HomeMy WebLinkAbout1269 Installation of Water Mains & Related Facilities Horizons West BILL NO. 2013 -095 ORDINANCE NO. AEA
AN ORDINANCE AUTHORIZING THE INSTALLATION OF WATER MAINS AND RELATED
FACILITIES IN CONNECTION WITH THE RIVERSIDE HORIZONS WEST DEVELOPMENT PROJECT
WHEREAS, Missouri - American Water Company ( "MAWC ") is currently authorized to
provide water within the City of Riverside, Missouri ("City"), which is a part of MAWC's
Parkville /Platte County District (the "District "); and
WHEREAS, Section 393.130.1, RSMo., requires MAWC to furnish and provide such
service instrumentalities and facilities as shall be safe and adequate and in all respects just and
reasonable; and
WHEREAS, it is MAWC's duty to serve all persons in accordance with its tariffs within an
area in which it has been certificated; and
WHEREAS, the City entered into that certain Infrastructure Improvement Agreement
with Horizons West Land, LLC on May 28, 2013 attached hereto and incorporated herein as
Exhibit A (the "Infrastructure Agreement ") whereby Horizons West Land, LLC is responsible for
all of the infrastructure costs for the development of infrastructure within Riverside Horizons
West and whereby all of such infrastructure must be constructed in accordance with the
"Unified Development Ordinance of the City of Riverside" and the "Municipal Code of the City
of Riverside, Missouri "; and
WHEREAS, MAWC has entered into a Developer Lay Water Main Extension Agreement
with Northpoint Development (the "Applicant ") attached hereto and incorporated herein as
Exhibit B (the "Extension Agreement ") for the provision of water services to the Applicant's
proposed development (the "Protect ") within the City; and
WHEREAS, the Project requires an extension of MAWC water mains, hydrants and
appurtenant facilities, which is governed by Rule 23 of MAWC's Rules and Regulations
Governing the Rendering of Water Service, on file with the Missouri Public Service Commission
as PSC MO No. 9 (the "Tariff "); and
WHEREAS, the water mains, hydrants and appurtenant facilities that will serve the
Project will be owned by MAWC pursuant to the Tariff; and
WHEREAS, under the Tariff, all main extensions must be installed in easements or right -
of -way as determined by MAWC, and any applicant for a main extension is responsible for
easement acquisition costs for the main extension; and
WHEREAS, the Project design will require that some of the water mains, hydrants and
appurtenant facilities that will serve the Project be installed in rights -of -way and in City
dedicated easements as described in Exhibit C and Exhibit D, and the City agrees there will be
WA 4694710.2
no charge for any permit fees for the installation of such water mains, hydrants and
appurtenant facilities being located therein; and
WHEREAS, funding for the installation of such mains, hydrants and appurtenant facilities
in connection with the Project in the right -of -way and in City dedicated easements described in
Exhibit C will be pursuant to the Extension Agreement; and
WHEREAS, MAWC will agree to allow the installation of such mains, hydrants and
appurtenant facilities in connection with the Project to be in right -of -way and in City dedicated
easements instead of easements dedicated to MAWC so long as the City agrees that MAWC will
be reimbursed pursuant to the Infrastructure Agreement or otherwise for the necessary costs
actually incurred by MAWC associated with future relocation of the water main, hydrants and
appurtenant facilities installed in connection with the Project in the rights -of -way and in City
dedicated easements as described in Exhibit C and Exhibit D, and the City agrees to such
reimbursement only where relocation of the aforementioned facilities is deemed by MAWC to
be necessary as a result of a project or improvements requested in writing by an authorized
officer of the City; and
WHEREAS, MAWC will agree to allow the installation of such mains, hydrants and
appurtenant facilities in connection with the Project to be in right -of -way and in City dedicated
easements instead of easements dedicated to MAWC so long as the City agrees, in the event
the water main, hydrants and appurtenant facilities being relocated cannot be relocated in
right -of -way or in City dedicated easements, that the City will be responsible for obtaining the
necessary easements, which must be reasonably acceptable to MAWC; and
WHEREAS, MAWC will agree to allow the installation of such mains, hydrants and
appurtenant facilities in connection with the Project to be in right -of -way and in City dedicated
easements instead of easements dedicated to MAWC so long as the City agrees to be
responsible to pay for the necessary costs, including condemnation costs, associated with the
acquisition of such easements where relocation of the aforementioned facilities is being done
as a result of a project or improvements requested by the City; and
WHEREAS, the Board of Aldermen find that the items contemplated in this Ordinance
are in the best interest of the City in that such actions fulfill a public purpose and will further
the growth of the City, facilitate the development of the entire Horizons site, improve the
environment of the City, foster increased economic activity within the City, increase
employment opportunities within the City and otherwise is in the best interests of the City by
furthering the health, safety, and welfare of its residents and taxpayers.
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF
RIVERSIDE, MISSOURI, AS FOLLOWS:
Section 1. The City hereby permits the installation of the water mains, hydrants and
appurtenant facilities in connection with the Project in the rights -of -way and in City dedicated
easements as described in Exhibit C and Exhibit D, and agrees there will be no charge for any
2 WA 4694710.2
permit fees for the installation of such water mains, hydrants and appurtenant facilities being
located therein.
Section 2. The City agrees that MAWC will be reimbursed pursuant to the Infrastructure
Agreement or otherwise for the necessary costs actually incurred by MAWC associated with
future relocation of the water main, hydrants and appurtenant facilities installed in connection
with the Project in the rights -of -way and in City dedicated easements as described in Exhibit C
and Exhibit D only where relocation of the aforementioned facilities is deemed by MAWC to be
necessary as a result of a project or improvements requested in writing by an authorized officer
of the City. The City's obligation to pay for relocation does not apply to projects or
improvements requested by third parties, even if those projects are approved by the City.
Section 3. In the event the water main, hydrants and appurtenant facilities being relocated
cannot be relocated in right -of -way or in City dedicated easements, the City will be responsible
for obtaining the necessary easements, which must be reasonably acceptable to MAWC. Also,
the City will be responsible to pay for the necessary costs, including condemnation costs,
associated with the acquisition of such easements only where relocation of the aforementioned
facilities is being done as a result of a project or improvements requested by the City.
Section 4. In the event the portion of the rights -of -way or City dedicated easements
described in Exhibit C and Exhibit D in which the water main, hydrants and appurtenant
facilities installed in connection with the Project are located is ever vacated or abandoned by
the City, the City will be solely obligated to incur the necessary costs, including condemnation
costs, associated with obtaining the necessary easements, which must be acceptable to MAWC,
and the City shall use commercially reasonable efforts to obtain such easements before said
portion of such rights -of -way or City dedicated easements is vacated or abandoned.
Section 5. This Ordinance l aio q shall be in full force and effect from and after its passage
and approval.
BE IT REMEMBERED that the above was PASSED AND APPROVED by a majority of the
Board of Aldermen, and APPROVED by the Mayor of the City of Riverside, Missouri, this 3'—t
day. of becerrrber, 2013.
