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2014-1862014-186 Resolution Authorizing Supervisor To Execute Agreement For Temporary Connection To The United Wappinger Water District In Connection With The Regency At Wappinger Project At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County, New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on July 14, 2014. The meeting was called to order by Barbara Gutzler, Supervisor, and upon roll being called, the following were present: PRESENT: Supervisor Councilmembers ABSENT: Barbara Gutzler William H. Beale Vincent F. Bettina Michael Kuzmicz Ismay Czarniecki The following Resolution was introduced by Councilman Bettina and seconded by Councilman Kuzmicz. WHEREAS, the TOWN owns and operates a municipal water supply system which provides potable water to the residents and customers located within the geographical boundaries of the United Wappinger Water District; and WHEREAS, TOLL is the owner of a certain tract of land which was granted Site Development Plan Approval for 225 residential units by the Town of Wappinger Planning Board pursuant to Resolution dated March 18, 2013 hereinafter referred to as the "Project"; and WHEREAS, the Project is known as "Regency at Wappinger" and was previously known as "Hilltop Village at Wappinger"; and WHEREAS, the Project will be developed as a senior active community containing both attached and detached dwelling units to be constructed in condominium format in four separate phases; and WHEREAS, pursuant to regulatory design criteria, the Project was approved for a maximum daily flow of water of 72,000 gallons per day (gpd) for domestic usage for the 225 residential units; and WHEREAS, TOLL has requested one or more taps for connection to UWWD for the sole purpose of providing irrigation water to the Project separate from the taps for the individual residences to be constructed within the Project; and WHEREAS, the Project is to be developed in three separate phases and it is not anticipated that the Project will utilize its allocated maximum daily flow of 72,000 gpd of domestic water until the residential units are sold; and WHEREAS, TOLL shall be permitted to use domestic water from UWWD for irrigation of plants and shrubbery provided the domestic usage for the individual residences and the irrigation water does not exceed the total sum of 72,000 gpd maximum upon the terms and conditions as set forth in the Agreement for Temporary Connection to the United Wappinger Water District, a copy of which is attached hereto, made a part hereof, marked and designated as Exhibit -r. NOW, THEREFORE, BE IT RESOLVED, as follows: 1. The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. 2. The Town Board Members acknowledge they have reviewed the terms and conditions of the proposed "Agreement for Temporary Connection to the United Wappinger Water District", hereby approve the Agreement in the form annexed hereto, and authorizes and directs the Supervisor to execute the Agreement by and on behalf of the Town of Wappinger and the United Wappinger Water District. 3. The Town Supervisor, upon consultation with the Attorney to the Town, are authorized to further negotiate the terms and conditions of the annexed Agreement as deemed appropriate and necessary. The foregoing was put to a vote which resulted as follows: BARBARA GUTZLER, SUPERVISOR Voting: AYE WILLIAM H. BEALE, COUNCILMAN Voting: AYE VINCENT F. BETTINA, COUNCILMAN Voting: AYE ISMAY CZARNIECKI, COUNCILWOMAN Voting: ABSENT MICHAEL KUZMICZ, COUNCILMAN Voting: AYE Dated: Wappingers Falls, New York 7/14/2014 The Resolute is herebyeclared adopted. P. PAOLONI, TOWN CLERK AGREEMENT FOR TEMPORARY CONNECTION TO THE UNITED WAPPINGER WATER DISTRICT THIS AGREEMENT made the day of 5 2014, by and between TOLL LAND V LIMITED PARTNERSHIP, with an address at 60 Merritt Boulevard, Suite 100, Fishkill, New York 12524 (hereinafter referred to as "TOLL"), and THE TOWN BOARD OF THE TOWN OF WAPPINGER By and on Behalf of the UNITED WAPPINGER WATER DISTRICT, with offices situated at Town Hall, 20 Middlebush Road, Wappingers Falls, New York 12590 (hereinafter referred to as the "TOWN" or "UWWD"), WITNESSETH: WHEREAS, the TOWN owns and operates a municipal water supply system which provides potable water to the residents and customers located within the geographical boundaries of the United Wappinger Water District; and WHEREAS, TOLL is the owner of a certain tract of land which was granted Site Development Plan Approval for 