HomeMy WebLinkAboutS Purchasing - Regarding Owasa Sewer Systeme Extension for CHCCS Elementary School 10LAW OFFICES
COLEMAN, GLEDHILL, HARGRAVE & PEEK
A PROFESSIONAL CORPORATION
129 E. TRYON STREET February 4, 2008
P. O. DRAWER 1529
HILLSBOROUGH, NORTH CAROLINA 27278
919.732-2196
FAX 919-732.7997
www.cghp-law.com
Kenneth L. Eagle, Esquire
Higgins, Frankstone, Graves & Morris, P.A.
14600 Weston Parkway, Suite 300
Cary, North Carolina 27513
David Hale
Vice President -Development
David Weekley Homes
1111 N. Post Oak Road
Houston, Texas 77055
RE: Agreement Regarding OWASA Sewer System. Extension
Dear Ken and Mr. Hale:
FROM THE DESK OF
GEOFFREY E. GLEDHILL
E-MAIL: ggledhill@cghp-law.com
Enclosed with your copy of this letter is an originally executed Agreement Regarding
OWASA Sewer System Extension. The exhibits to the agreement are A, B, C, D and F. There is
no Exhibit E. Exhibit E fell by the wayside during the back and forth in reaching this agreement.
To be sure that there is no question about that now and in the future, I have included a
placeholder for Exhibit E with the word "NONE" written on that placeholder.
As you both know the construction of the sewer facilities is underway. We are very close
to having all of the easement documentation completed and recorded. I anticipate that will occur
this week. I appreciate your help in getting this agreement finalized. And with a copy of this
letter to Donna Baker I am providing an original of the agreement for Orange County's
permanent file.
Very truly yours,
)HILL, HARGRAVE & YL~:K, Y.C.
GEG/lsg
Enclosure
xc: Donna Baker '-•~
Jeff Barrett
Pam Jones
Jeremy Medlin
Rob Shank
Dave Stancil
r ,
_ Please return this copy to
Clerk to the Board's office for PAF
lp_~j.D7
yg
STATE OF NORTH CAROLINA AGREEMENT REGARDING
OWASA SEWER SYSTEM
ORANGE COUNTY
EXTENSION
THIS AGREEMENT REGARDING OWASA SEWER SYSTEM EXTENSION ("this
Agreement," "Agreement" or "the Agreement") is made and entered into this ~ day of
~c'.r• , 200a(the latest date on which is it signed by any of the parties to it), by and among
M/I Homes of Raleigh, LLC, a Delaware limited liability company ("M/I"), Priority
Development, L.P., a Delaware limited partnership ("Priority") and Orange County, North
Carolina, a body politic and corporate, a political subdivision of the State of North Carolina ("the
County").
WHEREAS, M/I owns land located along and east of Old North Carolina Highway 86
which land is particularly identified as Orange County, North Carolina PIN 9860-93-2325 and
which land M/I Homes intends to use for residential development purposes ("the M/I property");
and
WHEREAS, Priority owns land south of and adjacent to the M/I property which land is
particularly identified as Orange County, North Carolina PIN 9860-92-6679 and which land
Priority intends to use for residential development purposes ("the Priority property"); and
WHEREAS, the County is the owner of land located north of and adjacent to the M/I
property which land is particularly identified as Orange County, North Carolina PINS 9860-84-
3227, 9870-OS-3117, 9860-96-8068 and 9860-96-6793 and which property the County intends to
use for "Twin Creeks Park" and one or more public schools or other public school facilities; and
,'
WHEREAS, the County, by and through its agent the Chapel Hill-Carrboro City Board of
Education, has received approval from the Orange Water and Sewer Authority for the
construction of sewer facilities that will serve the M/I property for its proposed residential
development, the Priority property for its proposed residential development, the Twin Creeks
Park and the schools and school facilities; and
WHEREAS, the County, through its agent the Chapel Hill-Carrboro City Board of
Education, has contracted for the construction of the sewer facilities; and
WHEREAS, M/I Homes and the County have agreed to convey easements to the Orange
Water and Sewer Authority within which easements the sewer facilities will be located; and
WHEREAS, Glen Ridge Town Home Association, Inc. owns property to the east of and
adjoining the M/I property and the Priority property which property is identified as Orange
County, North Carolina PIN 9870-12-2911 and over which property is an existing Orange Water
and Sewer Authority ("OWASA") sewer easement that will be used for the sewer facilities to be
constructed ("the Glen Ridge Town Home Association, Inc. property"); and
WHEREAS, an additional OWASA easement is necessary across the Glen Ridge Town
Home Association, Inc. property which Orange County, through its agent, the Chapel Hill-
Carrboro City Board of Education, has agreed to acquire (hereafter "the New Easement"); and
WHEREAS, M/I, Priority and Orange County have agreed to share the cost of
constructing the sewer facilities.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, M/I, Priority and the County agree as follows:
2
1. M/I agrees, at its own expense, to convey to the Orange Water and Sewer
Authority the sewer easement across the M/I property that is shown on the plat of survey titled
"NEW 30' OWASA SANITARY SEWER EASEMENT DEDICATION PROPERTY OF M/I
HOMES," a copy of which is attached hereto as Exhibit A.
