HomeMy WebLinkAbout2002 - Payback Agreement - N 19th and Baxter - SignalPAYBACK AGREEMENT FOR BAXTER LANE SEWER IMPROVEMENTS
THIS AGREEMENT, made and entered into this 21st day of
October 2002 by and between the CITY OF BOZEMAN, a municipal
corporation, organized under the laws of the State of Montana, ("City"), and TANGE FAMILY
L.L.C., a Montana Limited Liability Company, ("Developer").
WHEREAS, the City owns and operates a sewer system within its corporate limits; and
WHEREAS, Developer has constructed sewer improvements to the system more
particularly described as the Baxter Lane Sewer Main extension, which improvements are capable
of serving the tracts described and shown on Exhibit "B" and entitled "Area Included in Sanitary
Sewer Main Payback", attached hereto and incorporated herein by this reference; and
WHEREAS, the extension to said system has been finally accepted by the City for
ownership, maintenance, and operation; and
WHEREAS, the property located within the payback boundary area, Exhibit "B" is within the
service area for the sewer main extension; and
WHEREAS, the properties located within the payback boundary area, Exhibit "B", are
specifically benefitted from and by these improvements; and
WHEREAS, the property located and described in Exhibit "B" is hereinafter referred to as
benefitted properties"; and
WHEREAS, the cost of constructing the improvements are delineated in Exhibit
A",attached hereto and incorporated herein by this reference; and
WHEREAS, the benefitted properties did not participate in the original cost of construction
of the improvements; and
WHEREAS, the Developer has transferred to the City the improvements; and
WHEREAS, the parties agree that the City, at its discretion, may charge and collect a fair
pro rata share of the costs of the improvements from each of the described benefitted properties
as those properties request any Site Plan review and approval. This charge will be known as a
payback charge.
NOW, THEREFORE, in consideration of the conveyance to the City of the improvements,
and the mutual covenants contained herein, it is agreed by and between the City and Developer
as follows:
1. The Developer agrees, warrants, and certifies that the sewer improvements have been
constructed and installed in accordance with the requirements of the City. The Developer further
agrees to convey to the City good unencumbered title to the improvements and secure or grant any
necessary easements for said improvements. The City agrees to and has accepted said
improvements and easements for maintenance as part of its sewer system.
Page 1 of 4
2. The parties admit the costs as delineated in Exhibit "An are not the original costs incurred
and paid by the Developer. However, the Developer agrees and admits that the costs as
delineated are reasonable costs and agrees to accept these amounts as full reimbursement for
costs incurred in the construction of the improvement. The Developer does hereby certify that the
costs listed in Exhibit "A" are directly and solely attributed to the installation of these improvements.
3. The Developer has submitted an as-built set of plans together with his professional
engineer's certification that the project was completed in accordance with the applicable laws, rules
and regulations.
4. Whenever a Benefitted Property applies for Subdivision or Site Plan Review and
Approval, the City may, in its discretion, assess a payback charge to the party applying for review
or the owner of the affected property. The payment of the payback charge may become a
condition of any approval given by the City. The payback charge will be a pro rata share of the
improvement based upon the sum of $1,262.33514710 per gross acre, the Payback Charge will
be the product of ttle number of acres making up the benefitted property. This charge shall be
conclusively presumed to be a fair pro rata charge against the benefitted property and will be in
addition to the usual and notmal charges IT12dc by the City.
5. Within thirty (30) days of receipt of payback charge, the City will remit the funds collected
minus the administrative fee to be reta:ned by the City, along v/ith 3n accounting to thf~ individual
c!esignated in writing by the Developer to receiving these proceeds, All funds distributed will be
subject to a seven percent (7%) administrative fee. No extensions or connections to these
improvements shall be allowed without the prior payment of these amounts or without the full
knowledge and approval of the City. If, for whatever reason, the City fails to collect the required
fee, no liability shall arise or any claim be made by the Developer against the City.
6. It is agreed that this agreement shall continue until Developer has recovered seventy
five and nine tenths percent (75.9%) of the construction costs provided in Exhibit "A", or upon the
expiration of twenty (20) years, whichever occurs first, whereby this agreement shall be deemed
terminated and of no further force and effect. The Agreement may be extended only upon mutual
consent and agreement by both Developer and the City. 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.
7. This Agreement has no effect on City charges for utility connections or impact fees, The
City may connect, free of charge, to the above described improvements ::tr.d such ccnnections shaH
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 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 the 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:
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2800 Spring Meadows Drive, Bozeman, MT, 59715
9. Developer shall not assign any right or obligation hereunder in whole or in part, without
prior written consent of the City.
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 of the 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 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:
I d '-----
1: r7. n 1
l-,~. _' .'/ ~~.~!tl~~~:'\>-,~-,-,-JL~7[I
By. / ct.-""""-
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Its IJ
CITY OF BOZEMAN:
1 \By. . ____~
Clark V. Johnson, City Manager
ATTEST:
Robin L. Sullivan, Clerk of Commission
STATE OF MONTANA )
ss.
