Memo from Len Grady
City of Meridian
Public Works Dept.
RE CEI'lT71 11'"'"
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City Of Meridian
City Clerk GfEce
Memo
To: Will Berg
From: Lenard Grady
CC: Brad Watson
Date: 111312006
Re: Proposed Agenda Items for November 8, 2006 Pre-Council Meeting
The Public Works Department respectfully requests the following item(s) be placed on the
November 8 Pre-Council agenda:
Meridian HeiahtslKentuckv Ridae Annexation Reauest: Attached is a proposed
agreement prepared by Meridian Heights/Kentucky Ridge (HOA) to the City of Meridian
requesting annexation. There are 285 parcels. Approximately 200 of these are in the
Meridian Heights Subdivision.
The HOA operates a Lagoon system for treatment of sewage. They are required to hook up
to City Services once they become available. Pending Council approval, we could allow
hookup to City sewer end of 2007 when the Bear Creek Lift Station is offline.
The HOA was notified earlier this year by DEQ that they have exceeded the MCL for
Uranium. They are left with drilling additional well(s) or hooking up to City Water.
Several areas of concem have been raised by staff regarding this agreement. The intent at
this point is to present the HOA agreement and staff concerns to Council and ask for
guidance. Some of the staff concerns are summarized below.
Meridian Heiehts Has No Meter Setters - Kentucky Ridee Has Setters. None of the homes
in the Meridian Heights Subdivision have meter setters. The HOA is requesting that the City
install the setters using part of the hookup fees. Estimated cost is around $1,500 each (200
lots * $1,500 = $300,000). Alternatively, a single meter can be installed and the HOA could
be treated as a single business. If this option is selected, the HOA is
requesting that bills be sent to the 285 homes rather that the HOA. Finance is
apposed to this because they would have to process each bill individually.
From the desk of. . .
LmanI Grady
City Engineer
Meridian Public WOIks Department
Meridian Heiahts Sewer Lines are Sub.Standard. The Meridian Heights collection system is
sub-standard. Some of the lines were filmed and showed leaky pipes. Kentucky Ridge is
probably acceptable.
Some of the Dwellinas Mav Not Meet Code. Code Enforcement is conducting an informal
inspection and should have the results at the meeting.
Pressure Irriaation is Not Available. The HOA is asking us to waive the Well Development
Fee. This would amount to 285 lots x $1,000.28 per lot = $285,080.
. Page 2
WATER AND SEWER CONTRACT
This Water and Sewer Contract ("Contract") is made as of the date last written
below the signatures of the parties (the "Effective Date") by and between the City of
Meridian, an Idaho municipal corporation ("City") and Meridian Heights Water and
Sewer Association, Inc., an Idaho corporation ("Association").
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, City and Association hereby agree as follows:
1. Water Right Conveyance. Association hereby agrees to sell and City
hereby agrees to purchase all rights, title and interest in and to Water Rights
("Water Rights") in accordance with the terms and conditions
hereinafter set forth. The Association shall convey the Water Rights by Special
Warranty Deed in the form of Exhibit A attached hereto and made a part hereof.
2. Water and Sewer Distribution System Conveyance. Association
hereby agrees to convey and City hereby agrees to accept all rights, title and interest in
and to the water and sewer distribution lines, valves, systems and components from the
point of connection at the City's water and sewer mains to the point of connection to the
individual water and sewer lines connecting to each home within the Meridian Heights
and Kentucky Ridge subdivisions ("Water and Sewer Lines") in accordance with the
terms and conditions hereinafter set forth. Title to the Water and Sewer Lines shall be
conveyed by Bill of Sale in the form of Exhibit B attached hereto and made a part
hereof.
3. Purchase Price. The total "Purchase Price" for the Water Rights is the
sum of Three Hundred Seventy-Five Thousand Dollars ($375,000). The Purchase Price
shall be used to offset the Connection Fee (as defined in Section 4).
