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HomeMy WebLinkAbout01- Valley West Payback Agreement for Water Improvements I . II II I III III I II II 1111112027879 .. . Pas.: 1 of 10 01/04/2001 11 :51j:l Sh.ll.y Vano.-Gallatin Co MT MISC 60,00 V ALLEY WEST PAYBACK AGREEMENT FOR WATER IMPROVEMENTS THIS AGREEMENT, made and entered into this -'- day of January Jam , by and between the CITY OF BOZEMAN, a municipal corporation, organized under the laws of the State of Montana, ("City"), and V ALLEY WEST, LLC, ("Developer"). WHEREAS, the City owns and operates a water system within its corporate limits; and WHEREAS, Developer has constructed water improvements to said system more particularly described on Exhibit "A" and entitled "Valley West Service Area Boundary for Water Improvements" attached hereto and incorporated herein by this reference, which improvements are capable of serving the tracts described and shown on Exhibit "B" and entitled "Valley W est Payback Boundary for Water Improvements", attached hereto and incorporated herein by this reference; and WHEREAS, the service area described in Exhibit "A" is hereinafter referred to as the Service Area Boundary" and the service area described in Exhibit "B" is hereinafter referred to as the "Payback Boundary Area";and WHEREAS, the water improvements in the Service Area Boundary that are also located in the Payback Boundary Area are more particularly depicted and described in Exhibit "C",attached hereto and incorporated herein by this reference; and WHEREAS, the water improvements constituting the extension to said system and constructed by the Developer and described in Exhibits "A" and "C" (the "Water Improvements") have been finally accepted by the City for ownership, maintenance, and operation; and WHEREAS, the property located within the Payback Boundary Area, lies within the Service Area Boundary; and WHEREAS, the property located within the Service Area Boundary and within the Payback Boundary Area, are specifically benefitted from and by the Water Improvements; and WHEREAS, the property located the Payback Boundary Area is hereinafter referred to as the "Benefitted Properties"; and WHEREAS, the cost incurred in connection with the construction of the Water Improvements are del ineated in Exhibit "D" and attached hereto and incorporated herein by this reference; and WHEREAS, the Benefitted Properties did not participate in the original cost of construction of the Water Improvements; and . . 1111111111111111 1111112027879 ~ . Page: 2 of 10 01/04/2001 11 :511=4 Shelley Vanoe-Gallatin Co MT MISC 60,00 WHEREAS, the City has purchased a portion of the Water Improvements located within the Service Area Boundary, but outside the Payback Area Boundary, which purchase was financed through SID # 667; and WHEREAS, the Developer has transferred to the City that portion of the Water Improvements contained within Payback Boundary Area; and WHEREAS, the parties agree that the City, at its discretion, may charge and collect a fair pro rata share of the costs incurred in connection with the construction of the Water Improvements from each ofthe Benefitted Properties as those properties connect to the City's water system or annex into the City. This charge will be known as a Payback Charge and shall be the sole source of funds to be used by the City to reimburse the Developer for the Water Improvements located within the Payback Boundary Area; NOW, THEREFORE, in consideration of the conveyance to the City of the Water Improvements, and the mutual covenants contained herein, it is agreed by and between the City and Developer as follows: 1. The Developer agrees and certifies that the Water Improvements have been constructed and installed in accordance with the requirements of the City. The City, by its acceptance of the Water Improvements, agrees that thc Water Improvements have met the requirements of the City. The Developer further agrees to convey to the City good unencumbered title to the Water Improvements and secure or grant any necessary easements to the City for said Water Improvements. The City hereby agrees to accept said Water Improvements and easements for maintenance as part of its water system. 