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HomeMy WebLinkAboutC06-148 MID V ALLEY METROPOLITAN DISTRICT LINE EXTENSION AGREEMENT This Line Extension Agreement ("Agreement") is made and entered into this 2 day of , 2006, by and between the Mid Valley Metropolitan District, a Colorado special district ose address is 0031 Dllroux Lane, Suite A, Basalt, CQ 81<521 ("District"), th(;l Crown Mountain Park and Recreation District, a Colorado special district whose address is 238 Fawn Drive, Carbondale, CO 81623 ("Crown Mountain" or "Developer"), and the County of Eagle, Colorado, acting by and through the Eagle County Board of County Commissioners, whose address is P.O. Box 850, Eagle, CO 81631 ("Eagle County"). RECIT ALS WHEREAS, the District is a Colorado special district formed and functioning by the authority ofC.R.S. 932-1-101, et~, providing potable water and sanitary sewer services for the area in and around El lebel, within the Counties of Eagle and Garfield, State of Colorado; and WHEREAS, Developer is the lessee of real property commonly known as the Crown Mountain Park (f/k/a Mt. Sopris Tree Farm property), situated in the County of Eagle, State of Colorado, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, the Property is owned by Eagle County; and WHEREAS, pursuant to a Memorandum of Understanding dated December 18, 1998 and Amendment No.1 to the Memorandum of Understanding dated September 21, 1999, the United States Department of Agriculture Forest Service, White River National Forest (the "Forest Service") installed a sewer line and began receiving out-of-District sanitary sewer service from the District; and WHEREAS, although intended to be a District-owned main line, the sewer line installed by the Forest Service (the "FS Line") was never dedicated to or accepted by the District, and the Forest Service did not complete the requirements for dedication and acceptance of the FS Line; and WHEREAS, the Developer and Eagle County desire to install a main line extension ofthe FS Line in order to provide sanitary sewer services to a new Crown Mountain operations building to be located on the Property and to a future County facility; and WHEREAS, the District is willing to permit the main line extension and to provide sanitary sewer service to the new structures upon the terms and conditions as hereinafter set forth. After recording please return to: Leavenworth & Karp, PC P. O. Drawer 2030 1:\2006\Cliems\MVMD\4(5}-CMPRD-I923\Agrcements\FS-LineExt wpd -1- Glenwood Springs, CO 81602 NOW, THEREFORE, for and in consideration of the mutual covenants and agreements of the parties, and other good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, the parties agree as follows: Incorporation of Recitals. The foregoing recitals are hereby fully incorporateci herein by this reference. 2. Rules and Regulations. The Rules and Regulations of the District in effect on the date of execution of this Agreement and as hereafter amended (the "Rules and Regulations") are hereby incorporated into this Agreement by reference. In particular, Articles VIII and IX of the Rules and Regulations apply to line extension agreements such as this. The provisions of this Agreement are intended to comply with the Rules and Regulations, and to the extent that any provision or provisions do not comply, they shall be interpreted in a manner that brings them into compliance with the Rules and Regulations in effect at the time this Agreement was executed. All capitalized temlS used herein shall have the meanings defined for them in the Rules and Regulations unless otherwise specifically defined herein. 3. Installation of Facilities. Developer has submitted for District review a written application for water and sewer line extensions to the Property, engineering designs (the "Plans"), and preliminary cost estimates. All statements and representations of the Developer or its engineer or agents presented in the application for water and sewer line extension, Plans, preliminary cost estimates, or additional or supplemental documentation thereto, and those made before the District Board of Directors at a public meeting, shall be conditions of approval of the application. Pursuant to the Rules and Regulations of the District, the District Engineer must approve the Plans for the line extension in writing before work may commence. Such Plans shall comply with the tem1S and conditions set forth in the letter from Chris Lehrman, E.!., dated