4. Water and Sewer Connection Fee. The Association agrees to connect
its water and sewer systems and City agrees to accept the connection. The combined
water and sewer connection fee shall be One Million One Hundred Eleven Thousand
Seven Hundred Eighty-Five Dollars ($1,111,785) ("Connection Fee"). The Connection
Fee does not include water meters or their installation. The Connection Fee shall be
paid in two (2) installments. The first installment of Three Hundred Seventy-Five
Thousand Dollars ($375,000) will be due at the time the water system is connected to
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40853.0001.896525.1
the City's system as set forth in Section 7(a). The second installment will be due at the
time the sewer system is connected to the City's system as set forth in Section 7(b).
5. Sewer Maintenance Fee.
The Association agrees to pay the City a maintenance fee in the amount of Thirty
Thousand Dollars ($30,000) ("Maintenance Fee") for future maintenance and repair
costs that the sewer system may incur. The Maintenance Fee shall be paid at the time
the sewer system is connected to the City's system as set forth in Section 7(b).
6. Property Sold As-Is. The provisions of this Section 6 shall survive
closing. City is relying solely upon City's inspections as to the Water Rights and Water
and Sewer Lines. Except as expressly set forth in this Contract, Association and
Association's agents are not making, have not made and expressly disclaim any
representations or warranties, express or implied, with respect to any aspect, feature or
condition of the Water Rights or Water and Sewer Lines including, without limitation, the
existence of hazardous waste, or the suitability of Subject Property for City's intended
use. City shall independently verify all information and reports regarding any aspect or
feature of the Water Rights and Water and Sewer Lines provided by Association.
Association does not guaranty the accuracy of any information or reports provided by
Association, it agents, employees or contractors. City is purchasing the Water Rights
and Water and Sewer Lines in "As Is" condition with all faults including both latent and
patent defects and City releases Association from any and all liability relating to any
aspect or condition of the Water Rights and Water and Sewer Lines (including
hazardous waste), known or unknown, foreseeable or unforeseeable, actual or
contingent, arising by statute, common law or othelWise. As used herein "hazardous
waste" shall mean any hazardous waste or pollutants, contaminants or hazardous
waste as defined by the Federal Water Pollution Control Act, the Comprehensive
Environmental Response, Compensation and Liability Act of 1990 and any amendments
thereto, the Resource Conservation and Recovery Act and any amendments thereto or
any similar state, local or federal law, rule or regulation (collectively "Environmental
Laws"), including, without limitation, asbestos or asbestos containing materials, PCBs,
petroleum and petroleum products and urea-formaldehyde.
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40853.0001.896525.1
7. Water and Sewer Connections.
(a) The Association, at the Association's sole cost and expense, shall
cause its water system to be connected to the City's water system at Lot 1, Block 10 of
the Meridian Heights No.2 Subdivision. The connection point will be at two points and
made using two eight inch (8") flow meters with a radio head and double check valve.
Construction for the connection will begin in January of 2007 and thereafter the
Association shall diligently pursue completion of the water connection. Provided the
water connection construction passes inspection and contingent on payment of the first
installment of the Connection Fee, the Association may connect to the City's water
system upon completion of construction.
(b) The Association, at the Association's sole cost and expense, shall
cause its sewer system to be connected to the City's sewer system at Lot 1, Block 10 of
the Meridian Heights No. 2 Subdivision. There shall be a two point connection to the
City's sewer system. Construction for the connection will begin in January of 2007 and
thereafter the Association shall diligently pursue completion of the water connection.
Actual utilization of the sewer connection will not begin until September of 2007;
provided the sewer connection construction passes inspection and contingent on
payment of the second installment of the Connection Fee. The City, at the City's sole
cost and expense, is hereby given the right to install sewer flow meters in the future in
its sole discretion.
(c) After connection to and utilization of the City sewer lines, the City
will permit the pond effluent to enter the City's sewer lines at no cost or fee according to
a schedule established by the Association, or its contractor, and approved by the City.
The schedule will set forth the time, duration and flow for pumping the pond effluent into
the City's system. Cost of pumping the pond effluent into the sewer lines will be paid for
by the Association or its contractor.
(d) All construction contemplated by this Section 7 shall be done in
accordance with all applicable laws, rules, ordinances, and permits. The City shall
issue a permit for the installation of the water and sewer lines in December of 2006,
pending proper application, grant of easement, drawings and payment of fees.
