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HomeMy WebLinkAbout1999-09-21 Draft Agreement 1 AGREEMENT REGARDING AREA-WIDE MULTI-USER SANITARY SEWAGE SYSTEM (INCLUDING PUMP STATIONS) This Agreement Made as of this day of , 1999 by and between Mesiti-Moore's Falls, LLC, a Massachusetts limited liability company with a mailing address of 11 Old Boston Road, Tewksbury, Ma 01876 and The Inhabitants of the Town of North Andover, a Massachusetts municipality with a mailing address c/o Town Manager, Town Hall, Main Street, North Andover, Ma 01845. Introductory Statement 1. The Applicant, in order to sewer the Forest View Subdivision (the "Site"), intends to construct an area-wide sanitary sewage collection and handling system, comprised of gravity sewers, pump stations, and force mains, and connecting to the existing Town sewer located within the layout of Turnpike Street (Rt. 114) between the Site and Hillside Road. A substantial portion of the System will be laid out within the layout of Turnpike Street (Rt. 114); the sewage pumping stations, however, shall be located on private property and are intended ultimately to be conveyed to the Town of North Andover as and when designated by the Town of North Andover following Recoupment by the Applicant of the "Oversizing Costs" as more fully described herein. The Applicant and its successors shall construct and manage (at Applicant's expense) the System to serve its own Subdivision as well as such other users as may be approved by the North Andover Department of Public Works (the "DPW") as evidenced by a Sewer Connection Permit or otherwise. 2. The "Oversizing Costs" are those additional costs established by evidence sufficiently satisfactory to the DPW incurred by the Applicant in designing, constructing, financing, and operating the System at the capacity and size ultimately required by the DPW over and above the costs which the Applicant otherwise would have borne if Applicant had constructed a single-user system to service Forest View Subdivision. Specific Requirements of All Parties 3. The parties involved in the design, approval, construction, operation and maintenance of the System are as follows: A. Applicant; B. the Town of North Andover; and C. "Additional Users" (as may be approved by the DPW). Each party shall have the following responsibilities and financial obligations: i The Applicant shall be initially responsible for 100% of all costs associated with the System (with the right to obtain Recoupment of the Oversizing Costs as noted below); the Town of North Andover shall have no responsibility as to the construction and financial costs of the System prior to the Town's affirmative decision to accept ownership of the System during the Recoupment Period. Following the Town's affirmative decision to accept ownership of the system, the Town during the period of time remaining in the Recoupment Period will be responsible for collecting the "Additional Users' Connection Fee" described in the next paragraph. The Additional Users shall be assessed a Connection Fee based on a per-unit charge for residential units, and a connection fee for commercial users based upon a definite amount of maximum daily sewage flow. Subject to adjustment once all of the various parameters associated with the ultimate approval of the design of the System are known, Applicant currently projects that the one-time residential Connection Fee would average $2,000 per residential unit containing 4 bedrooms (at the rate of $500/bedroom), while the one-time Connection Fee for commercial users would be $12.50 per gallon (for example, an Additional User proposing a commercial use of 1000 gallons would pay the one-time Connection Fee towards the Recoupment of the Oversizing Costs of$12,500). 4. In consideration of the Applicant constructing the System, the Applicant anticipates requesting a waiver from the Town of North Andover's current connection fee of $1000 per residential unit with respect to the Applicant's 93 lots comprising the Forest View Subdivision. 5. With respect to the determination of the exact amount comprising the "Oversizing Costs", the Applicant will submit to the Town of North Andover DPW and Planning Department two separate sets of analyses, one being the projected costs associated with the design, approval, financing, construction, operation and maintenance of a Single User Sewage System meeting all applicable federal, state and town laws, regulations, codes and specifications for Applicant's subdivision; as well as a parallel projection of the design, approval, financing, construction, operation and maintenance of the Multi-User System as required by the Town as part of the Definitive Subdivision Approval Process. The "Oversizing Costs" shall be the difference between the two; Applicant will be permitted to recoup the Oversizing Costs either by (a) by charging Additional Users the Connection Fees noted above for a maximum period of time of years, of (b) receiving the irrevocable agreement of the Town of North Andover to pay Applicant the Oversizing Costs prior to 200. 