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Home My WebLink About2001 - Payback Agreement - Valley West - Sewer�jLj VALLEY WEST PAYBACK AGREEMENT FOR SEWER IMPROVEMENTS THIS AGREEMENT, made and entered into this 2 day of January ) 3989 by and between the CITY OF BOZEMAN, a municipal corporation, organized under the laws of the State of Montana, ("City"), and VALLEY WEST, LLC, ("Developer"). WHEREAS, the City owns and operates a sewer system within its corporate limits; and WHEREAS, Developer has constructed sewer improvements to said system more particularly described on Exhibit "A" and entitled "Valley West Service Area Boundary for Sewer 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 West Payback Boundary for Sewer 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 sewer 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 sewer improvements constituting the extension to said system and constructed by the Developer and described in Exhibits "A" and "C" (the "Sewer 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 Sewer 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 Sewer Improvements are delineated 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 Sewer Improvements; and WHEREAS, the City has purchased a portion of the Sewer Improvements located within the Service Area Boundary, but outside the Payback Area Boundary, which purchase was financed through SID # 668; and WHEREAS, the Developer has transferred to the City that portion of the Sewer 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 Sewer Improvements from each of the Benefitted Properties as those properties connect to the City's sewer 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 Sewer Improvements located within the Payback Boundary Area; NOW, THEREFORE, in consideration of the conveyance to the City of the Sewer 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 Sewer Improvements have been constructed and installed in accordance with the requirements of the City. The City, by its acceptance of the Sewer Improvements, agrees that the Sewer Improvements have met the requirements of the City. The Developer further agrees to convey to the City good unencumbered title to the Sewer Improvements and secure or grant any necessary easements to the City for said Sewer Improvements. The City hereby agrees to accept said Sewer Improvements and easements for maintenance as part of its sewer 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 Sewer Improvements, that have not been reimbursed by SID # 668, (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 Sewer Improvements. 3. The Developer has submitted an as -built set ofplans together with his professional engineer's certification that the proj ect in which the Sewer Improvements were constructed was completed in accordance with the applicable laws, rules and regulations. 4. Whenever a Benefitted Property connects to the City's sewer 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 of the Improvement Costs based upon the sum of $1,482.47 per gross acre, the PAYBACK AGREEMENT RE: SEWER IMPROVEMENTS 2 "Payback Charge" shall be the product of the number of gross acres involved in the annexation multiplied times $1,482.47. 