Mayor Kathleen L. Rose
ATTE -4 • - • / tel9 •
: " :R p bin,Lttrell, ity Clerk
Appro -d as to form:
Scer Fane Britt & Browne LLP
Sp -j Counsel to the City
By •e Bednar
3 WA 4694710.2
EXHIBIT A
Infrastructure Agreement
4 WA 4694710.2
BILL NO. 2013 -034 ORDINANCE NO. rJ.I
AN ORDINANCE AUTHORIZING THE AGREEMENT BETWEEN THE CITY OF
RIVERSIDE MISSOURI AND HB CONSTRUCTION, INC., RESULTING IN AN
APPROVED CONTRACT AMOUNT OF $896,972.00 AND AN AGREEMENT
BETWEEN THE CITY OF RIVERSIDE MISSOURI AND HORIZONS WEST LAND LLC
REGARDING WEST SIDE INFRASTRUCTURE IMPROVEMENTS
WHEREAS, the City previously adopted Ordinance No. 1204 authorizing the
construction of the 41 Street West and Helena Road Project (the Project"); and
WHEREAS, after evaluation and analysis, City Staff is recommending that a
Project Agreement in substantially the same form as Exhibit A of this Ordinance,
attached hereto and incorporated herein, be entered into with HB Construction Inc., for
the installation and construction of the Project upon satisfaction of certain conditions;
and
WHEREAS, the estimated cost of such installation and construction is Eight
Hundred Ninety Six Thousand Nine Hundred Seventy Two Dollars and No Cents
($896,972.00) which costs shall be paid for by and through the successful application
and award of, and subject to the conditions of, the Community Development Block
Grant Program ( "CDBG funds "); and
WHEREAS, any Change Orders that cause the costs of construction of the
Project to exceed said amount of CDBG funds approved for the Project shall be paid by
or through Horizons West Land, LLC ( "HWL "), and
WHEREAS, the City and HWL will enter into an Infrastructure Improvement
Agreement, attached hereto as Exhibit B and incorporated herein, in order to confirm
the funding uses and sources; and
WHEREAS, the parties desire to establish the rights and responsibilities of the
City, HB Construction Inc., and HWL with respect to the construction and funding of the
Project and the Board of Aldermen, upon satisfaction of certain conditions as set out
below, find it is in the best interest of the City in order to further the objectives of
industrial and economic development of the City, and the 41 Street West and Helena
Road Project specifically, to approve the Project Agreement in substantially the same
form as set forth in Exhibit A and the Infrastructure Improvement Agreement in
substantially the same form as set forth in Exhibit B.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF
THE CITY OF RIVERSIDE, MISSOURI AS FOLLOWS:
SECTION 1. BEST INTEREST OF THE CITY. It is in the best interest of the
City in order to further the objectives of industrial and economic development of the City
and the 41 Street West and Helena Road Project specifically, to APPROVE the
Project Agreement between the City and HB Construction Inc. in substantially the same
form as set forth in Exhibit A, attached hereto and incorporated herein, for a cost of
such installation and construction of Eight Hundred Ninety Six Thousand Nine Hundred
Seventy Two Dollars and No Cents ($896,972.00) and to APPROVE the Infrastructure
WA 4256332.1
BILL NO. 2013- 034 ORDINANCE NO. t)-1 1
Improvement Agreement Between Horizons West Land LLC and the City for the
Completion of West Horizons Public Infrastructure, in which the City of Riverside,
Missouri and the Industrial Development Authority of the City of Riverside, Missouri are
Third Party Beneficiaries, in substantially the same form as set forth in Exhibit B,
attached hereto and incorporated herein,(collectively the "AGREEMENTS ") and said
AGREEMENTS are hereby approved and authorized for execution by the Mayor and
further the City Administrator is authorized to issue a Notice to Proceed to HB
Construction upon written confirmation by the City Attorney and Special Counsel to the
City of the satisfaction of the following conditions:
a. HB Construction has secured and submitted to the City a performance
bond satisfactory to the City Attorney, executed by a surety company authorized to do
business in Missouri and having a rating of at least "A +" from Best's, or "AA" from
Standard and Poor's, to show it is solvent, in an amount equal to one hundred percent
(100 % ") of the portion of the contract that does not include the cost of operation,
maintenance and money; and
b. HB Construction has secured and submitted to the City a payment bond
satisfactory to the City Attorney, executed by a surety company authorized to do
business in Missouri and having a rating of at least "A +" from Best's, or "AA" from
Standard and Poor's, to show it is solvent, for the protection of all persons supplying
labor and material to the contractor or its subcontractors for the performance of
construction work provided for in the contract. The bond shall be in an amount equal to
one hundred percent (100 % ") of the portion of the contract price that does not include
the cost of operation maintenance and money; and
c. Execution of the Infrastructure Improvement Agreement, Exhibit B, by the
President of Horizons West Land.
SECTION 2. CONSTRUCTION SAFETY PROGRAM. The project is subject to
the requirements of Section 292.675 RSMo, which requires all contractors or
subcontractors doing work on the project to provide a ten -hour Occupational Safety and
Health Administration (OSHA) construction safety program for their on -site employees
which includes a course in construction safety and health approved by OSHA or a
similar program approved by the department which is at least as stringent as an
approved OSHA program, unless such employees have previously completed the
required program. All employees who have not previously completed the program are
required to complete the program within sixty (60) days of beginning work on such
construction project. Any employee found on a work site subject to this section without
documentation of the successful completion of the course required under subsection 2
of this section shall be afforded twenty (20) days to produce such documentation before
being subject to removal from the project. HB Construction Inc., shall forfeit as a
penalty to the City Two Thousand Five Hundred Dollars ($2,500.00) plus One Hundred
Dollars ($100.00) for each employee employed by HB Construction Inc., for each
calendar day, or portion thereof, such employee is employed without the required
training.
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BILL NO. 2013- 034 ORDINANCE NO. 1 1
SECTION 3. PREVAILING WAGE. The project is subject to the requirements of
Section 29.250 RSMo, which requires the payment of prevailing wage. The City, in
Exhibit C of the Agreement, has specified the prevailing hourly rate of wages for each
type of workman needed to execute the Agreement and also the general prevailing rate
for legal holiday and overtime work.
SECTION 4. AUTHORITY TO EXECUTE. The City and the officers, agents and
employees of the City, including the Mayor, the City Administrator, the City Attorney,
Special Counsel to the City, and Finance Director and other appropriate City officials
are hereby authorized to execute the AGREEMENTS in substantially the same form as
set forth in Exhibits A and B, and to take any and all actions as may be deemed
necessary or convenient to carry out the terms and conditions of the AGREEMENTS
and comply with this Ordinance, and the City Clerk is authorized to attest thereto upon
satisfaction of the above conditions precedent as confirmed by the City Attorney.
SECTION 5. SEVERABILITY CLAUSE. The provisions of this ordinance are
severable and if any provision hereof is declared invalid, unconstitutional or
unenforceable, such determination shall not affect the validity of the remainder of this
ordinance.
SECTION 6. EFFECTIVE DATE. This Ordinance shall be in full force and effect
upon and after its passage and approval.
BE IT REMEMBERED that the above was PASSED AND APPROVED by a
majority of the Board of Aldermen, and APPROVED by the Mayor of the City of
Riverside, Missouri, this4 -day of May, 2013.
• - i
ATT • ,
Kathleen L. Rose, Mayor
•
Robin'Littrell,•Ci 'Clerk
Approved as to form:
Spencer Fane Britt & Browne LLP,
Special Counsel to the City
by Chad Lamer
WA 4256332.1
INFRASTRUCTURE IMPROVEMENT AGREEMENT
THIS INFRASTRUCTURE IMPROVEMENT AGREEMENT ( "Agreement") is voluntarily
made and entered into this ,�8‘s°' day of May, 2013, by and between the CITY OF RIVERSIDE,
MISSOURI ( "City"), a city and political subdivision duly organized and existing under the Constitution
and laws of the State of Missouri, and HORIZONS WEST LAND, LLC a limited liability company duly
organized and existing under the laws of the State of Missouri ( "HWL ").
RECITALS
A. WHEREAS, HWL owns Lots 1, 2, 4, 5 and Tract A, and the City owns Lot 3 of
Riverside Horizons West First Plat (collectively the "Platted Land ") which has or will be recorded, and is
attached hereto as Exhibit A; and
B. WHEREAS, HWL, its successors and assigns, has or shall submit certain development
plans, information, and data to the City for the development of Lot 3 of Riverside Horizons West First
Plat ( "Site "); and
C. WHEREAS, HWL has not submitted development plans, information, and/or data to the
City for the development of Lots I, 2, 4 and 5 of Riverside Horizons West First Plat ( "Future Sites "); and
D. WHEREAS, in order for the Site to be developed, certain public infrastructure
improvements to serve development within the project area must be constructed and/or installed,
including but not limited to: the construction of Helena Road and 41s Street as generally depicted on
Exhibit Il ( "Street Infrastructure "); sanitation systems and stormwater systems as generally depicted on
Exhibit C ( "Systems Infrastructure "); and water systems, natural gas, electric and telecommunication
lines and street lights as generally depicted on Exhibit D ( "Utility Infrastructure") all of which shall be
constructed in accordance with the "Unified Development Ordinance of the City of Riverside" ( "UDO ")
and the "Municipal Code of the City of Riverside, Missouri" ( "Code "); and
E. WHEREAS, collectively the Street Infrastructure and Systems Infrastructure are
collectively referred to as the "Public infrastructure Improvements "; and
F. WHEREAS, the Public Infrastructure Improvements are intended to be connected to
system(s) owned and maintained by the City and are subject to the City's acceptance of such Public
Infrastructure Improvements; and
G. WHEREAS, the Utility Infrastructure is intended to be connected to system(s) owned and
maintained by the various utility providers, and subject to such utility providers acceptance of such Utility
Infrastructure; and
11893/046 /INFRASTRf00744095;1 1 WA 4281414.1
H. WHEREAS, the Public Infrastructure Improvements and Utility Infrastructure are
collectively referred to as the "Improvements"; and
1. WHEREAS, the City and HWL acknowledge that with the exception of the City's
obligation to administer the Community Development Block Grant ( "CDBG ") and CDBG funds in
accordance with applicable Missouri law, the City has no obligation to provide any Improvements to the
Site or any improvements to Future Sites ( "Future Improvements "); and
J. WHEREAS, application has been made to the Missouri Department of Economic
Development ( "DED ") for CDBG funds, as attached as Exhibit E, to pay for a portion of the engineering,
inspections and construction of the Public Infrastructure Improvements as generally depicted on Exhibit
F (the "CDBG Project "); and
K. WHEREAS, except to the extent CDBG funds are available, HWL, its successors and
assigns shall be solely responsible for payment of the cost of the design and construction of the
Improvements identified in Exhibits B, C and D; and
L. WHEREAS, the UDO and the Code require that the Developer, as defined therein,
( "Developer ") shall be solely responsible for payment of the cost of' the Future Improvements for the
development of the Site or Future Sites unless assistance is agreed upon by the appropriate federal, state
or local governmental entity in compliance with applicable federal, state and local laws;
M. WHEREAS, as provided pursuant to this Agreement, the City may require HWL provide
sufficient security to guarantee the satisfactory construction of the Improvements; and should HWL fail to
provide such security, the City may take any reasonable action regarding commencement of construction
of the Improvements including delaying or denying approval; and
N. WHEREAS, the City and HWL, it successors and assigns, acknowledge that additional
improvements and/or infrastructure not specifically described in this Agreement may be required prior to
the development of the Future Sites ( "Future Improvements "), and further acknowledge that the City has
no obligation to fund or provide any Future Improvements as the UDO and the Code require that the
Developer shall be solely responsible for payment of the cost of the Improvements for the development of
the Site or Future Sites unless assistance is agreed upon by the appropriate federal, state or local
governmental entity in compliance with applicable federal, state and local laws.