6. Should the Applicant achieve 100% Recoupment of the Oversizing Costs prior to the expiration of 5 years, the Applicant shall be obligated to notify the Town,, whereupon the Town at the Town's election may require the-early conveyance of the Pumping Stations +In any event, regardless of whether 100% kecoupment for Oversizmg Costs has been achieved, at the end of 5 years, the Applicant shall be obligated upon the written request of Town to convey the Pumping Stations to Town at any point in time after the expiration of 5 years. Following the Town's affirmative decision to accept ownership of the system, the Town during the period t of time remaining in the Recoupment Period will be responsible for collecting the "Additional Users' Connection Fee" described above. Plan for Maintenance until Infrastructure Acceptance by Town 7. Until such time as the Town accepts the conveyance of the System (in whole or in part), the Applicant shall be responsible for the maintenance costs of all sewer facilities comprising the System not yet conveyed to the Town. By the time of conveyance of all or a portion of the System (as the Town my elect), the Applicant will have entered into a 5 year maintenance contract with a company satisfactory to the DPW. At the present time, the Applicant understands that the Company "United Compressor Technology" would be a Company acceptable to DPW. 8. As it will appear in the Design Documents, portions of the System will be constructed within the Subdivision; within the layout of Turnpike Street (Rt. 114); and upon private property with respect to the Pumping Stations. It is anticipated that with the exception of a Pumping Stations, the Town may elect the date upon which to accept the conveyance of all or portions of the System; the components of the System located within the Subdivision are anticipated to be accepted in connection with the Street Acceptance Provisions of the Rules and Regulations regarding Subdivision as promulgated by the North Andover Planning Board. For the initial 5 years of the Recoupment Period, unless and until the Applicant receives the Irrevocable Agreement referenced in Paragraph 5(b) above, the Applicant (or its successor) shall be entitled to retain ownership of the Pumping Stations and collect the Additional Users' Connection Fee described above in order to achieve 100% Recoupment Period. At the end of said 5 year initial period of time, the Town at any point thereafter may by written notice elect to obtain ownership of the Pumping Stations even though 100% Recoupment has not yet been achieved (provided that during such period of time the Town has issued the Irrevocable Agreement referenced in Paragraph 5(b) above). 9. In any event, during all such times that the Applicant is responsible for the maintenance of any or all parts of the System, maintenance shall be contracted only with companies acceptable to the DPW, all at the Applicant's expense. Plan of Ownership System Components 10. As noted above, the Town may elect to accept ownership of any or all portions of the System, except that the Pumping Stations shall be owned by the Applicant or the Applicant's successor in title until such time as Applicant has achieved 100% Recoupment of Oversizing Costs, or the expiration of 5 years, whichever first occurs. For the initial 5 years of the Recoupment Period, the Applicant (or its successor) shall be entitled to retain ownership of the Pumping Stations and collect the Additional Users' Connection Fee described above in order to achieve 100% Recoupment Period. At the end of said 5 year initial period of time, the Town at any point thereafter may by written notice elect to obtain ownership of the Pumping Stations even though 100% Recoupment has not yet been achieved (provided that during such period of time the Town covenants to collect and remit to the Applicant all connection fees to which Applicant is entitled). 11. As described in detail above, until the Town has issued the Irrevocable Agreement referenced in Paragraph 5(b) above, Applicant will achieve Recoupment of the Oversizing Costs by charging a Connection Fee to any and all Additional Users. 12. The Applicant shall have the right to assign its interests in the Pumping Stations (and any and all agreements with Additional Users) to such other entity as the Applicant may create for the purpose of constructing and/or operating the contemplated System. Signed as a sealed instrument this day of , 1999. Mesiti-Moore's Falls, LLC By: Anthony Mesiti, Manager Inhabitants of the Town of North Andover By the Board of Selectman By: By: By: By: By: G:\REAL-EST\MESIT1\FVSEWER.DOC