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HomeMy WebLinkAboutC02-284 Edwards Metro DistrictCot ---zs'q- -- I o INCLUSION AND EXCLUSION AGREEMENT THIS INC.- LUSION6-QJ/-obe_1' EXCLUSION AGREEMENT ("Agreement"), made and entered into this �— day of , 2002, by and between the BERRY CREEK State of Colorado ("Berry Creek"), EDWARDS METROPOLITAN DISTRICT, a quasi -municipal corporation and political subdivision of the State of Colorado ("Edwards"), and EAGLE COUNTY, COLORADO, a body corporate and politic ("Applicant"), (collectively referred to as the "Parties") is as follows: WHEREAS, Applicant is a county of the state of Colorado currently providing services to certain properties within Eagle County, Colorado; and WHEREAS, the Applicant is the owner of certain real property in said county, a legal description of which is attached hereto as Exhibit A and incorporated herein by this reference, (collectively, the "Property"); and WHEREAS, as consideration for other benefits not connected to or associated with the Property, Applicant desires to petition Berry Creek for exclusion of the Property from the boundaries of Berry Creek; and WHEREAS, Applicant desires to petition Edwards for inclusion of the Property into the boundaries of Edwards; and WHEREAS, Edwards is interested in having the Property included within the boundaries of Edwards, subject to the terms and conditions of this Agreement; and WHEREAS, the statutes of the State of Colorado permit the Parties to enter into this Agreement for exclusion of the Property from Berry Creek and inclusion of the Property into Edwards, and said statutes further provide that this Agreement is binding upon the Parties and their successors, transferees and assigns; and WHEREAS, the Parties find and conclude that, due to economic conditions in the area and the need to encourage development within the Property, the obligations and limitations imposed on the Property pursuant to this Agreement are in the best interests of the Parties and their taxpayers and inhabitants; and WHEREAS, the obligations on the part of the Parties as set forth below do not constitute a multiple -fiscal year direct or indirect district debt or other financial obligation, and therefore comply with Article X, Section 20 of the Colorado Constitution. NOW THEREFORE, in consideration of the mutual covenants and stipulations herein expressed, the Parties agree as follows: I. Definitions. 1. Applicant: any and all owners of the Property as well as any and all successors in interest of the Property. 2. Coun : Eagle County, Colorado. 3. Districts: Berry Creek Metropolitan District and Edwards Metropolitan District. -1- 4. Petitions: the Inclusion and Exclusion Petitions filed by the Applicant with Edwards and Berry Creek. 5. Property: the real property owned by Applicant, described in Exhibit A hereto. 6. Tap Fee: the fee that Berry Creek charges for the privilege of connecting to Berry Creek's or Edwards' water and sewer systems, which fee may be established, increased, decreased, or discontinued from time to time by Berry Creek as it deems appropriate. H. Inclusion of Property. 1. Petition; Timing. Applicant has petitioned the Districts for exclusion of the Property from Berry Creek and inclusion of the Property within Edwards, and hereby agrees to follow all statutory requirements necessary to complete the exclusion and inclusion processes, including without limitation the publication and posting of notice as required by law so that the public has a fair opportunity to appear and comment on the proposed inclusion and exclusion. 