118931046/INFRASTR/00744095; 11 lnfrastructure Improvement Agreement
WA4281414.1
COVENANTS AND AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing recitals, mutual covenants and promises
set forth below, the receipt and sufficiency of which are mutually acknowledged, the City and HWL
hereby agree to this Agreement as follows:
1. Recitals, Exhibits and Definitions
a. Recitals. The Recitals set forth above in this Agreement are incorporated into and made a part
of this Agreement as if fully set forth in this Section a.
b. Exhibits. The Exhibits to this Agreement are incorporated into and made a part of this
Agreement as if fully set forth in this Section b.
c. Improvements and Future Improvements. For the purposes of this Agreement, the
terms "Improvements" and "Future Improvements" shall include any temporary
improvements that may be necessary for construction of the various improvements.
Part I. Site Infrastructure
2. CDBG Project. Expressly subject to the availability of Public Funds and/or CDBG Private Funds (as
hereinafter defined) as applicable, the City shall construct the CDBG Project in accordance with the
provisions of the UDO and the Code.
3. Cost of Improvements. All required Improvements, including labor, materials, and equipment
necessary for construction, shall be paid by HWL, at its sole cost and expense, without reimbursement by
the City or DED except as specifically provided for below. HWL shall reimburse the City for any
engineering costs (including plan checking, inspection, testing, materials furnished, overhead,
construction management, construction observation and any other incidental expenses) incurred by the
City in the processing of this Agreement and in the installation or construction of the Improvements that
exceed the amount of CDBG funds available, but such reimbursement for such engineering costs related
to Bartlett & West Inc., shall not exceed Ten Thousand Dollars ($10,000.00).
a. Public Funds. The City Funds and CDBG Funds (as defined below, which are
sometimes collectively referred to as the "Public Funds ") provided for the CDBG Project
11893/046/INFRASTR /00744095;1 I lnfraslructure Improvement Agreement
WA 4281414.1
shall not exceed the amounts described below. Both the City and HWL shall document
the actual use of the Public Funds as required by the DED and applicable law.
i. City Funds. The City shall contribute an amount not to exceed $50,000.00
towards the administration of the CDBG Project ( "City Funds "). To the extent
CDBG Funds are not allocated to the CDBG Project, the City shall have no
further obligation to contribute the City Funds for any portion of the
Improvements and/or Future Improvements.
ii. CDBG Funds. Application has been made to DED for Community
Development Block Grant ( "CDBG ") funds in an amount not to exceed
$1,750,000.00 to be used specifically to construct the CDBG Project. The City
agrees to use the funds in accordance with the application for the CDBG funds
and all applicable laws, including the City's obligation to contract for the
construction and completion of the Improvements.
HWL shall be solely responsible for any and all costs related to the Improvements in
excess of the Public Funds which are reasonably necessary to construct such
Improvements in accordance with all applicable laws.b. Private Funds and Project
Contingency. HWL shall be solely responsible for any and all reasonable and necessary
costs incurred in connection with the construction of the CDBG Project in excess of the
Public Funds ( "CDBG Private Funds "). The total contract award for the selected bid is
at least ten percent (10%) less than available CDBG Funds, therefore, the City agrees
HWL shall not be required to provide the City with any additional funds at the time of
contract award for the CDBG Project.
c. Change Orders. If a contractor and/or subcontractor constructing any portion of the CDBG
Project submits a written claim or demand for payment of additional costs directly associated
with the construction of the CDBG Project to the City ( "Request for Change Order"), the City
may consult its construction management engineer, the design engineer, and HWL to review and
evaluate such Request for Change Order. If and when the cumulative gross value of these
Requests for Change Orders exceeds the total sum of Fifty Thousand Dollars ($50,000.00), the
City shall consult with HWL prior to exercising its absolute authority in its sole discretion to
approve entering into any written agreement(s) memorializing any equitable adjustment(s) for
payment of the contractor and/or subcontractor's claim ( "Change Order ").
:nomos ntaosrwoov4w9s ,'infrastructure Improvement Agreement
WA 4281414.1
d. Deposit of Private Funds. In the event the amount of any Change Order(s) causes the total
contract price of the CDBG Project to exceed the Public Funds, HWL shall, upon ten days prior
written notice from the City, immediately make a deposit of CDBG Private Funds into the
Escrow Account in an amount necessary to pay for the then requested Change Order that is in
excess of the remaining Public Funds plus 15% of the total contract price to be used to fund
additional Change Orders.
e. Timing of Deposit of Private Funds. Any CDBG Private Funds required from HWL shall be
provided in full to the City prior to the City approving any Change Order or issuing a notice to
proceed. The City shall place the CDBG Private Funds into the Escrow Account to be drawn
down as necessary for the duration of project construction.
f. Return of Private Funds. If there are any CDBG Private Funds in the Escrow Account
remaining following project completion, the CDBG Private Funds shall be returned to HWL sixty
(60) days following acceptance of the completed construction by the City.
g. No City Liability. In the event HWL fails to deposit the CDBG Private Funds into the Escrow
Account, the City shall have no obligation to authorize any Change Order requested by a
contractor and/or subcontractor as applicable which would exceed any Public Funds or funds
remaining in the Escrow Account, either of which may result in the stoppage or delay on
completion of work until such time as the CDBG Private Funds are deposited into the Escrow
Account. IN NO EVENT SHALL THE CITY INCUR ANY LIABILITY TO HWL FOR ANY
DIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO HWL'S
DELAY OR FAILURE TO DEPOSIT EITHER THE PRIVATE FUNDS OR ADDITIONAL
PRIVATE FUNDS INTO THE ESCROW ACCOUNT.
Part IL Future Improvements
4. Future Improvements. The City and HWL acknowledge that the City has no obligation to provide
any Future Improvements that may be required for the development of the Future Sites, and that no
development of the Future Sites shall be allowed to occur until such time as any necessary Future
Improvements are designed and constructed, at no cost to the City, but in full conformance with the
design standards and specifications established and in use by the City as set forth in the UDO and the
1843 /046/INFRAST200744095a I Infrastructure Improvement Agreement
WA 4281414.1
Code and as reviewed and approved by the City Engineer, or with any changes required or ordered by the
City Engineer which, in his or her opinion, are necessary or required to complete the work.
Nothing in this Agreement shall limit or otherwise restrict City's right to require Future
Improvements; nor shall anything in this Agreement obligate or require the City to provide any
funding for any such Future Improvements. The City has no obligation to design, manage,
construct, provide, fund or pay for any Future Improvements as the UDO and Code require the
Developer to be responsible for the cost of all Future Improvements, however Developer may
receive assistance if such assistance is agreed upon by the appropriate federal, state or local governmental
entity in compliance with applicable federal, state and local laws.
Part III. General Terms and Conditions
5. Indemnification. HWL shall indemnify and save the City and its governing body members, directors,
officers, employees and agents harmless from and against all loss, liability, damage, demand, expense,
penalty, claims for liquidated and/or consequential damages, or fine arising out of HWL's actions or the
actions of HWL's directors, officers, employees, agents and contractors involving the design of the
Improvements and/or the construction and completion of the Utility Infrastructure, or the construction and
completion of any Improvements or Future Improvements HWL may, pursuant to Recital N of this
Agreement contract for in the future, or as a result of any material breach, default or failure to perform by
HWL under this Agreement (collectively referred to as "Claim "). HWL shall also indemnify and save the
City and its governing body members, directors, officers, employees and agents harmless of, from and
against, all costs, reasonable counsel fees, expenses and liabilities incurred by them in any action or
proceeding brought by reason of any such claim. If any action or proceeding is brought against the City
or its governing board members, directors, officers, employees or agents by reason of any such Claim,
HWL, upon thirty (30) days written notice from the City, covenants to defend such action or proceeding
on demand of the City or its governing body members, directors, officers, employees or agents. Nothing
in this section shall constitute a waiver of governmental or officers immunity of the City or its officers or
employees.
