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108 Title 5 Repair Program Contract, 1998 Peter J.McErlain Health Agent FORM 7 CITY OF NORTHAMPTON BOARD OF HEALTH 210 Main Street Northampton, MA 01060 (413) 587- 1214 TEL (413) 586- 1264 FAX SEPTIC SYSTEM REPAIR PROGRAM BETTERMENT CONTRACT This agreement is entered into by and between the City of NORTHAMPTON, by its Board of Health and Treasur r, and James & Panne Kohrman (the Owner) this a Day of 114f"Du.1J— 1998. WHEREAS, the Owner owns residential property, including improvements thereon, known as and numbered 108 Marion Street, Northampton Massachusetts (Assessors Map 13 Lot 78 , Page -- ) and described in a deed dated ( 0 - /(o-'?I and Recorded with the HAMPSHIRE COUNTY, Registry of Deeds in book 3809 Page 285 [filed as Document No. with the Registry District of Land Court] (the "Property"); and WHEREAS, the Owner has petitioned the City of NORTHAMPTON to make finding pursuant to M.G.L. c 111; and WHEREAS, the NORTHAMPTON Board of Health has adopted an order requiring the Owner to repair, replace or upgrade the failed system to comply with the requirements of said Title 5; and WHEREAS, the Owner has pursuant to M.G.L. c. 111, , §. 127B Y2, applied to the City of NORTHAMPTON for financial assistance to repair, replace and/or upgrade the failed system; and WHEREAS, the Department of Environmental Protection ("DEP") has approved the City of NORTHAMPTON'S proposed program of offering betterment pursuant to M.G.L. c. 111, § 127B to homeowners to repair, replace and/or upgrade failed systems for financing under the Local Septic Management program, and the City of NORTHAMPTON has received a State Revolving Fund ("SRF") loan from the Water Pollution Abatement Trust (the "Trust")to finance said betterment program; and WHEREAS, THE City of NORTHAMPTON intends to provide financial assistance to the Owner in the form of a Betterment Agreement made pursuant to said M.G.L. c. 111, , § 1278 1/2 and funded from the SRF loan received by the City of NORTHAMPTON under the Local Septic Management program; and WHEREAS, the parties intend by this Betterment Agreement to cause repair, replacement and/or upgrade of the failed system to comply with Title 5 and other applicable public health and environmental laws and to complete other work directly or indirectly related thereto (the "Project" as described in paragraph 4 hereof); and 1 NOW THEREFORE, the parties, for and in consideration of mutual covenants and other good and valuable consideration, do hereby agree to the terms of this Agreement, as set forth below. 1. The Agreement The City of NORTHAMPTON hereby agrees to provide financial assistance in an amount up to $ 3,285 .00 to be advanced from time to time by the City of NORTHAMPTON to the Owner pursuant to the terms of this Agreement. The Owner promises to repay, interest as set forth herein, all sums provided to Owner by the City of NORTHAMPTON. Following notice to the Owner by the City of NORTHAMPTON collector of taxes of the amount of the betterment assessment, an amortization schedule shall be developed and incorporated as an attachment to this Agreement. Interest on the amounts advanced by the City of NORTHAMPTON to Owner shall be computed annually at the rate of FIVE percent ( 5 %) per annum on the outstanding principal balance, accruing from the 30th day after the City Assessor commits the betterment assessment to the City collector of taxes. The amount to be repaid shall be included on and paid with the (quarterly, semi-annual or annual) municipal tax bill. Interest amount due hereunder on the tax bill shall be paid pursuant to an interim bill. All outstanding amounts due to the City of NORTHAMPTON by Owner if not prior paid, shall be due and payable on . [fill in date of term] Prepayment in full or in part of all amount advanced hereunder may be made by the Owner without penalty. This agreement represents the entire and integrated agreement between the parties hereto and supercedes prior negotiations, representations, or agreements, either written or oral. The Agreement may only be amended or modified by a written modification. 2. Installment Payments The City of NORTHAMPTON shall jointly make advances of funds to owner and contractor, pursuant to the terms of this Agreement, from time to time to pay for the project. Such advances shall be made solely for the purposes set forth in this Agreement. The obligation of the City to advance all or any part of the financial assistance for repair, replacement and/or upgrade of the failed system is subject to the following: (A) Inspection of the failed system by a representative of the NORTHAMPTON Board of Health or by a DEP Certified Septic System Inspector, as deemed necessary by the NORTHAMPTON Board of Health. (B) Submission by Owner or Contractor on behalf of the Owner of plans approved by the NORTHAMPTON Board of Health for the project. Owner shall solicit a bid or bids for the necessary field work and plan preparation from registered professional engineers or registered sanitarians, shall submit documentation of these bids to the NORTHAMPTON Board of Health, and Specify Owner's choice of an engineer or sanitarian. 