HomeMy Public PortalAboutRES-CC-2002-28Resolution 28-2002
A RESOLUTION APPROVING A PRE -ANNEXATION AGREEMENT BETWEEN THE
CITY OF MOAB AND HOLIDAY INN EXPRESS
WHEREAS, Holiday Inn Express owns property in the area north of Moab City Limits, and
WHEREAS, Holiday Inn Express desires to receive culinary water and sanitary sewer services
for the Holiday Inn Express property, and
WHEREAS, the City of Moab currently owns, operates and maintains a culinary water and
sanitary sewer system, and
WHEREAS, Holiday Inn Express desires to receive culinary water and sanitary sewer services
from the City of Moab, and
WHEREAS, Holiday Inn Express and the City of Moab desire that the Holiday Inn Express
property will eventually be annexed into the City, and
WHEREAS, the Pre -annexation Agreement, Cost Reimbursement Agreement and Restrictive
Covenant, along with their exhibits, have been presented to this meeting of the Moab City
Council
NOW THEREFORE, we, the Governing Body of the City of Moab do hereby resolve to approve
the Pre -annexation Agreement, Cost Reimbursement Agreement, Restrictive Covenant and all
exhibits in substantially the form presented at the meeting of the Moab City Council, and direct
the appropriate parties to execute and deliver said documents
This resolution shall take effect immediately upon passage
Passed and adopted by action of the Governing Body of the City of Moab in open session
this 27th day of August, 2002
David L Sakrison
Mayor
Rachel Ellison
City Recorder
Holiday Inn Express Pre annexation Resolution Resolution M23 2002
Exhibit "D"
COST REIMBURSEMENT AGREEMENT
12 INCH WATER MAIN EXTENSION AND UPGRADE
This Agreement is entered into by James P Koehler ("Koehler") and the City of Moab, a
Utah municipality ("City") as follows
RECITALS
A Koehler owns a parcel of real property in Grand County, Utah which he intends to
develop as a hotel Koehler has requested that the City provide culinary water service
that will meet expected demand and requirements for fire flow needed by the
development
B The City has agreed to provide culinary water service outside of municipal limits,
subject to the terms of a Pre -annexation Agreement and with the understanding that
the property will annex into the City when legally feasible
C It will be necessary to extend and enlarge existing culinary water service lines in
order to provide service to the Koehler property The area to be served is within the
City's "North Comdor" and is planned for long term capital facilities expansion
D Koehler is willing to initially bear the cost of extending and enlarging water service
lines to his property, with the understanding that he may be reimbursed for the
increment of costs in excess of those necessary to provide minimum water service to
his development Reimbursement will occur over time as new development connects
to the extension
11
AGREEMENT
Proiect Construction Koehler agrees to construct a twelve inch diameter water main
extension in accordance with the plans and specifications attached to the Pre -
annexation Agreement (the "Extension") Koehler shall pay for all costs of
construction, including costs for engineering, material, labor, testing, and sterilization
of the line
1 2 Koehler shall solicit bids for the water line extension from licensed and
reputable contractors, and shall submit to the City for approval a total cost of
the project based upon the bid of the lowest mutually acceptable and
responsible bidder Koehler shall certify, under penalty of perjury, that the
bid is true and correct and represents the actual cost to be expended on the
project The wntten approval of that bid by the City shall be the basis of
reimbursement herein ("Project Cost") The City, in its sole discretion, may
1
obtain confirmation from Koehler or the contractor that all sums bid are
actually expended on the Extension
1 3 Any change to the scope of the work or the Project Cost shall not be subject
to reimbursement under this Cost Reimbursement Agreement unless a written
change order is approved in advance by the City and Koehler Change orders
will only be approved for changes in the scope of the work resulting from
unforseen and/or unanticipated conditions
1 4 A record of the Project Cost shall be maintained by the City for a period of
not to exceed ten (10) years from the date of acceptance by the City of the
improvements
1 5 The reimbursement obligations herein shall terminate upon the occurrence of
the following conditions, whichever first occurs 1) payment in full of the
Reimbursable Cost, as defined below, 2) abandonment or non-use of the
improvements to be installed under this Agreement, or 3) ten (10) years from
