HomeMy WebLinkAbout20042693.tiff wo t i rnynway vv, OUR=Y
Longmont, CO 80504
Office (970) 535-9318
Metro (303) 485-7838
Fax: (970) 535-9854
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LANDPROfessionals, LLC
November 17, 2003
Dear Mr. Morrison:
We are in the process of turning in a Change of Zone for Highland Estates. Could
you please review the enclosed water agreement and if it meets with your approval
please send myself and Jacqueline Hatch an email stating the agreement is
sufficient to proceed with the Change of Zone. For your reference the sketch plan
number is PK-1045: If you have any questions please give me a call. Thank you.
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Lauren Light
LANDPROfessionals, LLC
Ilight@agpros.com
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(970) 535-9318 Office
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SUBDIVISIONAIULTIPLE TAP PURCHASE AGREEIVIEN TC:
1. PARTIES. The parties to this Agreement are the LEFT HAND WATER DISTRICT,a title 32 Special
District, ("District)and Highland Acquisition Group,LLC("Applicant").
2. RECITALS AND PURPOSE. The Applicant is the owner of certain property to be developed,as described
herein. The District is a special district organized under Colorado law which provides treated water service to its
customers for which monthly service charges are made. The Applicant desires to purchase water taps for the
development project.The purpose of this Agreement is to set forth the terms and conditions concerning the Districts
supplying such domestic water service to the proposed project Accordingly, the parties agree to the following
provisions in consideration of the mutual covenants set forth herein.
3. TERM OF AGREEMENT. This Agreement shall become effective upon execution by the parties and shall
continue in full force and effect thereafter until terminated either as provided herein or hi paragraph 63 In the event
that the Applicant fails to obtain all applicable and required land use approvals of the Project within 180 days of
execution of the Subdivision Agreement, the Agreement shall expire and all obligations herein including, without
limitation, the District's commitment to sell such single family equivalencies as indicated in the Agreement shall
automatically terminate.
4. LEGAL DESCRIPTION OF PROJECT.For purposes of this Agreement,the term "Project'shall mean the
property described on Exhibit 4 which is attached and incorporated herein,and which is known as the
Highland Firms Subdivision. Weld County,Coloiadc. The Applicant agrees to furnish a reproducible:coy c f
the preliminary pint to the Disz-ictand said plat is expressly incorporated in this Agreement. Any change or alit r do t
in the area, size, shape, density, usaces, requirements, tap equivalents needed, or timing of development of the
subdivision which may affect the number of tap equivalents required for the project or the method or manner of the
provision of water to or within the project shall first require the written approval of the District.
S. TAPS NEEDED FOR PROJECT COMPLETION. For purposes of this Agreement, the term "tap"shall
mean that size of a connection to one of the District's treated water distribution lines and which is utilized and
designed for a single family or its equivalency pursuant to the District's rules and regulations. The total number o single family equivalent("SFE")taps for the project will he 9. Applicant requests and agrees to purchase, and
District commit to sell, 9 SFE taps pursuant to this Agreement.
6. TAP PURCHASE.
6.1 Within 10 days of final plat approval,the Applicant will tender to the District a check in the amount of
$51.636.00 representing:
a.. $2=.3:6.00 for pre-payment of 40%of Me current plain investment fee component of the total SFE up
fee charged by the District for 9 SFE taps,with a deferral of the other components of the tap
fees,including transfer of the raw water units regcired by this Agreement,until anticipated activatioL l
the tap.
b. $4,800.00 for 100%of the Fire Hydrant Fund Fee of S 1,200.00 per fire hydrant for each of the
4 hydrants to be installed, as shown on the approved plans.
$?2.50000 for 100%of the line participation fee of$2.500,00 cer tap for the reimbursement to the
District and/or third party or parties which paid for the construction costs of the main line(s)
extension(s)which will service the project.
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�..` 6.2 Applicant agrees to complete the purchase of the 9 committed taps by payment of the remaining
components of the then applicable tap fee,excluding the raw water compDncnt, in accordance with the
following schedule,provided that any taps purchased in full in any given year m excess of the min
specified below shall be credited to the following year's minimum:
2 taps in year 1
2 -.aps in year 2
taps in year 3
2 taps in year 4
1 _taps in year 5
6.3 in the event that the Applicant fails to complete the purchase of the minimum number of taps in
each year specified above,or fails to complete the purchase of all 9 taps within 5
years of payment of fee in accordance with¶6., the District shall retain the 40%deposit and the
raw water shares/units transferred hereunder as liquidated damages and the obligation of the
District to provide further taps shall be terminated. The undersigned acknowledges that
extending this .Agreement, the District has agreed to commit a deflrete potion of tee tjta!
capacity of i Ls system to the Applicant and therefore must look to the Applicant for per ormarce
of its obligations to purchase the committed taps in order for the Di strict to meet its ?tran.ial
obligations.