April 14, 2006. Approval by the District Engineer of designs, plans or other submittals, and acceptance by the Board of designs, plans or other submittals, does not relieve the Developer of its obligation to comply with the District's Rules and Regulations. No deviation from the Rules and Regulations is permissible or will be allowed unless a specific waiver or modification is expressly granted by the Board in accordance with Section 1.06 of the Rules and Regulations. All construction and installation ofthe sewer lines shall comply with the Rules and Regulations of the District, including the Technical Specifications and Procedures, and any applicable federal, state, county, or local laws. The line extension shall be installed in roads or streets that Eagle County, the State Highway Department, or other public agency has accepted for maintenance as public rights-of-way or in easements approved by and granted to the District. 4. Pre-Construction Meeting. The Developer shall hold a pre-construction meeting between the District's operators and engineers and the Developer, its engineer and contractor for the purpose of discussing all of the construction issues that will be required for this project. I: \2.006\Clients\MV MD\4{ 5)-CMPRD-1923\Agreements\FS-LineExt. wpd -2- 5. Observation of Construction. Developer agrees to arrange for inspection of all facilities and construction on the Property pursuant to the Rules and Regulations. Further, all construction and installation of facilities shall be subject to the District's right to observation, at Developer's expense, by the District Engineer or such other authorized representative of the District as the District Board shall designate. Such observation may occur at any point during or ... JJ.jJQnc.:;m:npletiQu .QfCQl1_stI"llctioIl (:11}(1 l11a.Y.QGc;llL at . 8.Ilytiml'.la.[tl'.lrJa.c;jlitil',l.$ _a~~. ()pe~a.ti()l1a.L(:lL reasonable intervals as the District may request. Developer agrees that the construction and installation of facilities shall be in accordance with the Rules and Regulations ofthe District and all applicable federal, state, county, and local laws. The District Engineer may, on behalf of the District, correct any deficiencies in the construction and installation of facilities that are not constructed or installed in conformance with the plans as approved. Developer shall coordinate with the District Engineer the timing of the construction and installation of facilities to facilitate compliance observations by the District Engineer. Observation, acquiescence, and/or approval by any engineering inspector of the construction of physical facilities, at any particular time, shall not constitute the approval or acceptance by the District of any phase of the construction of such improvements. Such approval and acceptance shall be made by the District only after completion of construction and in the manner set forth in Paragraph 9. 6. Forest Service Line Dedication. Developer and Eagle County agree to complete any and all requirements necessary to dedicate the existing FS Line to the District. Specifically, the Developer and/or Eagle County agree to perform - or cause the Forest Service to perform- the following tasks: (1) videotape the existing FS Line; (2) make any and all repairs to the FS Line as are necessary to bring the FS Line to the District's dedication standard, as revealed by the videotape and required by the District's Engineer in his sole discretion; (3) provide as-built engineering drawings of the FS Line; and (4) prepare a surveyed legal description ofthe FS Line utility easement to be granted to the District. Only after all of the above requirements are completed and the Forest Service grants a utility easement to the District, will the District accept dedication of the FS Line and allow the Developer to connect to the District's Sewer System. 7. Easements. The Developer and Eagle County (as owner ofthe Property) shall grant the District utility easements across the Property, which easements shall be conveyed free and clear of all liens and encumbrances which would interfere, as determined by the District, with the District's use of the easements. Such grant of easement shall be in the form attached hereto as Exhibit B and incorporated herein by this reference. All easements to be dedicated shall be general utility easements of a width determined by the District. Further, Developer and Eagle County agree to convey any and all other easements necessary for access or completion of work on the Property or for future expansion of District services. By signing this Agreement, Eagle County agrees to convey easements to the District as required hereby. Further, Developer and Eagle County agree to cooperate with the District to obtain utility easements from the Forest Service for the FS Line to be dedicated to the District. 