENDATION: Adopt resolution BOARD/COMMITTEE RECOMMENDATION: ATTACHMENTS: 2 Description Upload Date Type D Resolution Cataly55 Sower Slormwa(or 71a2019 Resolution D Agrccmcd Colalyss Sower Slorrrivaler 7/2/2019 CcdrAct 3 RESOLUTION NO. R-2019- A RESOLUTION authorizing an Agreement for Sewer and Infrastructure Development and Easement with Catalyss, LLC. WHEREAS, Catalyss owns and is developing property in the general vicinity of North 40'h Avenue and Castlevale Road in Yakima; and WHEREAS, the City operates a wastewater lift station west of the property that is aging, and the City wishes to remove the lift station and instead install gravity flow wastewater facilities through the Catalyss property; and WHEREAS, the City currently operates stormwater facilities that have an easement through the Catalyss property in a location that Catalyss would like to develop; and WHEREAS, the City is willing to move the easement location and install new stormwater and wastewater facilities within the new easement location if Catalyss releases its interest in a 1975 wastewater agreement and provides the engineering and specifications required to construct the new facilities; and WHEREAS, the Agreement outlines the terms and conditions for each party in this transaction and has a rough timeline and cost for completion; and WHEREAS, the new facilities will benefit the City because lift stations can be expensive to maintain as they age, the stormwater facilities will be updated, and Catalyss will no longer have the right to directly discharge stormwater into the system (which violates the updated code); and WHEREAS, the City Council of the City of Yakima finds that it is in the best interest of the City and its residents to enter into an Agreement with Catalyss, LLC to develop new wastewater and stormwater infrastructure under the terms and conditions therein; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized to execute the Agreement for Sewer and Infrastructure Development and Easement between the City of Yakima and Catalyss, LLC outlining the terms and conditions associated with moving the current wastewater easement, terminating the developer's rights to a 1975 stormwater agreement, and constructing new wastewater and stormwater facilities. A copy of the Agreement is attached hereto and fully incorporated herein. ADOPTED BY THE CITY COUNCIL this 16'h day of July, 2019. Kathy Coffey, Mayor ATTEST: Sonya Claar-Tee, City Clerk 4 AGREEMENT FOR SEWER AND INFRASTRUCTURE DEVELOPMENT AND EASEMENT By and Between CITY OF YAKIMA And CATALYSS, LLC THIS AGREEMENT is entered into by and between the CITY OF YAKIMA and CATALYSS, LLC, for the uses and purposes set forth below. I. Recitals A. CITY OF YAKIMA, hereafter called "City," is a municipal corporation duly formed under the laws of the State of Washington with City Hall located at 129 North Second Street, Yakima, Washington 98901 . B. CATALYSS, LLC, hereafter called "Catalyss," is a limited liability company duly formed and existing under the laws of the State of Washington, with contact offices located at 200 Galloway, Yakima, Washington 98908. C. Catalyss is the owner of Yakima County Assessor's Parcel No. 1 81 31 5-31 41 7 located within the corporate limits of the City, legally described and shown as set forth in Exhibit "A" attached hereto and incorporated herein by this reference (hereafter called the "Property"). D. City owns, operates and maintains a sewer pump lift station on a parcel situated westerly of the Property, separated from the Property by right of way for the Yakima Valley Canal. City also owns and maintains a 15" stormwater drain line that is currently located on the Property. E. In order to improve the existing sewer system, City desires to construct a twelve- inch gravity-flow sanitary sewer trunk line and attendant infrastructure extending from the existing lift station through the Property. Upon construction and final acceptance of such gravity sewer line and infrastructure by the City, such system will be incorporated within the wastewater system of the City and the lift station will be abandoned. 1 5 F. The City and Catalyss desire to relocate the existing 15" stormwater drain line in the same utility easement as the sewer line. The parties understand that this Agreement will supersede and terminate the Storm Sewer Easement and Agreement of December 1 , 1975. G. The parties desire to accomplish the construction of the gravity sewer system improvement and relocation of existing stormwater drain line, and enter into this Agreement for such purpose. II. Agreement NOW, THEREFORE, in consideration of the mutual covenants, conditions and promises herein, and fully incorporating the above recitals into this Agreement, the parties agree as follows: 1 . Purpose and Scope of Agreement. As further specified herein, the City will construct a twelve-inch gravity-flow sewer line with attendant infrastructure, including but not limited to, manholes and stub-outs to each platted lot developed by Catalyss as shown on the approved engineering plans submitted for the purposes of this Agreement. No other stub-outs will be required to be installed by the City for future sewer lateral lines, within and upon the Property. The City will also abandon and relocate the existing 15" stormwater drain line with attendant manholes, within and upon the Property. The City will have sole determination of the method used to properly abandon the existing stormwater pipeline either by removal of the existing stormwater line or by abandoning the stormwater line in place and filling it with Control Density Fill (CDF). Catalyss will design the sewer system and relocation of the stormwater drain line as set forth in Paragraph 3 below, and Catalyss shall grant the City, its employees, agents and contractors, an easement to enter upon the Property for purposes of inspection, review and construction of such sewer system. Before the project is started, Catalyss shall convey to City a permanent utility easement within and upon the Property for public sewer, stormwater and utility construction, use and maintenance in the form attached hereto as Exhibit "B," incorporated herein by this reference (hereafter "Easement"). 