6.4 In the event of an intended increase in the tap fee charges(excluding the raw water component)
District agrees to give notice of the proposed increase to the Applicant at least 30 days in
advance of the effective date of such increase.
6.5 Upon completion of the improvements,the Applicant shall give District 90 days advance notice-
of its intention to physically connect the development to the District's lines and facilities to
effectuate the raw water transfers. Applicant shall,before any such connection is made,transfer
the raw water and pay the balance of any amounts due and owing for such tap fees, including
without limitation, the raw water component(if water is not tansferred to District)and other
components of the tap fee, in accordance with the District's then applicable fee schedule.
7. RAW WATER TRANSFER
7.1 As a condition of activation of the purchased taps,Applicant shall transfer 1.325 units!shares
of C-BT Mater for each tap purchased. The cash value of any excess units referred lc meet:E_:
requirement shall be applied or credited to the balance of the remaining tap:ees due and owing. l
raw water to be tr,.nsfer ed shall consist of 11.923 urtits'sha'es as may O.:. adjusted pursuant tip
District regulations. In the event that raw water is not transferred to the District upon execution of
• this Agreement,Applicant must obtain said units and effectuate the transfer of the raw water prior r;!
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,.1 activation of the taps. In the event that Applicant can not obtain the required raw water on the open
market,the Applicant may,at the discretion of the Districts Board and for good cause shown,make
a cash payment in lieu of the transfer of raw water,in such an amount as the District may determine
to be necessary to obtain raw water including administrative costs, transfer fees and other related
costs,or in accordance with its then existing policies,rules and regulations.
7.2 Applicant shall give District 90 days advance notice of its intention to physically connect such
taps to the District's lines and facilities to provide the District with sufficient time to effectuate the
raw water transfers,if needed. Applicant shall,before any such connection is made,transfer the raw
water and pay the balance of any amounts due and owing for such tap fees, including without
limitation,the fee in lieu of raw water component(if water is not transferred to District)and all other
components of the tap fee, in accordance with the District's then applicable fee schedule.
7.3 The failure of Applicant to complete the raw water transfer, or to pay the cash amount in lieu
thereof as set forth in paragraphs 7.1 and 7.2,or to pay the remaining components of the tap fees for
the total number of taps specified in paragraph 5, on or before the fifth anniversary of the initial
payment to the District of the plant investment fee component of the tap fee;shall constitute a default.
Upon such default any sums paid hereunder by Applicant shall be retained by District as liquidated
damages for such default, it is understood and agreed by Applicant that the purpose of this
requirement for completion of the purchase of all taps within a five year period is based upon the
financial requirements of the District to find its capital constr uotion needs. The District, by utis
Agreement,has committed a definite portion of the total capacity of its system to the Applicant and,
therefore,must lock to the Applicant for performance of its obligations in order that the District may
meet its capital construction and operating expenses. If there is a default by Applicant, DU.stric:may
recommit such taps to other applicants without further notice to Applicaaa.
8. DESIGN SPECIFICATIONS. It is agreed, as a condition precedent to service, that all water lir.es
and appurtenant facilities required to provide water sc.-vice within the boundaries of Applicant's project as
described on Exhibit A and all necessary transmission lines, connecting lines and appurtenant facilities
necessary to connect with the lines of the District as presently engineered and installed, shall be installed at
Applicant's sole cost and expense and shall be in accordance with the current edition of the Distric:'s
Standards and Specifications.. Applicant agrees that the actual installation and construction shall be subject
to the general, as opposed to specific, supervision of, arid inspection by, the District and all related costs of
the District's engineering study, review, approval and inspection (including the District's cost and expenses
of obtaining necessary easements if public rights-of-way are not available or if available, not feasible to
utilize) shall be at the cost of Applicant. Applicant further agrees to give the District,through the District's
Enaneer, edentate notice,prior to commencement of construction, of the date when such ccn-m ction shaft
begin.