8. Fees and Charges. Developer shall pay to the District, in full, all fees incurred by the District relating to the facilities, including without limitation engineering, surveying, legal, construction observation, filing or recording fees, and related expenses. Interest shall be imposed at rate of 1.5% per month on all balances not paid within thirty (30) days of the date of the 1:\2006\Clienls\MV MD\4(5)-CMPRD-l 913\Agreements\FS-l.ineExt wpd -3- statement. In the event the District is forced to pursue collection of any amounts due and unpaid under this provision, the District shall be entitled to collect attorney fees and costs incurred in said collection efforts, in addition to the amount due and unpaid. 9. Acceptance of Facilities By District: Warranty. Upon satisfactory completion of .... the fIlQil iti.~.t),Jl1~J:)j.~tri9t.El1gil1~~I ~Sl1Jl119yrtify~tQJl1~.J:) istri9t BQald.Jl1CitJh e _fll9iliti~~hIlY~QY~11.. . constructed and installed in accordance with the provisions of the Rules and Regulations and in accordance with the applicable provisions of federal, state, county, and local laws. Thereupon, Developer shall request the District to accept the facilities and shall provide the District with the following information: A. A written summary of the actual costs of all facilities to be dedicated to the District. In addition, a certification that all such costs of construction have been fully paid, and written waivers of the right to claim mechanic's liens by all contractors perforn1ing work on the Property; B. A Bill of Sale conveying the transmission lines and facilities free and clear of all liens and encumbrances, in a format acceptable to the District; C. Developer shall submit to the District a video tape of the interiors of the extended sewer lines; D. As-built drawings for the project which have been prepared by a registered land surveyor at Developer's expense and which satisfy the requirements of the Rules and Regulations and Technical Specifications and Procedures of the District. The drawings shall consist of one set of reproducible mylars and an auto-cad disk. The District's written acceptance of the as-built drawings and video tape, if applicable, shall complete Developer's dedication to the District of the facilities required by the plans; E. A two-year warranty guaranteeing to the District that the improvements have been constructed in a good and workmanlike manner and the materials free of defects for a period of two (2) years from the date of acceptance of the improvements by the District; and F. Compliance with all other provisions and requirements of this Agreement. Upon satisfactory completion of the above requirements, the District Board shall formally accept the line extension project by a motion entered into the minutes of the Board of Directors and refund to the Developer all deposits. Such acceptance, if given, shall constitute dedication by Developer of such facilities to the District and the agreement of the District to provide potable water and sewer service to the Property in accordance with its Rules and Regulations. Once accepted, the sewer lines and facilities (except service lines) shall be owned, operated, maintained, repaired and replaced by the District, subject to the warranty provisions above. I :\2006\Clients\MVMD\4(5)-CMPRD-192J\Agreements\FS-LineExt wpd -4- 10. Proof of Funds / Security. In order to prove that the Developer has the funds necessary to secure the construction and installation of the improvements described above, for which the Developer is responsible, the Chairman of the Board of Crown Mountain shall furnish the District with a letter certifying that Crown Mountain has budgeted and appropriated funds necessary for the construction and installation of the improvements. The estimated costs of the public improvements required to be constructed pursuant to this Agreement shall be a figure mutually agreed upon by Developer and the District. In the event the cost of the improvements exceed the estimated cost, Developer shall be solely responsible for the actual