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HomeMy WebLinkAboutresolution.council.049-09 RESOLUTION # . / (Series of 2009) • A RESOLUTION APPROVING AN AMENDED CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND MEADOWOOD HOMEOWNERS ASSOCIATION SETTING FORTH THE TERMS AND CONDITIONS REGARDING WATER PROJECT COST SHARING AND MAINTENANCE AGREEMENT AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Meadowood Homeowners Association, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Meadowood Homeowners Association regarding approval of the recommended agreement with the Meadowood Homeowners Association, including Exhibit 1, copies of which are annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: 2) &7 7 _- // L. Michael . reland, yor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held July 27, 2009. RECEPTION#: 589032, 05/15/2012 at 11:50:51 AM ,�/ 1 of s, R $46.00 Doc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO Kathryn S` och, City Clerk • CITY OF ASPEN WATER PROJECT COST SHARING AND MAINTENANCE AGREEMENT This Agreement is entered into this day of 2010, in As between the City of Aspen, a Colorado municipal corporation and home rule city w ose addrassis ]30 South Galena Street, Aspen, Colorado 81611 (hereafter the "City"), and Meadowood Metropolitan District, aquasi-municipal corporation organized under the laws of Colorado, whose address is P.O. Box 8774, Aspen Colorado 81612 (hereafter "MMD"), WITNE55ETH WHEREAS, the City owns and operates the City of Aspen water system in accordance with the laws ofthe State of Colorado, and in accordance with the charter, ordinances, rules, regulations, policies and resolutions of the City of Aspen, and this Agreement is entered into in conformity with, and subject to, all such laws, charter, ordinazices, rules, regulations, policies and reso]utions; and WHEREAS, the City provides treated water to MMD's customers pursuant to a Contract for Water Service dated August 16, 1965, between the City and Meadowood, Inc.; and WHEREAS, MMD is successor in interest to Meadowood, Inc, and owns and operates a portion of the water system infrastructure required for distribution oftreated water to its customers (the "MMD System"); and WHEREAS, MMD is constructing certain water system improvements known as the Meadowood Water System (which includes replacement of the MMD System), as part of a lazger infrastructure improvement project; and WHEREAS, some of the water system improvements included in the Upper Meadowood Water System will benefit City water customers located outside of MMD's boundaries by providing an additional looped connecfion to other existing City water lines, and the City is willing to share in the cost of such improvements; and WHEREAS, the City is also willing to accept, own, operate and maintain the Upper Meadowood Water System, upon completion, subject to the temps and conditions of this Agreement. THEREFORE, in consideration of the premises and the mutual promises and covenants contained herein, the City and MMD agree as follows: 1. Continued Treated Water Service to MMD. The City will continue to provide treated water service to MMD's customers in accordance with the 1965 Agreement. M_NID has provided evidence to the City demonstrating that it is the assignee of Meadowood, Inc. and the City consents to the assignment ofthe 1965 Agreement to MMD and the assumption by MMD ofall ofthe rights and obligations therein described. 2. Design and Construction of Uooer Meadowood Water Svstem MMD has designed azid will construct the water lines and related infrastructure for the Upper Meadowood Water System ("Project") in accordance with and subject to the City's design, materials and construction specifications and approval, at MMD's own expense, subject to the City's reimbursement agreement set forth herein. MMD confiuns that it has appropriated sufficient funds to complete the Project. 3. Final Plans. The City has approved the final plans and specifications for the Project. The final plans are dated April 28, 2009, and include a construction schedule. No substantial changes shall be made to the approved final plans and specifications without the City's prior written approval. If a prewnstrction meeting has not been held prior to execution of this Agreement, MMD shall contact the City Water Department to arrange such a meeting between representatives of the Water Department, the Water Deparhnent's inspector, and MMD's engineer and contractor to review the final plans and any minor modifications thereto, to discuss construction scheduling, arrangements for the advance deposit of the City's construction inspection fees, and any other matters that the parties deem necessary. MMD's registered professional project engineer shall inspect and certify the design and installation of all Project infrastructure to be constructed pursuant to this Agreement. 