2. Condition Precedent. This Agreement is intended to set forth the terms and conditions of the inclusion and exclusion of the Property, as well as the obligations of the Parties upon and after said inclusion and exclusion. Accordingly, the obligations under this Agreement shall be contingent upon the exclusion of the Property from Berry Creek and inclusion of the Property within Edwards, and should either the exclusion or inclusion not occur for any reason within six months of the date of this Agreement, then the obligations set forth herein shall have no force or effect. III. Provision of Services by District. 1. Extent of Service. a. After the Property is included in Edwards, Berry Creek will not provide water, sewer, street, street safety control device, fire protection, police protection, park and recreation, or any other type of municipal service to the Property. b. After the Property is included in Edwards, Edwards shall provide to the Property such services as Edwards provides to other similarly situated properties, including water and other services subject to all of Edwards' rules, regulations, policies and procedures and all applicable laws. IV. Tax and Fee Agreement. 1. Payment of Proportionates Share of Debt. As a condition of and in consideration for the exclusion of the Property from Berry Creek, and in order to eliminate overlapping special districts in furtherance of C.R.S. Section 32-1-107, the Applicant shall pay to Berry Creek the sum of thirty-seven thousand, three hundred forty-three dollars ($37,343) which constitutes the property's proportionate share of Berry Creek's outstanding general obligation indebtedness (the "Berry Creek Bonds") and interest thereon that will exist as of the effective date of the order of exclusion to be obtained from the District Court (January 1, 2003), which payment is consistent with and required by C.R.S. Section 32-1-503. Berry Creek hereby affirms and agrees that such payment represents payment in full of all obligations under C. R. S. 32-1-503 and Berry Creek hereby waives the right to seek additional funds from the Applicant or its successors and assigns. After the effective date of the exclusion, the Property shall not be subject to any property tax -2- lv� levied by Berry Creek for any purpose, nor shall the Property or any owner thereof be obligated for the payment of any indebtedness created after the date of the Court's order. 2. Tap Fees. a. Upon inclusion into Edwards the Property and the development thereof shall, notwithstanding its exclusion from the boundaries of Berry Creek, remain subject to the imposition of the Tap Fee, which shall be due and payable when new connections are made to the Edwards water and sewer systems which are for the purpose of providing water and!or sewer service to the Property, regardless of the ownership of the Property, or that portion of the Property, in question. b. Edwards shall on behalf of Berry Creek, assess and collect the Tap Fee for Lots 1 through 7, inclusive and Lots 48 through 64, inclusive, Berry Creek Filing No. 5, Eagle County Colorado pursuant to Berry Creek Metro Tap Fee rates, and shall remit the same, less a reasonable handling charge, to Berry Creek. No Berry Creek Metro Tap fees will be collected on any other excluded lots or parcels. Edwards shall use its best efforts and exercise such powers as are authorized by Colorado law to enforce the collection of the Tap Fee as it is assessed and due, including but not limited to the refusal to serve, or the termination of water and sewer service to, properties that are