HomeMy WebLinkAbout2005 - Payback Agreement - Baxter Lane Hampton - Water Loop111111111111111111111111 III 111111111111 11111111 11111111 ~~t~~~:~ ~p
Snallay Vanoa-Gallatln Co MT MISC 64.00
BAXTER LANEIHAMPTON WATER LOOP
PA YBACK AGREEMENT FOR WATER IMPROVEMENTS
THIS AGREEMENT. made and entered into this J!.:!i of /1Ia/'.L"L 2Q:25by
and between the CITY OF BOZRM AN, a municipal corporation, organized under the laws of
the State of Montana, ("City"), and T ANGE FAMU.Y L.L.c., a Montana Limited Liability
Company, ("Developer").
WHEREAS, the City owns and operates a water system within its corporate Hmits;
and
WHEREAS, Developer has constructed water improvements to the system more
particularly described as Baxter Lane/Hampton Water Loop Improvement which
improvements arc capable of serving the tracts described and shown on Exhibit" A" and
entitled" Area Included in Water Main Payback" attached hereto and incorporated herein by
this reference; and
WHEREAS, the extension to :mid system has been finally acccpted by the City for
ownership, maintenance, and operation; and
WHEREAS, the property located within Lhe Payback Area as evidenced in Exhibit
A", lies within the service area; and
WHEREAS, the property located within the Service Area and within the Payback
Area, arc specifically benefited from <lI1d by the Water Improvemcnts; and
WHEREAS, the property located the Payback Area as located and described in
Exhibit "A" is hereinafter referred to as the "Benefited Properties"; and
WHEREAS, the cost incurred in connection with the construction of the Water
Improvements are delineated in Exhibit "C" and the attached Memorandum dated October
15, 1999 from Jamc.<; Nickelson, Project Engineer, to Tim Cooper, Staff Attorney, both of
which are attached hereto and incorporated herein by this reference; and
WHEREAS, the Benefited Properties did not participate in the original cost of
constructi on of the Water hnprovements; and
WHEREAS, the Developer has transferred to the City that portion of the Water
Improvements contained within Payback Area; and
PAYBACK "'GREF.MRNT RE; WATER IMPROVF.MENTS 1
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Sn.ll.y Vano.-Gallatln Co MT MISC 54.00
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
lmprovcrne 11 ts from each of the Benefited 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 Area;
NOW, THEREFORE, in consideration of the conveyance to the City of the Water
Improv~ments, 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 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 parties admit the costs as delineated in Exhibit "e" are the totaJ costs of the
Water Improvements subject to the payback area as computed by C&H Engineering. The
parties further admit that the analysis in the Memorandum by James Nickelson under the
heading "Water Payback" is an accurate reflection of the costs and payback detennination.
The costs are reasonable.
3. The Developer has submitted an as-built set of plans logetherwith his professional
engineer's certification that the pr~ject in which the Water Improvements were constructed
was completed in accordance with the applicable laws, rules and regulations.
4. Whenever a Benefited 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 to the owner ofthe affected property. The payback charge shall
be a pro rata share of the Improvement Costs based upon the sum of $4,019.52 per gross
acre, thc "Payback Charge" shall be the product of the number of gross acres within the
service are.1 multiplied times $4,0] 9.52. The sum of $4,019.52 per gross acre shall be
C011Clugively pre.sumed to be a fair pro rata charge per gross acre against the Benefited
Property and will be in addition to the usual and normal charges made by the City.
PAYBACK AGllliEMKNT KE: WATER L\1l'ROVEMENTS 2
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Shellev Vance-Callatin Cc MT MISC 64.00
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5. Within thirty (30) days of receipt of Payback Charge, the City will send to the
Developer (i) the funds collected minus a seven percent (7%) administrative fee to be
retaineo by the City and (ii) a written accounting of such funds, reflecting the 7%
administration fee and identifying the portion of the Benefited Property annexed. The seven
percent (7~)fI) administrative fee discussed herein in shall he 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 permit any
extensions or connections to the Water Improvements without the plior payment of the
Payback Charge or without the full knowledge and approval uf the City. If, for whacever
reason, the City fails [0 collect the Payback Charge, thc City shall not be liable to Lhe
Developer for such failure.