2. Easement. Catalyss shall execute the Easement within ten (10) days of a written request by the City, and prior to commencement of any activity on the Property. The parties agree and understand that such Easement is necessary to enable the City to construct, install, access, use, maintain, repair and service the sewer lines, stormwater drain lines and attendant utility infrastructure within and upon the 2 6 Property. The Easement shall state that the easement is for such purposes, and that the City reserves the right to locate other public utility lines, infrastructure, facilities, and to grant other public easements within such Easement area so long as such additional public utility lines, infrastructure, facilities, and/or easements do not unreasonably interfere with Catalyss's use of the Property. Such Easement will conform the requirements and standards of Title 12 YMC, including but not limited to, minimum width equal to the greater of (a) sixteen feet (eight feet from center of pipe, extended both sides), or (b) twice the depth of the pipe. The parties understand and acknowledge that the Easement shall be located as outlined in the approved engineering drawings within the roadway and utility easements shown on Catalyss's approved plat for a subdivision of the Property, and all pipelines constructed and installed by the City shall generally be located in the center of the Easement Area. No permanent structures or any fence shall be erected or maintained within the Easement and the Easement shall be accessible to the City at all times. The Easement shall be recorded by Catalyss. 3. Design of Sewer and Stormwater Line and related Infrastructure. Catalyss shall design, at no cost to the City, a twelve-inch gravity-flow sewer line and attendant sewer infrastructure in accordance with the site-plan design submitted by Catalyss of their proposed development and in accordance with City design standards, specifications, and procedures. Catalyss will also design, at no cost to the City, the relocation of the existing stormwater drain line and attendant manholes in accordance with the site-plan submitted by Catalyss of their proposed development and in accordance with City design standards, specification, and procedures. Catalyss will also submit the required Specifications for the project. The City shall have the right to reasonably review, modify, deny and/or approve such design plans and specifications (within 20 days of receipt) in accordance with such standards, specifications and procedures. Catalyss shall identify locations along the length of the sewer line where it determines that stub-outs for future public sewer lateral lines are necessary in accordance with Title 12 YMC and to facilitate Catalyss's future development of the Property, which the City understands will be at locations sufficient to serve each platted lot as depicted in the approved engineering drawings provided under this Agreement. Manholes shall be designed to be located within roadways pursuant to City standards and specifications. 4. Construction of Sewer and Stormwater Line and Infrastructure. 3 7 (a) City Project. City shall construct the approved sewer and stormwater line and infrastructure ("City Project") in accordance with the Agreement, its procedures and in conformity with applicable laws governing public works projects. The City Project shall be deemed a City project for all purposes, and City shall be solely responsible for costs of construction, payment of wages of those employed on the City Project, and materials necessary for the completion of the City Project. City shall temporarily set all sewer and stormwater manholes to subgrade and restore subgrade at the completion of the City Project. During construction and when restoring subgrade City will stockpile soils at a location on site approved by Catalyss. City shall perform or provide construction management for the City Project. (b) Catalyss Responsibilities. Catalyss shall be responsible for design costs incurred from its Engineer of Record during the design and construction of the City Project. Catalyss will design the proposed alignment of the sewer and storm lines to be constructed by the City that will allow adequate cover for pipes, manholes and necessary related infrastructure as well as access for construction. Catalyss will bring soil elevations to subgrade throughout the easement of the sewer and stormwater alignment prior to the City Project. In easement areas outside of roadways Catalyss will grade to a level that provides adequate cover to the wastewater and stormwater infrastructure. Once construction of the City Project is complete and subgrade restored, Catalyss will be responsible for the stockpiled soils. Catalyss will be responsible for all costs involved of setting the final grade of sewer and stormwater manholes as per City of Yakima standards. (c) Stub-outs. During the design process set forth in Paragraph 3 above, City and Catalyss shall cooperate to reach agreement on the number, type and location of stub-outs for lateral sewer lines to facilitate Catalyss's future development of the Property as indicated in the approved engineering plans. No future stub-outs will be installed at the City's expense. City shall pay for and install the agreed stub-outs to typical points of access for future extension by Catalyss during construction of the Sewer Project, as outlined on the approved engineering plans. (d) Extension of Public Sewer Lines. Catalyss shall be responsible for the extension of public sewer line(s), including connection fees and costs, and providing permanent utility easement (s) for such if applicable in accordance 4 8 with Title 12 YMC to serve other parcels as part of Catalyss's development of the Property. Catalyss shall bear all costs of such extension requirements. (e) Completion of Sewer Project — Connection Charges and Service Fees. Upon completion of the City Project, such sewer line, stormwater line and attendant infrastructure shall be incorporated into the City's wastewater utility and shall be administered thereafter in accordance with the City's municipal codes, and individual connection charges and service fees will be charged for connection of lateral sewer lines and as individual property owners connect to the utility system. (f) Access for Construction. Catalyss hereby grants City, its employees, agents and contractors, access to, across and upon the Property for surveys, inspections, environmental reviews and construction as City deems reasonably necessary or appropriate to develop and construct the City Project consistent with this Agreement. The City should not unreasonably interfere with Catalyss's use of the Property in exercising its access rights. 