delinquent in the payment of the Tap fee. c. Berry Creek may amend the Tap Fee from time to time, but shall provide Edwards and Applicant with thirty days written notice of such amendments. d. Revenues collected as a result of the imposition of the Tap fee shall for all purposes be considered revenues of Berry Creek and are not revenues of Edwards. Payment shall be due from Edwards to Berry Creek only as and when Tap Fees are collected. e. To the extent that Berry Creek Filing 5 is re -platted in a manner which eliminates or reconfigures Lots 1 through 7 and Lots 48 through 64 such that Berry Creek will not receive the same number of Tap Fees or the same aggregate dollar amount from the collection of Tap Fees from the same property, then and in that event Edwards shall on behalf of Berry Creek, assess and collect the Tap Fee for other lots or properties on a first developed, first collected basis in order that Berry Creek receive the same number of Tap Fees, or if not the same number the same aggregate dollar amount, that it would have received had Lots 1 through 7 and Lots 48 through 64 not been re -platted. V . Miscellaneous. 1. Enforcement. The Applicant and the Districts acknowledge and agree that this Agreement may be enforced in law or in equity by decree of damages or other legal and equitable relief as may be available to either party subject to the provisions of the statutes of the State of Colorado. The Parties agree that in any action to enforce any provision of this Agreement the prevailing party shall be entitled to recover its attorney fees and costs from the other. 2. Assignment. Prior to the exclusion and inclusion of the Property in accordance with Colorado law, this Agreement shall not be assigned by the Applicant without the written consent of the Districts. Any attempted assignment without such consent shall be deemed void and of no force and effect, provided, however, that said consent shall not be unreasonably withheld. WE 3. Survival of Obligations. Notwithstanding the prohibition against unauthorized assignment set forth in Section V(2) above, the provisions of this Agreement shall be deemed to survive any transfer of the Property after its exclusion and inclusion and shall inure to the benefit of the successors to, and/or transferees, and assigns of the Applicant's interest in the Property. 4. Fair Dealing. In all cases where the consent or approval of one party is required before the other may act, or where the agreement or cooperation of either or both parties is separately or mutually required as a legal or practical matter, then in that event the parties agree that each will act in a fair and reasonable manner with a view to carrying out the intents and goals of this Agreement as the same are set forth herein, subject to the terms hereof; provided, however, that nothing herein shall be construed as imposing on either party any greater duty or obligation to the other than that which already exists as a matter of Colorado law, including but not limited to any fiduciary duty or other responsibility greater than that of reasonable parties contracting at arms length. 