cost. The purpose of the cost estimate is solely to determine the amount of security and shall be revised every twelve (12) months to reflect the actual costs, and the proof of funds or letter of credit required by this Agreement shall be adjusted accordingly. No representations are made as to the accuracy of these estimates, and Developer agrees to pay the actual costs of all such public improvements. Developer also shall deposit with the District two thousand dollars ($2,000.00) in cash in advance to ensure that satisfactory as-built drawings for the project are submitted to the District as required by Section 8.05 of the Rules and Regulations. Said deposit shall not be released back to Developer until satisfactory as-built drawings are submitted by Developer and approved in writing by the District Engineer. 11. Breach by Developer: District's Remedies. In the event of a breach of any of the ten11S and conditions of this Agreement by Developer, the District Board of Directors shall be notified immediately, and the District may take such action as the District deems necessary to protect the public health, safety and welfare; to protect the Property owner and builders; and to protect the users of District facilities from hardship. In addition to all other remedies available at law or equity, the District may: A. Record with the County Clerk and Recorder an affidavit, approved in writing by the Board and signed by the Chairman of the Board or any Board member, stating that the terms and conditions of this Agreement have been breached by Developer. At the next regularly scheduled Board meeting, the Board shall either approve the filing of said affidavit or direct a District representative to file an affidavit stating that the default has been cured. Upon the recording of such an affidavit, no further District services or assistance will be provided in connection with the Property until the default has been cured. An affidavit signed by the Chairman of the Board of the District or any District Board member and approved by the Board stating that the default has been cured shall remove this restriction; B. Demand that the security given for the completion of the improvements be paid or honored; and/or C. Refuse to provide services to the Property. 1:\2006\Clients\MVM D\4( 5)-CMPRD- J 923\Agreements\FS-l.ineExt wpd -5- Unless necessary to protect the immediate health, safety and welfare of the District users, the District shall provide Developer ten (10) days' written notice of its intent to take any action under this paragraph, during which ten-day period Developer may cure the breach described in said notice and prevent further action by the District. Furthermore, unless an affidavit as described in part (A) of this paragraph has been recorded with the appropriate County Clerk and _____Re_cilrd_er,_QQY-p_erSJJD_deI\liDZ-wiJLD-.eveloper shall be entitled to assume that no default by____ _._~~ Developer has occurred hereunder unless a notice of default has been served upon Developer as described above, in which event Developer shall be expressly responsible for informing any such third party of the District's claim of default. 12. Assignment. This Agreement may not be assigned by Developer without the prior written c('nsent of the District, which consent shall not be unreasonably withheld. In the event Developer desires to assign its rights and obligations herein, it shall so notify the District in writing together with the proposed assignee's written agreement to be bound by the terms and conditions contained herein. 13. Indemnification. To the extent permitted by law, Developer agrees to indemnify and hold the District harmless from any and all claims or losses of any nature whatsoever incurred by the District arising out the construction and/or installation of improvements contemplated by this Agreement. This indemnification shall include actual attorney fees incurred in the event that any party brings an action against the District for any of the approvals or dedications described herein. The parties hereto intend not to duplicate any legal services or other costs associated with the defense of any claims against either party described in this section. Therefore, the parties hereto agree to cooperate in full to prevent duplicative expenses incurred as a result of the indemnification herein described. 