5. Termination of Storm Sewer Easement and Agreement. Both parties agree to terminate the December 1 , 1975 Storm Sewer Easement and Agreement (the "1975 Agreement"), recorded under Yakima County Auditor's File No. 2404957 prior to or contemporaneously with the execution and recording of the Easement required under this Agreement. The 1975 Agreement afforded both parties rights and obligations that are superseded by this Agreement. The City shall draft and record the termination agreement, which shall be reviewed and reasonably approved by Catalyss. 6. Time of Performance. Both parties would like to see this project completed in a timely manner. The project completion date is dependent on a number of factors, including bid timelines and grading requirements. It is anticipated that if there are no unforeseen delays, unanticipated occurrences, or any force majeure event, the City Project will be completed by December 31 , 2019. However, to meet this anticipated completion date, Catalyss acknowledges that it will need to complete the grading work on site and have the plans and specifications approved by the City on or before July 31 , 2019. The parties agree and understand that commencement, performance and completion of the City Project is dependent upon the availability of sufficient budgeted funds to enable City to commence, perform and complete construction of the City Project. The City has $660,000.00 budgeted to complete this project, 5 9 and anticipates that this amount is sufficient to cover the project's cost to the City. If the bid responses are returned in excess of the budgeted amount, or if unforeseen site conditions or other unforeseen matters increase the cost of the Project in excess of the budgeted amount, the parties may agree to further negotiate modifications to this Agreement, adjust the project scope, or discuss Catalyss' participation in the excess costs. If no agreement can be reached, the City or Catalyss may terminate this Agreement. In such event, any work or improvements shall remain in place and Catalyss may complete its plat (including any sewer or stormwater lines) at its cost and expense. 7. Independent Parties. City and Catalyss are independent parties, and nothing in this Agreement shall be construed to create a partnership, joint venture or any other relationship other than independent contractors. Each party shall be solely responsible for compensation and direction of its own employees, agents, professional engineering firms and contractors. 8. Construction Liens. City will be responsible to satisfy and clear any lien against the Property arising out of the construction of the City Project. 9. Future Development of Property— Location of Easement— Relocation. The parties agree and understand that Catalyss intends to develop the Property. In doing so, Catalyss shall design and construct any development so as to preserve the City's ability to construct, install, access, use, maintain, repair and service its sewer and stormwater lines and infrastructure, including but not limited to, repair and replacement of sewer and stormwater lines, maintenance and accessibility of manholes and clean-outs. In the event Catalyss's development design and/or construction requires relocation of the sewer and/or stormwater lines and infrastructure, or any portion thereof, and so long as relocation will allow the system(s) to function as designed, Catalyss shall be solely responsible for relocation and payment of all costs and expenses of such relocation, and shall grant the City any necessary easements to allow the City to construct, install, access, use, maintain, repair and service its sewer and stormwater lines and infrastructure as relocated. Upon relocation of the sewer and stormwater lines and infrastructure, or any portion thereof, the former sewer and stormwater line/infrastructure easement, or applicable portion thereof, shall be vacated; provided, however, that such former easement shall not be vacated to the extent that other public utilities or easements therefor occupy the former sewer and stormwater line/infrastructure easement. In such event, the City will cooperate with Catalyss to assist in the relocation of such other public utilities or easements, but shall not be responsible for any cost of relocation. 10. Binding Effect. This Agreement shall be in full force and effect between the parties and shall be binding upon the heirs, successors and assigns of each party. 6 10 11 . Indemnification and Hold Harmless. The parties have specifically negotiated the following terms: A. Each party hereto agrees to maintain responsibility and assume liability in the performance of this Agreement for its own wrongful and/or negligent acts or omissions, and those of its officers, agents or employees to the fullest extent allowed by law. Catalyss specifically agrees that it will defend, indemnify and hold harmless the City, its elected and appointed officials, employees, volunteers, insurers and agents from any claims, demands, damages, lawsuits and actions arising out of any injury or loss, or claim of injury or loss, arising out of Catalyss's negligence in the development, use, maintenance or repair of the Property. City specifically agrees that it will defend, indemnify and hold harmless Catalyss, its members, employees, insurers and agents from any injury or loss, or claim of injury or loss, arising out of City's negligence in the construction, use, maintenance and repair of its sewer lines and its attendant infrastructure within and upon the Property. B. Catalyss and the City specifically and expressly waives their immunity under industrial insurance, Title 51 RCW, or immunity under any other provision of law to the extent of the obligations assumed by the parties protected hereunder. Catalyss and the City acknowledge and agree that this waiver was mutually negotiated. C. The provisions of this Section shall survive the termination or expiration of this Agreement. D. Nothing contained in this Section or this Agreement shall create a liability or a right of indemnification in any third party. 