HomeMy WebLinkAboutLoyal Garden Sewer AGREEMENT FOR REIMBURSEMENT
THIS AGREEMENT, made and entered into this 12 day of
August . 2013, by and between the CITY OF BOZEMAN, a municipal
corporation, organized under the laws of the State of Montana, ("City"), and Covenant
Investment, Inc. a Montana corporation with address of P.O. Box 11428, Bozeman, MT, 59715
("Developer").
WHEREAS, Developer presently owns land located in Gallatin County, Montana, more
particularly described as follows: Loyal Garden Subdivision Phase I and IA, according to the
map or plat thereof on file and of record in the office of the Clerk and Recorder of Gallatin
County,Montana,
WHEREAS, the City owns and operates a sewer system within and adjacent to its
corporate limits; and
WHEREAS, Developer has constructed sewer lift station and 6" force main, which lift
station and force main are capable of serving the tracts described and shown on Exhibit A,
entitled"Payback Areas", attached hereto and incorporated herein by this reference; and
WHEREAS,the lift station and force main are located within the area served by the City
and have been finally accepted by the City for maintenance and operation;and
WHEREAS, the area capable of being served by the lift station and force main, is herein
referred to as "the benefitted properties", and is particularly described in Exhibit "A" attached
hereto,and by this reference incorporated herein;and
WHEREAS, the benefitted properties did not participate in the original cost of
construction of the lift station and force main,the total of which amounts to$527,841.30;and
WHEREAS,the City and the Developer desire to and intend by this agreement to provide
terms and conditions by which Exhibit "A" properties may connect to, and utilize the lift station
and force main; and
WHEREAS, the parties hereto agree that the City will charge and collect a fair pro rata
share from each of the described benefitted properties as they connect to said force main and lift
station;
NOW, THEREFORE, in consideration of the conveyance to the City of the lift station
and force main, and the mutual covenants contained herein, it is agreed by and between the City
and Developer as follows:
1. The parties agree that the lift station and force main have been constructed and
installed in accordance with the requirements of the City and the Director of Public Service. The
Developer has conveyed his interest in the lift station and force main and secured or granted any
necessary easements for said sewer lift station and 6" force main to the City. The City has
accepted said lift station and force main and easements for maintenance as part of its sewer
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system.
2. The Developer has submitted to the City itemized invoices for labor, material and
engineering directly attributable to the installation of the lift station and force main which costs
are attached and incorporated by reference as Exhibit "'B". The Developer does hereby certify
that the costs listed in Exhibit "B" are solely related to the lift station and force main for his
property, described above, approximate the original amount bill for said extension, and do not
reflect costs related to the sewer line installed oil said property.
3. The Developer has submitted an as-built set of plans together with the engineer's
certification that the project was completed in accordance with the applicable laws, rules and
regulations and cost of the extension.
4. The City agrees to collect from the owners of property benefitted by said lift station
and force main who did not contribute to the cost of construction of said lift station and force
main, and who subsequently connect to or use the same, a fair pro rata share of the cost of such
construction based upon the sum of $2,455.08 per gross acre, which unit charge shall be
conclusively presumed to be a fair pro rasa charge against the beriefitted property. The
reimbursement charges are in addition to the usual and normal charges that will be ilzadc by the
City for service connections, monthly service charges and impact fees. The Developer hereby
releases the City from any and al] claims that may arise out of the collection of said charges,
including but not limited to error in calculation of proportionate cost, failure to collect fees set
forth herein and in making a determination that the property or portion thereof is or is not
benefitted by said services.
5. The City shall account for funds received and remit said funds to Covenant Investment
1 1 r, t'n Bns 11428, Bezcltlan,MT, 59719, dusignateci by writing as the agent to receive said
proceeds by the Developer, approximately thirty (30) days fallowing receipt of said funds, less
an administrative fee of seven percent (7%) of the amount received. No extensions or
connections shall be made to the force main and lift station without first paying tl�e required
amount and with the full knowledge of the City. However, if the City, for whatever reason, fails
to collect the required fee hereunder, no liability shall arise nor any claim be made by tite
Developer against the City.
6. It is agreed that this agreement shall continue until Developer has recovered Sixty and
forty two one hundredths of a percent(60.42%)of his total "as-built"construction costs,or upon
the expiration of twenty(20) years, whichever shall occur first, whereby this agreement shall be
deemed terminated and of no further force and effect. Failure of the City to recover the
maximum reimbursement shall neither create a liability on the part of the City nor extend the
Agreement beyond the period specified herein. Provided, however, that should this agreement
not provide Developer with reimbursement as described above within said twenty (20) year
period, this agreement may be extended by way of a mutual agreement between the parties,
unless such an extension would work a hardship to the City.
7. Construction and installation of the lift station and force main is limited specifically to
the terms and area covered by this agreement. Nothing in this agreement is to be construed as an
obligation on the part of Developer to extend the sewer line to any points beyond those
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contemplated in this agreement.
8. This Agreement has no effect on City charges for utility connections or impact fees.
The City may connect to the above described extension other main extensions or side lateral
extensions, as appropriate. Any connections to such extensions of the above described extension
shall not constitute grounds for reimbursement. The City shall be the sole judge of what
constitutes a main,side lateral extension,or sewer service.