6. Dedication of Public Infrastructure Improvements. The City will accept the Improvements for
dedication following construction approval verifying that all such Public Infrastructure Improvements
have been constructed to the City standards and that all the requirements of this Agreement have been
met.
1I893 /o46nNFRASTRloo744045;I )infrastructure Improvement Agreement
WA 4281414.1
a. Construction Approval. The Public Infrastructure Improvements must be inspected by the
City prior to acceptance for dedication. The parties agree that nothing in this Agreement shall
obligate or require the City to approve construction of any Future Improvements or to allow the
physical connection of any Future Improvements to the Public Infrastructure Improvements. The
parties further agree that the City shall be entitled to withhold occupancy permits for Future
Improvements until such time as the City approves construction of the Future Improvements.
b. Title to Public Infrastructure Improvements. Title to, and ownership of, all public
improvements constructed by HWL according to this Agreement shall vest absolutely in City or
applicable utility, upon completion and acceptance of such improvements by City or utility as
applicable.
7. Effect of Agreement, Assignment, Modification, Further Assurances
a. Binding Effect of Agreement. This Agreement shall run with the land included within the
Platted Land and shall inure to the benefit of and be binding upon the successors and assigns of
the parties hereto.
b. Transfer of Title. Assignment. HWL shall provide to the City for approval written notice of
any proposed transfer of title to any portion of the Future Sites and/or the HWL's proposed
transfer of its obligations to any successor ( "Successor"). HWL and any successor shall, until
written City approval of the proposed transfer of title and delegation of obligations, be jointly and
severally liable for HWL's obligations under this Agreement.
c. Modification and Waiver. No modification of the terms of this Agreement shall be valid
unless in writing and executed with the same formality as this Agreement, and no waiver of the
breach of the provisions of any section of this Agreement shall be construed as a waiver of any
subsequent breach of the same section or any other sections which are contained herein.
d. Further Assurances. The parties agree to execute such other further documents as may be
necessary to effectuate the purposes of this Agreement or that may be required by law.
IN WITNESS WHEREOF, the parties have signed this Infrastructure Improvement Agreement as
of the date set forth above.
I893/046/mFRASTw00744095:1 I Infrastructure Improvement Agreement
WA 4281414.1
"CITY" CITY OF ,RIVERSIDE, MISSOURI
By: ;cX (l r✓t.J /1 ?�atfl'e
K een L. Rose, Mayor
(SEAL)
Robin LI&11, Ci Clerk
STATE OF MISSOURI )
) SS.
COUNTY OF PLATTE )
On this a$ day of 1/4 1 1 10—,,‘,,. , 2013, before me appeared Kathleen L. Rose, to me
personally known, who, being by me Ouly sworn, did say that she is the Mayor of the CITY OF
RIVERSIDE, MISSOURI, a political subdivision of the State of Missouri, and that the seal affixed to the
foregoing instrument is the seal of said City, and said instrument was signed and sealed in behalf of said
City by authority of its Board of Aldermen, and said individual acknowledged said instrument to be the
free act and deed of said City.
IN TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed my official seal in the County
and State aforesaid, the day and year first above written._ !�`y�� � ���,,, �pppp
t75 V
Notary Pu blic
My Commission Expires:/ - - -
ROSIN I.. UTTREU
Navy.PSUC4NMY IIM
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Rest of page intentionally left blank Calaanlatl 1 I
CatalIYMIM
is93x 6nNransTwoo14JO9s;I Infrastructure Improvement Agreement
WA 4281414.1
"HWL" Horizons West Land, LLC, a Missouri limited
Iiabilitzcompan :
By:
Name: l'.4 Act n
Title: tpArc S.f
STATE OF MISSOURI )
) SS.
COUNTY OF QItik`p, ) `'
On this Z}h day of9 2013, before me appeared ryAirinnia to
me personally known, who, being by me ady sworn, did say that he is the
Horizons West Land, LLC, a Missouri limited liability company„ and that he is aut prized to sign the
instrument on behalf of said company by authority of its members, and acknowledged to me that he
executed the within instrument as said company's free act and deed.
IN TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed my official seal in the
ct and State aforesaid, the day and year first a vi written. ,n � /
Notary Publfi
My Commission Expires:
ti\esydrs ea gOI N p LI � ZA y B P R N . o*1n Sal
STATE OF MISSOURI
any County
My Commission Expires Mac. 26, 2014
Commission * i0521575
11893/o46/INFRASFR/o0744o95:3 Ilnfrastructure Improvement Agreement
WA 4281414.1
INFRASTRUCTURE IMPROVEMENT AGREEMENT EXHIBITS
Exhibit A: Riverside Horizons West First Plat
Exhibit B: Street Infrastructure
Exhibit C: Systems Infrastructure
Exhibit D: Utility Infrastructure
Exhibit E: CDBG Application
Exhibit F: CDBG Project
(1893/046/INFRASTR/00144095;1 ) WA4281414.1
EXHIBIT B
Extension Agreement
5 WA 4694710.2
•
Project Name: Horizons West Contract - W/O Number: D17- 0401 -P -0062
Project Manager: Sue Moynihan Date: May 13, 2013
DEVELOPER LAY WATER MAIN EXTENSION AGREEMENT
THIS DEVELOPER LAY WATER MAIN EXTENSION AGREEMENT ( "Agreement ")
is made and offered as of the2+{'1 of JG1h1_. , 201,3 (but shall be effective as of the
acceptance date set forth on the signature page), between Missouri - American Water Company,
a Missouri public utility corporation ( "MAWC "), and Northpoint Development ( "Applicant ").
(The offer contained in this Agreement expires unless accepted and returned within 30 days,
Acceptance date must be entered on signature page. The expiration deadline may be waived by
written endorsement of MAWC.)
RECITALS:
WHEREAS, Applicant has proposed the construction of a water main extension on
certain lands as more specifically described on Exhibit A attached hereto and incorporated herein
by this reference (collectively, the "Development "); and
WHEREAS, Applicant plans to use its own contractor selected from MAWC's list of
Qualified Contractors to construct the main extension; and
WHEREAS, Applicant has requested MAWC to fu mish water services to a proposed
Development to be constructed by Applicant, as more particularly described herein; and
WHEREAS, MAWC is willing to furnish water services subject to the terms of this
Agreement and to applicable rates, rules, regulations and conditions of service in effect from
time to time; and
NOW, THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
Article 1
Required Information
Applicant's Name: Northpoint Development
Address: 6300 N. Revere Drive, Suite 225
Kansas City, MO 64151
Phone: 816-888-7386
E -mail: flAr'ke/lolt'kfxrt
MAWC operating district for which Agreement is proposed: Parkville -Platte County •
Total Estimated Footage covered by this Agreement: 1574 ft.
1.1 How many new customer metered water service connections is Applicant
guaranteeing to take water service within 120 days of acceptance of the water main extension
covered by this Agreement and, for each of these connections, is Applicant committing to
purchase water for a minimum of one (1) year? 3
Applicant shall provide a list of the addresses and lot numbers if applicable that will take
water service within 120 days of MAWC's acceptance of the water main and will purchase water
for a minimum of one (1) year as set forth on Exhibit B attached hereto and incorporated herein
by reference.
1.2 Estimated four (4) times average annual revenue = $ upon request
(This amount is what M4 WC will contribute to Applicant for metered service pipe(s) that
will immediately connect directly to the water main extension covered by this Agreement and
identified in Article 1.1.)
1.3 Is the Developer Lay Proposal intended to serve a recorded, residential single lot
Development where Applicant prefers to choose' the one hundred (100) foot free extension as
described in Article 2.6? Yes X No
Article 2
Consideration
2.1 Applicant's Consideration.
(a) In consideration of MAWC's commitment to provide water services to the
Development, Applicant agrees to advance MAWC the cost of any services MAWC provides in
support of a proposal for a main extension, including the cost of MAWC's internal engineering,
inspection, administrative (including overhead), and legal cost and any costs MAWC incurs
involved in making connections to MAWC's existing facilities (including overhead) for the
extension of the main described herein ( "Main Installation "). At the outset of the Agreement,
MAWC will calculate an estimate of the costs for providing services pursuant to this Agreement
( "Developer Lay Proposal Advance" or "DLP Advance "). After completion of the Main
Installation, the DLP Advance will be adjusted to reflect the actual cost of providing these
services ( "Actual Developer Lay Proposal Costs" or "ADLP Costs ").