2 The NORTHAMPTON Board of Health may approve an installment payment NOT to exceed the amount of the selected bid. An installment payment for field work and plan preparation shall be made by check payable JOINTLY to and the engineer or sanitarian and shall be payable upon presentation and approval of the selected bid. (SEE FORMA ). (C) Submission by Owner or Contractor or behalf of the Owner of the bid or bids for the project in accordance with the plans from licensed (including, but not limited to, a Disposal System's Installers Permit). Insured septic system contractors, which bids contain detailed breakdowns of the cost of the Project by tasks. (SEE FORM B). (D) Confirmation by the NORTHAMPTON Board of Health that the contractor for construction of the Project ( the "Contractor') selected by the Owner has a valid Disposal Installer's Permit in effect for the period covering the system upgrade financed under this Betterment Agreement. (E) Review by the NORTHAMPTON Board of Health of a Project Budget based on the bid submitted the Contractor. (F) Execution of a construction contract between the Owner and the Contractor pursuant to the plans and specifications which have been previously approved by the NORTHAMPTON Board of Health. (G) Issuance by the NORTHAMPTON Board of Health of a Disposal Works Construction Permit with respect to the Project. 3. Conditions of Payment Installment payments of the financial assistance are to be made by the City of NORTHAMPTON under the following conditions: (A) An installment payment for field work and preparation of plans shall be made to the Owner and engineer or sanitarian in accordance with Subsection (B) of section 2. (B) A reasonable time before the date on which any other installment payment is required to be made, the Contractor shall give notice to Owner and City specifying the total installment payment request. Such notice shall consist of a detailed request describing the value of the completed items of work. The amount of the request shall be equal the amount of the requested installment. The request shall be accompanied by a sworn certificate of the Contractor that all materials, subcontractors and employees have been paid prior work on the Project. The City of NORTHAMPTON may request the Owner to provide further documentation in support of a request for an installment payment. Upon approval of any requested installment payment, the City shall issue a check payable JOINTLY to Owner and Contractor, which check shall be forwarded by the City to Owner. 3 (C) The City may require as a condition of any installment payment that Owner submit satisfactory evidence that there are sufficient remaining funds to pay for completion of the Project in accordance with the approved plans. (D) Prior to making an installment payment the NORTHAMPTON Board of Health may cause the Project to be inspected to verify that the work items described in the request have been actually completed. In any case, the Contractor shall provided verification that the work referred to in the installment request has been completed in accordance with the approved plans. (E) Prior to paying the final installment, the Contractor shall provide verification that all work has been completed in accordance with the approved plans, a sworn certification that all materials, subcontractors and employees have been paid for work on or materials supplied for the Project and the NORTHAMPTON Board of Health shall have issued a Certificate of Compliance for the Project. 4. Scope of Work for Project The Owner and the Contractor pursuant to the Disposal System Construction Permit issued by the NORTHAMPTON Board of Health, shall determine the Scope of Work necessary to bring the failed system into compliance with Title 5. Such Scope of Work may include, but not be limited to the following: (A) performing soil and percolation test and other necessary site analyses; specification of the failed system components to be repaired, replaced and/o upgraded; (B) design of the System or components thereof to be repaired, replaced and/or upgraded; (C) obtaining all applicable federal, state and local permits and approvals required to complete the Project; (D) seeking bids and awarding contracts for assessment, design, consulting and construction work and materials in accordance with applicable laws, regulations and requirements; (E) minimizing any disruption of utility service, and reasonably restoring the Property to as near its original conditions as is practicable; and (F) engaging such other service and procuring such other materials as shall be reasonably necessary to complete the Project in a good and workmanlike manner. All such work shall be performed pursuant to written contracts and agreements, copies of which shall be incorporated by reference into this agreement. 