225 residential units by the Town of Wappinger Planning Board pursuant to Resolution dated March 18, 2013 hereinafter referred to as the "Project"; and 13731031469283v2 7/10/14 WHEREAS, the Project is known as "Regency at Wappinger" and was previously known as "Hilltop Village at Wappinger"; and WHEREAS, the Project will be developed as a senior active community containing both attached and detached dwelling units to be constructed in condominium format in four separate phases; and WHEREAS, pursuant to regulatory design criteria, the Project was approved for a maximum daily flow of water of 72,000 gallons per day (gpd) for domestic usage for the 225 residential units; and WHEREAS, TOLL has requested one or more taps for connection to UWWD for the sole purpose of providing irrigation water to the Project separate from the taps for the individual residences to be constructed within the Project; and WHEREAS, the Project is to be developed in three separate phases and it is not anticipated that the Project will utilize its allocated maximum daily flow of 72,000 gpd of domestic water until the residential units are sold; and WHEREAS, TOLL shall be permitted to use domestic water from UWWD for irrigation of plants and shrubbery provided the domestic usage for the individual residences and the irrigation water does not exceed the total sum of 72,000 gpd maximum on terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions herein contained, the parties hereby agree as follows: 1. Recitations. The recitations above set forth are hereby incorporated into this Agreement as if fully set forth herein. 13731031469283v2 7/10/14 -2- 2. Authorization. TOLL is hereby granted a license for a separate connection or connections to the UWWD potable water lines for the sole purposes of supplying irrigation water for the landscaping to be installed for the Project (trees, shrubs, lawns, etc.) to be constructed pursuant to the Resolution of Site Plan Approval dated March 18, 2013, subject to the provisions of this Agreement. 3. Conditions of Connection for Irrigation Water. The authorization to connect to the UWWD for irrigation purposes is subject to the following express conditions: 3.1. The point or points of connection to the UWWD will be determined by the Engineer to the Town, in consultation with Camo Pollution Control, Inc., the manager and operator of the UWWD; 3.2. The point or points of connection shall be done in accordance with plans prepared by a licensed professional engineer and submitted to the TOWN and the Dutchess County Health Department for review and approval; the plans for the point or points of connection must include a water meter(s) as approved by the TOWN in consultation with Camo Pollution Control, Inc.; 3.3. TOLL shall be responsible for all maintenance, upkeep and repairs for the connection(s); the connection(s) and all appurtenances shall not be dedicated to the TOWN but shall be owned and maintained as a private system either by TOLL or by any homeowners or condominium association which may subsequently own and/or manage the common grounds and irrigation system; 3.4. The TOWN shall have access to all points of connection to UWWD including any meters and related appurtenances at all times; if the meters are provided with 13731031469283v2 7/10/14 -3- security locks or other security measures, the TOWN will be given copies of any keys, combination or other information satisfactory to gain access to the meters; 3.5. TOLL shall construct all water lines and install all water meters and related appurtenances in accordance with the connection plans set forth in paragraph 3.2 above; 3.6. TOLL shall be charged the commercial rate for water usage in accordance with the formula attached as Schedule "1", subject to the provisions of paragraph 5 following; 3.7. In the event the Town Board and/or the Supervisor or any other governmental agency, declares a water emergency TOLL, or its successors must comply with any provisions of the water emergency and irrigation water usage pursuant to this Agreement must be suspended until the water emergency is lifted; 3.8. If required by any regulatory agency, or the Town Board, TOLL shall install a Reduce Pressure Zone (RPZ). 