the date of acceptance of the improvements by the City
2 1 Reimbursement Calculation The increment of the Project Cost which is subject
to reimbursement (the "Reimbursable Cost") shall be calculated by multiplying the
Project Cost by a fraction, the numerator of which is the available total of peak
instantaneous demand capable of being served by the Extension and not consumed
by the Koehler development or required fire flow capacity, measured in gallons per
minute ("GPM"), and the denominator of which is the total of peak instantaneous
demand capable of being served by the Extension, exclusive of required fire flow
capacity, measured in GPM For purposes of this calculation, the parties agiee that
peak instantaneous demand for fire flow is 1,500 GPM, peak instantaneous demand
for the Holiday Inn Express (indoor plus irrigation) is 147 GPM, and total peak
instantaneous demand capacity for the Extension is 4,458 GPM
2 2 As new customers request service from the Extension they shall be assessed
at the time of connection a proportionate share of the Reimbursable Cost
based upon the percentage of available peak instantaneous demand to be
consumed by that customer, plus interest on that sum at the rate of five
percent (5%) per annum from the date of acceptance of the Extension by the
City The City agrees to administer and collect these funds from new
customers as a condition precedent to connecting to the Extension
2 3 Reimbursement shall be made by the City to Koehler no later than thirty (30)
days from receipt of the funds from the customer
2
3 1 General Provisions Nothing in this Cost Reimbursement Agreement shall be
construed to be a payment guarantee or promise on the part of the City that Koehler
will be repaid the total Reimbursable Cost or accrued interest The obligation to pay
shall be determined solely by demand for service from the Extension
3 2 Koehler may assign his nghts under this Cost Reimbursement Agreement, in
whole or in part, to any successor in title to the Property, as defined in Exhibit
A of the Pre -Annexation Agreement Prior to assigning Koehler shall first
deliver wntten notice of same to the City
3 3 This Cost Reimbursement Agreement shall not apply to collection by the City
of any Connection Fees, as defined in Municipal Code §13 25 010, or any
other Impact Fees otherwise applicable to new connections and not related to
the Extension Reimbursement as provided herein shall only apply to
culinary water Project Improvements for new development in the form of
connections to the Extension Nothing in this agreement shall be construed
to require the City to seek reimbursement from water customers in the north
corridor existing and connected to the City water system as of the effective
date of this agreement, except to the extent that such customers increase their
water demands as a result of new connections to the Extension or capacity
upgrades to existing water taps The parties agree that all such existing and
connected customers who do not seek service or capacity upgrades shall be
entitled to connect to the Extension upon abandonment of old service lines
without paying a portion of the Reimbursable Cost
3 4 If all or any portion of this Cost Reimbursement Agreement shall be declared
void or unenforceable by any court of competent jurisdiction the parties shall
be released of their obligations herein to that extent
3 5 The City agrees to provide advance notice of the terms of this Cost
Reimbursement Agreement to property owners likely to be affected by the
reimbursement obligation A condition precedent to the enforcement of the
reimbursement obligation under this agreement is the adoption by the City of
amendments to the impact fee ordinance as provided under §13 25 010, et
seq , of the Moab Municipal Code Those amendments will implement the
provisions of this agreement and should be adopted contemporaneous with
the approval of the Project Cost, as specified in § 1 2, herein If an
implementing impact fee ordinance is not approved as provided by this
section either party may withdraw from this agreement, which will then
terminate
3 6 It is expressly agreed that the withdrawal by either or both parties from this
Cost Reimbursement Agreement as provided under § 3 5, supra, will not
3
COST REIMBURSEMENT AGREEMENT
12 INCH WATER MAIN EXTENSION AND UPGRADE
Signature Page
impair or abrogate the terms of the Pre -Annexation Agreement or the
Restrictive Covenant for Annexation executed contemporaneous with this
document All such agreements shall remain in full force and effect In the
event of withdrawal, it is the intent of the parties to renegotiate in good faith
