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HomeMy WebLinkAbout2013 - Payback Agreement - Loyal Garden Subdivision - SewerAGREEMENT FOR REIMBURSEMENT THIS AGREEMENT, made and entered into this 12 day of August . 2013, by and between the CITY OF BOZEMAN, a municipal corporation, organized under the laws of the State of Montana, ("City"), and Covenant Investment, Inc. a Montana corporation with address of P.O. Box 11428, Bozeman, MT, 59715 ("Developer"). WHEREAS, Developer presently owns land located in Gallatin County, Montana, more particularly described as follows: Loyal Garden Subdivision Phase I and IA, 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 sewer system within and adjacent to its corporate limits; and WHEREAS, Developer has constructed sewer lift station and 6" force main, which lift station and force main are 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 lift station and force main 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 lift station and force main, 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 lift station and force main, the total of which amounts to $527,841.30; 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 connect to, and utilize the lift station and force main; 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 connect to said force main and lift station; NOW, THEREFORE, in consideration of the conveyance to the City of the lift station and force main, and the mutual covenants contained herein, it is agreed by and between the City and Developer as follows: 1. The parties agree that the lift station and force main 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 lift station and force main and secured or granted any necessary easements for said sewer lift station and 6" force main to the City. The City has accepted said lift station and force main and easements for maintenance as part of its sewer system. 2. The Developer has submitted to the City itemized invoices for labor, material and engineering directly attributable to the installation of the lift station and force main 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 lift station and force main for his property, described above, approximate the original amount bill for said extension, and do not reflect costs related to the sewer line installed oil said propexty. 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 lift station and force main who did not contribute to the cost of construction of said lift station and force main, and who subsequently connect to or use the same, a fair pro rata share of the cost of such construction based upon the sum of $2,455.08 per gross acre, which unit charge shall be conclusively presumed to be a fair pro rata charge against the benefitted property. z'he reimbursement charges are in addition to the usual and normal charges that will be ilzade by the City for service connections, monthly service charges and impact fees. The Developer hereby releases the City from any and all claims that may arise out of the collection of said charges, including but not limited to error in calculation of proportionate cost, failtire 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 Covenant Investment 1 1 r, t' n Bos 11428, Bezciman, MT, 59719, dusignateci by writing as the agent to receive said proceeds by the Developer, approximately thirty (30) days fallowing receipt of said funds, less an administrative fee of seven percent (7%) of the amount received. No extensions or connections shall be made to the force main and lift station without first paying tl�e 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 Developer has recovered Sixty and forty two one hundredths of a percent (60.42%) of his total "as -built" construction 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 lift station and force main 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 sewer line 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 extension other main extensions or side lateral extensions, as appropriate. Any connections to such extensions of the above described extension shall not constitute grounds for reimbursement. The City shall be the sole judge of what constitutes a main, side lateral extension, or sewer service. 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: Covenant Investment LLC, P.O. Box 11428, Bozeman, MT, 59719. 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 some 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 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 CITY OF BOZEMAN By -DeL; k) tti at, I ( By: STATE OF MONTANA )ss. County of Gallatin ) { �k f, On this --/ day of , 20 1.3 , before me, the undersilpied, a Notary Public for the State of Montana, perso lly appeared CHRIS KUKULSKi and STACY ULMEN, known to me to be the City Manager and City Clerk, respectively, of the City of Boxernan 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) Notary Public for the State of Montana co, (Printed Name) Residing at Bozeman My Commission Expires: 0 5 / 2 /20 �- State of Montana ) ):ss. County of Gallatin ) oeA Tim Cooper �pti�t Rp'' Notary Pubilc OYAn+A,for the State of Montana ` Residing at: .SLAL ,c, . Bozeman, Montana s4 My Commission Expires-, Sepssmber 29, 21314 On this ---,D-day of, , 20-LIJbefore me, the undersigned, a Notary Public for the Shite of Montana, personally ` ppeared x - ; v, tk t.11 I;, known to me to be the person whose name is subscribed to the within instrument sand 1, acknowledged to me that he/she executed the same for and on his own behalf. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) i SUSAN B SWIMLEY -- _ NOTARY PUBLIC for the :� State of Montana SEAL;-" Bozeman, Reakift at Montana My Comd5won EXPIM Mama DB, 2817 Notary Public for the State of Montana f �SuSrr; 3 &�; j 1 �e (Printed Name) Residing at C1411 i C( c, j My Commission Expires:.`/ /20 4 EXHIBIT A SEWER PAYBACK AREAS IN PORTIONS OF C.O.S. NO. 2220, C.O.S. NO, 24, C.O.S. NO. 25, 8 FILM 8, PAGE 1162 PLAT LOCATED IN SECTIONS 15 816, T23, RSE, P.M.M., GALLATIN COUNTY, MONTANA IItJTHEivf0 LANE 6 EXHIBIT A-3 PAYBACK AREA 76.01 ACM c.o.S. pID. 2$ PW OF 5, is 4 � „ PLAT FLM 1d, P 41 I (cas Na EXHIBIT A-4 PAYBACK AREA 10.6 ACRES 0 1000' 1 S C A L E Jells L MMIBIT A-1 PAYBACK AREA 41.03 AMES EXHIBIT A-2 PAYBACK AREA s1.s1 ACRO Z CSO � N0. 2229 �5 „o. 2220 c I/4 cok S. Is rl� EXHIBIT B LIFT STATION AND FORCE MAIN PAYBACK COST Tract Area (Ac) Payback Charge ($/Gross Ac) Total Payback 7% Admin Fee Developer Reimbursement Exhibit A-1 44.06 $2,464.13 $108,56957 $7,599.87 $100,969.70 Exhibit A-2 54.51 $2,464.13 $134,319.73 $9,402.38 $124,917.35 Exhibit A-3 75.04 $2,464.13 $184,908.32 Exhibit A-4 Total 40.60 $2,464.13 $100,043.68 $7,003,05 $93,040.62 214.21 $527,841.29 $24,005.31 $318,927.66