(b) Upon execution of this Agreement, Applicant will pay MAWC the DLP Advance
for MAWC to provide services specified in Article 2.1(a) in the amount of:
DLP Advance due to MAWC: $ 7O Sbq. BY
(0) In addition to the ADLP Costs, Applicant shall grant those easements and convey
the assets as set forth in Article 5.
2.2 MAWC's Consideration. In consideration of the ADLP Costs and the granting of
easements and conveyance of title under Article 5, MAWC shall review or provide necessary
2
engineering related to the water main layout, inspection, labor and administrative services during
construction and, upon completion, shall provide water services to the Development.
2.3 Final Statement of Costs. After the completion of the Main Installation and prior
to MAWC's acceptance of the Main Installation, Applicant will prepare and deliver to MAWC a
final accounting of all actual Applicant's costs and expenses associated with the construction and
•
installation of the water facilities (collectively, the "Applicant's Costs "). Applicant's Costs will
be identified as set forth on Exhibit C attached hereto and incorporated herein by reference.
Applicant's Costs will be shown on a per size basis. Applicant's costs shall not include any
easement, permit or restoration costs.
2.4 MAWC Contribution. Within a reasonable period of time (considering factors
such as MAWC workload) after completion of the Main Installation where the Applicant did not
choose the one hundred (100) foot free extension pursuant to Article 2.6, MAWC will add the
Applicant's Costs to the ADLP Costs, reflecting the final total project costs ( "Total Final
Costs "). After acceptance of the Main Installation, MAWC will then issue payment to the
Applicant for all approved new customer metered water service connections meeting the
requirements for payment of four (4) times estimated annual revenue as described in Article 1.1
and 1.2 plus five percent (5 %) (for St. Louis Metro Agreements which include the St. Charles
District) or fourteen percent (14 %) (for all other operating district agreements) of the Total Final •
Costs that exceed the approved amount for metered water service connections receiving four (4)
times the estimated average annual revenue. MAWC will adjust its payment based on the
shortfall or excess of the difference between the ADLP Costs and the DLP Advance for the
services provided by MAWC as described in Article 2.1(a). For a Main Installation where
Applicant chooses the one hundred (100) foot free extension pursuant to Article 2.6 and the
extension is greater than one hundred (100) feet in length pursuant to Article 2.6(b), calculation
of an amount to be paid to, or by, the Applicant will be pursuant to Article 2.6(b). The costs
representing the amount paid by MAWC to the Applicant will be MAWC's contribution
( "MAWC Contribution ").
MAWC Contribution also will be adjusted for all other considerations associated with the
Main Installation, including without limitation, MAWC's upsizing of any main pursuant to
Article 4.2 or MAWC's addition of water main and related facilities beyond the needs of the
Development pursuant to Article 4.3 and in accordance with applicable rules and regulations on
file with the Missouri Public Service Commission. The calculation for MAWC initiated
upsizing or additional main installation will be per Articles 4.2 and 4.3 based on the actual
footage installed, and any adjustment shall be made to the Total Final Costs. Any amount due to
MAWC under this Article shall be paid within thirty (30) days of MAWC's receipt of the final
accounting, and shall be a condition precedent to MAWC's acceptance of the Main Installation.
2.5 Customer Frontage Charge. A "Customer Frontage Charge" is an amount charged
to new customers outside of Applicant's Development who connect a new - metered service line
to a designated portion of the water mains installed by Applicant. The method for arriving at this
charge and the limitations on Customer Frontage Charge are more specifically explained in
MAWC's rules and regulations on file with the Missouri Public Service Commission. A copy of
these rules is available from MAWC's New Business Department upon request. This refund is
3
, n
collected by MAWC and paid to the Applicant or its assignee. The Applicant herein must
designate at the time of signing this Agreement, if its Main Installation is to be subject to the
Customer Frontage Charge, and if so, whether certain areas are to be excluded.
Subject to Customer Frontage Charge VCS (yes /no)
If Yes, specify any areas which are to be excluded from the Customer Frontage Charge
(The Development which is to be served by this Main Extension is excluded from the
Customer Frontage Charge):
i u� h\fs - 045 LL¢3 I 3Li
2.6 Recorded, Residential Single Lot Development. Applicants requesting a main
extension to serve a recorded, residential single lot development can choose to receive the
MAWC Contribution pursuant to Article 2.4 or an option whereby MAWC will be responsible
for all of the costs, except easement acquisition, associated with extending the main up to one
hundred (100) feet (Known as the "Free Extension "). If the main extension required is greater
than one hundred (100) feet in length, all costs above the Free Extension shall be borne by the
Applicant calculated on a per -foot basis.
(a) If Applicant chooses the option of a 100 -foot Free Extension, and the extension
will be 100 -feet or less in length, then MAWC will perform the necessary construction to extend
its main(s). (Note: Due to field conditions, even though the proposed main extension may be 100
foot or less in length the actual Main Installation may be greater than 100 foot in length and the
following shall apply)
(b) If the Applicant chooses the option of a 100 -foot Free Extension and the
extension is greater than 100 -feet in length, then prior to the Applicant scheduling the main
extension, the Applicant shall advance payment equal to MAWC's DLP Advance pursuant to
Article 2.1(b). After completion of the main extension by the Applicant, Applicant will
prepare and deliver to MAWC a final accounting of all actual Applicant's costs and expenses
associated with the construction and installation of the water facilities (collectively, the
"Applicant's Costs "), exclusive of the DLP Advance. Upon verification of the costs supplied
by Applicant, MAWC will add those costs to the ADLP Costs incurred and divide the sum by
the number of feet in the main extension project to determine a cost per linear foot. The cost
per foot will be multiplied by 100 to arrive at the cost of the 100 -foot Free Extension to be
borne by MAWC. MAWC will add the amount of the 100 -foot Free Extension to the DLP
Advance and subtract the ADLP Costs incurred by MAWC to arrive at an amount to be paid to,
or by, the Applicant.
2.7 This Agreement shall become a Contract and the Date of Acceptance shall be
determined when the Agreement is returned to MAWC fully executed with payment by check or
cash of the DLP Advance identified in Article 2.1(b).
4
Article 3
Plans, Specifications and Pre - Construction Requirements
3.1 Applicant has some options in fulfilling the requirements for plans and
specifications, as described below:
(a) Applicant may accept MAWC's Water Main Layout, and MAWC's Special
Conditions and Technical Specifications for Installation of Water Facilities, available from
MAWC's New Business Department upon request. Applicant must submit site plans including
grading and sewers and the local fire authority's ordinance or resolution reflecting any new fire
hydrants to be installed in conjunction with this Agreement along with fire flow requirements
before MAWC can prepare the water main layout. After receiving the above mentioned
information and a notice of the intent to do an Applicant - installed project, MAWC will return to
the Applicant a water main layout and estimated Applicant Fee.
Applicant accepts MAWC's Water Main Layout for Development: 0 o)
Applicant accepts MAWC's Special Conditions and Technical Specifications for
Installation of Water Facilities: Ono).
NOTE: If Applicant answers "No" to any of the foregoing, Applicant must submit
alternatives to MA WC and must obtain approval prior to requesting an inspector for initiation of
construction. See (b) and (c) below.
(b) If the Applicant does not choose to accept MAWC's Water Main Layout and
Special Conditions and Technical Specifications for Installation of Water Facilities, Applicant
shall submit plans and specifications for approval by MAWC prior to any construction. MAWC
shall approve or reject said plans and specifications.
At the Applicant's option, Applicant can prepare all plans for the required Main
Installation including the water main layout, which shall be in accordance with MAWC
specifications with respect to materials, design, and its engineering and operating practices, for
MAWC review and approval. To ensure conformity therewith, Applicant shall employ a
professional engineer registered in the State of Missouri, acceptable to MAWC, who shall make
a preliminary study and drawing of the proposed Main Installation. Applicant shall submit to
MAWC such study, the name of the contractor from MAWC's list of Qualified Contractors for
water main installation, drawings, and its plans, together with two approved plats of the
construction area which plats shall delineate the easements required for the Main Installation and
show all proposed and existing utilities, sewers and easements. All plans, specifications and
construction shall be in accordance with good utility practices, the utility plan for the
Development as approved by MAWC, and in accordance with all rules, regulations, requirements
and recommendations of regulatory agencies having or asserting proper jurisdiction over the
Development. Prior to the commencement of' engineering and construction by Applicant,
Applicant shall procure the written approval of MAWC of all engineering firms, contractors and
subcontractors it proposes to utilize to design and construct facilities under this Agreement. All
5
0
of said plans and specifications shall have necessary approvals in writing of all agencies and the
approval in writing of MAWC before any construction is commenced. Plans and specifications
for water facilities to be constructed under this Agreement shall be submitted and approved by
MAWC in advance of the execution of this Agreement and will be incorporated by reference and
made part of this Agreement when so approved and as if set out in full herein. MAWC reserves
the right to assess additional charges if MAWC is required to create multiple layouts or to
perform multiple reviews pursuant to an Applicant's request.