2. The Developer has submitted to the City itemized invoices for labor, material, engineering, and other costs associated with the construction and installation of the Water Improvements, that have not been reimbursed by SID # 667(hereinafter "Improvement Costs"). The Improvement Costs are delineated in Exhibit "D". The Developer does hereby certify that the Improvement Costs are directly and solely attributed to the construction and installation of the Water Improvements. 3. The Developer has submitted an as-built set of plans together with his professional engineer's certification that the project in which the Water Improvements were constructed was completed in accordance with the applicable laws, rules and regulations. 4. Whenever a Benefitted Property connects to the City's water service or annexes to the City, the City may, in its discretion, assess a payback charge to the party applying for connection or annexation or the owner of the affected property. The payback charge shall be a pro rata share ofthe Improvement Costs based upon the sum of$1,278.29 per gross acre, the PAYBACK AGREEMENT RE: WATER IMPROVEMENTS 2 i . . . " 1111111" 111111111 II ~~;~J~?~, . Sh.ll.y V.no.-Gallatin Co MT MISC 60,00 "Payback Charge" shall be the product ofthe number of gross acres involved in the annexation multiplied times $1,278.29. In the event the City elects to assess such property a Payback Charge, the City agrees to collect the same from the party applying for connection or annexation or the owner ofthe affected property. The sum of$1 ,278.29 per gross acre shan be conclusively presumed to be a fair pro rata charge per gross acre against the Benefitted Property and will be in addition to the usual and normal charges made by the City. 5. Within thirty (30) days ofreceipt of Payback Charge, the City will send to the Developer (i) the funds conected minus a seven percent (7%) administrative fee to be retained by the City and (ii) a written accounting of such funds, reflecting the 7% administration fee and identifying the portion of the Benefitted Property annexed. The seven percent (7%) administrative fee discussed herein in shall be in addition to the Improvement Costs. The funds and accounting shall be sent to the Developer's agent, as designated below, unless otherwise changed by the Developer in writing The City will not pernlit any extensions or connections to the Water Improvements without the prior payment ofthe Payback Charge or without the full knowledge and approval of the City. If, for whatever reason, the City fails to collect the Payback Charge, the City shan not be liable to the Developer for such failure. 6. It is agreed that this agreement shall continue until Developer has recovered one hundred percent (100%) of the Improvement Costs, or upon the expiration nineteen (19) years, whichever occurs first. This Agreement shall be deemed terminated and of no further force and effect on the nineteenth anniversary of this Agreement. Failure of the City to recover the Payback Charge shall neither create a liability on the part of the City nor extend the Agreement beyond the period specified herein. 