5. Town's Right to Inspect The Owner agrees to allow D.E.P., the City of NORTHAMPTON, including the NORTHAMPTON Board of Health, Health Agent and other officials, employees and agents to enter onto the Property, as is reasonably necessary and with reasonable notice, to test, examine and inspect the Project to verify the completion and adequacy of the work. 4 Covenant Not to Sue The Owner covenants and agrees not to sue the City of NORTHAMPTON for any claims of damage to loss of property of the Owner or others, or for breach of warranty regarding the performance or condition of the Project, or for injury illness or death arising out of the performance of any contractors or agents engaged to perform the work. This Covenant Not to Sue provision shall have no application to causes of action which may have arisen prior to the execution of this Agreement, or to causes of action that are unrelated to this Agreement, or to causes of action against any person or entity other than the City of NORTHAMPTON. 7. Owners Representations and Warranties to the City of NORTHAMPTON The Owner represents and warrants to the City of NORTHAMPTON that: (A) Financial information. The Borrower's Affidavit furnished to the City of NORTHAMPTON by the Owner is accurate and complete; (B) Title. The Owner has good record title to the Property, subject only to the Encumbrances of Record; (C) Permits and Compliance With Law. The Owner has obtained or will obtain all necessary governmental permits for the Project. The On-site Sewage Disposal System for the dwelling on the Property, after completion of the Project, will comply with all applicable laws, regulations, codes and ordinances, including but not limited to Title 5; and (D) Insurance. The Owner and Contractor have procured or will procure insurance in such forms and in such amounts as shall be satisfactory to the City of NORTHAMPTON. Certificates of insurance shall be attached as Exhibits to this agreement. (FORM C) Each of the foregoing representations and warranties in this section shall remain in force until the financial assistance is repaid in full. The Owner shall indemnify and hold harmless the City of NORTHAMPTON from and against loss expense, or liability (including cost of defending any claim), directly, or indirectly from the falsity, inaccuracy, or breach of any of the above representations and warranties. 8. Owner's Obligations During the term of this Betterment Agreement, the Owner agrees that the Owner shall comply with all of the terms and conditions of this and any related agreement and that the Owner shall: (A) Completion of Project. Cause the Project to be promptly completed in a manner in accordance with the approved plans and with Project Budget and in compliance with all laws, regulations, codes and ordinances and notify City of NORTHAMPTON when the project is complete. (B) Records and Cooperation with City. Keep complete records relating to the Project, which records shall be available for inspection and copying by the City of NORTHAMPTON, and cooperate fully with any audit of the Project if so requested by the City of NORTHAMPTON. 5 (C) Performance of Other Obligations. Perform all the Owner's obligation and agreement under any present or future mortgage or other Covenant or Agreement which encumbers the property. (D) Use of Financial Assistance. The financial assistance is provided for the public purpose of protecting the public health, safety, welfare and the environment. The Owner shall use the proceeds of the financial assistance solely for cost included in the Project Budget and ensure that the proceeds are not used for any other purpose. 9. Events of Default The Owner shall be in default under this Agreement upon the occurrence of any one or more of the following events: (A) Sale, Transfer or Assignment Without Approval. The Owner assigns or transfers any money advanced or to be advanced hereunder to any person or entity not approved by the City of NORTHAMPTON. (B) Cessation of Construction. The Owner or Contractor ceases construction of the Project for more than thirty (30) consecutive calendar days. The NORTHAMPTON Board of Health may waive this event of default upon application of the Owner and a demonstration that such cessation occurred because of an Act of God, governmental order or restriction, fire or other casualty, or other causes beyond the owners reasonable control. (C) False Representation or Warranties. Any representation or warranty made herein which prove to be false or inaccurate in any material respect. (D) Breach of an Obligation. The Owner defaults in the performance of any of the Owner's obligations contained herein. 10. City of NORTHAMPTON'S Right On Default Upon Owner's default, the City of NORTHAMPTON shall have no further obligation to make any further installment payments and all amounts advanced by the City of NORTHAMPTON to the Owner shall become immediately due and payable. 