4. Maximum Dail Quantity of Water. The maximum quantity of water permitted to be consumed pursuant to this Agreement shall be a total of 72,000 gpd. The Project was approved for 225 individual residential units which are planned to be constructed in three separate phases. Each individual residential unit shall have a water meter installed to measure the consumption of the residential unit. TOLL, or its successors, shall only be permitted to use the difference between the actual amount of water consumed by the individual residences and 72,000 gpd maximum. The irrigation usage will be metered separately and the quarterly water meter reading will be monitored by TOLL and checked by 1 3 7310 314 692 8 3v2 7/101'14 0 the TOWN or any of its designated agents to determine the actual usage of both the residential units and the irrigation usage. These meter readings will be used by the TOWN to determine the amount of domestic water use for the individual residential units and the amount available for irrigation (sprinkler usage) for the next quarter. The determination of water available for irrigation (sprinkler usage) will change quarterly based on the total water used less the amount of water consumed by the individual residences connected to UWWD. Excess consumption of irrigation water shall be subject to the surcharge set forth in paragraph 5 below or may result in termination of this Agreement on two weeks' notice, at the discretion of the TOWN. 5. Water Rate. All water used for irrigation (sprinkler usage) shall be charged commercial water rates as determined by the Town Board from time to time hereafter. All water bills will be charged on a quarter -annual basis as determined by the Town Board. 6. Surcharge for Excess Usage 6.1. TOLL expressly acknowledges that this Agreement for authorization to use UWWD water for irrigation (sprinkler usage) is based on regulatory design standards of 72,000 gpd for 225 residential units.. 6.2. In the event the Project utilizes in excess of 6,570,000 gallons for any quarterly period for both individual residential domestic usage and irrigation (sprinkler usage) for any quarter -annual billing period, based on metered water usage as provided in paragraph 4 above, TOLL, or its successors and assigns, will pay a surcharge of 50% of the commercial water rate charge in excess of 6,570,000 gallons for any quarter -annual billing 13731031469283v2 7110114 -5- period. Said surcharge for excess usage shall be paid within ten (10) days of receipt of a bill for same. 6.3. In the event total water consumption for the Project exceeds 6,570,000 gallons for two consecutive quarter -annual periods, this Agreement shall be terminated, at the option of the TOWN and the TOWN shall be authorized on ninety (90) days' notice to disconnect the point of connection(s) referenced in paragraph 3 above. 7. Permits and Approvals TOLL will secure all permits and approvals required from the Dutchess County Health Department and any other regulatory agency having jurisdiction over the water supply to be granted herein. 8. License to Investigate TOLL expressly agrees that it will affirmatively and rigorously seek other sources of water for irrigation (sprinkler usage) purposes. During the term of this Agreement, TOLL is hereby granted a license to investigate alternate sources of water and is hereby given permission to enter on property owned by the TOWN. 9. Reimbursement of Professional Review and Inspection Fees 9.1. TOLL and successors or assigns will be responsible for and will promptly reimburse the TOWN and/or UWWD for all costs incurred by the TOWN in negotiating, drafting, monitoring, implementing and enforcing the provisions of this Agreement, as well as all professional review and professional inspection fees incurred by the TOWN in connection with this Agreement and in connection with professional inspection fees incurred during the construction of the water mains to be constructed to supply irrigation water as herein provided. The extent and frequency of professional review and professional inspection shall be in the sole discretion of the TOWN. 1 3 73/0 314 6 92 83v2 7110/14 -6- 9.2. In any action to enforce the terms of this Agreement, the successful party shall be entitled to an award of reasonable attorney's fees, expert fees, and other costs and disbursements incurred in such proceeding, which shall be in addition to such other relief as may be awarded in law or equity. 10. Insurance. 10.1. Certificate. TOLL and/or its contractors shall provide the TOWN with a Certificate of Insurance, which indicates a current Commercial General Liability Policy is in force, with an insurance company with an A.M. Best's rating of "A" or better. The occurrence limit must indicate a limit of not less than $1,000,000.00 with a $2,000,000.00 general liability umbrella. The TOWN must be named as additional insured. 