HomeMy WebLinkAbout037.02 -Appendix AA - DRAFT Payback Agreement Multi-use PathAGREEMENT FOR
REIMBURSEMENT MULTI-USE
PATHWAY IMPROVEMENTS
THIS AGREEMENT made and entered into this day of ____, 202_, by and between the
CITY OF BOZEMAN, a municipal corporation, organized under the laws of the State of Montana,
("City"), and VIRGA VENTURE II LLC a Montana corporation with address of PO Box 1070
Bozeman, MT, 59771 ("Developer").
WHEREAS, Developer presently owns land located in Gallatin County, Montana, more
particularly described as follows: S27, T01 S, R05 E, ACRES 56.81, W2W2NE4, W2E2W2NE4
LESS HWRW, S27, T01 S, R05 E, ACRES 22.847, PT OF NE4NE4, E2E2W2NE4 SOUTH OF
ROW, & S27, T01 S, R05 E, ACRES 36.05 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 Public Roadway system within and adjacent to
its corporate limits; and
WHEREAS, Developer has constructed Multi-Use Path Improvements 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 Multi-Use Pathway Improvements 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 Multi-Use Pathway Improvements, 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 Multi-Use Pathway Improvements, the total of which amounts to:
Parcel
Project
Construction
Services
Construction
Cost
Payback
Preparation
Cost
Subtotal
Admin Fee
@7%
Total
060904
262030
10000
BOZEMAN
DEVELOPMENT
LLC
;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 utilize the Multi-Use Pathway
Improvements of their benefit; 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 utilize the benefit of the Multi-Use
Pathway Improvements to obtain Plan approval for their tract of land;
ATTACH DRAFT COSTS
NOW, THEREFORE, in consideration of the conveyance to the City of the Multi-Use
Pathway Improvements, and the mutual covenants contained herein, it is agreed by and
between the City and Developer as follows:
1. The parties agree that the Multi-Use Pathway Improvements 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 Multi-Use Pathway Improvements and secured or
granted any necessary easements for said Multi-Use Pathway Improvements to the City. The
City has accepted said Multi-Use Pathway Improvements for maintenance as part of its
roadway system.
2. The Developer has submitted to the City itemized invoices for labor, material and
engineering directly attributable to the installation of the Multi-Use Pathway Improvements
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 Multi-Use Pathway
Improvements, described above, approximate the original amount bid for said extension, and do
not reflect costs related to the development of the onsite improvements.
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 Multi-Use
Pathway Improvements who did not contribute to the cost of construction of the Multi-Use
Pathway Improvements installed on said property, and who subsequently utilized the benefit of
the Roadway Improvement to obtain Plan approval or use the same, a fair pro rata share of the
cost of such construction based upon the sum of $XXX,XXX per Bozeman Development
LLC’s portion of the Total Cost for the Multi-Use Pathway which includes a 7% City
Administration Fee, which charge shall be conclusively presumed to be a fair pro rata charge
against the benefitted property. The reimbursement charges are in addition to the usual and
normal charges that will be made by the City for service connections, monthly service charges
and impact fees. The Developer hereby releases the City from any all 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 Verga Venture II
LLC PO Box 1070 Bozeman, MT, 59771, designated by writing as the agent to receive said
proceeds by the Developer, approximately thirty (30) days following receipt of said funds,
less an administrative fee of seven percent (7%) of the amount received. No Plan Approval
shall be made for the benefitted properties without first paying the 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 the Developer against
the City.
6. It is agreed that this agreement shall continue until the Developer has recovered
$XXX,XXX which is Bozeman Development LLC’s total "as-built" construction and inspection
and testing 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 Multi-Use Pathway Improvements 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 Multi-Use Pathway
Improvements to any points beyond those 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 Multi-Use Pathway Improvements, as
appropriate. Any connections to such Multi-Use Pathway Improvements shall not constitute
grounds for reimbursement. The City shall be the sole judge of what constitutes connections to
such Multi-Use Pathway Improvements.
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:
Verga Venture LLC with address of PO Box 1070 Bozeman, MT, 59771.
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 same 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 acknowledge and ce1iifies 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.
DATED this ____ day of _________, 202_.
By: ____________________
Title:
STATE OF MONTANA )
) ss.
County of Gallatin )
On this ____ day of ___________________, 20 , before me the undersigned, a
Notary Public for the State of Montana, personally appeared, ___________________, known to
me to be the ____________________________ of _____________________________ and the
person whose name is subscribed to the within instrument and acknowledged to me that he
executed the within instrument for and on behalf of _________________________________.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the
day and year first above written.
(SEAL)
Notary Public for the State of Montana
___________________________________
(Printed Name)
Residing in
My Commission Expires ______/ /20
ACCEPTED:
_________________________
CITY OF BOZEMAN
By: _______________________
City Manager
ATTEST:
_______________________________
City Clerk
STATE OF MONTANA )
) ss.
County of Gallatin )
On this ______ day of ___________________, 2 , before me, a Notary Public for the
State of Montana, personally appeared CHUCK WINN and MIKE MAAS, known to me to be
the City Manager and City Clerk for 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 on
the day and year first above written.
(SEAL)
______________________________________
Notary Public for the State of Montana
______________________________________
(Printed Name)
Residing at Bozeman, Montana
My Commission Expires: / /20