7. This Agreement has no effect on City charges for utility connections or impact fees. The City may connect, free of charge, to the Water Improvements and such connections shall not constitute grounds for reimbursement. 8. 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 may be brought by a third party against the City arising out or related to the assessment and collection of the Payback Charge in accordance with this Agreement, including but not limited to claims related to an error in calculation of proportionate cost or Payback Charge, defects in the construction of the Water Improvements, and errors in making a determination that the property or portion thereof assessed with a Payback Charge is or is not benefitted by said Water Improvements. Prior to the imposition ofthe Developer's obligations in this paragraph, the City shall 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. Such notices shall be sent to: PAYBACK AGRF.F.MENT RE: WATF.R IMPROVEMENTS 3 1111111/1111111I1111/1111111111111 ~~~J~!~R . Sh.ll.y Vano.-Gallatln Co MT MISC 60,00 Valley West, LLC Att: Gerald Wing 1240 Bennett Lane Calistoga, CA 94515 with a copy to: John M. Kauffman, Esq. Kasting, Combs & Kauffman, P.e. 716 S. 20th Ave. Suite 101 Bozeman, MT 59718 9. Developer shall not assign any right or obligation hereunder in whole or in part, without prior written consent of the City, which shall not be unreasonably withheld.. 10. Any amendments or modifications to this Agreement or any provision herein shall be made in writing and executed in the same manner as the original document. 11. This agreement shall be interpreted according to the laws ofthe State of Montana. Venue in any dispute arising from this agreement shall be in the Eighteenth Judicial District, Gallatin County, Montana. 12. The undersigned for the Developer acknowledges and certifies that he has the authority to execute this Agreement on behalf of the Developer. 13. The undersigned for the City acknowledges and certifies that he/she has the authority to execute this Agreement on behalf of the City. 14. This Agreement may be extended by the mutual written consent of the parties through their authorized representatives. 15. The Developer may terminate this Agreement after providing the City with a written notice of its intent to do so 30 days prior to the date of termination. PAYBACK AGREEMENT RE: WATER IMPROVEMENTS 4 ~ . - . " " , '" " " "" "" " 2027879 Palle: 6 of 10 01/04/2001 11 :61A Shelley Vanoe-Gallatin Co MT MISC 60,00 IN WITNESS WHEREOF the Parties hereto have executed this instrument the day and year first above written. DEVELOPER: VALLEY WEST, LLC CITY OF BOZEMAN: By:."."~W ,,-.. . .. "._.._.,~._"'-'_._~-_. -,,- , ,. Clark V. Johnson, City Manager ATTEST: (J~ ;/~ Robin L. Sullivan, Clerk of Commission PAYBACK AGREEMENT Rf:: WATER IMPROVEMENTS 5 1111111111111111 1111 112027879 Pall.: 6 of 10 01/04/2001 11 :51A SMelley Vanoe-Gallatin Co ~T ~ISC 60,00 STATE OF MONTANA ) County of J::i2,il;;,t;::';:I-- ) ss. ) On this ,>j:.(:'Pday of.-tt:lt'/Ztf./2000 before me, the undersigned, a Notary Public for the State of Montana, appeared JERRY WING known to me to be the Managing Member of Valley West, LLC and the person whose name is subscribed to the within instrument, acknowledged to me that he executed the within instnunent for and on behalf of Valley West. ~ WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial ~al~.~,~~ year first above written., ~ ~"..',,~.: "cSE\i)\ ' ; _.~ - - . , ~ ~ ;2 ::; J \";.'-<;;; I,; ; ,,/ (f",.,--:.:;.,--_"_' " .;-1 ."",-- . " ' - '4 .. .. .' r~~ .~__ \ /; ""1/, __ ~__.." '\, ....... ......,/ otary Public fot the State of Mont " a) / _.. " / .....