6. It is agreed that this agreement shall continue until Developer has recovered
seventy five and nine tenths percent (75.9%) of the Improvement Co~ts, or upon the
expiration of twenty (20) years, whichever lXCurS 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. The Parties hereto further agree and acknowledge that this Agreement shall be
enforced prospect.ively and no attempt. shall be made to enforce this agreement on
propcrtics which have connected to the water line prior to the date of this agreement.
8. This Ah'Teement 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.
9. The Developer hereby agrees to rolclt/;t;, 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 thc assessment and
collection of the Payback Charge in accordance with this A grccmcm , 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 benefited by
said Water Improvements. Prior to the impoRition of the 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 punmant to this paragraph. Such notices shall be sent to:
PAYBACK AGltRF.MRNT RJt, WATJ:R IVlPIlOVEMENTS 3
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Ilm~ I1II11II I~ II1I ~ 111111101 ~~~~~~~pSn.ll.v Vano..Gallatin Co MT MISC 64.00
Tange Family, LLC
2800 Spring Meadows Drive
Bozeman, MT 59715
with a copy to:
Jane Mersen, Esq.
Kasting, Kauffman, & Mersen P.e.
716 S. 20th Ave. Suite 101
Bozeman, MT 59718
1 Q. 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 same manner as the original document.
12. This agreement shall be interpreted according to the Jaws of the State of
Montana. Venue il1 any dispute arising from this agret=mt=nt shall be in the Eighteenth
Judicial District, Gallatin County, Montana.
13. The undersigned for the Developer acknowledges and certifies that he has the
authority to execute this Agreement on behalf of the Developer.
IN WITNESS WHEREOF the Parties hereto have executed this instrument the day
and year first above written.
DEVEWPER: T ANGE FAMILY, ILC
By:
Carl Tangc Jr, Preside
PAYBACK ,\t;.lIEltMRNT RE, WA TER IMPROVEMENTS 4
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Sn.ll.v. V.no.~G'II.tin Co MT MISC 64.00
ClTY OF BOZEMAN:
By.~A;~
n."" ... '~'
Chris A. Kukulski, City Manager
M .~
ATTFS'f.' :::",. '..'
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II> \(".
riJ#~
hitfl;. -suIIiVijf, Clerk of Commission
or- .-.,'
ST ATE OF Mo.e.lT ^ Mr\ (4 lif'cf'(' vtl(J--
ss.
County of QyQvU...j"? )
On this ~ day of ;t1a rc t... 20~cfore me, the undersigned, a Notary
Public forthe State of Montana, personally appeared Carl TaDge, Jr. kAe~':R tQ 11<\(. to be the
President of Tange Family, LLC, 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 fOf and on behalf of the ::lame.
IN WITNESS WHEREOF, I have hereunto sel my hand and affixed my Notarial Seal
the day and year first above written.
SEAL)
LI[~ D€- (l'---1t1 " r€-
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EVADELATORRE Printed Name: ..~ c{)d~ ,
Commission # 1514523. I,
M' .. Notary Public. California ~ Notary Pubhc for the State of MeI,ta..l.1Ll UJ,...l (t (~t'l(~
6'i. Orange County - Residing at CR>~e...r.(~, ~
My Comm. Expires Oct 14, 2008 My Commission Expires ---L..Q' , 20~'6
PA\'RACK AGRJJ:EMEN1' KE: W.HER IMJ>IlOVEMENTS 5
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STATE OF MONTANA II~ I~III~II ~II~ ~1111111111 ~III~IIIIIIIII ~~t~~~:~~
55.
Shelley Vance-Gallatin Cc MT MISC 64.00
County of Gallatin
On this _~ day of A-p v/L . 2CtiSbefore me, the undersigned.
a Notary Public for the State of Montana, personally appeared CHRIS A. KUKULSKI 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 arc subscribed to the
within instrument, and acknowledged to me that they executed the same for and on behalf of
the City of BOZ.cmau.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
SEAL)
fAttL ~OJVli~
Printed Name: Iff j f),1f) ~ r.;' ,P.i1Jfl{JtY
Notary Public for the State of Montana
Residing at Bozeman
My Commission Expires ilZS 20p-?