4. Bond Requirements. Prior to commencement of construction, MMD shall obtain one or more performance and payment bonds naming the City as athird-party beneficiary thereof, in the amount of 100% of the Project construction costs. Such bonds shall be in form acceptable to the City Attomey and shall enswe completion of the construction, and, subject to the City's reimbursement agreement set forth herein, shall hold the City harnmless for payment to the contractor or any subcontractors, materialmen, or others involved in the construction of the Project infrastructure, or for the provision of materials therefor. MMD shall assign to the City all warranties from the contractor, materialmen and suppliers which warrant the water system improvements free and cleaz of defects for a period of two (2) years from the date of completion of construction. In addition, MMD shall obtain and assign to the City (inform approved by the City Attorney) a nmainte- nance orwarranty bond equal to one hundred percent (100%) of the final Project construction costs, ensuring the proper condition and operation of such water service system for a period of two (2) years from the date of completion. 5. Construction. MMD has commenced Project construction and shall proceed with due diligence to complete constrction ofthe Project in accordance with the plans and specifications and the construction schedule. No construction shall occur between November 1 and April 1 without written permission of the City's Water Department. 6. Fees. Tlme parties acknowledge that MMD has already paid fees equaling $22,000 to the City in connection with the City's review and approval ofthe design drawings and construction plans, as well as construction inspection fees. Upon execution of this Agreement, MMD shall deposit an additional $13,000 towazds payment of all additional fees imposed by the City in connection with the reviewing and approving the design drawings and construction plans, as well as construction inspection fees, provided, however, tlmat such fees shall not exceed a total of $35,000 without MMD's prior written approval. Any unused funds on deposit shall be returned to MMD following completion ofthe Project. MMD shall also be responsible for timely acquiring and paying for all pemmits and permit fees necessary for construction of the Project infrastructure. 7. Inspection of Construction. Construction must be inspected by the City's engineers or other designated persoimel prior to burial or final installation. MMD shall give the City Water Department reasonable advance notice when the Project infrastructwe, or any portion thereof, is ready for burial or installation, and the City's engineer or agent shall inspect said infrastructwe within two working days of such notice. MMD shall timely pay all construction inspection fees, provided, however, that the total amount of construction inspection fees shall not exceed $35,000 as set forth in paragraph 6 above, without MMD's prior written approval. 8. Cost Reimbwsement by City. The parties agree that the sum of $215,351.80 ("City Reimbursement") reflects the cost of the portions of the Project that benefit the overall system, and the construction efficiencies realized by having the Project constructed at the same time as construction of the City's utility improvement program in the Meadowood area, including restoration of distwbed azeas, eliminating certain mobilization charges, and sharing management charges. Following receipt from MMD of all required fees, and bonds and following conveyance of the Project infrastructure to the City free and cleaz of all liens and encumbrances as provided in paragraph 10, and subject to any adjustments as provided in this paragraph, the City will reimbwse to MMD an amount equal to 80% of the City Reimbursement, and the remaining 20% of the City Reimbursement will be paid following the City's receipt and approval of all easements and as-bunts required for the Project. The City Reimbwsement is calculated as shown on Exhibit 1. Sufficient funds have been appropriated in the City's 2009 budget for the City Reimbwsement. The parties agree that if any of the shazed cost items identified on Exhibit 1 is less than the Item Total for that item shown on Exhibit I, the City's reimbwsement obligation for that cost item will be reduced in proportion to the reduced price of the item. For example, if the City is to reimbwse 25% of a particular cost item, and the cost item is less than shown on Exhibit 1, the Ciry will reimbwse 25% of the actual cost of that item. If any of the shared cost items identified on Exhibit 1 is greater than the Item Total for that item shown on Exhibit 