an agreement regarding construction costs for the Extension
3 7 There are no third party beneficianes intended to have nghts enforceable
under this Cost Reimbursement Agreement Title to the Extension shall vest
solely in the City upon acceptance of same, free of any hens or
encumbrances
3 8 Except as otherwise expressly agreed in writing, nothing herein shall be
construed to obligate the City to provide culinary water service to persons
outside of the City limits The decision to provide such service shall rest
solely in the sound discretion of the City Council
3 9 This agreement shall be construed in accordance with the laws of the state of
Utah
APPROVED AND ACCEPTED ON THE DATE SET FORTH BELOW
CITY OF MOAB ,
by
Mayor 1 ,id L Sakrison
oy
Rachel Ellison
City Recorder
KOEHLER
State of UM
County of Brand
Subscribed and sworn/Waned ls Wore m• an Udr1�
day of Y Ke.ek►v,
Notary Public* e wc.,
4
27 2ev7.--
Date U
Date
Date
RACHELE ELUSOM
Notary Public
State of Uhth
My Comm Exiles& Jun 2,20E4
liblAbit =Sakti it oobUTI402
ar-c�:rrrer�
Exhibit "E"
WHEN RECORDED MAIL TO
City of Moab
115 West 200 South
Moab, Utah 84532
RESTRICTIVE COVENANT FOR ANNEXATION AND
MUNICIPAL WATER AND SEWER SERVICE CONNECTIONS
WHEREAS, James P Koehler ("Declarant") is the owner of certain lands, more particularly
described in Exhibit "A", which property is located in the unincorporated area of Grand County,
Utah,
WHEREAS, Declarant and the City of Moab, a Utah municipality (the "City"), have entered
into a Pie -Annexation Agreement providing for the provision of municipal culinary water service
and sewer service, when technically feasible, and, in consideration of same, the Declarant has agreed
to annex his property into the municipal limits at such time as the property is legally eligible for
annexation,
NOW THEREFORE, the Declarant, stipulates and agrees as follows
1 All of the property described in Exhibit "A" is subject to a Pre -Annexation
Agreement with the City of Moab
2 Declarant, his successors, and assigns, irrevocably consents to and petitions for
annexation as provided under Utah law Declarant, his successors, and assigns
hereby waives any protest of annexation Declarant shall execute any supplementary
documents, including an annexation petition as provided in the Pre -Annexation
Agreement
3 Subject to the terms of the Pre -Annexation Agreement, the City shall provide
municipal services to the Property
4 Annexation shall be committed to the discretion of the City and may only occur in
conformity with the provisions of Utah law
5 This covenant shall not be construed to obligate the City to appropnate funds or
otherwise engage in capital facilities construction The decision to extend, replace,
enlarge, or otherwise construct capital facilities shall be committed to the sole
discretion of the City
6 In the event that Declarant should fail or refuse to execute necessary documents, or
otherwise cooperate in annexation as provided herein, the City may specifically
enforce this covenant in a court of competent junsdiction In any legal proceeding
to enforce this covenant the City shall be entitled to recover its reasonable attorney
fees and court costs
7 This covenant shall attach to, and run with the lands described, and shall bind any
grantees or successors in interest This covenant shall terminate automatically upon
the completion of annexation for all of the lands described herein
1
E 458145 Is 05136 P 142
RESTRICTIVE COVENANT FOR ANNEXATION AND
MUNICIPAL WATER AND SEWER SERVICE CONNECTIONS
Signature Page
APPROVED AND ACCEPTED ON THE DATE SET FORTH BELOW
Declarant
By
0
JanieP Koehler d/b/a Holt ay Inn Express
/ LL-jZ.r1/1
STATE OF -
COUNTY OF BROWN C.Q (cvv`J
) ss
RACHEL E ELLISON
Ple1rry Public
Stain o/ Mb
Ili Comm EngerJun 2,20pti
11 S Wan 2O S ilh hln,b UrMQ
Subscribed to and acknowledged before me by James P Koehler this a��� day of
t.t v1- , 2002 Witness my hand and official seal My commission expires
(0-2-avo to
2
Notary Public, State of goutIrDaketa Ll.-1-6 G,
Address kl r, W a U U S
AA cLlo , l t 1-a-t) (2.) PIS 3 a.
E 458145 B 058E. P 143
EXHIBIT A
The properly descnp ion of the parcel owned by James P Koehler which is referred to as the
Holiday Inn Express site, is as follows
Parcel No 02-126-0142
Ben:ming at a point which bears North 49°38" West 1011 8 feet from the South quarter
comer of Section 26, Township 25 South, Range 21 East, Salt Lake Base and Mendtan,
thence North 53°35' East 700 9 feet, along the Westerly nght of way of Highway 191,
thence South 47°40' East 439 7 feet, thence South72°55' West 847 9 feet, thence Noah
31.20' West 151 3 feet to the point of beginning
County of Grand, State of Utah.