12. Compliance With Law. The Parties to this Agreement shall comply with all applicable federal, state and local laws, rules and regulations in carrying out the terms and conditions of this Agreement. 13. No Insurance. It is understood the City does not maintain liability insurance for the Catalyss or its employees and subcontractors. It is understood the Catalyss does not maintain liability insurance for the City, its employees, officials, agents or subcontractors. 14. Waiver of Breach. A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein 7 11 given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 15. Dispute Resolution. The City and Catalyss agree to meet to discuss any outstanding issues related to the development of the City Project and the performance of this Agreement in order to resolve any disputes through cooperation and negotiation. In the event any dispute cannot be resolved through cooperation and negotiation, the parties agree to submit such dispute to a mediator, mutually acceptable to both parties. Each party shall bear and pay its own expenses and costs of mediation, including attorneys' fees, and the parties will each pay one-half of the mediator's fee. If such dispute is not resolved through mediation, the parties may seek redress through litigation. 16. Integration. This Agreement, and its Exhibits, contains all of the terms and conditions agreed on by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement, are deemed to exist or to bind either of the parties. 17. Modifications. The parties may modify this Agreement but no proposed changes or modifications shall have validity or become binding on either party unless such changes or modifications are in writing and executed by both parties. 18. Assignment. This Agreement shall not be assigned in whole or in part to any third party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. 19. Severability. A. If a court of competent jurisdiction holds any part, term or provision of this Agreement illegal or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Agreement did not contain the particular provision held invalid. B. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict, and shall be deemed modified to conform to such statutory provision. 20. Notices. Unless otherwise stated herein, all notices and demands are required in written form and sent to the parties at their addresses as follows: 8 12 TO: CITY OF YAKIMA Scott Schafer, Public Works Director City of Yakima 129 North Second Street Yakima, WA 98901 TO: CATALYSS, LLC 200 Galloway Drive Yakima, WA 98908 Attn: Dave Sjule or Jim Laidler 21 . Governing Law—Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Venue for any action arising out of the implementation, performance or breach of this Agreement shall lie in Yakima County, State of Washington. WHEREFORE, this Agreement is executed by the parties below, and shall be effective upon execution by both parties. CITY OF YAKIMA CATALYSS, LLC Cliff Moore, City Manager Date Signed Date Signed ATTEST: 9 13 Sonya Claar-Tee, City Clerk io 14 EXHIBIT "A" LEGAL DESCRIPTION OF PARCELS AND MAPPING Parcel A (Yakima County Assessor's Parcel No. 181315-31417) Tract C, Plat of CATALYSS, Phase No. 3 according to the Plat thereof, recorded March 19, 2019 under Auditor's File No. 8009789, records of Yakima County, Washington. 11 15 EXHIBIT "B" EASEMENT AFTER RECORDING RETURN TO: City of Yakima Office of the City Manager 129 North 2nd Street Yakima, Washington 98901 EASEMENT (For Public Utilities) Grantor(s): Catalyss, LLC, a Washington limited liability company. Grantee(s): City of Yakima, a Washington municipality Abbreviated Legal Description: Complete legal description on Exhibit A Assessor's Tax Parcel ID No.: DATE: , 2019 PARTIES: GRANTOR: Catalyss, LLC, a Washington limited liability company 200 Galloway Dr. Yakima, Washington 98908 GRANTEE: City of Yakima, a Washington municipality 129 North 2nd St. Yakima, WA 98901 12 16 SUBJECT REAL PROPERTY--BURDENED PROPERTY. The easement described below is located on the following described real property situated in Yakima County, State of Washington: See attached Exhibit A For valuable consideration, receipt and sufficiency of which is hereby acknowledged, and subject to the terms and conditions set forth below, Grantor conveys to Grantee, a public utility easement over, under, through and across the Easement Area set forth in Paragraph 1 below. TERMS OF EASEMENT 1. Grant of Easement--Easement Area. Subject to the terms and conditions set forth in this Easement, Grantor hereby conveys and quitclaims to Grantee, and Grantee hereby accepts, a public utility easement for municipal stormwater lines, sewer mains and related improvements over, under, through and across portions of the Burdened Property, which easement is legally described on attached Exhibit B. A site map graphically showing the easements is attached as Exhibit C. 2. Purpose and Use: The purpose of this Easement shall be to construct and maintain underground municipal storm water and sewer lines and related improvements, including construction activities incidental thereto, including ingress and egress to the Grantor's property for the purpose of installing, repairing, testing, maintaining and replacing the utilities and related facilities. The easement described above shall be non-exclusive except that Grantee (and Grantee-authorized