(c) In advance of construction of Main Installation, Applicant shall obtain and
furnish to MAWC: (i) all requisite permits, easements and approvals by all regulatory authorities
having jurisdiction over Main Installation; and (ii) a franchise agreement in a form acceptable to
MAWC in its sole discretion if requested by any municipality in which the Development is
within its borders. Applicant shall comply with the current issue of MAWC's Special Conditions
and Technical Specifications for Installation of Water Facilities, which are incorporated herein by
reference and shall comply with any and all construction, material and performance standards
uniformly required by MAWC at that time. Applicant shall provide all engineering including
surveying, plans and specifications, materials, transportation, equipment, power, labor,
supervision, testing, insurance, bonds, and all else required to construct and place into
satisfactory operation the following: all water mains, services, valves, hydrants and all
appurtenances thereto within the Development and off -tract water facilities required to connect to
MAWC's existing facilities, in accordance with plans and specifications approved by MAWC.
(d) Construction of the Main Installation shall not begin until the site for the Main
Installation has been graded to the extent specified by MAWC.
Article 4
Construction of Water Facilities
4.1 Inspection and Construction of Water Facilities.
(a) Applicant shall construct certain water facilities to provide adequate water
services to all structures to be located in the Development and meet all requirements of any
governing agency in accordance with a utility plan approved by MAWC.
(b) Applicant shall permit MAWC or its representatives to inspect and approve all
work during and after construction. Applicant shall complete its construction of facilities for
water service to each unit within the Development so as to enable MAWC to provide services
when requested to do so. Applicant or its successors in interest shall notify MAWC when water
service or any component of the Main Installation has been completed prior to any backfilling
thereof. MAWC or its representative shall inspect such service or component of the Main
Installation and if satisfactory will authorize backfilling.
(c) Applicant shall comply with the inspection and testing requirements of MAWC,
which requirements shall be reasonable and shall not cause Applicant any unwarranted material
delays in the ordinary course of construction. MAWC will attempt to supply an inspector a
minimum of three working days after notice of the planned commencement of work. AT TIMES
6
WHEN THERE ARE MANY OTHER JOBS UNDERWAY AND NO INSPECTORS ARE
IMMEDIATELY AVAILABLE, AN INSPECTOR WILL BE PROVIDED AS SOON AS IS
REASONABLY POSSIBLE, AND WORK MAY NOT COMMENCE UNTIL THE
INSPECTOR CAN BE PRESENT. Such notice will not be considered until this Agreement is
fully executed. MAWC specifically reserves the right to withhold approval and to forbid
connection of any of the facilities constructed pursuant to this Agreement to any part of
MAWC's systems unless such facilities have been constructed in accordance with the plans and
specifications approved by MAWC and are satisfactory to MAWC or its representatives upon
inspection and testing by MAWC or its representatives.
(d) Applicant understands that MAWC's inspectors will be at the job site for the
sole purpose of evaluating compliance with this Agreement and with MAWC's standards and
specifications, and Applicant shall assume all liability for the condition and safety of the job site
prior to the acceptance of the Main Installation by MAWC. MAWC'S INSPECTOR WILL NOT
DIRECT THE JOB. A FOREMAN OR OTHER ON -SITE MANAGER MUST BE FULLY
FAMILIAR WITH PLANS AND SPECIFICATIONS BEFORE BEGINNING THE
INSTALLATION, OR THE INSPECTOR MAY TERMINATE THE INSPECTION UNTIL
COMPETENT, KNOWLEDGEABLE SUPERVISION IS PROVIDED.
(e) Applicant and or Applicant's contractor /subcontractors shall at all times maintain
good discipline and order at the site. Inappropriate behavior is forbidden.
(f) Furthermore, no connections shall be made to facilities to be installed pursuant to
this Agreement or to any other facilities of MAWC that are deemed to be illegal connections by
the Environmental Protection Agency, or any other agency having jurisdiction over such
connection.
(g) Any relocation required as a result of changes in grade, easements or other causes
shall be paid for by the Applicant and not subject to MAWC Contribution. All phases of the
construction of the Main Installation shall be open at all times to inspection by MAWC or its
representatives. MAWC reserves the right, in its sole discretion, to require Applicant to change
contractors if the then current contractor breaches Applicant's obligations under this Agreement,
including without limitation, any violation of any MAWC installation specifications.
4.2 Increased Main Size. MAWC expressly reserves and shall have the right to
require construction and installation of water main of a larger diameter than the Applicant's
service requirements, provided, however, that MAWC shall bear the cost difference, determined
by MAWC, in accordance with its tariffs between the larger diameter main and the smaller
diameter main ( "Main Size Cost Differential "). The Main Size Cost Differential will be paid in
accordance with Article 2. MAWC will credit to Applicant, for potential refund under the
provisions of Article 2, the difference between MAWC's and/or Applicant's total actual costs for
installing the respective sizes of pipe. Final determination for determining this credit will be at
the sole discretion of MAWC. MAWC's present cost differentials and the differentials which,
under this Agreement, MAWC will credit to Applicant when Applicant is required to and does
7
0 0
install larger size water mains than those that MAWC determines are otherwise needed for this
development will be the following:
THIS ARTICLE APPLICABLE NO (indicate "yes" or "no ").
SIZE COST FOOTAGE
SIZE TO BE OTHERWISE PER FOOT ESTIMATE*
INSTALLED NECESSARY DIFFERENTIAL TOTAL
12" 6" $ $
12" 8" $ $ .
8" 6" $ $
TOTAL $
( *Actual footage to be used in final calculation of MAWC's credit to Applicant).
4.3 Additional Main Installation. MAWC expressly reserves and shall have the right
to require construction and installation of additional pipe footage of water main and related
facilities beyond the needs of the Development, provided, however, that MAWC shall bear the
cost of the additional pipe and facilities, determined by MAWC, in accordance with its tariffs
( "Additional Main Costs ") The Additional Main Costs will be paid in accordance with Article 2.
Final determination for determining this credit will be at the sole discretion of MAWC. In
situations where MAWC requires additional pipe footage and/or related facilities beyond that
which the Applicant requires for the needs of its development, Applicant may herewith commit
to install the pipe and related facilities and MAWC will credit to Applicant, for potential refund
under the provisions of Article 2.
THIS ARTICLE APPLICABLE NO (indicate "yes" or "no ").
SIZE TO BE FOOTAGE COST
INSTALLED ESTIMATE* PER FOOT TOTAL
6" $ $
8" $ $
12" $ $
$ $
TOTAL $
( *Actual footage to be used in final calculation of MAWC's Credit to Applicant.)
4.4 Construction of Fire Hydrants. Applicant shall install, at locations specified by
appropriate fire authorities or MAWC, fire hydrants in accordance with MAWC's current (-
standards and specifications.
8
Article 5
Easements and Title
5.1 Grant of Easements. Applicant hereby grants to MAWC perpetual easements
within the Development and outside as may be reasonably necessary for ingress and egress and
for the facilities to be constructed to provide water services in, to and through the Development.
Applicant agrees to prepare, obtain, execute and give to MAWC deeds of easement, which are
acceptable to MAWC in MAWC's sole discretion for use and occupancy by MAWC before the
Main Installation is accepted. All costs associated with easements for this Development shall be
borne by the Applicant. Easements need not be exclusive, but must be private property rights
which specifically name MAWC as recipient, and may not be conveyances that are designated
"Public," "for public use forever" or that include similar wording that would result in the creation
of a public right -of -way in which MAWC could only be a licensee. The Main Installation must
be installed in easement(s) unless otherwise approved by MAWC. Applicant must provide an
instrument of conveyance to MAWC of all easements needed for the Main Installation that have
not already been conveyed to MAWC by deed or recorded plat. The instrument of conveyance
must be in a form and substance satisfactory to MAWC in its sole discretion, free of all liens and
encumbrances.
5.2 Conveyance of Title.
(a) All Applicant's rights, title and interest to the water pipe, services, fire hydrants,
valves and appurtenant facilities thereto within the Development and off -tract water facilities
required to connect to MAWC's existing facilities, and constructed within the Development to
MAWC's or others existing facilities, in accordance with the plans and specifications approved
by MAWC installed under the terms of this Agreement are herewith tendered to MAWC, its
successor and assigns. MAWC will accept the Main Installation, release the mains for service
connections, and so notify Applicant in writing, if and when Applicant demonstrates to MAWC's
satisfaction, that all pipes are chemically and bacteriologically clean, and otherwise conform to
all MAWC standards and specifications, and after all other preconditions herein specified have
been met and all monies owed MAWC have been received.