County of Gal,.kcJ.i"J )
On this 25+1'- day of ,~I ~m'\.I:).t4.J 2002 before me, the undersigned, a
Notary Public for the State of Montana, personally appeared {,-,d I'G<(\'i-e. ,J r.known to me to be the
fn'''.>;d-t"t of TANGE FAMILY L.L,C" a Montana Limited Liability Company and the
person whose name is subscribed to the within instrument, acknowledged to me that he executed
the within instrument for and on behalf of said Limited Liability Company.
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Page 3 of 4 ' ...'~ ",.f:... 'j, l. L.~ {--i1~.f1....
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F~O.L'~~ a--- ,-l'-T LILA M, CEBULLA
i:;~~,..-::----" ," NOTARIAL SEALll/ll.,"._....:.f~~_._l (,- L.
STATE OF MONTANA
STATE OF MONTANA
ss.
County of Gallatin
On this ,;/ /.u- day of Va~ 2002, before me, the undersigned, a
Notary Public for the State of Montana, personally appeared CLARK V. JOHNSON and ROBIN L.
SULLIVAN, 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 '(hand and affixed my Notarial Seal the
day and year first above written.
J
I L--;SEAL) <~',
t/ / /
Notary Public for the State of Montana
Residing at Bozeman
My Commission Expires;;' ./.)~ :o-lcJtf ;L,
I 'IA Jv VflCCIl
Page 4 of 4
EXHIBIT A
Baxter Lane Trunk Sewer Main Payback Calculations
Negotiated Construction Cost: 136,875.00 3650 LF @ $37,50/LF)
Payback Rate: $1,262,33514710 /Acre
Prorata 7% Admin Tange Total
Payback Area Area Percentage Fee Reimbursement Payback
Tract A. COS NO. 1215C 8.94 824% 789,97 10,495,31 11,285.28
Tract B, COS NO, 1215 C 7,78 7..18% 687.47 9,133.50 9,820.97
Tract "lB, cas NO, 1215A Sl.1 0 8.39% 604,11 10,683.14 S11,487.25
Tract 2, cas NO. 1215 40.00 36,89% 3,534,54 46,958,87 50,493.41
Tract 3, cas NO, 1215 22.70 20,94% 2,00585 26,649.16 28,655,01
Block 3 Tange's Subdivision 19.91 18.36% 25,133.09
Total 108.43 100.00% 7,821.93 103,919.97 136,875,00
Notes:
1, The area listed in the table represents the portion of the described tract which is within the payback
boundary, See Exhibit B for map of payback boundary,
2. Block 3 Tange's Subdivision will not make payback, as the property owner is the payee, Shown here only to
provide his prorata share of the improvements.
EXHBlT B .1
INCLlDED fI\J SAMTARY &t::Vil.rR MAv.W<.J PAYBACK .lI ..' LOCATED IN THE NW 1/4 AND HE 1/4 OF SEC. 1, T. 2 5., R. 5 E. ! II , .
II ~_', . OF P.M.M", ~, LA TIN COUNTY, MONTANA 1
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l zoo' iPAYBACK N\EA WITHIN TRi\CT A, "'-, . !
i , ICOS NO. 1215C Ii,1/ ~{ltz,] IAREA = 8.91, ACRES I, \,- \},/h e <] t D 1-, I11>"- L_________ \, _________
1 I PAYBACK AREA WITHIN TRACT B, "----~_n , I N I "i COS 1'0. 1215C
I I I I AREA = 7.78 ACRES I il .
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1 I I PMD,\CK /\RCA WITHIN TRACT ; 8,
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0' COS ~O. 1215A II! 'c
ARb\ = 9,10 /ICRES r 'i:A i
I I I I 1 PAYBAC1< ARCA \'/I:Hl~~ TRACT 2,
I ' I j '\ L--- _ COS I~O" 1 2 1 5I '~I (\ ~I ARu" = 4C.00 i\CRES
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Sea [e Jn Fe ct \, I __ \ U U 0 ! II5000 \ 500] r (j:) 0 z OJ '
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i ' ' , PAYBACK AR:::A 'N!TH'il TR',CT 3, --.J
L- Ul \, "J1500150I . COS I'JO. 1215 CO r- "-----,
1 I 'REA ""~" ,c<o-r.
I IScaleInJ,{ eters " " = LL. /0 h ":.,,; ,
I PAYBACK AREA WITHIN BJOCK 3,
i : J TR,'rT " TANGE'S SUBDIV ilt \, \v .....- ~
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RE;\ = ~9,9, IICRL~
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lQHman, Vonla.n. ~971~, Yo:!: ~OO r"-~7-nOn TOTliL fJAYOACi< liRE;\ = 108.43 ACRes JiO" '-',n ') 1 (," '\ ~ \,
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