utilities) shall have the exclusive right to construct, install, maintain and operate the utilities, and all related facilities within the Easement Area including the right of access to such facilities; provided, however, Grantee will be responsible for restoring the surface of the Easement Areas to the same condition as they now exist or as they existed immediately prior to the exercise of any easement rights set forth in this Easement. The City reserves the right to locate other public utility lines, infrastructure, facilities, and to grant other public easements within such Easement area so long as such additional public utility lines, infrastructure, facilities, and/or easements do not unreasonably interfere with Catalyss's use of the Property Grantor may use the surface of the Easement Area provided such use does not permanently interfere with Grantee's rights contained in this Easement. Approved uses within the Easement Area shall consist of, but are not limited to, parking areas (paved or unpaved), paths, roadways, driveways, sidewalks or other uses that will not affect the ability of the City or authorized utilities to freely access the Easement Area. 3. Maintenance and Repair: Grantee and any authorized utility shall be responsible (at its sole cost and expense) for maintaining and repairing the utilities or facilities located within the Easement Area in good operating condition and if necessary, to replace utilities or facilities that are damaged or become inoperable. 4. Indemnification. The Grantee does hereby agree to defend, hold harmless, and indemnify Grantor, its successors and assigns, from any and all loss, damage, injury or claim arising out of the use of the easements or the exercise of the rights granted in this Easement, except to the extent such claims arise from the negligent or intentional acts of Grantor. 13 17 5. Waiver of Claims. The Grantor and its heirs, successors and assigns hereby waive and release to the City of Yakima, Washington, any and all claims for damages or compensation either now or in the future arising by reason of conveyance set forth in this Easement. 6. Remedies. In addition to all the remedies allowed by law, the parties, their successors and assigns, shall have the right to seek injunctive relief for the enforcement of the terms and conditions of this Easement. 7. Notices. Notices under this Easement shall be in writing, and unless otherwise required by law, may be delivered (1) personally; (2) by U.S. mail, certified or registered; or (3) by a nationally recognized overnight courier service. Mailed notices shall be deemed effective on the third day after deposited as registered or certified mail, postage prepaid, directed to the parties at the addresses set forth above and/or to the address shown for the owner/taxpayer of the Burdened Property as set forth in the Yakima County Assessor's Office. Couriered notices shall be deemed delivered when the courier's records indicate that delivery has occurred. 8. Covenant Running with the Land. This Easement shall be binding upon and inure to the benefit of the parties hereto and their legal successors and assigns, and shall constitute covenants running with the land, which is the subject of this Easement. IN WITNESS WHEREOF, the undersigned have set their hands the day and year first above written. GRANTOR: GRANTEE: Catalyss, LLC. City of Yakima By: By: Name: Name: Its: Its: STATE OF WASHINGTON ) ss. County of On this day of , 2019, before me personally appeared to me known to be the of Catalyss, LLC, known to me or proved to me on the basis of satisfactory evidence to be the authorized of the limited liability company that executed the foregoing instrument and acknowledged it to be the free and voluntary act and deed of the limited liability company, by authority of its operating agreement or by resolution of its members, for the uses and purposes therein mentioned, and on oath stated that 14 18 he is authorized to execute the said instrument and in fact executed the said instrument on behalf of the limited liability company. [print name] Notary Public in and for the state of Washington, residing in My Commission Expires: STATE OF WASHINGTON ) ss. County of I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the of the City of Yakima, a Washington municipality, to be the free and voluntary act of such party for the uses and purposes therein described. Dated this_day of , 2019. [print name] Notary Public in and for the State of Washington, residing at My appointment expires 15 19 EXHIBIT A LEGAL DESCRIPTION PARCEL NO. 16 20 EXHIBIT B EASEMENT 17 21 EXHIBIT C SITE MAP 18 • Distributed at th 1 Meeting l l- d9 AGREEMENT FOR SEWER AND INFRASTRUCTURE fiNsed DEVELOPMENT AND EASEMENT By and Between CITY OF YAKIMA And CATALYSS, LLC THIS AGREEMENT is entered into by and between the CITY OF YAKIMA and CATALYSS, LLC, for the uses and purposes set forth below. I. Recitals A. CITY OF YAKIMA, hereafter called "City," is a municipal corporation duly formed under the laws of the State of Washington with City Hall located at 129 North Second Street, Yakima, Washington 98901. B. CATALYSS, LLC, hereafter called "Catalyss," is a limited liability company duly formed and existing under the laws of the State of Washington, with contact offices located at 200 Galloway, Yakima, Washington 98908. C. Catalyss is the owner of Yakima County Assessor's Parcel No. 181315-31417 located within the corporate limits of the City, legally described and shown as set forth in Exhibit "A" attached hereto and incorporated herein by this reference (hereafter called the "Property"). D. City owns, operates and maintains a sewer pump lift station on a parcel situated westerly of the Property, separated from the Property by right of way for the Yakima Valley Canal. City also owns and maintains a 15" stormwater drain line that is currently located on the Property. E. In order to improve the existing sewer system, City desires to construct a twelve- inch gravity-flow sanitary sewer trunk line and attendant infrastructure extending from the existing lift station through the Property. Upon construction and final acceptance of such gravity sewer line and infrastructure by the City, such system will be incorporated within the wastewater system of the City and the lift station will be abandoned. 