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HomeMy WebLinkAbout02- Tange Family LLC; Baxter Lane Sewer Improvements - Payback Agreement ~ ' ...- ~. PAYBACK 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 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 ar.d such ccnnections shaH not constitute grounds for reimbursement I" 2. The parties admit the costs as delineated in Exhibit "A" 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 the 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 normal charges made 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 retained by the City, along with an accounting to the individual designated 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. 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: Page 2 of 4 By. ~ \- Clark V. Johnson, City Manager --- 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: By: ~Zf:a~. 1-L.~ Its CITY OF BOZEMAN: ATTEST: ~c1~ Robin L. Sullivan, Clerk of Commission STATE OF MONTANA ) ". _ n n ..L' \ ) ss. County of ~ .) On this 25th day of .h.e.--v 2002 before me, the undersigned, a Notary Public for the State of Montana, ersonally appeared Co.r'fM'\<-,.rr.known to me to be the rr-eslct.(.-v\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. ,;"unature Verifi:ation Only D f c.~y I Tel11.1.t' ,3",... ~ l~ i--~ '-01. e. t.LfL NDTf,RY PUSLlC for tho State of Montana LILA M CEBULLA HeslcJlng at ~~a-... (Y\.... . . t'ilj Commission Expires ~. I\( t 200(., NOTARIAL SEAL STATE OF MONTANA Page 3 of 4 ~. STATE OF MONTANA ) ) ss. County of Gallatin ) On this of/~ day of V~.../ ,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 my' hand and affixed my Notarial Seal the day and year first above written. (SEAL) L~ Notary Public for the State of Montana Residing at Bozeman My Commission Expires ~ '/~)~;;';rJo 1w ,e:/; 'I A /lv,J V A-UII 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 IAcre Prorata 7% Admin Tange Total Payback Area Area Percentage Fee Reimbursement Payback Tract A, cas NO. 1215C 8.94 8.24% $789.97 $10,495.31 $11,285.28 Tract B, cas NO. 1215 C 7.78 7 :18 % $687.47 $9,133.50 $9,820.97 Tract 1B, cas NO. 1215A 9.10 8.39% $804.11 $10,683.14 $11,487.25 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% $2,005.85 $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. 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