2. County agrees, at its own expense, to convey to the Orange Water and Sewer
Authority the sewer easement shown on the plats titled "OWASA WATER/SANITARY
SEWER EASEMENTS DEDICATION PROPERTY OF THE COUNTY OF ORANGE"
(Sheets 1 and 2), copies of which are attached hereto as Exhibits B and C.
3. County, by itself or through its agent the Chapel Hill-Carrboro City Board of
Education, will obtain, at its own expense, the New Easement as shown on the plat titled "NEW
30' OWASA SANITARY SEWER EASEMENT DEDICATION PROPERTY OF GLEN
RIDGE TOWN HOME ASSOCIATION," a copy of which plat is attached hereto as Exhibit D.
4. The County, through its agent the Chapel Hill-Carrboro City Board of Education,
has or will pay for the design, permitting and engineering oversight of the construction of the
sewer facilities.
5. M/I, Priority and the County have reviewed the completed plans and
specifications for construction of the sewer facilities and any and all other documents deemed
necessary by each related to construction of the sewer facilities and have agreed to share the
costs of the construction of the sewer facilities as follows:
a. M/I, Priority and the County will share equally the total cost of
constructing the sewer facilities across the Glen Ridge Town Home Association, Inc. property,
Area "C" on Exhibit F hereto, which total cost is particularly detailed on Exhibit F hereto.
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b. M/I and the County will share equally the total cost of the construction of
the sewer facilities across the M/I property, Area "B" on Exhibit F hereto, which total cost is
particularly detailed on Exhibit F hereto.
6. M/I and Priority each shall pay its portion of the total costs of the sewer facilities
construction project as detailed in paragraph 5 of this Agreement in one lump sum payment
within thirty (30) business days after receipt of written demand for payment from the County,
which demand shall be accompanied by (i) a complete copy of the as-built drawings of the sewer
facilities, (ii) an itemized statement of the actual costs of construction of the sewer facilities,
certified by the project engineer and (iii) written evidence of acceptance of the sewer facilities by
the Orange Water and Sewer Authority.
7. The County agrees, through its agent the Chapel Hill-Carrboro City Board of
Education, to construct the sewer facilities in accordance with the completed plans and
specifications approved by OWASA and all other applicable governmental entities under the
standards and requirements of OWASA, and shall cause OWASA to accept the sewer facilities
for operation and maintenance as part of the OWASA sewer system, including resolving all
sewer system repairs, warranty claims or any other OWASA requirement necessary to
accomplish OWASA acceptance of the sewer facilities at the conclusion of the sewer facility
construction warranty period.
8. In the event County does not commence construction of the sewer facilities
construction project at its "downstream" end (at the point where it connects to an existing
Orange Water and Sewer Authority sewer facility at or near the eastern boundary of the
Glenridge Townhome Association property) on or before January 15, 2008, any party to this
Agreement may, in its sole and absolute discretion, terminate this Agreement by providing notice
4
as provided herein to the other parties. Notwithstanding termination of this Agreement as
provided in this paragraph, any and all of the easements required of this Agreement to be
conveyed to the Orange Water and Sewer Authority will be conveyed to the Orange Water and
Sewer Authority and if already conveyed at the time of termination, will not be rescinded by the
easement grantor.
9. M/I, Priority and the County each agree to permit the sewer facilities construction
contractor access, subject to such reasonable conditions as determined by the party granting
access and the sewer facilities construction project contractor, to the M/I property, the Priority
property and the County property respectively for purposes of construction of the sewer facilities
construction project.