PA YlIA(:1> AGREEMkNT RE: WATER IMPROVEMENTS 6
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THE CITY OF BOZEMAN
20 E. OUYf;' P.O. BOX G40
BOZEMAN. MONTANA 59771 <l64O
ENGINEERING DEPARTMENT
PHONE: (4061 582.2380 . FAX, (4Of;) 562-2363 OCT 1 8 1999
D. October 15, 1999 OGw'\j"L5l!)es>
MEMORANDUMt
CO ~
Too T;m Cooper, Staff AUorney ~/
NOles>II)
It)o~
COlD ~ From: James Nickelson, Project EngineerN
Re: Tange Sewer and Water Payback Distri sN"<:t
D.es>
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II)
I have received payback maps and some additional cost information for the proposed sewer and
water payback districts for the above rdercnced project which is being transmitted to you with this
Jetter 115 follows:
E
I-
E Sewer Payback8
A payback area map was developed by C&H Engineering which appears to accurately reflect the
s':rvice area for the sewer main extension. The total service area consists of I 08.43 acres_ The total
0 cost ol'the project should be divided evenly among this acreage. Please note that 19_91 acres of the3serviceareaarcownedbytheapplicantoh....hich a portion is already being served by the sewer main.t:
Water Payback
1
VI
A payback area map, developed by C& H Engineering, isat1llched. The total servict: area is 9.140
acres while the amount of property outside o[the applicants ownership is 50% of this value or 4.570
acres. Total construction costs attributable to the waler main subject to the payback area has been
computed to be $45,805 by C&H Engineering, lhis oflice recommends $14,235 of this value be
deducted (Items 1-6,1-7 and 1-8 on the all<K:hed estimate) since it is for service lines to serve the
applicants property. Therefore the total allowable construction cost is $31 ,570. Engineering COS(S
prorated to thiS portion of the water and se\',:er project are calculated to be $2,765. Based on these
figures lhe total allowable COSI of the water main extension is $34,335 or $3,756.56 per acrcofJand
within the service area. Therefore the total amount of the payback would he $J7.167.48. As
indicated previously, the costs for the water main extension appears to be reasonable and comparable
to other lines instal1ed in the communilY.
If you nced additionClI information in order to finalize the issues related to the payback, please
contact me al your convenience.
cc: ERF
Project File
Enclosures
EXHIBIT -B-
HOME OF MONT ANA STATE UNIVERSITY
GATEWAY TO YELLOWSTONE PARK
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EXHIBIT C
Sna.Uay Vanoa-Gallatin Co I'IT I'IISC 64.1313
PROPORTIONATE COST OF WATER MAIN EXTENSION
FOR HAMPTON INN MOTEL SITE
BLOCK 3, TANGE"S SUBDIVISION, BOZEMAN, MT
PORTION OF WATER MAIN INSTALLED WITHIN FURTURf NORTH 11TH AVENUE R/W)
WATER MAIN EXTENSION
ITEM ITEM DESCRIPTION EST, QTY UNIT UNIT PRlCE AMOUNT
1-1 Ow D.I.P. ClJ\SS-51 WATER 1015 l.F. 24.00 24.600.00
Ol713 MAIN Willi PUSH ON JOINTS
1-1 B~ GATE VALVE WIlli VALVE EA. 855.00 2,565.00
02718 BOX AND THRUST BLOCK
1.3 6- STANDARD HYORANT ASSEMBLY 1 EA. 2.100.00 2,100.00
02718 WI THRUST BLOCK, VALVE AND VALVE
BOX, AND 8X8X8 TEf
1-4 CONNECnON TO l:XIST1NG S" OJ.P. 1 EA 64().OQ 640.00
02718 WATeR MAIN STUB
1.5 8" D.J.P. STUB AND CAP WITH 1 EA. 540.00 40.00
02718 THRUSl ULOCK
1-6 r COPPER SERVICE PIPE WICQRP. 77 LF. 35.00 2.695.00
OUl ) STOPS, CURB VALVES 6. CURB BOX (2 TOTAL)
1-7 4" O,J.P. FIRE SERVICE STUB Willi 77 l.F. 140_00 10.760.00
02713 CURB VALliE ANO CURB BOX (2 TOTAl)
1-6 6XBX4 TFf WITH tURU$T BLOCK 2 fA. J60.00 760.00
027U
1-9 fiXSX8 TtE WITH THRUST BLOCK 1 EA. 400.00 400.00
02713
1-10 S", 22'1> DEGREE 6t:NO WITH 1 EA. 375.00 315.00
02713 THRUST B1.OCK
1.11 PIlESSURE TESTING, CLEANING e. 0.5 fA. 700.00 350.QO
02713 OIS~NFfnION OF WATER MAIN <<. VAlVfS
TOTAL 45.B05.00
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