1 F. The City and Catalyss desire to relocate the existing 15" stormwater drain line in the same utility easement as the sewer line. The parties understand that this Agreement will supersede and terminate the Storm Sewer Easement and Agreement of December 1, 1975. G. The parties desire to accomplish the construction of the gravity sewer system improvement and relocation of existing stormwater drain line, and enter into this Agreement for such purpose. II. Agreement NOW, THEREFORE, in consideration of the mutual covenants, conditions and promises herein, and fully incorporating the above recitals into this Agreement, the parties agree as follows: 1. Purpose and Scope of Agreement. As further specified herein, the City will construct a twelve-inch gravity-flow sewer line with attendant infrastructure, including but not limited to, manholes and stub-outs to each platted lot developed by Catalyss as shown on the approved engineering plans submitted for the purposes of this Agreement. No other stub-outs will be required to be installed by the City for future sewer lateral lines, within and upon the Property. The City will also abandon and relocate the existing 15" stormwater drain line with attendant manholes, within and upon the Property. The City will have sole determination of the method used to properly abandon the existing stormwater pipeline either by removal of the existing stormwater line or by abandoning the stormwater line in place and filling it with Control Density Fill (CDF). Catalyss will design the sewer system and relocation of the stormwater drain line as set forth in Paragraph 3 below, and Catalyss shall grant the City, its employees, agents and contractors, an easement to enter upon the Property for purposes of inspection, review and construction of such sewer system. Catalyss shall convey to City a permanent utility easement within and upon the Property for public sewer, stormwater and utility construction, use and maintenance, which easement shall be dedicated and shown on the final recorded plat for the property or any portion thereof. 2. Easement. The parties agree and understand that such Easement is necessary to enable the City to construct, install, access, use, maintain, repair and service the sewer lines, stormwater drain lines and attendant utility infrastructure within and upon the Property. The Easement shall state that the easement is for such purposes, and that the City reserves the right to locate other public utility lines, infrastructure, facilities, and to grant other public easements within such Easement 2 area so long as such additional public utility lines, infrastructure, facilities, and/or easements do not unreasonably interfere with•Catalyss's use of the Property. Such Easement will conform the requirements and standards of Title 12 YMC, including but not limited to, minimum width equal to the greater of (a) sixteen feet (eight feet from center of pipe, extended both sides), or (b) twice the depth of the pipe. The parties understand and acknowledge that the Easement shall be located as outlined in the approved engineering drawings within the roadway and utility easements shown on Catalyss's approved plat for a subdivision of the Property, and all pipelines constructed and installed by the City shall generally be located in the center of the Easement Area. No permanent structures or any fence shall be erected or maintained within the Easement and the Easement shall be accessible to the City at all times. The Easement shall be recorded by Catalyss. 3. Design of Sewer and Stormwater Line and related Infrastructure. Catalyss shall design, at no cost to the City, a twelve-inch gravity-flow sewer line and attendant sewer infrastructure in accordance with the site-plan design submitted by Catalyss of their proposed development and in accordance with City design standards, specifications, and procedures. Catalyss will also design, at no cost to the City, the relocation of the existing stormwater drain line and attendant manholes in accordance with the site-plan submitted by Catalyss of their proposed development and in accordance with City design standards, specification, and procedures. Catalyss will also submit the required Specifications for the project. The City shall have the right to reasonably review, modify, deny and/or approve such design plans and specifications (within 20 days of receipt) in accordance with such standards, specifications and procedures. Catalyss shall identify locations along the length of the sewer line where it determines that stub-outs for future public sewer lateral lines are necessary in accordance with Title 12 YMC and to facilitate Catalyss's future development of the Property, which the City understands will be at locations sufficient to serve each platted lot as depicted in the approved engineering drawings provided under this Agreement. Manholes shall be designed to be located within roadways pursuant to City standards and specifications. 4. Construction of Sewer and Stormwater Line and Infrastructure. (a) City Project. City shall construct the approved sewer and stormwater line and infrastructure ("City Project") in accordance with the Agreement, its procedures and in conformity with applicable laws governing public works projects. The City Project shall be deemed a City project for all purposes, and 3 City shall be solely responsible for costs of construction, payment of wages of those employed on the City Project, and materials necessary for the completion of the City Project. City shall temporarily set all sewer and stormwater manholes to subgrade and restore subgrade at the completion of the City Project. During construction and when restoring subgrade City will stockpile soils at a location on site approved by Catalyss. City shall perform or provide construction management for the City Project. (b) Catalyss Responsibilities. Catalyss shall be