9. EASEMENTS. Applicant shall furnish, at Applicant's expense, all easements, rights-ofway, and
consents both within the project ( if public utility easements are not ded_cated by the plat) and v-t9hout the
project, if required. Such easements,rights-of-way and consents shall be provided prior to commencement
of construction Those casements lying outside of the project and which may be required for the construction
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of any portion of the water lines and appurtenant facilities which may be needed to service the project
(excluding public rights of way),and as determined by the District in its sole discretion, shall he obtained by
District but at Applicant's expense. Al! such costs and expenses of easement acquisition shall be paid by .
Applicant to District as a condition precedent to service to the project.
10. WATER SERVICE.
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10.1 The Applicant acknowiedges that District is responsible only for making domestic water
available to the project's individual taps at such pressure as may be available at the point of delivery
as a result of the District's normal operation of its water system. The District may temporarily
disconnect the flow of water in the main or at the individual points of delivery in order to repair,
maintain, test, improve, or replace the main or other portions of the Districts water distribution,
storage and or supply system.
10.2 Applicant covenants and agrees that it will not make any warranties or representations to any
home builder, contractor, developer, landscaping contractor, home owner, lessee, tenant, property
owner, or arty other person or entity, regarding the District's water system's capabilities,pressure,or
flows.
11. SALE OF LINES. Upon completion,approval and acceptance of the work by the District through the
issuance of the District's certificate of acceptance,this Agreement shall operate as asale.,conveyance,transfer
and assignment by the Applicant of al:Applicant's interest and owve-ship in said lines t'the District,free and
clear of all liens and encumbrances, and shall] warrant that the work has been done in accordance with the
laws of the State of Colorado,and all other governmental subdivisions,agencies and units and in accordance
with the desi�ri standards and requirements of the District. Applicant shall guarantee the lines as installed
against faulty workmanship and materials to the District for a period of two years from conveyance and shall..
daring said period,pay all cost and expense of repair or replacement of said lines and, at the request of the
District,furnish a bond guaranteeing said repair and replacement. Upon completion, approval, acceptance.
conveyance and transfer of lines and facilities to the District, the District shall assume all responsibility
thereafter,and all cost and expense for operation and maintenance except as to the above two-year guarantee.
Completion of construction,inspection,approval and acceptance by the District,transfer of lines and facilities
to the District,payment of all consruction costs and expenses required to be done and paid by the Applicant
are conditions precedent to the obligation of the District to furnish and provide water senice to the project
12. OVERSIZE LI.NES. In the event Applicant shall be required to pay for installation of ra nsrnisst::::
and connecting lines outside the boundaries of Applicant's subdivision, and District requires that such lines
and facilities be oversized to permit the use of those lines by the District to serve additional lards and
property in;addition to the property of the Applicant,District agrees to establish the cost of such over sizing
and to reduce this cost to a "cost per tap" based upon the engineered capacity of the lines and the system
which such over sizing can serve. District and Applicant shall enter into a Line Participation :Agreement
which shall provide, as a minimum, that the District will impose a surcharge upon future users J!. the
oversized line, said surcharge to be calculated on a per tap basis utilizing District's engineering estimate as
to the line's total capacity. During a period of seven years from and after the date of the Line Participation
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.-. Agreement.but not thereafter,the District will collect and pay to Applicant the collected line surcharges to
reimburse Applicant for its additional costs in paying for the over sizing of the line.
13. DISTRICT REGULATIONS. All service provided under this Agreement shall be subject to the
monthly service charges and all bylaws,roles mid regulations of the District which may be in force from time
to time.
14. GOVERNMENTAL REGULATIONS. All provisions of this Agreement to the, contrary
notwithstanding,the obligation of the.District to furnish water service under this Agreement, is limited oy,
and subject to all orders,requirements and limitations which may be imposed by federal,state,county or any
governmenta: or regulatory body or agency having jurisdiction and control over the District and/or the
operation of its domestic water system and treatment facilities.