11. Notice of Betterment Agreement Upon execution of this Agreement by Owners and the City of NORTHAMPTON a Notice of this Agreement shall be recorded by the City of NORTHAMPTON at the Hampshire County Registry of Deeds, as a betterment and shall be subject to the provisions of M.G.L. c. 80 relative to apportionment division, reassessment and collection of assessment, abatement and collection of assets, provided however, that the lien which shall arise pursuant to M.G.L. c. 111, § 127B '/2 shall take effect by operation of law on the day immediately following the due date of such assessment or apportioned part of such assessment. The Betterment lien, if any, shall be deemed to secure all amounts advanced hereunder, together with interest thereon, and shall included costs of collection and reasonable attorneys fees, recording, filing fees and dismissal fees. 6 12. Improvements to the Property Any alteration or improvements to the Property resulting from the Project are the property of the Owner, and the City of NORTHAMPTON shall bear no responsibility for the condition of the improvement or its maintenance. 13. Cancellation of the Agreement by the Owner The Owner may by written notice to the NORTHAMPTON Board of Health, and the Treasurer of the City of NORTHAMPTON cancel Owner's further obligation for repayment under this Agreement at any time prior to the end of ten (10) calendar days following notice in writing to the City of NORTHAMPTON of the Owner's proposed successful construction bid, based on the Owner's evaluation of the proposed scope and cost estimate of the system upgrade derived from the filed work, project design and the successful construction bid. However, in the events of such cancellation, the Owner shall remain liable for repayment of all sums advanced by the city of NORTHAMPTON to Owner pursuant to this Agreement. All sums advanced by the City of NORTHAMPTON to Owner shall be repaid with interest and within the term set forth in paragraph 1 hereof. Upon application of the Owner, the NORTHAMPTON Board of Health may revoke the Order for Improvements, provided however, that the Owner shall remain liable to comply with the provisions of Title 5. 14. Personal Obligation of the Owner In addition to those remedies available to the City of NORTHAMPTON regarding the assessment and collection of betterment, the Owner shall be personally liable for the repayment of the amounts advanced, plus interest thereon and the total direct and indirect costs incurred by the City of NORTHAMPTON in the contemplation and the performance of this Agreement or the property, the City of NORTHAMPTON shall permit the assumption of the personal liability hereunder by said purchaser or tranferee and shall release the personal liability of the Owner. The assumption and release of liability hereunder shall be in writing and shall be executed prior to the purchase or transfer by the Owner, the purchaser or tranferee of said City of NORTHAMPTON. 15. Notice Any notice required to be given under this Agreement shall be made in writing and shall be delivered by either in-hand delivery or by prepaid, certified first class mail with return receipt requested. (A) If notice is made to the City of NORTHAMPTON, it shall be made to: NORTHAMPTON Board of Health or the Mayor; or (B) If notice is not made to the Owner, it shall be made to: Notice shall be deemed given on the day it is hand delivered or three (3)days after the date of posting of first class mail. 7 16. Funding The obligation of the City of NORTHAMPTON are expressly contingent upon funding. In the event that funding for the City of NORTHAMPTON'S obligation in unavailable, upon notice to the Owner, this Agreement may be cancelled by the City of NORTHAMPTON and all obligations of the City of NORTHAMPTON shall be null and void. 17. Enforcement of Laws Nothing in this Agreement shall be deemed to stop or effect or a waiver, or otherwise act as a bar or defense, to any legal proceeding by the City of NORTHAMPTON relating to the System of the Property. 18. Severability In the event that one or more provisions of this agreement is deemed unenforceable by a court of competent jurisdiction, the Agreement, except as deemed unenforceable, shall remain in full force and effect. 19. Governing Law This agreement shall be governed by Massachusetts Law. 8 During the term of this Betterment Agreement, the Owner agrees that the Owner shall comply with all of the terms and conditions of this and any related Agreement and that the Owner Shall: IN WITNESS WHEREOF, the undersigned parties have signed this Agreement as an instrument under seal this day, of , 1998. CITY OF NORTHAMPTON BY ITS BOARD OF HEALTH: OWNER: I- Chairmar( Owner / ,jqm Es /[ O,4/'/np'A/ *)61'4'E ..ptiMybf✓ AS TO INTEREST RATE: 5% A TERM OF 10 YEARS Print Name Print Name CITY OF NORTHAMPTON APPROVED AS TO FORM: BY ITS TREASURER: EXHIBITS Treasurer CityAttofney 1. Designer Contract 2. System Plans and Design 3. Construction Contract(s) 4. Project Budget 5. Certificate(s) of Insurance 6. Disposal System Construction Permit 7. Other Applicable Permits, licenses and Agreements 8. Requisitions for payment and support documentation 9. Certificate of compliance 9