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 of the affected property. The sum of $1,482.47 per gross acre shall 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 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 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 permit any extensions or connections to the Sewer Improvements without the prior payment of the 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 shall 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 Sewer 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 Sewer 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 Sewer Improvements. Prior to the imposition 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 pursuant to this paragraph. Such notices shall be sent to: PAYBACK AGREEMENT RE: SEWER IMPROVEMENTS 3 with a copy to: Valley West, LLC Att: Gerald Wing 1240 Bennett Lane Calistoga, CA 94515 John M. Kauffinan, Esq. Kasting, Combs & Kauffinan, P.C. 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 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 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 maybe 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: SEWER IMPROVEMENTS 4 IN WITNESS WHEREOF the Parties hereto have executed this instrument the day and year first above written. DEVELOPER: VALLEY WEST, LLC By: ` rrY W, g Its: anagng Membe CITY OF BOZEMAN: Clark V. Johnson, City Manager ATTEST: ao D 2o� Robin L. Sullivan, Clerk of Commission PAYBACK AGREEMENT RE: SEWER IMPROVEMENTS 5 LANE WM El/2, SEI/4, Section 4, Cert•Ykala Of S less Certificate O( Survey 11155 E1/2,'1 W712, and Certificate Of survey 11005C 11302 TRACT 2i9 Peggy N. MretteWf W SWI1kite Section J 21e ASSESYHIE Aara Certificate Of Survey Cert TRACT 1 11302 Mrs. Enc Anderson 2PN ASSRYA'E�%AAES P.O.B. SERVICE AREA BOUNDARY A Portion of SEI/4, SEI/4, Section 9 Certificate of Survey 11005 Paradigm Properties I'll mra Acgrs 17. - ACRE EXi i,IT B - VALLEY WEST PAYBACK BOUNDARY FOR SEWER IMPROVEMENTS i Cert•Ykala Of S Certificate O/ S.y E1/2,'1 W712, and 1f00 11005C Certificate Of sary y TRACT 2i9 TRACT JA 110058 Bt(RHY L&4rHER VAe o mrKr�L.rsL. C. TRACT 1 TflrACAt ARC 5> oo AssessraE Acfl6 36018 NCHC ORP 5Ala rRL�. 1rsMi ..2" -621-JO 41 JS-SIY "N" 60' 1 Thence North 9D'00'00" East a distance of 797.84 feet; wFw s29 "D" SIfYY 60' A Portion of SEI/4, SEI/4, Section 9 Certificate of Survey 11005 Paradigm Properties I'll mra Acgrs 17. - ACRE EXi i,IT B - VALLEY WEST PAYBACK BOUNDARY FOR SEWER IMPROVEMENTS i The Legal Description of the Valley West Payback Boundary for Sewer Improvements is as E1/2,'1 W712, and &19,07 W7/2, WI/2, SE1/4, SOBWVfi1GW Section J less Minor Subdivision 1253 SE9'54,25'E ,s Certifical, 0� survey 7121i.E11 .W" "M LUMwvn Glwre Oomw Lwo Smlo IAeI(,[. I4 1' ni .:, g1L14 Juts r!L[S'IVIS AlA1ll'J .11AA '42'04 'S Thence leaving said South line of Section 4, North 00'00'35" East a distance of 330.00 feet; Fo.06f ..2" -621-JO iYhxkwaety JS-SIY Certificate O/ Su y 12007 Thence North 9D'00'00" East a distance of 797.84 feet; Certificate Of Survey s29 11005B SIfYY TRACT 5 Thence North 01'00'24" East a distance of 532.54 feet, to the CT 8 FC East-West mid-section line of said Section 3; 12 7 ASKS LE ACflFS „L„ Thence along said East-West mid-section line of Section 3, North 89'48'40" East r -16.-n a "CC"� 5W ""A .1. S Thence leaving said East-West mid-section line of Section 3, South 00'03'14" East a Oxford Tnrt SOX distance of 647.59 feet' distance "ll"Oslanay &C0. I- SOX N J5 MN_ KgES 11.1i ASSFSSAe1E IaLL4 *K' Certificate Of Survey 11872 r ct B In a h° ro� p I = Michael W. Delaney Thence North 89'48'35" East a distance of 30.00 feet; Certificate Of Survey 110058 TRACT 4 VA=LLEY WEST L L C. .ts rmk Aarcs Jg41 A55Bsa1E IFgES "D" A Portion of N£ 1/4, SEI/4, Section 9, Certificate Of Survey 11005 flwrfan Ranch lnc, J.C. Billion j/�'{ r�.i.