responsible for design costs incurred from its Engineer of Record during the design and construction of the City Project. Catalyss will design the proposed alignment of the sewer and storm lines to be constructed by the City that will allow adequate cover for pipes, manholes and necessary related infrastructure as well as access for construction. Catalyss will bring soil elevations to subgrade throughout the easement of the sewer and stormwater alignment prior to the City Project. In easement areas outside of roadways Catalyss will grade to a level that provides adequate cover to the wastewater and stormwater infrastructure. Once construction of the City Project is complete and subgrade restored, Catalyss will be responsible for the stockpiled soils. Catalyss will be responsible for all costs involved of setting the final grade of sewer and stormwater manholes as per City of Yakima standards. (c) Stub-outs. During the design process set forth in Paragraph 3 above, City and Catalyss shall cooperate to reach agreement on the number, type and location of stub-outs for lateral sewer lines to facilitate Catalyss's future development of the Property as indicated in the approved engineering plans. No future stub-outs will be installed at the City's expense. City shall pay for and install the agreed stub-outs to typical points of access for future extension by Catalyss during construction of the Sewer Project, as outlined on the approved engineering plans. (d) Extension of Public Sewer Lines. Catalyss shall be responsible for the extension of public sewer line(s), including connection fees and costs, and providing permanent utility easement (s) for such if applicable in accordance with Title 12 YMC to serve other parcels as part of Catalyss's development of the Property. Catalyss shall bear all costs of such extension requirements. (e) Completion of Sewer Project — Connection Charges and Service Fees. Upon completion of the City Project, such sewer line, stormwater line and attendant 4 infrastructure shall be incorporated into the City's wastewater utility and shall be administered thereafter in accordance with the City's municipal codes, and individual connection charges and service fees will be charged for connection of lateral sewer lines and as individual property owners connect to the utility system. (f) Access for Construction. Catalyss hereby grants City, its employees, agents and contractors, access to, across and upon the Property for surveys, inspections, environmental reviews and construction as City deems reasonably necessary or appropriate to develop and construct the City Project consistent with this Agreement. The City should not unreasonably interfere with Catalyss's use of the Property in exercising its access rights. 5. Termination of Storm Sewer Easement and Agreement. Both parties agree to terminate the December 1, 1975 Storm Sewer Easement and Agreement (the "1975 Agreement"), recorded under Yakima County Auditor's File No. 2404957 prior to or contemporaneously with the execution and recording of the Easement required under this Agreement. The 1975 Agreement afforded both parties rights and obligations that are superseded by this Agreement. The City shall draft and record the termination agreement, which shall be reviewed and reasonably approved by Catalyss. 6. Time of Performance. Both parties would like to see this project completed in a timely manner. The project completion date is dependent on a number of factors, including bid timelines and grading requirements. It is anticipated that if there are no unforeseen delays, unanticipated occurrences, or any force majeure event, the City Project will be completed by December 31, 2019. However, to meet this anticipated completion date, Catalyss acknowledges that it will need to complete the grading work on site and have the plans and specifications approved by the City on or before July 31, 2019. The parties agree and understand that commencement, performance and completion of the City Project is dependent upon the availability of sufficient budgeted funds to enable City to commence, perform and complete construction of the City Project. The City has $660,000.00 budgeted to complete this project, and anticipates that this amount is sufficient to cover the project's cost to the City. If the bid responses are returned in excess of the budgeted amount, or if unforeseen site conditions or other unforeseen matters increase the cost of the Project in excess of the budgeted amount, the parties may agree to further negotiate modifications to this Agreement, adjust the project scope, or discuss 5 • Catalyss' participation in the excess costs. If no agreement can be reached, the City or Catalyss may terminate this Agreement. In such event, any work or improvements shall remain in place and Catalyss may complete its plat (including any sewer or stormwater lines) at its cost and expense. 7. Independent Parties. City and Catalyss are independent parties, and nothing in this Agreement shall be construed to create a partnership, joint venture or any other relationship other than independent contractors. Each party shall be solely responsible for compensation and direction of its own employees, agents, professional engineering firms and contractors. 8. Construction Liens. City will be responsible to satisfy and clear any lien against the Property arising out of the construction of the City Project. 