-..,..,. 11- I ;7;'1""' i ,:?~'?'<,., ,.~,_~,., ?..... r O!IT I, ~-\ ~,...,.. Residing at -; /r:;;:;>;"Za'?~/:? ~ tZ/f.A--' 'II'ill"'H" "\.,, My CommissIon E pires ()z- 1/ _ -3 STATE OF MONTANA ) ) ss. County of Gallatin ) ",too / On this ~_ day of , '2900..... before me, the undersigned, a Notary Public for the' te of tana, personally appeared CLARK V. . JOHNSON and ROBIN L. SULLI N, known to me to be the City Manager and Clerk of Commission, respectively, of the City of Bozeman 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) C-o ," otary Public for the Residing at Bozeman My Commission Expires -L,7.)-':t!..L_ PAYBACK AGRn:MENT R.:; WATER IMPROV.:MENTS 6 . . 'ary is as follows: 0, Township 2 South, Range 5 East, P.M,M" City of R"leman, o being the narthwesf corner of sOld Seelion 10, and True Point 8m - L1NC lABIF' ~ --:_AEARING gNGTH 10"E a distance of 1.320.00 feet; t~ ~~::~~:~:;;: 2:~;~: a distance of 344.358 feet; ... . -.. L7 S89:.51'OPI 459,"6' a the North line of said Section 10; L8 S/5:5n8"W ,,4110' " West a distance of 174,95 feet; .. _L9 N89-59',,}\' 174.95' 13" West a distance of 1320.00 feet; the North-South mid-seelion line of said Section 10; 10, South 00'28'03" West 0 distance of 2573,90 feet; w'/, Ceo the North right-ot-way of Highwoy 191: M,rth right-ot-way; J8.; et: ,iarth 00'40'15" East a distance of 2557.04 feet; r 90~~f3/W .'/'t __.~ '~'n.. ~.__.- ."-- --- ""RSTON RD. I T-' Certificotr: Of Surve ~_ CertiffC';/ the North line of soid Section 9; Certificate Of Survey t;g~:J;A 8~ rRJ Eost a distance of 1816.88 feel. to the True Point of #10058 BURNT lEATHER t:2 VA;;.;; TRAC! 1 RANCH INC.;, ~J,99 A5~ .J60 RANCH CORP 2.].50 TOTAl M.:RES ..1.29 TOT.6.l ,l.CRCS to existing easements, rights'''of-way and park dedication. "p" "Q" N01"Ot" "E 289,84' S8g.'9'4j~W K', w..:!'.~ --- -. ~,,- 669.96 ~ b cer p'i;j. VAj ~ ~ J~. '.. (,ft ::T ~ -0' ~ . '< A~r < SE1, . Certif 5: ~ , m 0 ~.~ . ... ~~ ~ -~ . ~ fg J.G. 8;/1/(, _ 8 ("-..j Aufo Pit;. :J ~ Subdivis/c n A Port/On of SE1/4, 5[1/4. [, 0 Section 9. 3: Ceraticate of Survey 17005 -- ,__ TUn ON INfJlVllJUAL PRfJPU~lIES PROVllJE CORRELAIION -i I'aro<ligm Properties -\ WFEN THIS GOUN.lJARY eXHIBIT ANO THE Af'f'LlCARI..E :3 i7~lj~is~~~~~R~RES iESSMEN [ SPR[AOSHEI:f. ~ n "An-; I~ A GRAPHICAL REPRESENIAfION OF I'ROPIRTY INfJARIES COMPII_ElJ OF INFORMAl ION ORIAINED IROM 3TING PLAIS AND CERIIFICATFS OF ~URVFY ON FILE AT 0> 589"20'1_ GALI_ATIN COUNTY COUf<fHOUSe. lHE INFORMAl ION G 182US NOT RePRESENT A LEGAL ~URVIY Of IHFSE G ---IN[JARIES OR PROf'ERTleS. G ~~N -a _ ~~- ;;;....N go '01 ~-oa ~o'ol MORRISON =: 1/4 sce. RANGF (JI U) 1 ~'IlII'3 ..----Y-- X 1) MAIERLE,INC ~,~ - ....~-~cv.,.q _-'I<<.~I 110o..o. Wljsl.ml 11II: S1_,,1O ),=90.4 MONTANA -- [)ATF: ~_... rlOTllLl DATF. Nc)'./16/20DO ...flQ. SCAL[:L~oq".._ LlHAWlNG NAMt:: H:V~I!:l\004\ACA(l\El(rjIBI1\W,A,TC:R,Q"q y:_~,J::i. ClICNT: ~HEET J OF 1 , . nents Boundary for Woter Improvements is as follows: ~ ""'~-- ~~ .. .. ,~""-. 5 ond 10, Township 2 South, Range ~:') Fast, PMM, City _ _1,1 NB9'59'.2~:(W 45.01' scribed os follows: .._~2 NO 1 'Ofi'08"[ 408.00' _L? NB~..'59'2~"W - ~oo' ~: t i () rl 3, also being the northwest corner of said Section L4 SOl'O(OB"W ----.-08:00' . I.g !'4S9'59'42"W .. .1.?4.9~j' orth 00'47'00" East a distance of 152000 feet; h 89'59'25" East a distance of 263862 feet; 96 feet; ),93 feet, to the North line of soid Section 10; th 89'59'42" West 0 distance of 174,95 feel; )n 10, North 89"59'42" West 0 distonce of 650,01 feet, ta )n 10, North 89'59'25" West a distance of 7Je,56 feet; luth 00"10'31" East a distance of 881.78 feet; 07 feet; 54 feet. to said Narth line of Section 10; th 89'59'25" West 0 distance of 621.40 feet; 11'1/" ~)uth 01'06'08" West 0 distonce of 408.00 feet; OURSTON RI), .