5. Supersedes Prior Agreements. This Agreement supersedes all prior agreements between the parties with respect to the Property and shall constitute the entire agreement of the parties; provided, that both Berry Creek and Edwards desire to contribute to recreation on the Berry Creek/Miller Ranch property (of which the Property is a part) and it is agreed between the Districts and the Applicant that they will enter into a separate agreement for such purpose on such terms and conditions as may be agreeable to the parties 6. Subject to Appropriation. Notwithstanding anything to the contrary contained in this Agreement, Eagle County shall have no obligations under this Agreement nor shall any payment be made to District in respect of any period after December 31 of any calendar year without an appropriation therefor by Eagle County in accordance with a budget adopted by the Board of Eagle County Commissioners in compliance with applicable provisions of law." IN WITNESS WHEREOF, the parties hereto have caused their names and seals to be affixed the date and year first above written. County Commissioners APPLICANT: COUNTY OF EAGLE, STATE OF CO] and Through -Its BOARD OF 0 -4- sinner Tom S one Commissioner EDWARDS METROPOLITAN DISTRICT, a quasi - municipal corporation and political subdivision of the State of Colorado. ATTE c By: 'SecretW President BERRY CREEK .. METROPOLITAN DISTRICT, a quasi - municipal corporation and political subdivision of the State of Colorado. ATIF T: By: l Secretary esident STATE OF COLORADO ) ss. COUNTY OF r, i (� I ) The foregoing instrument was �acknowledged before me this day of— --' 2002, bYu�'�"s-- kN—'��—` _--------- ' Lh✓ vt fan vv"' and 1 011,1 a as Commissioners, and and the Clerk, of the County of Eagle, State of Colorado. fitness my hand and official seal. My commission expires: 0 Notary Public STATE OF COLORADO ) ss. COUNTYOF ) The foregoing o abler __, instrument 2002, by�r� wa acknowledged (� � efbrc me this a I l e;r t i }h day as 1 and as �etiz 1 c. r v of Edwards Metropolitan District, a quasi -municipal corporation and -5- .woe `.r political subdivision of the state of Colorado. �Q1 L. CU Witness my hand and official seal. pTAi�':��tP 1 : My commission expires: k C :O tary Public B1;.•PT OF COO t ATE OF COLORADO ) ss. COUNTY OF ) The fo egoing instru nt was acknowledged before me tth�is IL�da Q b r 2002, by 1- of r as f'r S d o'rna.l o E f\ as r of Berry Creek Metropo itan District, a quasi -municipal corporation and political subdi ision of the state of Colorado. Tq �'RryTi X J Witness my hand and official seal. My commission expires: J tg' o NotaryPublic li. EMI IT A PROPERTY DESC=ON- A PARCEL. OF LAND LOCATED IN TRACT D, BERRY CREEK / MH R RANCH PLANNED UNIT DEVELOPMENT, EAGLE COUNTY, STATE OF COLORADO, RECORDER IN RECEPTION NLTW 799649 AT THE EAGLE COUNTY CLERK AND RECORDERS, BEING MORE PARTIt:ULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID TRACT D, BERRY aWEK / MILLER RANCH P.U.I .; THENCE ALONG THE NORTH LINE OF SAID TRACT D, S790 44' 3T' E 105.98 FEET TO A POINT ON A WESTERLY LINE OF A PARCEL OF LAND RECORDED IN RECEPTION NO.608150; THENCE ALONG SAID WESTERLY LINE OF A PARCEL OF LAND RECORDED IN RECEP'I`ION NO. 608150, S 080 33' 28" W 531.48 FEET TO A POINT ON THE EAST LINE OF THE SOUTHWEST QUARTER OF SECTION 4, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE SIXTH PRINCIPAL MERIDIAN, ALSO BEING THE EASTERLY LINE OF A PARCEL OF LAND RECORDED IN RECEPTION NO. 713859; THENCE ALONG SAID EASTERLY LM OF A PARCEL OF LAND RECORDED IN RECEPTIONNO 713859, S 02° 01' 08" W 523.41 TO A POINT ON THE SOUTBERLY LINE OF SAID TRACT D; THENCE CONTINUING ALONG THE BOUNDARY OF SAID TRACT D THE FOLLOWING THREE COURSES: 1) 72.85 FEET ALONG TIE ARC OF A CURVE TO THE RIGHT, HAVING A RADIUS OF 1809.86 FEET, A CENTRAL ANGLE OF 020 18'22" AND CHORD WHICH BEARS N 660 45' 47" W 72.84 FEET TO A POINT OF 'TANGENCY; 2) THENCE N 650 36' 36" W 260.34 FEET; 3) THENCE N 170 42' 16" W 977.57 FEET TO THE POINT OF BEGINNING; SAID PARCEL CONTAINS 4.633 ACRES