10. M/I makes the following representations and warranties to Priority and to the
County:
(a) M/I is a limited liability company organized and in good standing in the
State of Delaware and has all requisite authority to conduct business and is in good standing in
the State of North Carolina.
(b) M/I has full authority to enter into this Agreement and to perform its
obligations hereunder, and M/I's execution, delivery and performance under this Agreement will
not violate the provisions of any agreement to which M/I is a party or by which it is bound.
(c) The person signing this Agreement is the only person whose signature is
required to bind M/I, and the person signing is duly authorized to do so. Upon written request,
M/I shall deliver to Priority and to the County written evidence of such authority.
11. Priority makes the following representations and warranties to M/I and to the
County:
5
(a) Priority is a limited partnership organized and in good standing in the
State of Delaware and has all requisite authority to conduct business in the State of North
Carolina.
(b) Priority has full authority to enter into this Agreement and to perform its
obligations hereunder, and Priority's execution, delivery and performance under this Agreement
will not violate the provisions of any agreement to which Priority is a party or by which it is
bound.
(c) T'he person signing this Agreement is the only person whose signature is
required to bind Priority, and the person signing is duly authorized to do so. Upon written
request, Priority shall deliver to M/I and to the County written evidence of such authority.
12. The County is a body politic and corporate, a subdivision of the State of North
Carolina pursuant to the Constitution of North Carolina and N.C. Gen. Stat. §§ 153A-10 and
153A-11, has full authority to enter into this Agreement and to perform its obligations hereunder
and the County's execution, delivery and performance under this Agreement have been
authorized by its Board of Commissioners as provided by law.
13. All notices required or permitted to be given under this Agreement shall be in
writing and may be hand delivered or sent by commercial courier service or by certified mail,
return receipt requested. Notices hand delivered or sent by courier service shall be deemed given
and received upon actual receipt. If sent by certified mail, notice shall be deemed given and
received the earlier of actual receipt or receipt by the sender of notice from the United States
Postal Service that delivery was attempted. Notices shall be sent to the following addresses (or to
such other address as any recipient may hereafter provide to the other parties to this Agreement
for the purpose of such notice):
6
If to Priority:
~,v,~c r-~t~
~tlTt ~ GtkC ~~ lw.a FT~~'41..1
tt~! N. Patt Da k ~~.
~out+ati ~ `r"'~ T7o$S' f'~t ~ ~t3- 311,- 3~~0
with a copy to: Jew (34rrr~-
~ea Lono( -'f'~~tn~,er'
'f3f35 k~m~ r a~-+~cl4 c ~~ sue. ~~1
~(~i-areffa. L~1 3ao2.~
Aho~rt : x'70 - 5'69- S'SGS`. E`k~~".~~~;
If to M/I: Jeremy Dowd Medlin
Vice President of Land Development
M I Homes
1511 Sunday Drive, Suite 100
Ra eig , NC
Phone: 919-233-5740
with a Copy t0: Kenneth L. Eagle, Esquire
Higgins, Frankstone, Graves & Morris, P.A.
14600 Weston Parkway, Suite 300
Cary, NC 27513
Phone: 919-678-8880, Ext. 2
If to County: David Stanch, AICP, Director
Environment & Resource Conservation Department
P.O. Box 8181
Hillsborough, NC 27278
with a copy to: Geoffrey E. Gledhill, Esquire
Coleman, Gledhill, Hargrave & Peek, P.C.
P.O. Drawer 1529
Hillsborough, NC 27278
`Phone : q~q -~3Z-ZIg6
14. The terms of the Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the Parties hereto.
15. This Agreement shall be construed and enforced in accordance with the Laws of
the State of North Carolina. Any reference herein to the singular shall include the plural, and any
reference to any gender shall include the neuter and the other gender. Whenever a date specified
7
herein shall fall on a weekend or legal holiday, the date shall be extended to the next business
day. Captions contained herein are inserted only for the purpose of convenient reference, and in
no way define, limit or describe the scope of this Agreement or any part hereof. Notwithstanding
the presumption of law whereby an ambiguity or conflict in provisions shall be construed against
the drafter, the Parties hereto hereby agree that although one Party may have generated this
Agreement, each Party has been afforded the opportunity to consult with counsel of its own
choosing and each has participated in the drafting of this Agreement. Therefore, such
presumption shall not be applied if any provision or term of this Agreement requires judicial
interpretation.