��l obi uall -`� Certificate Of Survey The Legal Description of the Valley West Payback Boundary for Sewer Improvements is as 1985 Montana Power Co, &19,07 A tractof land located in portions of Sections 3, 4 and 10, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Montana, being more particularly described as follows: Cerlam •++mwc +a5 w u slnma I4 Thence along the South line of said Section 4, South 89'47'04" West a distance of 420.00 feet; rtaos s Thence leaving said South line of Section 4, North 00'00'35" East a distance of 330.00 feet; f R�! "FF" 1areN 411,rL41s 1 L. Certificate O/ Su y 12007 Thence North 9D'00'00" East a distance of 797.84 feet; Certificate Of Survey too' Ra 11005B SIfYY TRACT 5 Thence North 01'00'24" East a distance of 532.54 feet, to the Valley West L.L.C. 1. 11 rOTI1 MPDS East-West mid-section line of said Section 3; 12 7 ASKS LE ACflFS „L„ Thence along said East-West mid-section line of Section 3, North 89'48'40" East r a distance of 917.41 feet; "CC"� 5W ""A .1. S Thence leaving said East-West mid-section line of Section 3, South 00'03'14" East a Oxford Tnrt SOX distance of 647.59 feet' distance "ll"Oslanay &C0. I- SOX N J5 MN_ KgES 11.1i ASSFSSAe1E IaLL4 *K' Certificate Of Survey 11872 r ct B In a h° ro� p I Thence South 01'59'03" East a distance of 731.02 feet; Michael W. Delaney Thence North 89'48'35" East a distance of 30.00 feet; 16rear 6s4;1r lleana Indruland iAl ACgfS ea'11 Thence along said North line of Section 10, North 89'59'42" West a distance of 386.13 feet; e4.sa AssrsstelE Acges "V„ SEI/4, Section J Certificate Of Sa y Thence North 01'10'09" East a distance of 1521.75 feet; 1rJ02 Jean Lewis 50R Thence South 89'48'55" West a distance of 147.31 feet; Certificate Of Survey Thence North 01'10'09" East a distance of 649.24 feet; Partnership 50% ±1.19 MI1 Ac PFS 118r46 Tmct 2 1,.E oAa Thence South 01'07'29" West a distance of 2169.86 feet; M%Hard w. avfaley & Thence South 01'07'29" West a distance of 443.95 feet, to said North line of said Section 10; Wal Hl N,dfrhn4 o 2% a rorAr rrnEs 1 . A:SEssraE AtAES WY , xwr� xr Cerllicoto Of survey 11846 tract t R&A Holding CO. I4.N TOr11 AORES Ir.r1 Ass4wp,r w[s Valley West Payback Boundary for Sewer Improvements NOTE: LETTERS ON INDIVIDUAL PROPERTIES PROVIDE CORRELATION BETWEEN THIS BOUNDARY EXHIBIT AND THE APPLICABLE ASSESSMENT SPREADSHEET. THIS IS A GRAPHICAL REPRESENTATION OF PROPERTY BOUNDARIES COMPILED OF INFORMATION OBTAINED FROM EXISTING PLATS AND CERTIFICATES OF SURVEY ON FILE AT THE GALLATIN COUNTY COURTHOUSE. THE INFORMATION DOES NOT REPRESENT A LEGAL SURVEY OF THESE BOUNDARIES OR PROPERTIES. l/d SEC, SECTION TOWNSHIP RANGE MORRISON 14fA[ERLE,Irmc. ,..,,. x x x x r PRINCIPAL MERIDIAN, MONTANA Rlunoc rrrrs RROJECr No: 205.994 _ _1ig4r ntrN COUNTY, MONT ]50 4 124 290 500 )000 t rx, 1 FIELD WORK DATE: 11/16/00 PLOTTED DATE: Nov/16/2000 1 loch -eoo n �, DRAWN BY: CTO SCALE: 1"=500' DRAWING NAME: H:\2BB5\ow\Aean\E%R1B1T\q"e"r.a"9 (PRIOR TO REDUCTION) CHECKED BY: GJS CLIENT: SHEET 1 OF 1 The Legal Description of the Valley West Payback Boundary for Sewer Improvements is as follows: A tractof land located in portions of Sections 3, 4 and 10, Township 2 South, Range 5 East, P.M.M., City of Bozeman, Montana, being more particularly described as follows: R69'46'4o'F 17.41' Commencing at the southeast corner of said Section 4, also being the northwest corner of said w u Section 10, and True Point of Beginning; I4 Thence along the South line of said Section 4, South 89'47'04" West a distance of 420.00 feet; Thence leaving said South line of Section 4, North 00'00'35" East a distance of 330.00 feet; f Thence South 89'59'25" East a distance of 1328.86 feet; "FF" Thence North 01'34'12" East a distance