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40853.0001.896525.1
8. Billing. Beginning as of the date the water connection is made, the City
will begin billing all Kentucky Ridge members of the Association a pro rata portion of the
water consumed as measured by the meter serving such members. Beginning as of the
date the water connection is made, the City will begin billing all Meridian Heights
members of the Association a pro rata portion of the water consumed as measured by
the meter serving such members. Beginning as of the date the sewer connection is
made, the City will begin billing all Kentucky Ridge members of the Association a pro
rata portion of the sewer utilization based on winter water utilization by such members.
Beginning as of the date the sewer connection is made, the City will begin billing all
Meridian Heights members of the Association a pro rata portion of the sewer utilization
based on winter water utilization by such members. If the City installs sewer meters,
sewer rates will be based on actual sewer utilization. The provisions of this section
shall not limit or define the City's future utility billing practices or rates. Such practices
and rates are established according to City ordinances, rules and procedures which are
subject to change.
9. Attorneys' Fees. If a suit, action, or other proceeding arising out of or
related to this Contract is instituted by any party to this Contract, the prevailing party
shall be entitled to recover its reasonable attorneys' fees, expert witness fees, and costs
(a) incurred in any settlement negotiations, (b) incurred in preparing for, prosecuting, or
defending any suit, action, or other proceeding, and (c) incurred in preparing for,
prosecuting or defending any appeal or any suit, action, or other proceeding. For
purposes of this section, "attorneys' fees" shall mean and include attorneys' fees and
any paralegal fees. This section shall survive closing and shall survive and remain
enforceable notwithstanding any rescission of this Contract or any determination by a
court of competent jurisdiction that all or any portion of the remainder of this Contract is
void, illegal, or against public policy.
10. Default. Time is of the essence of this Contract. Upon the expiration of
ten (10) days' written notice from either party stating the other party has failed to
perform its obligations hereunder, such party shall be deemed to be in default unless
such failure to perform is cured within the ten (10) day period. Upon a default occurring,
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40853_0001.896525.1
the non-defaulting party may pursue all remedies at law or in equity, without limitation of
any kind.
11. Notices. All notices given pursuant to this Contract shall be in writing and
shall be given by personal service, U.S. Mail, or other reliable delivery service such as
Federal Express or UPS, postage or delivery charges prepaid, addressed to the
appropriate party at the address set forth below:
To City: City of Meridian
Attn:
Meridian, ID 83642
To Association:
Meridian Heights Water & Sewer Assoc.
Attn: President
P.O. Box 472
Meridian, Idaho 83680-0472
With copy to:
Hawley Troxell Ennis & Hawley LLP
Attn: Timothy W. Tyree
877 Main St., Suite 1000
P.O. Box 1617
Boise,ID 83701-1617
All notices given pursuant to this Contract shall be deemed given upon receipt. For the
purpose of this Contract, the term "receipt" shall mean the earlier of any of the
following: (a) the date of delivery of the notice or other document as shown on the
return receipt; (b) the date of receipt of the notice or other document by the person or
entity to whom it was addressed; or (c) in the case of refusal to accept delivery or
inability to deliver the notice or other document, the earlier of (i) the date of the
attempted delivery or refusal to accept delivery, (ii) the date of the postmark on the
return receipt, or (iii) the date of receipt of notice of refusal or notice of nondelivery by
the sending party.
12. Tax Deferred Exchange. City and Association acknowledge that either
party may wish to structure this transaction as a tax deferred exchange of like-kind
property within the meaning of Section 1031 of the Internal Revenue Code. Each party
agrees to reasonably cooperate with the other party to effect such an exchange;
provided, however, that (a) the cooperating party shall not be required to acquire or take
title to any exchange property, (b) the cooperating party shall not be required to incur
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40853.0001.896525.1
any expense or liability whatsoever in connection with the exchange, (c) no substitution
of the effectuating party shall release said party from any of its obligations, warranties,
or representations set forth in this Contract or from liability for any prior or subsequent
default under this Contract by the effectuating party, its successors, or assigns, which
obligations shall continue as the obligations of a principal and not of a surety or
guarantor, and (iv) the effectuating party shall be responsible for preparing all additional
agreements, documents and escrow instructions (collectively, the "Exchange
Documents") required by the exchange, at its sole cost and expense.
13. General.
(a) Successors. This Contract shall be binding upon the heirs,
successors, assigns and personal representatives of the parties hereto.