16. This Agreement embodies the entire agreement among M/I, Priority and the
County concerning the matters discussed herein and may not be modified, changed or altered in
any respect, except in a writing, executed in the same manner as this Agreement by all Parties
hereto.
17. If any provision of this Agreement is held by a court of competent jurisdiction to
be invalid or void, such provision shall be deemed severable from the remaining provisions of
the Agreement and shall not be deemed to nullify or affect any other provision hereof. If any
such provision is deemed invalid due to its scope or breadth, such provision shall be deemed
valid to the extent of the scope or breadth permitted by law. If any item, term or provision
contained in this Agreement is in conflict with any applicable federal, state or local laws, this
Agreement shall be affected only as to its application to such item, term or provision, and shall in
all other respects remain in full force and effect.
18. The failure of any Party to insist in any one or more instances upon the strict and
complete performance of any of the covenants, agreements and/or conditions of this Agreement,
8
or to exercise any right or privilege herein conferred, shall not be construed as a waiver of any
such covenant or condition or a waiver of the right of such Party to require such performance or
to exercise such right or privilege for the same or other breach. No waiver of any of the
provisions of this Agreement shall be deemed, nor shall the same constitute, a waiver of any
other provision, whether or not similar, nor shall any such waiver constitute a continuing waiver.
No waiver shall be binding, unless executed, in writing, by the Party making the waiver.
Agreement to be signed in its name by its duly authorized officials:
IN WITNESS WHEREOF, M/I, Priority and the County have each caused this
M/I HOMES OF RALEIGH, LLC
By:
Name:
Title:
Date Signed
PRIORITY DEVELOPMENT, L.P.
By:
ame: ,
Title: j~ ~ +
ORANGE COUNTY, NORTH CAROLINA
By:
~ kmor~
Orange County Manager
ATTEST: ~~ `-e~,'~{~"9- , , ._ _
Donna S. Baker, Clerk to the
Board of Commissioners
Date Signed
~~~/ ~/7
Date Signed
9
or to exercise any right or privilege herein conferred, shall not be construed as a waiver of any
such covenant or condition or a waiver of the right of such Party to require such performance or
to exercise such right or privilege for the same or other breach. No waiver of any of the
provisions of this Agreement shall be deemed, nor shall the same constitute, a waiver of any
other provision, whether or not similar, nor shall any such waiver constitute a continuing waiver.
No waiver shall be binding, unless executed, in writing, by the Party making the waiver.
IN WITNESS WHEREOF, M/I, Priority and the County have each caused this
Agreement to be signed in its name by its duly authorized officials:
M/I HO S OF RALEIGH, LLC
By~ ----- --- l'' Z2-oS
Name: Edward F. Kristensen Date Signed
Title: Area President
PRIORITY DEVELOPMENT, L.P.
B y:
Name:
Title:
Date Signed
ORANGE COUNTY, NORTH CAROLINA
B y:
Orange County Manager
Date Signed
ATTEST:
Donna S. Baker, Clerk to the
Board of Commissioners
9
Exhibit A
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Exhibit E
NONE
h
Exhibit F
Construction Cost Detail
Area "C" -Glen Ridge Town Home Association, Inc. property segment of sewer facilities
Total of itemized construction elements $156,732
Pro rata share of mobilization demobilization 5,000
Total
$161,732
Included in the Total are allowances for 250 cubic yards of rock removal at a price of $35.00 per
cubic yard and 250 cubic yards of unsuitable soil removal and replacement at a cost of $25.00
per cubic yard. The cost to be shared by M/I, Priority and the County shall be increased or
decreased to the extent that the rock and the unsuitable soils quantity allowances are exceeded or
not reached.
Area "B" - M/I property segment of sewer facilities
Total of itemized construction elements $ 56,159
Pro rata share of mobilization/demobilization 2,040
Total
$ 58,199
Included in the Total are allowances for 100 cubic yards of rock removal at a price of $35.00 per
cubic yard and 100 cubic yards of unsuitable soil removal and replacement at a cost of $25.00
per cubic yard. The cost to be shared by M/I and the County shall be increased or decreased to
the extent that the rock and the unsuitable soils quantity allowances are exceeded or not reached.
10