9. Future Development of Property— Location of Easement— Relocation. The parties agree and understand that Catalyss intends to develop the Property. In doing so, Catalyss shall design and construct any development so as to preserve the City's ability to construct, install, access, use, maintain, repair and service its sewer and stormwater lines and infrastructure, including but not limited to, repair and replacement of sewer and stormwater lines, maintenance and accessibility of manholes and clean-outs. In the event Catalyss's development design and/or construction requires relocation of the sewer and/or stormwater lines and infrastructure, or any portion thereof, and so long as relocation will allow the system(s) to function as designed, Catalyss shall be solely responsible for relocation and payment of all costs and expenses of such relocation, and shall grant the City any necessary easements to allow the City to construct, install, access, use, maintain, repair and service its sewer and stormwater lines and infrastructure as relocated. Upon relocation of the sewer and stormwater lines and infrastructure, or any portion thereof, the former sewer and stormwater line/infrastructure easement, or applicable portion thereof, shall be vacated; provided, however, that such former easement shall not be vacated to the extent that other public utilities or easements therefor occupy the former sewer and stormwater line/infrastructure easement. In such event, the City will cooperate with Catalyss to assist in the relocation of such other public utilities or easements, but shall not be responsible for any cost of relocation. 10.Binding Effect. This Agreement shall be in full force and effect between the parties and shall be binding upon the heirs, successors and assigns of each party. 11.Indemnification and Hold Harmless. The parties have specifically negotiated the following terms: 6 A. Each party hereto agrees to maintain responsibility and assume liability in the performance of this Agreement for its own wrongful and/or negligent acts or omissions, and those of its officers, agents or employees to the fullest extent allowed by law. Catalyss specifically agrees that it will defend, indemnify and hold harmless the City, its elected and appointed officials, employees, volunteers, insurers and agents from any claims, demands, damages, lawsuits and actions arising out of any injury or loss, or claim of injury or loss, arising out of Catalyss's negligence in the development, use, maintenance or repair of the Property. City specifically agrees that it will defend, indemnify and hold harmless Catalyss, its members, employees, insurers and agents from any injury or loss, or claim of injury or loss, arising out of City's negligence in the construction, use, maintenance and repair of its sewer lines and its attendant infrastructure within and upon the Property. B. Catalyss and the City specifically and expressly waives their immunity under industrial insurance, Title 51 RCW, or immunity under any other provision of law to the extent of the obligations assumed by the parties protected hereunder. Catalyss and the City acknowledge and agree that this waiver was mutually negotiated. C. The provisions of this Section shall survive the termination or expiration of this Agreement. D. Nothing contained in this Section or this Agreement shall create a liability or a right of indemnification in any third party. 12. Compliance With Law. The Parties to this Agreement shall comply with all applicable federal, state and local laws, rules and regulations in carrying out the terms and conditions of this Agreement. 13. No Insurance. It is understood the City does not maintain liability insurance for the Catalyss or its employees and subcontractors. It is understood the Catalyss does not maintain liability insurance for the City, its employees, officials, agents or subcontractors. 14. Waiver of Breach. A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 15. Dispute Resolution. The City and Catalyss agree to meet to discuss any outstanding issues related to the development of the City Project and the performance of this Agreement in order to resolve any disputes through cooperation and negotiation. In the event any dispute cannot be resolved through cooperation and negotiation, the parties agree to submit such dispute to a mediator, mutually acceptable to both parties. Each party shall bear and pay its own expenses and costs of mediation, including attorneys' fees, and the parties will each pay one-half of the mediator's fee. If such dispute is not resolved through mediation, the parties may seek redress through litigation. 16. Integration. This Agreement, and its Exhibits, contains all of the terms and conditions agreed on by the parties. No other understandings, oral or otherwise, regarding the subject matter of this Agreement, are deemed to exist or to bind either of the parties. 17. Modifications. The parties may modify this Agreement but no proposed changes or modifications shall have validity or become binding on either party unless such changes or modifications are in writing and executed by both parties. 18. Assignment. This Agreement shall not be assigned in whole or in part to any third party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. 19. Severability. A. If a court of competent jurisdiction holds any part, term or provision of this Agreement illegal or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Agreement did not contain the particular provision held invalid. B. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict, and shall be deemed modified to conform to such statutory provision. 20. Notices. Unless otherwise stated herein, all notices and demands are required in written form and sent to the parties at their addresses as follows: 8 TO: CITY OF YAKIMA Scott Schafer, Public Works Director City of Yakima 129 North Second Street Yakima, WA 98901 TO: CATALYSS, LLC 200 Galloway Drive Yakima, WA 98908 Attn: Dave Sjule or Jim Laidler 21. Governing Law—Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Venue for any action arising out of the implementation, performance or breach of this Agreement shall lie in Yakima County, State of Washington. WHEREFORE, this Agreement is executed by the parties below, and shall be effective upon execution by both parties. CITY OF YAKIMA CATALYSS, LLC / ,Zy Cliff Moore, City Manager Dave Sjule, Md7.er/Member 7/11// Date Signed Date Signed/ ATTEST: Sonya Claar-Tee, City Clerk 9 EXHIBIT "A" LEGAL DESCRIPTION OF PARCELS AND MAPPING Parcel A (Yakima County Assessor's Parcel No. 181315-31417) Tract C, Plat of CATALYSS, Phase No. 3 according to the Plat thereof, recorded March 19, 2019 under Auditor's File No. 8009789, records of Yakima County, Washington. 10 EXHIBIT B SITE MAP 11