15. DOCUMENTS TO BE FURNISHED. Upon execution of this Agreement,or at such time or times
as may be requested by District,Applicant agrees to furnish District the following:
15.1 A topographical survey of the property described in this Agreement;and
15.2 Final Subdivision plat approved by appropriate regulatory hoards, commissions, or agencies,
together with requirements and conditions fixed by such ectities for development and evidence of_he
Applicant's compliance or plan for compliance;and
15.3 In the event the initial area to be served under this Agreement is not the entire project to be
developed by Applicant and the remainder is being planned as a phased development,Applicant shall
furnish sketch plans,preliminary plats and/or plans as developed by the Applicant with reference to
the future total development of the. entire property. It is understood and agreed that a request for
information as to fixture plans and developments of the Applicant(and the consideration o:such plans
by the District in connection with its obligation to service Applicant's above-described land under this
Agreement) shall not be construed as an agreerr_en: or obligation of District to sere such other
lands,additional lands,or areas proposed by the Applicant for such future development beyond that
provided in existing written.commitments. All information required to be furnished to District by
Applicant shall be provided at Applicants expense.
15.4 Recorded plats and drawings of the development,including a mylar map and Auto CAD diskette
file certified by Applicant's engineer, depicting all lines, valves, fittings and appurtenances as
constructed.installed,and transferred pursuant to Paragraph 11 above.
16. DELAYS. Any delays in,or failure of,performance by any party of his or its obligations under tail
greenient stall be excused if such delays or failure are a result of acts of Cod and nature_ fires, floods,
strikes, labor disputes, accidents, regulations or orders o: civil or military authorities, restrictions or
limitations contained in any initiative approved by the voters,shortages of labor materials., or other causes.
similar or dissimilar, which are beyond the control of such party. including any govern..mertal orders,
directives, re uirements or limitations described above.
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17. PARAGRAPH CAPTIONS. The captions of the paragraphs are set forth only for convenience and
reference,and are not intended in any way to define, limit, or describe the scope or intent of the Agreement.
18. ADDITIONAL DOCUMENTS OR ACTION. The parties agree to execute any additional
documents and to take any additional action necessary to carry out this .Agreement.
19. INTEGRATION AND AMENDMENT;PRIOR AGREEMENTS. This Agreement represents the
entire agreement between the parties and there are no oral or collateral agreements or understandings. This
Agreement may be amended only by an instrument in writing signed by the parties. The Applicant shall
reimburse the District for any expenses incurred by the District in connection with any amendment of this
Agreement requested by the Applicant. If any provision of this Agreement is held invalid or unenforceable.
no other provision shall be affected by such holding,and all of the remaining provisions of this Agreement
shall continue in MI force and effect.
20. ALTERNATIVE DISPUTE RESOLUTION. In the event of any dispute or claim arising under
or related to this Agreement,the parties shall use their best efforts to settle such dispute or claim through
good faith negotiations with each other. If such dispute or claim is not settled through Ile_otiatiens
within 30 days after the earliest date on which one party notifies the other pry in writing of its desire
to attempt to resolve such dispute or claim through negotiations, then the parties agree to attempt in
good faith to settle such dispute or claim by mediation conducted under the auspices of the Judicial
Arbiter Group (JAG) of Denver, Colorado or, if JAG is no longer in existence; cr if the parties agree
otherwise, titen under the auspices of a recognized established mediation service within the State of
Colorado. Such mediation shall be conducted within 60 days following either party's written reques.
therefor. If such dispute or claim is not settled through mediation, then either party may initiate a civil
action in the District Court for Boulder County.
21. ASSIGNMENT: If Applicant is not in default hereunder, Applicant may assicn this Agreement
without the prior consent of the District,provided said assignment is in writing and further provided that the
assignment is made in conjunction with a transfer of all or substantially all of the property described herein.
No assignment shall, however, be effective upon the District unless and until the District receives written
notice or copy of the assignment.
22. BINDING EFFECT. This A.yreement shall inure to the benefit of, and be binding upon,the parties,
and their respective legal representative, successors, and assigns: provided, however, that nothing in this
paragraph shall he construed to permit the assignment of the A_reement except as otherwise spcciiicalle•
authorized herein.
DATED:
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LEFT'BAND WATER DIS`TP 1
President
P.O.Box 201,Niwot,CO 80544
ATTEST:
Secretary
STATE OF COLORADO )
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COUNTY OF BOULDER)
The foregoing instrument was acknowledged before me this day of 20_,
by as President and as Secretary
of the Left Hand Water District.
Witness my hand and official seal.
My commission e:^:pires: _
Notary Public
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Applicant
By: t.
Yglet-rilifLt
STATE OF COLORADO )
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COUNTY OF BOULDER)
The join i. from t w -knowledged before me this day of lJt%(_16 .. =t
by
Witness my hand and official seal.
4/20/06
My commission expires:
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Plb12.1-C.
, t Notary Public
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