380 Septic System Repair Program 1999 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
$ 14,600.00 .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 30°1 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 /re/ /Z' m/S) . [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
Peter J..M<Erlain
Health A gem
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 an Treasurer, and Michael & Tanya Abbatessa (the Owner)this O3
Day of . L+ j 49367- 19 t`%
WHEREAS, the Owner owns residential property, including improvements thereon, known as and
numbered 380 Chesterfield Road Massachusetts (Assessors Map
Lot 011 , Page ) and described in a deed dated FLbrK4-s� 15, ing and
Recorded with the HAMPSJIIRE COUNTY, Registry of Deeds in book S(c57 Page 0004'
[filed as Document No. 97C'C/079 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, , §. 1278 1/4, 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, § 1278 Y=
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 sad M.G.L. c. 111, , § 127B Y: 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
(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.
(0) 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 Riqht 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
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 FORM A ).
(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.
(SEEFORMB).
(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 Installers 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)
(B)
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.
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 swom certificate of the Contractor that all
materials, subcontractors and employees have been pald 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) 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.
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, govemmental order or restriction, fire or other
casualty, or other causes beyond the owner's 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
Owners obligations contained herein.
(0)
10. Citv of NORTHAMPTON'S Right On Default
Upon Owners 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 %] 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
6. 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.
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.
(8)
5
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
t2. 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 Owners 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 retum 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 Qwner, it shall be made to: )Oy/I. 9` /y24nS'><t(/C(
¢nazic� (/4/r✓ICcrh #1W, /UHMarri /149-
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
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 ,H-998./999,
CITY OF NORTHAMPTON
BY ITS BOARD OF HEALTH:
/y�'� Chairman
/ ese- �tca-'i-'
vJ1
AS TO INTEREST RATE: 5%
A TERM OF 10 YEARS
CITY OF NORTHAMPTON
BY ITS TREASURER:
Treasurer
EXHIBITS
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
OWNER:
TA(t) - f4'{i3 Taa.SR
/L2'C/1 et 9 . ,96 -r-sss Je-
Print Name
Print Name
APPROVED AS TO FORM:
eve h
City Attomey
7%/5
cioc to
--7 riS VA 5
Mayor
9