-----::- 00 feet; '!Too feet, to soid North line of Section 10;; C~rtlficQte Of Survey th 89'59'25" West a distonce of 45.01 feet. to the True Certificate Of S(J(vey # 1005C # 10058 TtrACT 211 TRAG''' 1 BURNT' LEATlif..R 360 RANCH CORP RANCH INC. ond subject to existing eosements, rights-of-. way and pork 11.2!i1 TOTAL .&.CRFS 2J.60 rorAl.. ACRES "Q" "p. 1tI/I1/l, rVr" (II :T . .... . '< < .. ::J <) . I '" ~ .. A Port/On Df 5[1/4, S[;.I/4, See/ion 9 ;- Certificat~, 01 SL!r"voy #1005 __ Paradigm P(opBrlies n 1/.~J TOTAL ~CRES <) 17,!'jJ A5Sf:"~SABL.f: ACRES 3 ---< 3 (II n 'TE: rTERS ON INDIVIOUAL PROPI:RlIFS PROVIDF CORRELATION -IWI:EN [HIS BOUNDARY EXIIII3IT AND THE APPLlCAlJLI: SFSSMFNT SPREAOSIIEET. IJ> IS> IS> ,IS IS A GPAf'HICAL REPRFSFNTATION 01 PROPERTY IS> IUNDARIES COMPIl_ED OF INFOPMAIION OlJlAINI:U FROM ~:N ISTING PLATS AND GEPllfICAfE', OF ',URVFY ON IILI AT IE GALLATIN COUNTY COURTHOUSe Till INIORMATION olc,g ...-- )f.S NOI RePRESENT A LEGAL SURVEY OF THESI: t:imN JUNDARIES OP I'POI'ERflES, ~ <) "'" : :: 0>> 1/4 5FC. HANG!:: ~ IS> "'" ]MORRISON (11 U) ~k.lliHL~l~c, """'" -;(m ------x-- D -,,.; ~ 1Iw.-....,.,1 -.(;(JIjS7-11l1 r.:(<MIIlS/\\1'I NO: ?fl85.004 MONTANA JRK:__ OA'" 11/10/00. Pl01H:.O [JAIl: NQv/H:J/LOI)() n: ellJ !="iCAlf:.1 ".=:=.~OO' IJRA'MNG NAMF. H.\:.:'I:!I:!~\OO~W...o\[)(t1IBIf\wAT["l.d""q " AY: CJS CIIFN1: SHFn .. _1 Of I . . . " EXHIBl'vlENTS OJ a: Ul ,.... ISl .:..: c:o~~ ....~ ,.... 0 ~ NOI~ cg .~ IJI- N .- D- ISl ISl ISl ISl W <J ell lE I- lE 0 <J c . --< . C> t . 0 C .. :;> ,.. ..'l --< . r. ell 1,--.' .: -I - I ) .,./ cfbMORRIsoN """"'" 1/4 Set, RANGE ....... ~RLI1!.~c - ~.a."'1I\l~ ....."""'""'~,~ - 11I__1 1IIE~1II'_1I11 rRO,JECT NO. llla:i.QQ.4 FIELD WORK:. _..n .__...._ DATE. .Qli.!3.iQ<L PIOnl:.D DA II::.: Oct; jO/:WOO ORAi'm 8y._~TPI~W SCAL~:: 1 ~ - '000' [)RAWlNG NAME: H:\2685\OO...\j,CAD\EXHIBrT\woti!lr1t.iP.o"l3 CHCCKCD By; GJS CLIENT; SHlU 1 OF , EXHIBIT 0 Valley West, Bozeman, MT: Water Improvements Project Cost Breakdown for Service Area Reimbursement Total Assessable Service Area: 537.84 Acres 30-May-00 23.428,310.40 Square Feet c Reimbursible Project Costs: $34,850.00 MMJ Design $38,926.03 MMI Construction Observation/Certification $1,534,00 Construction Permits $6,154.53 Gravel Mining Permit $557,396.42 Utillty Construction - Sime Construction $2,479.40 Reimbursement Documentation and SID preparation $641,340.38 Total Construction and Incidentals SID Assessable Costs: Total Assessable SID Area: 422.26 Acres $27,360.85 MMI Design 18,393,645.60 Square Feet $30,560.96 M M I Construction Observation/Certification $1,204.35 Construction Permits (J) '::T $4,831,94 Gravel Mining Permit . - - $437,613,81 Utility Construction - Sime Construction . -< $1,946.58 Reimbursement Documentation and SID preparation < II :J $503,518.50 Total Construction and Incidentals 0 . $10,300.00 Bon d cou nse I, advertisin 9 I G) II - $15,181.50 Bond Discount - II $28,750.00 5% Revolving Fund Fee ... - :J $17,250.00 3% Administration Fee 0 0 $575,000.00 TOTAL USE BOND AMOUNT = $575,000,00 3 -I 3 - (J) Payback Assessable Costs: Total Assessable Payback Area: 115.58 Acres 0 $7,489.15 MMI Design 5,034,664.80 Square Feet $8,365.07 M M I Co nstruction Observa tion/C ertification lJ> IS> $329.65 Construction Permits IS> IS> $1 ,322.59 Gravel Mi ni ng Perm it ~~N $119,782.61 Utility Construction - Sime Construction -II S g~ $532.81 Reimbursement Documentation and SID preparation N~N $137,821.88 T ota I Construction and Incidentals glS>....... $9,923.18 7,2% Administration Fee : ~ C):) $147,745.06 TOTAL ::'"s....... ~< UI D .