14. Waiver of Defects. In executing this Agreement, Developer waives all objections it may have concerning defects, if any, in the fonnalities whereby it is executed; concerning the power of the District to impose conditions on Developer as set forth herein; and concerning the procedure, substance and form of the ordinances or resolutions adopting this Agreement. 15. Release of Liability. It is expressly understood that the District cannot be legally bound by the representations of any of its officers or agents or their designees except in accordance with the Rules and Regulations and local, state and federal laws, and that any party, when dealing with the District, acts at its own risk as to any representation or undertaking by the District officers or agents, or their designees, which is subsequently held unlawful by a court of law. 16. Captions. The captions in this Agreement are inserted only for the purpose of convenient reference and in no way define, limit or prescribe the scope or intent of this Agreement or any part thereof. 17. Invalid Provisions. If any provision of this Agreement shall be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision hereof, all of which other provisions shall remain in full force and effect, and such void provision shall be replaced with a valid provision which most closely sets forth the intentions of 1."2006\Cliellts\MVMD\4( 5 }-CMPRD-192J\Agreenlems\FS~Lil1eExl wpd -6- the parties. It is the intention of the parties hereto that, if any provision of this Agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. 18. Governing Law. The laws of the State of Colorado shall govern the validity, ~perfornlance and enforcement of this Agreement. Should either Qarty institute legal suit or action ~--_.~_..._..- for enforcement of any obligation contained herein, it is agreed that the venue of such suit or action shall be in Eagle County. 19. Complete Agreement. This Agreement constitutes the entire and complete agreement ofthe parties on the subject matter herein. No promise or undertaking has been made by any party, and no understanding exists with respect to the transaction herein contemplated, except as expressly set forth herein. All prior and contemporaneous negotiations and understandings between the parties are embodied and merged into this Agreement. Any modification or amendment must be in a written form and executed in the same manner as this Agreement. 20. Attorney Fees and Costs. In the event that either party deems it necessary to pursue legal action to enforce any provision of this Agreement, the prevailing party shall be entitled to reasonable attorney fees and costs of suit actually incurred in such action. 21. Binding. This Agreement shall be binding upon and inure to the benefit of the parties and their heirs, assigns and successors-in-interest. 22. Recordation. Upon execution, this Agreement shall be recorded in the Office ofthe Clerk and Recorder for Eagle County, Colorado. 23. Counterparts. This Line Extension Agreement may be executed in triplicate original counterparts, each of which shall constitute an original, but all of which shall constitute one and the same document. 24. Notices. All notices, requests, demands, consents, and other communications pertaining to this Agreement shall be transmitted in writing and shall be deemed duly given when deposited in the United States Mail to the parties at their addresses below or any subsequent addresses provided to the other party in writing: Notice to District: Mid Valley Metropolitan District 0031 Duroux Lane, Suite A Basalt, CO 81621 With copy to: Leavenworth & Karp, P.c. P.O. Drawer 2030 Glenwood Springs, CO 81602 J. \2006\Clicnts\M VMD\4( 5)-CMPRD.192J\Agrccrnenls\FS~LineExt. wpd -7- Notice to Developer: Crown Mountain Park & Recreation District 238 Fa\\'l1 Drive Carbondale, CO 81623 Notice to Eagle County: Eagle County Facilities Management P.O. Box 850 Eagle, CO 81631 With copy to: Eagle County Attorney P.O. Box 850 Eagle, CO 81631 IN WITNESS \VtIEREOF, the District, Crown Mountain, and Eagle County have caused this Line Extension Agreement to be executed on the day and year first written above. ATTEST: ~ - CROWN MOUNTAIN PARK AND RECREATION DISTRICT ATTEST: By ~?)