1, the Ciry's reimbursement obligation for that cost item will be increased in proportion to the increased price of the item, provided, however, that if the overall total amount of adjustments to the City reimbwsement for the Project results in an increase that exceeds 5% of the City Reimbursement (i.e., if the total amount of adjustments would increase the City Reimbursement by more than $10,768.00), City Council approval of an amendment to this Agreement will be required in order for any additional excess reimbwsement to be paid, and the City's execution of this Agreement does not obligate the City Council to approve any such amendment. Notwithstanding the foregoing, the City will be responsible for reimbwsement of all costs incurred as a result of change orders made at the request of the City. 9. Easements. MMD shall obtain at its own cost and will, by easement agreement acceptable to the City (Easement Agreement), convey in perpetuity to the City as-built non-exclusive easements for all Project infrastructwe located on or in private property, along with all necessary access easements for maintenance and repair purposes ("easements"). All easements on, over or through property located outside of public rights-of--way shall be surveyed at the MMD's cost. The water line easements must be large enough to provide at least ten (10) feet on either side of water mains and lines and must specify that (1) sewer lines must be located at least ten (10) feet from any water main or line, and (2) other utilities must be located at ]east five (5) feet away from any water main or line. Access easements shall be of a size determined by the City to be reasonably necessary for the operation, maintenance and repair of the Project infrastnictwe located in or on such easement. The easements shall provide that each party to the Easement Agreement shall be solely responsible for any injury or daznages, including costs and attorney fees, incurred by persons or property arising from such party's own negligent acts or omissions occurring on or resulting from its use or occupation of any easement prenuses. Nothing wntained herein, or in any Easement Agreement, shall coivstitute or result in any waiver or diminislunent of any defense or limitation available to the City or MMD under the Colorado Governmental Immunity Act or other applicable law. 3 10. Testine;Convevance; As-BuiltDrawinas. Uponcomp]etionofProjectconstruction, all Project infrastructure shall be tested. Upon approval by the City ofthe test results and delivery to the City of the required maintenance and warranty bonds, surveyed as-built drawings and all required easements, the City shall accept the water system infrastructure for the Project, and it shall be conveyed (excluding individual service lines) with all necessary non-exclusive easements to the City, free and cleaz of all liens and encumbrances, by deed, bill of sale or other evidence of conveyance acceptable to the City Attorney. Performance and payment bonds shall be adjusted to reflect the final actual construction costs. As-built drawings of the Project, including the water system and all other utilities, shall be provided to the City on reproducible sepias with a size of 24" x 36", and on an auto cad disk data transfer file tied into one (1) set of state plane coordinates. Following acceptance of the Project by the City, the City will own, operate and maintain the Upper Meadowood Water System, and, excepting MMD's bond requirements set forth in paragraph 4 above, MMD shall thereafter have no responsibility, obligation or responsibility for the operation or maintenance of the system. 11. No Waiver. Failure of a party hereto to exercise any right hereunder shall not be deemed a waiver of any such right and shall not affect the right of such party to exercise at some future time said right or any other right it may have hereunder. 12. Notices. All notices required to be given shall be deemed given upon deposit in the United States mail, first class postage prepaid, properly addressed to MMD at its address shown herein, and to the City c% City Attorney, City of Aspen, 130 South Galena Street, Aspen, Colorado 81611. Either party may change the address to which notice is provided by notice pursuant to this Paragraph. 13. Force ATajeure. No parry shall beheld liable for a failure to perform hereunder due to wars, strikes, acts of God, natural disasters, drought or other similaz occunences outside of the control of that party. 14. Severability. If any provision of this Agreement shall be or become invalid or unenforceable, the remainder of the provisions shall not be affected thereby, and each and every provision shall be enforceable to the fullest extent penuitted by law. 1 S. Amendment; Assigmnent. Neither this Agreement, nor the obligations of either party hereto may be amended or assigned without the written consent of the parties hereto. 