(b) All materials installed, facilities constructed and equipment provided by Applicant
in connection with construction of facilities under this Agreement and accepted by MAWC shall
become the sole property of MAWC as installed, and full legal and equitable title thereto shall be
then vested in MAWC, free and clear of any liens, without the requirement of any written
document of transfer to MAWC. Applicant agrees to execute and/or deliver promptly such
documents as counsel for MAWC may request to evidence good and merchantable title to said
facilities free and clear of all liens.
(c) Applicant shall submit to MAWC (i) copies of paid invoices together with its
corresponding lien waiver to MAWC for all engineering and other services, materials installed,
construction performed, equipment provided and materials purchased for construction pursuant
to this Agreement at the actual cost thereof, and (ii) the originals or complete and clear copies of
all bills, statements, invoices, and all other evidence of expense received by Applicant from r
subcontractors, vendors and others for all engineering and other services, materials installed,
9
r e
construction performed, equipment provided and materials purchased for construction pursuant
to this Agreement together with corresponding lien waivers for these or other evidence of
payment by Applicant acceptable to MAWC and all relevant supporting data. If any lien waivers
for the work described herein are not available to MAWC at the time of MAWC's acceptance of
the Main Installation, an additional Letter of Credit of a form approved by MAWC may be issued
to MAWC in an amount equal to the total dollars described on the associated invoices. (See
Article 5.3 herein).
(d) Upon completion of work, Applicant shall remove all equipment belonging to it
or used under its direction or by its contractor or its subcontractors, and shall dispose of all
unused materials, rubbish, surplus excavated materials and debris in a manner reasonably
acceptable to MAWC. Applicant shall repair all roads, sidewalks, parkways and all else affected
by its work, which repairs shall be made in accordance with the requirements of MAWC and
governmental agencies having proper jurisdiction.
(e) It is specifically provided by and between the parties hereto that it is the express
intention and agreement of the parties that the legal effect of this Agreement shall be that no
mechanics' lien or claim may be filed or maintained by anyone including, but not limited to, any
of the parties hereto, any contractor, subcontractor or materialman performing labor or furnishing
materials in any way relative to any of the covenants and agreements of this Agreement. In
furtherance of the foregoing provision, the parties agree that no contract or subcontract for either
labor or materials performed or furnished in furtherance of this Agreement has been or shall be
entered into prior to the expiration of ten (10) days from the date of the execution hereof.
5.3 Letter of Credit in Lieu of Lien Waivers.
(a) If Applicant is unable to obtain lien waivers to assure MAWC that the Main
Installation is free and clear of liens, but desires to provide MAWC with other assurances that
such facilities will be lien free, Applicant may provide to MAWC a Letter of Credit in a form.
satisfactory to MAWC, or a cash deposit, in the amount equal to the cost of the Main Installation
to be transferred to MAWC for which lien waivers cannot be obtained.
1. Upon receipt of such Letter of Credit, MAWC will waive that portion of
its contract with Applicant that requires lien waivers prior to acceptance of Main
Installation into its system.
2. The Letter of Credit will not expire until at least twelve months after
acceptance of the Main Installation, but such Letter of Credit shall be released and
returned to Applicant (or the cash deposit shall be returned) upon Applicant's
request under either of the following conditions:
(i) As soon as the statutory time limit for the filing of liens has
expired, if no liens have been filed against facilities transferred to
MAWC by Applicant, or
10
,
(ii) If all lien waivers have been acquired and provided to
MAWC.
(b) Upon receipt of notice of a lien on facilities transferred to MAWC by Applicant,
MAWC shall notify Applicant and provide Applicant 30 days to obtain release of such lien. If
such release is not obtained, MAWC will make demand against such Letter of Credit for the
amount claimed in the lien. Thereupon MAWC will do the following:
1. Hold such amount until a lien release is obtained by Applicant, and at that
time refund the monies to Applicant; or
2. Hold such amount until the statute of limitations for filing suit to enforce
such lien has expired, and at that time refund the monies to Applicant; or
3. Hold such amount until a suit is filed by the holder of the lien. At such
time MAWC will provide Applicant with notice of such suit and will either:
(i) If Applicant decides to defend the suit and so notifies
MAWC in writing, MAWC will hold the funds until a judgment is
obtained and at that time provide the funds to the prevailing party;
or
(ii) If Applicant elects to not defend the suit, MAWC will
permit a default judgment to be taken or will otherwise release the
funds to the lien holder to free the property of the lien.
Article 6
Indemnification by Applicant
6.1 To the fullest extent permitted by law and excepting MAWC's own negligence,
applicant shall save and hold MAWC harmless from and against all suits or claims against
MAWC that may be based upon any injury or alleged injury to any person or property that may
occur, or that may be alleged to have occurred, in the course of the performance of this
Agreement by Applicant or by any subcontractor, whether such claims shall be claimed that the
alleged injury was caused through any act or omission of Applicant or of any subcontractor, and
Applicant shall, at its own cost and expense, pay all charges of attorneys and all cost and other
expenses arising therefrom, or incurred in connection therewith, and if any judgment shall be
rendered against MAWC in any such action or actions, Applicant shall, at its own cost and
expense, satisfy and discharge the same. MAWC shall give Applicant prompt notice of threat or
institution of any such suit or claim. MAWC retains the right to approve the attorneys hired by
Applicant or to select its own attorneys, the charges for which shall be paid by Applicant.
11
Article 7
Warranties and Covenants of Applicant
7.1 Applicant shall guarantee all construction, materials and workmanship
provided under this Agreement for one year after "Final Acceptance" by MAWC. "Final
Acceptance" is defined as the date when Applicant has received written acceptance of the
facilities installed per this Agreement from MAWC, completed all construction required by this
Agreement and corrected all punch list items requested by MAWC to the satisfaction of MAWC.
Applicant warrants that all construction, materials and workmanship provided under this
Agreement will be completed substantially in accordance with the plans and specifications for
said facilities as approved by MAWC. All areas affected by the Main Installation shall be
restored to MAWC's reasonable satisfaction prior to the acceptance of the Main Installation. If
weather conditions prohibit restoration of said affected areas, MAWC may require a cash deposit
equal to MAWC's reasonable approximation of restoration costs. This cash deposit is refundable
when the restoration is completed by the Applicant to the reasonable satisfaction of MAWC. In
the event the restoration is not performed in a timely manner as determined by MAWC, MAWC
shall use the cash deposit to the extent necessary to restore the areas affected by the Main
Installation construction. Any remaining deposit amounts will be refunded to Applicant, but any
additional amounts required will be billed to the Applicant.
7.2 Applicant covenants and agrees that any repairs that become necessary to correct
all defects and deficiencies in construction, materials and workmanship that are associated with
the facilities and appurtenances installed per this Agreement during the warranty period shall be
performed by MAWC at Applicant's expense. Applicant, for a period of one (1) year after Final
Acceptance by MAWC, shall (i) do what is necessary to keep all hydrants at proper elevation,
relative to surrounding grade; (ii) promptly pay for the repair of, or any other damages to
MAWC's water facilities and appurtenances thereto attributed directly or indirectly to
construction by or for Applicant, or any of its corporate affiliates or subcontractors. Inspection
and approval of facilities by MAWC shall not waive any right of MAWC under this Agreement.
Repairs other than to water mains, hydrants, or appurtenances during the warranty period or
consequential damage shall be the responsibility of Applicant. If repairs, including any site
restoration costs, are not made after due notice by MAWC, MAWC or MAWC's agents shall
make said repairs at Applicant's expense. All costs incurred by MAWC as a result of repairs to
the Main Installation and any consequential damages, including but not limited to site restoration
costs, that occur during said one year warranty period will be invoiced to the Applicant by
MAWC. The Applicant agrees to pay said invoice within thirty (30) days of receipt of the
invoice.
7.3 Modifications to the water system necessitated by changes in the plan of
Development by Applicant (grading, alignment, etc.) shall be paid for by Applicant.
12
1
Article 8
Miscellaneous
8.1 Waiver. The failure of either party hereto to enforce any of the provisions of this
Agreement or the waiver thereof in any instance shall not be construed as a general waiver or
relinquishment on its part of any such provision but the same shall, nevertheless, be and remain
in full force and effect.
8.2 Cooperation. Applicant and MAWC will cooperate fully with each other in all
matters relating to obtaining all approvals of all regulatory agencies required in order for MAWC
to provide water service to the Development.
8.3 Assignment. Applicant agrees that if it shall enter into a contract to sell the
Development or a major portion thereof, such contract shall incorporate this Agreement and the
obligations imposed hereunder on a successor developer. Neither this Agreement nor any of the
rights, duties or obligations of the Applicant hereunder may be transferred or assigned (by
operation of law or otherwise) by the Applicant except with the prior written approval of
MAWC. MAWC shall have the right to assign all of its rights and obligations under this
Agreement to any entity which succeeds to or acquires substantially all of MAWC's operations
or assets covered by this Agreement. Any such assignment by MAWC shall relieve, release, and
discharge MAWC from any further duty or responsibility under this Agreement.