OF LAND MORE OR LESS. . Brent Biggs Colorado PLS 2759% Peak land. Surveying, Inc. r'- • !!ff!ltttL`tti«i'� EXHIBIT a'ye/ - i RACT B OF S79'¢4'37" MILLER RANCH ROAD �� Y 7 5.9 POINT OF 92.59' „ BEGINNING N85'37 48 E 120.00' S�1' 59, T 22'22'25" 29,76�770.00'a=1437'35" 00.68' R=830.00' T=152.28' CH=298.77' L=211.88' co T=106 52' CB=N83'11'00"W TRACT C ^ ;� CH=211.31' o CB=S87'03'25"E vn ob c WESTERLY LINE OF PARCEL RECORDED AT RECEPTION No. 608150 S02'01'08"W -- 523.41' n TRACT D I m EASTERLY LINE OF PARCEL un RECORDED AT RECEPTION No. 713859 J vi N A--02'18'22" O. R=1809.86' m L= 72.85' L=11.28' �ss:36 T=36.43' o 36,, CH=72.84' v !qi CB=N66'45'47"W 00 S02'01'08"W L=61.57' 53.14' A= 2 4'16' 56" R=1859,86' S87'14'24"W — 281.60' L= 788.22' T=400.11' DENVER RIO GRAND & WESTERN CH= 782.33' CB=S80'37'08"E RAILROAD RIGHT OF WAY EXHIBIT A SCALE: 1"=200' TRACT D BERRY CREEK/MILLER RANCH PUD mix °C" lAW CONSUtiu,iS, t/G EAGLE COUNTY, STATE OF COLORADO °CM Luc \lfF.if.Y.. fY �M..f1.YN .fm wfs uoa tos vti o wi Y _.. �..-.�iY-.a .._ -.r .i. .....—_..-1L.._.�i_.._a.c..=...�a__t�:a�.._-.r�.+�.�_..�_..��..a��.>tsaas+.a►..a �f�...�.�alaaw�.c-_�-.��.r_.«���++. ���a.r.Tw.�._..rye....a_..--.r..��..-._�..����...—_— __ -- �.r�����...�.�.�� ..�- r.•'r FACILITY Parcel-1 ��yy�� 40,711 sq. ft. I co n 0;935 acres ,t �..✓ �r a Portion of Tract D Berry Creek /Miller Ranch PUD W o N W �m -`~ 265.80' (�� L� L TR EE T c� .. Boundary — Berg Creek 93. 7 20. 9z.s9 0 Metro D>str eVEdwards LOT 1 " LOT 75 ?s` �r' � 0.117 a ras � m' S4• Metro District (approx.) o 0.082 acres c 20 28, N 0 0o LO^ •32 /n, 8 a �re9 • Se.cr i V` 0.083 acr 0.040T LOT 53 s °des e 0.083 acres c M� 0Oto ?! eyry Par 89 . crQs o C. 54 cd-1? ? c 0.083 acres w Q031 o 89.7 0� 90 0 LO 2 es t o' a OslT AO ^ a C% o LOT 55 9'j °yes ^ c. 0.083 acres `� 0; /'Y� . 0 04g o 9 00 4 PUBLIC �LJ N 80?8. C CY 0 N COMMUNITY v 4. - N OQS g PARK n 1117 Cy PCL-11 ' Go LOT 56 34.844 sq.ft. L o `r 0.114 acres oo $ 7 cres 0.800 acres' 1 c A O 0 h ,04S ry N 9 Ze, �ry toy. 65 ry • Parcel-2 �Qs U) N OJOS acres. %� � ? ao '?S' N w 90 env arcd-3 vi OT 57 107 acres N 0.11 acre n • h � O N 0 9 • ?8 h LO 64 00 C �14> 3' for 58 h 0.113 acres 95' N .083 acres o0 56.00. N 04 ?8. v4 p 9 >1 s T^ 0) LOT 59LOT 6 g c / /� [� o 0.083 acres c `g' 0.082 oc s c s200. �o o `mow a� 4 oy 0 ro 90?8. op o 89 )?' ti o o°j p o „ �av oa ry v o LOT 62 Opp °iN c �V.` A !o ry o `' a bq 6.00 a 40,00: v LOT 60 'g 0.082 acres or ^ °j o 0 0°� y N C0.107 acres y ey )?, ,C �• o nv nm go oo 0 o a `^° ti v- 5200' 9 m ?� Q I� p o Cd LOT 61 �' o a d o o00 n ?0, h 0.129 acres .4 �¢ C J �0O 02. o.. � utl 0 09' t � Cas1.4j' .9 . . LOT 1 C 0.125 acres O �- o a ce 06 a; N co a.?g. zo c�° La14:66' 0,. LOT 2 0• o a 0 1S. oN [ �8 c , b o �' `� L=19.43' . ti o,' o 0 9,T• o e av u o, v' 0.086 acres oo m o�d N h �'4U 05. o n 1c LOT 3 j v o Q/ '6 0.086 acres o 89.00. vN Z ,Q C 0 8) 0.129 n �/ a29 IC/ C� N I LOT 47 )S'� L�1p o LOT 4 1>�'401 /�� 0,S8•� ^ 0.125 oeres oo oN �n 0.115 acres h a ,� Nry N ao 0 00 � 9 .� o 66. n oo ,o `r, �S9 4 c „oo, o S2 00. 0• of &,L-S o O ry " , ` (� o m LOT 44 O N $ 3B �? C . o o�ry m o� v /) �5. / $. 0.115 acres a' /�' } i N V9 0 (� C� 6S3 c,4 0, 33, S, p3. LOT 43 sa�b►a �`40 0 74 0.113 acres to 4 ' 4. 00 '*38 c 7a/ 41, 59 l 1. LOT 8 �8 85, ?, CO 26' 122 acres o mh ( N �1 N o e� ¢ 4.0)1 o°j o 0 a �`" S� ' L 55.45. e. ..v - •- ,::.: :._•..,_ -. ..- -..._ ._ .- - .. _ ..� _ .�:�'---.:. ,.,ems__., ... _,__.__,ter._.___. .- ...._.,.�_..�.�..J.:�.t-- -.�.-....�.�....�.,.�-R..._.....=.t..�,....._,_� DISTRIBUTION Originals to• 1. Contract Book Zcc 2 3. 4.