16. Entire Agreement. Except as otherwise provided herein, this Agreement, including its Exhibits, the Final Plans and specifications for the Project, and the Easement Agreements to be executed in connection with this Agreement, fomm the total integrated agreement among the parties governing the matters provided for herein, and supersede and control all prior written and oral agreements and representations ofthe parties. Notwithstanding the foregoing, this Agreement does not supersede, alter or amend the 1965Agreement. 17. Interoretation. Titles and paragraph headings shall not be used to alter the meaning of this Agreement. 18. Binding Agreement -Recording. This Agreement is binding upon the parties hereto, their pertnitted successors and assigns. This Agreement shall be recorded with the Pitkin County Clerk and Recorder at MMD's expense. 19. Governing Law; Venue; Attorney Fees. This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Colorado. Venue for all actions arising under this Agreement shall be Pitkin County, Colorado. In the event legal remedies must be pursued to resolve any dispute or conflict regazding the terms of this Agreement or the rights and obligations of the parties hereto, the prevailing party shall be entitled to recover costs incurred in pursuing such remedies, including expert witness fees and reasonable attorney fees. 20. Authorization of Signatures. The parties acknowledge and represent to each other that all procedures necessary to validly contract and execute this Agreement have been performed and that the persons signing for each party have been duly authorized to do so. 21. Counterparts. This Agreement may be signed using counterpart signature pages, with the same force and effect as if all parties signed on the same signature page. IN WITNESS WHEREOF, the parties have executed this Agreement the date and yeaz first above written. ATTEST: i By City Clerk THE CITY OF ASPEN, COLORADO A Municipal Corporation and Home Rule City By '~ ~ j7 /(~ Mayor APPROVED AS TO FORM: Aspen City Attorney Meadowood Metropolitan District P. O. Box 8774 Aspen, CO 81612 By Title Attest L VY'ldl. U' TiBe LIMITED JOINDER The undersigned joins in this Agreement for the limited purpose of (1) consenting to the conveyance by MMD to the City of the easements contemplated hereby; and (2) releasing any and all rights and interest that the undersigned may have to or in the real property described in said easements (once and as determined, but only as determined, by the City and MMD) as set forth in that certain Option Agreement dated the 2T" day of August, 2008, and recorded in the records of the Clerk and Recorder in and for Pitkin County at Reception No. 552389; but only joins in this Agreement for those limited purposes. Meadowood Home Owners Association, a Colorado non-profit corporation By ~~l'1n/ ~ c~l:~,,,, Title ~l~ `~%.( F:\Client FilesUspenVvleadawwoodlimprovement agreement I I23D9 FAIAI.doc EXHIBIT 1 City of Aspen/Meadowood Metropolitan District Water Project Cost Sharing and Maintenance Agreement Determination o~City Costs 'Item ~ Description Item Total $ City % City $ Upper Meadowood 06.00 Removal and Disposal of Existing Structures $3,400.00 25.0% $850.00 and Vegetation 08.00 Disposal of Excess Earthwork $34,645.00 25.0% $8,661.25 09.00 Erosion Control $9,991.00 25.0% $2,497.75 10.00 Rotomil and Remove Existing Asphalt $9,325.00 25.0% $2,33125 11.00 GeneralRevegetation $6,100.00 25.0% $1,525.00 12.00 Asphalt Pavement $83,760.00 25.0% $2Q,940.00 13.00 Class 6 Aggregate Base Course $44,325.00 25.0% $11,081.25 25.00 8" DIP Waterline, 715 LF $65,136.50 100.0% $65,136.50 28.00 8" Gate Valve, 3 each $4,327.50 100.0% $4,327.'0 32.00 Fire Hydrant, l each $4,810.00 100.0% $4,810.00 34.00 Connectionto Existing Maiv,.2 each $2,560.00 100.0% $2,560.00 Upper Meadowood Total $124,720.50 Open Space -City 134.00 General Revegetation $4,600.00 100.0% $4,600.00 135.00 8" DIP Waterline, 910 LF $63,7G0.00 100.0% $63,700.00 136.00 8" Gate. Value, 3 each $4,500.00 100.0% $4,500:00 137.00 6" Gate Valve, l each $1,100.00 100.0% $1,100.00 138.00 Fire Hydrant, 1 each $5,000.00 100.0% $5,000.00 139..00 Connection to ExistingMa;n; 1_each $1,300.00 100.0% $1,300.00 Open Space -City Total 580,200.00 City Snb Tatal ~ $204,920.50 Project Total $2,357,67035 ' ' Project General Overhead $104,313.OA ' Project Total Less Overhead $2,253,357.35 Meadowoood Portioa of Project Total Less Overhead $2,046,436.85 City Portion of Project Total Less Overhead $204,920.50 City Percentage of Project Total Less Overhead 10.00% City Portion of Project General Overhead $104,313.00 10.0% $10,43130 City Total . 5215,351.80