8.4 Recording. MAWC may record this Agreement or a memorandum thereof in
accordance with the laws of the State of Missouri.
8.5 Force Majeure. Neither party to this Agreement shall be liable to the other for
failure, default or delay in performing any of its obligations hereunder, other than for payment of
money obligations specified herein, in case such failure, default or delay in performing any of its
obligations specified herein is caused by strikes or other labor problems, by forces of nature,
unavoidable accident, fire, acts of the public enemy, interference by civil authorities, passage of
laws, orders of the court, adoption of rules, ordinances, acts, failures to act, decisions or orders or
regulations of any government or military body or agency, office or commission, delays in receipt
of material, or any other cause, whether of similar nature, not within the control of the party
affected and which, by the exercise of due diligence, such party is unable to prevent or overcome.
Should any of the foregoing occur, the parties hereto agree to proceed with diligence to do what
is reasonable and necessary so that each party may perform its obligations under this Agreement.
MAWC shall not in any event incur any liability to Applicant for consequential or other damages
which may result from delays in initiating service or interruptions or other malfunctions of
service. MAWC shall have no obligation to accept the main installation if any action, law suit,
proceeding or cause of action is pending or threatened with respect to installation.
13
•
8.6 Notices. All notices, consents, requests, demands and other communications
hereunder are to be in writing and are deemed to have been duly given, made or delivered:
(i) when delivered in person, (ii) three (3) clays after deposited in the United States mail, first
class postage prepaid, (iii) in the case of telegraph or overnight courier services, one (1) business
day after delivery to the telegraph company or overnight courier service with payment provided,
or (iv) in the case of telex or telecopy or facsimile, when sent, verification received, in each case
addressed as follows:
if to MAWC:
Attn: Engineering
727 Craig Road
St. Louis, MO 63141
with a copy to:
Attn: General Counsel
727 Craig Road
St. Louis, MO 63141
if to Applicant:
•
or to such other address as any party hereto may designate by notice to the other parties in
accordance with the terms of this Article.
8.7 No Agency Relationship. It is understood that in the construction and installation
of the Main Installation, Applicant, its contractors and agents are independent contractors and are
not acting as the agents or employees of MAWC and therefore shall not incur any costs or
expenses on behalf of MAWC and that MAWC is not an agent of the Applicant and shall not
incur any costs or expenses on behalf of the Applicant.
14
8.8 Entire Agreement. This Agreement sets forth the complete understanding
between Applicant and MAWC, and any amendments hereto to be effective must be in writing.
Nothing in this Agreement, express or implied, is intended, or shall be construed, to confer upon
or give to any person, firm or corporation (other than the parties hereto and their permitted
assigns) any rights or remedies under or by reason of this Agreement, or any term, provision,
condition, undertaking, warranty, representation, indemnity, covenant or agreement contained
herein.
8.9 Regulatory Jurisdiction and Approval. This Agreement is intended to be
consistent with applicable rules and regulations on file with the Missouri Public Service
Commission. This Agreement is subject to such approval of the Missouri Public Service
Commission to the extent required by law.
8.10 Governing Law. This Agreement shall be governed by the laws of the State of
Missouri, without regard to conflict of laws rules.
8.11 Operating Pressure. The normal range of operating pressures in this proposed
subdivision will be from 114 pounds per square inch (psi) to 139 psi, varying with ground
elevation and MAWC operating requirements. If necessary, appropriate pressure reducing valves
and pressure relief valves should be installed as part of' the customer's plumbing to comply with
the requirements of the applicable plumbing code and water using appliances installed in the
premises.
If underground lawn sprinkler systems are to be installed as part of the customer's
plumbing, appropriate pressure reducing valves and backflow preventers should be installed to
comply with manufacturers' requirements, applicable plumbing codes, and State regulatory
requirements.
8.12 Project Reconciliation. Upon Applicant's submittal of all necessary items
specified in this Agreement, reconciliation of this job will be completed in a reasonable amount
of time based on MAWC's current workload.
8.13 This Agreement shall become a contract and the Date of Acceptance shall be the
date the Agreement is returned to MAWC fully executed.
[Remainder of page intentionally left blank; signature page follows.]
15
ii
Project Name: Horizons West Contract - W/O Number: D17- 0401 -P -0062
Project Manager: Sue Moynihan Date: May 13, 2013
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the yr day of iitne. . 2013
MAWC Applicant
MISSOURI- AMERICAN WATER COMPANY NORTHPOINT DEVELOPMENT
By: . ��•... Lti�G. I
By:
Name: 0(4 "
�(n5 hi hoW Name:
Title: !Ow amsIr44.5 Y.rvi5nr Title: /n,�CtF' /
Federal I.D. Number: ys"— y,R 67 B`6 S
I
This Agreement is valid only if work is begun within 60 days from this date of acceptance,
unless otherwise extended by mutual agreement of Applicant and MAWC.
i
I r
Signature Page
EXHIBIT A
See Layout Design Attached
EXHIBIT B
List of addresses taking water service under Article 1.1
Address Lot No. (if applicable)
y //o I Rd / ft Q`veik0 L 1 3 R Oct
66( CIQ�► First p
r
yjl-o W W i rs ort4- Kuodce • thrrG °n3 GkSa- 6 jvs$ Pk* r'.o f
155 0:2164219333
F. 216.42)9333 140 WALNUT STREET
KANSAS CITY, 510 b.3106 WWW.EMEHYSA PP.COM
EMERY SAPP & SONS. INC
■
Horizons West Water Main Extension
Bid Form
5/31/13
Description Quantities Unit Prices Extended Price
1 Connect to Existing 12x12 1 each $ 846.00 $ 846.00
2 Connect to Existing 8x8 1 each $ 3,140.00 $ 3,140.00
3 8" Gate Valve 1 each $ 1,360.00 $ 1,360.00
4 12" Gate Valve 1 each $ 2,210.00 $ 2,210.00
5 Waterline Extension -12" DIP 1,574 LF $ 36.50 $ 57,451.00
6 Fire Hydrant Assembly 6 each $ 4,266.00 $ 25,596.00
7 8 "x 12" Reducer 1 each $ 392.00 $ 392.00
8 12" 45 degree bend & thrust block 23 each $ 606.00 $ 13,938.00
9 12" 22.5 degree bend & thrust block 4 each $ 606.00 $ 2,424.00
10 Excavation and Backfill 1,165 CY $ 6.00 $ 6,990.00
11 Utility Bedding & Clean Fill 150 CY $ 18.00 $ 2,700.00
12 Cross Blocks 11 each $ 645.00 $ 7,095.00
13 General Conditions /General equirements 1 LS $ 8,700.00 $ 8,700.00
Total Cost for Complete Water System $ 132,842.00
Inclusions:
1. Sales tax
2. Testing
3. Wasting spoils on adjoining property
4. Layout and As- builts
Exclusions:
1. Bond, add 1% if required
2. Prevailing wages
3. Dewatering
4. Seeding and sod
5. Erosion control
Submitted by: ' " ` Date: 5/31/13
G Sheumaker, Estimator
(4 411 venue eronur_ A
EXHIBIT C
Water Facilities
(ACTUAL COST BREAKDOWN BY CONTRACTOR)
ITEM QUANTITY MATERIAL & LABOR COST
2" PVC PIPE & DI FITTINGS
4" DI PIPE & FITTINGS
4" PVC PIPE & DI FITTINGS
6" DI PIPE & FITTINGS
6" PVC PIPE & DI FITTINGS
8" DI PIPE & FITTINGS
8" PVC PIPE & DI FITTINGS
12" DI PIPE & FITTINGS
12" PVC PIPE & DI FITTINGS
2" BALL VALVE & VALVE BOX
4" GATE VALVE & VALVE BOX
6" GATE VALVE & VALVE BOX
8" GATE VALVE & VALVE BOX
12" GATE VALVE & VALVE BOX
FLUSH HYDRANTS (FLUSH
VALVES) & VALVE BOX
FIRE HYDRANT
FIRE HYDRANT VALVE &
VALVE BOX
FIRE HYDRANT 6" LEAD PIPE
TOTALS
EXHIBIT C
Water main Layout
6 WA 4694710.2
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for stanaoon of wale Face ties Waterman A VE , .Y.':‘,1.-L',
In lla0nn Details and ms suodVSion water main
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nsufftent number of fittings may cause Sg9fltant
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IX
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RESTRAINED JOINT GASKETS MAY BE REQUIRED I °'"°'""'"""`°""°
ON HORIZONTAL PIPE TO PIPE APPLICATIONS _
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41ST STREET 1
■
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DATE
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EXHIBIT D
Recorded Plat.
7 WA 4694710.2