~ ~Ldo l1A...Lt Sec' etary / COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its Board of County Commissioners By ATTEST: Chairman Clerk to the Board of County Commissioners I: '2006\Clients\MVMD\4( 5)-CMPRD-1923\Agreements\FS-LineExt. wpd - 8- Notice to Developer: Crown Mountain Park & Recreation District 238 Fawn Drive Carbondale, CO 81623 Notice to Eagle County: Eagle County Facilities Management Eagle, CO 81631 With copy to: Eagle County Attorney P.O. Box 850 Eagle, CO 81631 IN WITNESS WHEREOF, the District, Crown Mountain, and Eagle County have caused this Line Extension Agreement to be executed on the day and year first written above. MID V ALLEY METROPOLITAN DISTRICT By ATTEST: President Secretary CROWN MOUNTAIN P ARK AND RECREATION DISTRICT By ATTEST: President Secretary COUNTY OF EAGLE, STATE OF COLORADO, mITIlSSlOners ATTEST: I; \2006\C1ients\MV MD\4( 5)-CMPRD-1923\Agreements\FS-LineExt wpd -8- I W~<'~"".'f~:::;~~~::, . .. ..,,::~=:\ ,fov,,7l-~"(UW'~ Ii ,)J!/" \ i~''\ ' o PtV-ed 1: ,'-. 2= .=i,~ ~ ~ ~ \ . . .' '. - ~,' jli1>~ I" . ,,- ~... 47 :::;,~ ~ .\ ..... 1\ ~" - ""-'_.,,;- ",,"'- '.\\ " . = ~ p""'r nov<<- i~ /. \/ ""~~\l!i~' 0 ~~" ' ., '~j "" . , { ~ . ,._,t , /-, BAllF!ELOS ,\ ''\",_.~-....-.... ( ,. '.' "'"' ,'" '<."" ~ ' \. . 11: B ~. " j' 1 "\ - 9-" "., ~","'6i "'\ f,' " ---\ \ "<'/ ; , i ~, ""- "'. " - " ~., I' d\~ ,\, '. . . ~ , ; ~ ' 'I \ ~, ..:\ ,I . , ;!.-~~ " .::J;>- l'\ \~ ~ \. Jl , ~- )--~y -J.'? - \ Lc.6JJ ,l.-'o~" ,: ~ V I' , ';. ~'1.;~_';:~,~, -''''~-'~' ,.,,'/ :<::.'" ~X .':"'~: ""I l 'I \~'--~ / . ,,/ I~, ~., 4' ~-"~:"'-e"'" I 'w '\ "-V~~<1W-' , 'I ' "'<~ ~- ,. ,.., ' --',=n~'~~ I 'of'~'" , '. . , ',",-' / ~" ,,\ " .. , ',0 "", " ' .~ [.c,_"'/' ';,," .,.~ -~EAllMfTS~ ~)Q, 1/ " ' ~ '. .;< / , '> ~ '" ----- P POS 0 :;,. r'/ / !( \L , ~ /,.-/ .......,('--'\~ ~ BAlLFIE '~,\~7 / " '~ --.~. \ -'r"'- '..----- .., l , ~_../ \,...... ~-' '\ , 'p?~ " .." -... """ il r-- --"'"". I '~OPOSEO / / \'" l ) -- '""~". ......::'--,~ ....--',"- B>\'-lFIEW, "~,,"i '" . ........ ...... ~' 1-. " '~~~'''''. -... .-_/ """.-" EASE AREA i! \ . . - ,( '-- . ...' '-'''- ~ ''''''<~~='''-~ ' L r ' "'. .~ ',' ".. " ''''' '''~ ~ .f' . s:. "";'. ',I J : ~.",,~ ._ _.._ /,9 1 _ . . \ t" \ ' "'\" ~;.-. -'-'*--. --p , . I' ", " I ,. ,_,~'. '.=_ . I '. , .,,"', I'~ -- 'J . . ~).""" C:::J, J , """~-. I _ ' I. '."'~ \".,\ ~. I , '" _ "I"'P W>t<..( 7 :1': '\, ~~" -'~~_~'~~'___-=,"". ';_"""'= r: ft \.'>. .. .", '! I '1."-- . d L A a I,' '. \. ~c:L___.~__..~_, I _ R vise ease r~ ; ,\, .-~ ,,,-~ ' i I ea~ TN~"""'" \ \ \ \ "" "C', '-------''-.....J '_ . ,. Th 'I . . ,\'- . \-'>. '~~ i~ r ~.! ~ \" . -...... ..~ '''''-~-' \ .", '. ........ -' .-., .'- ~" " '-.'"... .-. . , I , 'I--' . -- f . -.... )-- -" "'. ". ! I ,,, ~'Y'^" '\. '. -' -...7..... -..........." ~ ". '.... ".. ".--,= ". .-.:. ...-<;, /'. ,", \ '~"'~i I ,.. '. '-, <"X "",^'~-- "\ \f'-~'-i - '''''............. ......---"..... ::-:-....:':- ". ~\"\\ ,} \-, II "~"-'- \ . \~'" h'=-~""-" L .. \ . \\~~ ..p:yJ' .._ \ \ ~:)"'. J ',' lE1.0 . \---===-------.- ! - ".".~.".. :.:' \ ~--: r;y.. ki ~i +- Itlt ll, Exhibit "B" UTILITY EASEMENT DEED -------"'---- THIS UTILITY EASEMENT DEED is made this ~~~-~~--- .2006. --~-_....,.._._-~ by and between the County of Eagle, Colorado, acting by and through the Eagle County Board of County Commissioners, whose address is P.O. Box 850, Eagle, CO 81631 (hereinafter "Grantor"), and the Mid VaHey Metropolitan District, a Colorado special district, whose address is 0031 Duroux Lane, Suite A, Basalt, Colorado 81621 (hereinafter "Grantee"). WIT N E SSE T H: That the Grantor, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby quit claim unto the Grantee, its successors and assigns forever, the following real property situate, lying and being in the County of Eagle, State of Colorado, described as follows: A non-exclusive utility easement for the construction, use, maintenance, repair, and replacement of a sewer main line and related facilities, including access thereto, the width of said easement being _ feet on both sides of the centerline, which centerline is legally described as follows: .-- TO HA VE AND TO HOLD the same, together with all and singular the hereditaments and appurtenances and privileges thereunto belonging or in anywise thereunto appertaining for the benefit and behoof of the Grantee, its successors and assigns forever. IN WITNESS WHEREOF, the Grantor has executed this Utility Easement Deed on the date set forth above. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its Board of County Commissioners By Chairman ATTEST: Clerk to the Board of County Commissioners After recording please return to: Leavenworth & Karp, PC P. O. Drawer 2030 I \200ei\ClientsVvlVMD\4(5l-CMPRD-1923-\Agreell1l:nts\Exhibit B to LineExt wpd Glenwood Springs, CO 81602