9. The Developer hereby agrees to release, indemnify, defend and hold the City, its
agents, officers and employees harmless from and against any suit, cause of action, claim, cost,
expenses, obligation and liability of any character, including attorney's fees, which are brought
or asserted arising out of this agreement or out of the collection or distribution of said charges,
including but not limited to error in calculation of proportionate cost, failure to collect fees set
forth herein, defects in the construction of the improvements, and in making a determination that
the property or portion thereof is or is not benefitted by said improvements. Prior to Developer's
obligations in this paragraph, the City will provide Developer with written notice that a third
party has made a claim against the City, its agents, officers or employees. The notice shall
include a request for a tender of defense pursuant to this paragraph and will be sent to: Covenant
Investment LLC,P.O.Box 11428,Bozeman,MT, 59719.
10. Developer shall not assign any right or obligation hereunder in whole or in part,
without prior written consent of the City.
11. Any amendments or modifications to this agreement or any provision herein shall be
made in writing and executed in the some manner as the original document.
12. This agreement shall be interpreted according to the laws of the State of Montana.
Venue in any dispute arising from this agreement shall be in the Eighteenth Judicial District,
Gallatin County,Montana.
The undersigned for the Developer acknowledges and certifies that he has authority to execute
this agreement for the Developer.
IN WITNESS WHEREOF the Parties hereto have executed this instrument the day and
year first above written.
�(
Developer CITY OF BOZEMAN
By -De i J t at, 11 By:
STATE OF MONTANA
)ss.
County of Gallatin ) { •�k'17 � +y"
-
3 •
On this—/Z day of , 2013 , before me, the undersilpied, a Notary
Public for the State of Montana,perso lly appeared CHRIS KUKULSKl and STACY ULMEN,
known to me to be the City Manager and City Clerk, respectively,of the City of Boxernan and
the persons whose names are subscribed to the within instrument, and acknowledged to me that
they executed the same for and on behalf of the City of Bozeman.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the
day and year first above written.
(SEAL)
Tim Cooper
Notary Put9lc
Notary Public for the State of Montana _ :t�oxniirgt'. -for the State of Montana
Residing at:
SEAL.,�, Bozeman,Montana
ap
s49•
`n'L t< M September 29,2014y Commission Expires-.
(Printed Name) co'
Residing at Bozeman
My Commission Expires: 0 5 / 2;�/201-
State of Montana )
):SS.
County of Gallatin )
On this---,D-day of,�, 20,L],_, before me, the undersigned, a Notary Public for
the State of Montana,personally nD-C., d x - ;v, tr a t.11 I,� �,'rCry 4 (z
known to me to be the person whose naane is subscribed to the within instrument�and l,
acknowledged to me that he/she executed the same for and on his own behalf.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the
day and year first above written.
(SEAL)
SUSAN B SWIMLEY
NOTARY PUBLIC for the
State of Montane
SEAL; ReWing at Bot:elnan,Montana
r�� My Commiaalon ExPIM
Mash DB,2017
Notary Public for the State of Montana
f
�Su So
(Printed Name)
Residing at r-11 i Ci t.
My Commission Expires:`/. ,�/20
4
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EXHIBIT A
SEWER PAYBACK AREAS
IN PORTIONS OF C.O.S.NO.2220,C.O.S.NO.24,C.O.S.NO.25,
&FILM 8,PAGE 1162 PLAT
LOCATED IN SECTIONS 15&16,T23,RSE,P.M.M.,GALLATIN COUNTY,MONTANA
POW
NUMNE 9 l0 4NiE r°Fi6
120 PACE 32
16 1S
Pb7f1 OF
OF>1MSI im
ExarBrt A�l
EXHIBIT A-3 PAYBACK AM
PAYBACK AREA 44.03 ACRES
75.04 ACM
C.o.S. p4, 2$
EXHIBIT A
PAYBACK AREA
erg"a o 54.sl ACR�s
c 1/4 WL Iv is C 50.5.ktD. 7� VtACT 1
►N. 2220
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EXHIBIT A-4
PAYBACK AREA
40.6 ACRES
A,4a
of 0 1000'
oy
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S C A L E
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'pLU��,yp AA3//+�I�&/��//$�08r} .,n 5 INC.
DRAWNBY: $A
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DATE, sway rD&IO
JOB NO. 545462
CAD NO. 50020 bac i.dw
EXHIBIT B
LIFT STATION AND FORCE MAIN PAYBACK COST
Payback Total 7%Admin Developer
Tract Area(AC) Charge($/Gross Ac) Payback Fee Reimbursement
ExhibitA-1 44.06 $2,464.13 $108,569-57 $7,599.87 $1D0,969.70
Exhibit A-2 54.51 $2,464.13 $134,319.73 $9,402.38 $124,917.35
Exhibit A-3 75.04 $2,464.13 $184,908.32
Exhibit A-4 40.60 $2,464.13 $100,043.68 $7,003.06 $93,040.62
Total 214.21 $527,841.29 $24,005.31 $318,927.66