of 1412.66 feet; Certificate O/ Su y 12007 Thence North 9D'00'00" East a distance of 797.84 feet; Robert 5wenson Janet M Swenson Thence North 00'00'00" West a distance of 364.00 feet; a LOT 5 BLOCK 1 " c. � 1 �� Thence North 90'00'00" East a distance of 2297.00 feet; DIAMOND 9.71 ACRES IN MOND ESTATES 7" yy8d5ry9yr T BACK SERVICE AREA Thence North 01'00'24" East a distance of 532.54 feet, to the twos twfcr SMITH caftlkah 0/ Survey luv tarx ra Yf �� East-West mid-section line of said Section 3; f 14_ Thence along said East-West mid-section line of Section 3, North 89'48'40" East TSTAs Lester L Mengel Trustee a distance of 917.41 feet; "CC"� 5W ""A .1. S Thence leaving said East-West mid-section line of Section 3, South 00'03'14" East a 1 distance of 647.59 feet' distance Certificate Dr Survey South 01'03'48" West o distance of 267,11 feet; "DD"g1501 Tract 2a Thence South 01'05'50" West a distance of 401.55 feet; In a h° ro� p I Thence South 01'59'03" East a distance of 731.02 feet; s Jos A 5 6 Thence North 89'48'35" East a distance of 30.00 feet; 16rear 6s4;1r Thence South 01'34'00" West a distance of 594.09 feet, to the North line of Section 10; ea'11 Thence along said North line of Section 10, North 89'59'42" West a distance of 386.13 feet; Land Documented an Special Plat, Thence leaving said North line of Section 10, North 01'10'09" East a distance of 443.96 feet; SEI/4, Section J Certificate Of Sa y Thence North 01'10'09" East a distance of 1521.75 feet; 1rJ02 Jean Lewis 50R Thence South 89'48'55" West a distance of 147.31 feet; McDonald Land Ca Limited Thence North 01'10'09" East a distance of 649.24 feet; Partnership 50% ±1.19 MI1 Ac PFS Thence South 89'48'55" West a distance of 182.22 feet; 1,.E oAa Thence South 01'07'29" West a distance of 2169.86 feet; Thence South 01'07'29" West a distance of 443.95 feet, to said North line of said Section 10; Thence along said North line of Section 10, North 89'59'42' West a distance of 1643.82 feet, to the North 1/4 corner of said Section 10; Thence continuing along said North line of Section 10, North 89'59'25" West a distance of 738.56 feet; Thence leaving said North line of Section 10, South 00'10'31" East o distance of 881.78 feet; Thence South 88'30'24" West a distance of 639.07 feet; Thence North 00'09'34" East a distance of 898,54 feet; Thence North 89'59'25" West a distance of 621.40 feet; Thence South 01'06'08" West a distance of 408.00 feet; Thence North 89'59'25" West a distance of 600.00 feet; Thence North 01'06'08' East a distance of 408.00 feet, to said North line of Section 10; Thence along said North line of Section 10, North 89'59'25" West a distance of 45.01 feet, to the True Point of Beginning. Said Tract contains 211 acres, more or less, along with and subject to existing easements, rights-of-way and park dedication. NOTE: LETTERS ON INDIVIDUAL PROPERTIES PROVIDE CORRELATION BETWEEN THIS BOUNDARY EXHIBIT AND THE APPLICABLE ASSESSMENT SPREADSHEET. THIS IS A GRAPHICAL REPRESENTATION OF PROPERTY BOUNDARIES COMPILED OF INFORMATION OBTAINED FROM EXISTING PLATS AND CERTIFICATES OF SURVEY ON FILE AT THE GALLATIN COUNTY COURTHOUSE. THE INFORMATION DOES NOT REPRESENT A LEGAL SURVEY OF THESE BOUNDARIES OR PROPERTIES. l/d SEC, SECTION TOWNSHIP RANGE MORRISON 14fA[ERLE,Irmc. ,..,,. x x x x r PRINCIPAL MERIDIAN, MONTANA Rlunoc rrrrs RROJECr No: 205.994 _ _1ig4r ntrN COUNTY, MONT ]50 4 124 290 500 )000 t rx, 1 FIELD WORK DATE: 11/16/00 PLOTTED DATE: Nov/16/2000 1 loch -eoo n �, DRAWN BY: CTO SCALE: 1"=500' DRAWING NAME: H:\2BB5\ow\Aean\E%R1B1T\q"e"r.a"9 (PRIOR TO REDUCTION) CHECKED BY: GJS CLIENT: SHEET 1 OF 1