10.2. Indemnification. TOLL, or its contractors, shall indemnify and hold harmless the TOWN against all claims on account of injury, loss or damage arising out of or alleged to arise out of or in connection with the work to be performed hereunder, including all expenses incurred by the TOWN in the defense, settlement or satisfaction thereof, including expenses of legal counsel. 11. Term of Agreement 11.1. The term of this Agreement shall be for five years , with time of the essence, commencing on the date of the interconnection to UWWD unless the total water usage reaches 85% of the allocated 72,000 gpd (61,200 gpd) at which time this Agreement may sooner be terminated by the TOWN on one hundred fifty (150) days' notice. This Agreement may be extended by formal approval of the Town Board by Resolution duly adopted at a regular or special meeting of the Town Board. In the absence of such a 13731031469283v2 7110114 -7- Resolution, this Agreement shall terminate five years from the date of interconnection as set forth above. 11.2. Upon termination of this Agreement, the point(s) of connection must be abandoned per TOWN and Health Department requirements, unless extended by the Town Board. 12. Entire Agreement This written Agreement, when signed by all parties above identified, forms the entire Agreement between the parties and replaces and supersedes all prior Agreements or understandings between the parties, if any. 13. Applicable Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New York with regard to conflicts of laws and principles of law. 14. Waiver. No waiver of any breach of any condition of this Agreement shall be binding unless in writing and signed by the party waiving such breach. No such waiver shall in any way affect any other term or condition of this Agreement or constitute a cause or excuse for repetition of such or any other breach unless the waiver shall specifically include the same. 15. Modification. This Agreement constitutes the complete understanding of the parties. This Agreement may not be modified unless approved by a Resolution of the TOWN authorizing a written modification to the Agreement and said modification is signed by both parties. 13731031469283v2 7110/14 -8- 16. Assignments. This Agreement may be assigned to the Homeowners Association, subject to approval by the Town Board of the Town of Wappinger, and such approval shall not be unreasonably withheld. 17. Notices. All notices, demands, requests, consents, approvals or other communications (for the purpose of this paragraph collectively called "Notices") required or permitted to be given hereunder to any party to this Agreement shall be in writing and shall be sent by overnight delivery service (Federal Express or equivalent) or registered or certified mail, return receipt requested, postage prepaid, addressed to the last known address herein. If to TOLL: Toll Land V Limited Partnership 60 Merritt Boulevard, Suite 100 Fishkill, New York 12524 If to TOWN: Town Board Town of Wappinger 20 Middlebush Road Wappingers Falls, New York 12590 With a Copy to: Stenger, Roberts, Davis & Diamond, LLP 1136 Route 9 Wappingers Falls, New York 12590 Attention: Albert P. Roberts, Esq. or to any other law firm designated in writing by the TOWN 18. Exhibits. All of the Exhibits annexed hereto shall be deemed to be and the same are hereby made a part of this Agreement. 13731031469283v2 7/10114 IPA IN WITNESS WHEREOF, the parties have each executed this Agreement in four counterparts, each of which shall constitute an original, as of the day and date first above written. 1373/031469283v2 7/10/14 TOLL LAND V LIMITED PARTNERSHIP TOWN BOARD TOWN OF WAPPINGER -10- BARBARA A. GUTZLER, SUPERVISOR STATE OF NEW YORK ) ss. COUNTY OF DUTCHESS On the day of , 2014, before me the undersigned, a Notary Public in and for the State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument the individual, or the person upon behalf of which the individual acted, executed this instrument. Notary Public STATE OF NEW YORK ) ) ss. COUNTY OF DUTCHESS) On the day of , 2014, before me the undersigned, a Notary Public in and for the State, personally appeared BARBARA A. GUTZLER, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that by her signature on the instrument the individual, or the person upon behalf of which the individual acted, executed the instrument. 13731031469283v2 7/10114 -11- Notary Public