E 458145 l O58E. P 144
0r;9tyto( S 144 covv-t►ac-i- Pi I..4.y
E 4583.45 B 058E. P 1.35
Date 9EP-2002 16:13pm
Fee: ( o Fee Cash / lib
MERLENL iOSNER, Recorder
Filed By MM
For MOAB CITY
GRAND COUNTY CORPORATION
PRE -ANNEXATION AGREEMENT
Holiday Inn Express
City of Moab, Utah
For valuable consideration, the sufficiency of wluch is hereby acknowledged, this agreement
is entered into this,/ 7 day of li,u4O.Sr 2002, between the CITY OF MOAB, a Utah municipal
corporation ("the City"), acting through its City Council, and JAMES P KOEHLER, d/b/a Holiday
Inn Express and Suites ("Koehler"), as follows
RECITALS
A James P Koehler owns a parcel of real property situated in Grand County, Utah and
more particularly described in Exhibit A, attached (the "Property") Koehler
proposes to develop the site as a 79 room hotel in accordance with the site plan
attached as Exhibit B ("Site Plan")
B The Property is located in an unincorporated area of Grand County, Utah Koehler
intends to develop its property according to Grand County or City of Moab
regulations, whichever is more restrictive
C Koehler intends to connect to the City Water System and pay all construction costs
associated with upgrading and extending the City water line to the Property
D Koehler agrees to the annexation of the Property into City limits according to the
terms and conditions of this agreement and Utah law
F The City of Moab Planning Commission and the Moab City Council, being fully
advised and having considered the matters at duly noticed public meetings, have
concluded that it is in the best interests of the City of Moab to enter into this
Agreement and have made all necessary findings of fact and conclusions of law in
support thereof
AGREEMENT.
Water and Sewer Service The City hereby agrees to provide culinary and fire flow water
service to the Property at Koehler's request and in accordance with standard municipal rates
and charges Koehler shall complete an application for water service and shall pay all
applicable connection and impact fees Upon completion of construction Koehler shall pay
charges for services outside of City limits for service to the Property, until such time as the
Property is lawfully annexed into City limits Upon payment of all applicable connection and
impact fees Koehler shall be permitted to connect the Project to the City culinary water
system The City agrees to make application to the Utah Department of Transportation for
a right-of-way for the water line extension to the Koehler Property
1 2 Koehler hereby agrees to pay all costs associated with upgrading and extending the
City water line to the Property, including construction, engineenng, testing and
sterilization Koehler agrees that the design and constniction of the water line shall
be subject to the approval and inspection of the City Public Works Director, and shall
be conducted in accordance with the design specifications and plans shown in Exhibit
C, attached Upon completion and acceptance of the construction, Koehler hereby
1
agrees to dedicate and transfer title to the water line to the City, together with any
necessary water line or access easements, subject only to the warranty as stated in this
agreement
1 3 Koehler warrants that all improvements constructed pursuant to this agreement and
dedicated to the City shall be constructed in a workmanlike manner, in accordance
with approved plans and specification, and that all such improvements shall be free
of all defects in materials and workmanship for a period of one (1) year from the date
of acceptance of same Koehler, or his designee, shall promptly repair or replace any
defective work following receipt of wntten notice under this warranty from the City
1 4 The parties acknowledge that the City of Moab Sanitary Sewer System does not
currently extend far enough to serve the Property At such time that City of Moab
sewer service is established witlun two hundred (200) feet of the Property boundary,
Koehler shall connect to the City sewer systems currently provided for in the Moab
City Municipal Code, and be subject to the applicable connection and sewer impact
fees Koehler shall be solely responsible for all costs associated with design and
construction of Project Improvements necessary to connect to the sewer system All
other provisions of this Section applicable to culinary water line construction shall
be applicable to sewer line construction at such time as Koehler shall be required to
connect to the sewer system bediA�ry vote. msee
ete-mi sn^ eavt .9i5s7
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1 5 Koehler hereby agrees to develop the Project in accordance with City of Moab or
Grand County development standards, whichever is more restrictive, and i
accordance with the Site Plan attached as Exhibit B The Site Plan shall be recorded
with this Agreement and shall contain a dedication whereby Koehler dedicates to
public use certain pedestrian and bicycle paths, as well as the frontage road specified
therein
2 1 Cost Reimbursement and Construction The parties shall execute a Cost Reimbursement
Agreement, shown in Exhibit D, contemporaneous with the execution of this Agreement
The Cost Reimbursement Agreement shall govern the conditions under which Koehler may
be entitled to recover from third parties the costs incurred for construction of water
improvements in excess of Project Improvements necessary to serve the Property
2 2 Koehler shall deliver to the City an irrevocable letter of credit from a regional bank
in an amount equal to the mutually approved costs of all culinary water
improvements required by this agreement The letter of credit shall be in a form
acceptable to the City's counsel, shall name the City as beneficiary, and shall be held