(b) Headings. Section headings are for convenience only and shall
not be deemed to define, limit or construe the contents of any terms, consents or
conditions in this Contract.
(c) Entire Agreement. This Contract, together with the exhibits
attached hereto, contains the entire agreement between the parties hereto and
supersedes all prior understandings and agreements, oral or written, with respect to the
subject matter hereof. The provisions of this Contract shall be construed as a whole
and not strictly for or against any party, and may not be modified or amended in any
manner except by an instrument in writing signed by both City and Association.
(d) Governing Law. This Contract shall be governed by and
construed in accordance with the laws of the state in which the Subject Property is
located.
(e) Joint and Several Obligations. In the event any party hereto is
composed of more than one (1) person, the obligations of such party shall be joint and
several.
(f) Third Party Beneficiary Rights. This Contract is not intended to
create, nor shall it be in any way interpreted or construed to create, any third party
beneficiary rights in any person not a party hereto.
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40853.0001.896525.1
EXECUTED as of the date last written below.
CITY:
City of Meridian
ASSOCIATION:
Meridian Heights Water and Sewer
Association, Inc.
By:
By:
Tammy de Weerd, Mayor
Val Hill, President
Dated:
Dated:
ATTEST:
List of Exhibits
Exhibit A - Special Warranty Deed
Exhibit B - Bill of Sale
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40853.0001.896525.1
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
(SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY)
EXHIBIT "A"
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED made this day of , 2007,
between Meridian Heights Water and Sewer Association, Inc., an Idaho corporation
("Grantor"), and City of Meridian, an Idaho municipal corporation, whose address is
, Meridian, 1083648 ("Grantee"), witnesseth:
That Grantor, for and in consideration of the sum of Ten Dollars and No Cents
($10.00), and other good and valuable consideration, the receipt whereof is hereby
acknowledged, does, by these presents, convey unto Grantee and its successors and
assigns forever, all the following described water rights situated in the County of Ada ,
State of Idaho.
Together with all and singular the tenements, hereditaments, and appurtenances
thereunto belonging or in anywise appertaining (but specifically excluding any
appurtenant water rights), the rents, issues and profits thereof; and all estate, right, title
and interest in and to the property, as well in law as in equity, except as expressly
provided otherwise herein.
To have and to hold, all and singular the above-described premises together with
the appurtenances unto Grantee and its heirs and assigns forever.
Grantor makes no covenants or warranties with respect to title, express or
implied, other than that previous to the date of this instrument, Grantor has not
conveyed the same estate to any person other than Grantee and that such estate is at
the time of the execution of this instrument free from encumbrances done, made or
suffered by the Grantor, or any person claiming under Grantor.
GRANTOR:
Meridian Heights Water and Sewer
Exhibit B
40853.0001.896525.1
Association, Inc.
By:
Val R. Hill, President
STATE OF IDAHO )
) ss
County of Ada )
On this _ day of ,2007, before me, the undersigned, a Notary
Public in and for said state, personally appeared Val R. Hill, known or identified to me to
be the President of Meridian Heights Water and Sewer Association, Inc., the corporation
that executed the instrument or the person who executed the instrument on behalf of
said corporation, and acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
Notary Public for Idaho
Residing at
My commission expires
Exhibit B
40853.0001.896525.1
EXHIBIT B
Bill of Sale
This Bill of Sale made this day of , 2007, between Meridian
Heights Water and Sewer Association, Inc., an Idaho corporation ("Seller"), and City
of Meridian, an Idaho municipal corporation, whose address is
("Buyer").
For Ten Dollars ($10.00) and other good and valuable consideration, Seller does
hereby convey to Buyer the goods described on Exhibit A attached hereto and made a
part hereof.
Seller makes no covenants or warranties with respect to title to the goods,
express or implied, other than that previous to the date of this instrument, Seller has not
conveyed the same estate to any person other than Buyer and that such estate is at the
time of the execution of this instrument free from encumbrances done, made or suffered
by the Seller, or any person claiming under Seller.
SELLER:
Meridian Heights Water and Sewer
Association, Inc.
By:
Val R. Hill, President
Exhibit B
40853.0001.896525.1