to secure perfonnance and payment for all ►mprovements required by this Agreement
The letter of credit shall be delivered to the City prior to the commencement of
construction of the water line improvements Koehler shall be solely responsible for
payment to all general contractors, subcontractors, laborers and matenal suppliers for
all costs of construction required herein
2 3 Construction of the water improvements specified in Exhibit C shall be complete no
later than one calendar year from the effective date of this Agreement
2
E 4 =r$14 =. B 0586 P 136
3 1 Annexation Koehler, his successors, grantees, and assigns irrevocably consents to and
petitions for the annexation of the Property and releases any nght of protest or opposition to
any future annexation of the Property, or any portion thereof, pursuant to the terms of this
Agreement
3 2 The City agrees to initiate annexation proceedings at such time as the Property meets
all legal requirements for annexation At such time, Koehler agrees to execute any
supplemental documents necessary to give effect to this agreement and facilitate the
lawful annexation of the Property The parties agree that the ultimate decision to
annex shall rest in the sound discretion of the City Council At such time as an
annexation ordinance is adopted the owner shall be entitled to all rights, and shall be
subject to all other responsibilities, applicable generally to other persons and
properties within the City municipal limits, e g sales taxation, police protection, code
enforcement, and the like
3 3 Contemporaneous with the execution of this Agreement Koehler agrees to execute
a restnctive covenant in the form contained in Exhibit E, which covenant shall bind
the property and inform all successors and assigns that the property is subject to
annexation when legally feasible The covenant shall be recorded in the Grand
County land records
4 1 General Provisions This Agreement shall be binding on and inure to the benefit of the
successors and assigns of Koehler in the ownership or development of all or any portion of
the Property Prior to assigning any or all of his rights and duties under this Agreement,
including all related attachments, Koehler shall obtain from any transferee a written
assumption acknowledging and agreeing to be bound by this Agreement, the Restrictive
Covenant, the Cost Reimbursement Agreement, and any related obligations
4 2 This Agreement is the product of mutual bargaining All terns shall be construed in
accordance with their plain meaning, regardless of the extent to which either party
participated in the drafting
4 3 Failure of a party to exercise any right under this Agreement shall not be deemed a
waiver of any such right, nor shall any course of dealing or previous action or
inaction be deemed a waiver of any nghts or claims arising with respect to later or
subsequent breaches, acts or omissions
4 4 The term "Agreement' includes this Pre -Annexation Agreement and all exhibits and
attachments, which shall constitute the sole and complete agreement between the
parties The Agreement shall supercede all pnor agreements or representations,
however evidenced No modifications to any of the terms of this Agreement shall be
binding, unless reduced to wnting and lawfully executed by both parties
4 5 The place of performance of this Agreement is Grand County, Utah In the event of
any legal dispute concerning the subjects of this Agreement, including all
attachments, the parties stipulate to venue in the Seventh Judicial Distnct Court,
Grand County, Utah In any such proceeding the parties waive trial to a jury on all
claims and agree that the action shall be tried to the court
3
E 458145 b 0558G P 137
4 6 In any legal proceeding concerning the terms of this Agreement the substantially
prevailing party shall be entitled to recover its reasonable attorney fees and court
costs in addition to any other relief authonzed herein
4 7 This Agreement shall be govemed by Utah law
4 8 This Agreement does not create any tlurd party beneficiary rights It is specifically
understood by the parties that, (a) the Project is a pnvate development, (b) the City
of Moab has no interest in, responsibilities for, or duty to thud parties concermng any
improvements to the Property, unless the City accepts the improvements pursuant to
this Agreement, and (c) Koehler shall have full power and exclusive control of the
Property, subject to the conditions of this Agreement
4 9 In the event of any dispute concerning this Agreement the parties agree to deliver
written notice to the other party desenbing the act, omission, or breach, which notice
shall allow the party in default a penod of not more than thirty (30) days in which to
cure or abate the breach or violation In addition, prior to filing suit concerning any
breach of this Agreement the parties agree to attempt resolution through mediation
or an informal settlement conference
4 10 The provisions of this Agreement are severable, and if any portion should be held to
be void or unenforceable, then the remainder of this Agreement shall be construed
to be in full force without reference to the invalid provision
4 11 In any legal action under this Agreement any party may seek declaratory and/or
injunctive relief, including specific performance, as well as recovery of compensatory
damages resulting In no instance shall either party be liable for consequential
damages, lost profits, or delay related damages of any kind
4 12 All notices under this Agreement be given m wntmg by first class or certified mail,
postage prepaid, and delivered to the following addresses
To the City of Moab
City of Moab
115 West 200 South
Moab, Utah 84532
Attn City Manager
To Koehler
James P Koehler
415 N 411' Street
Aberdeen, SD 57401
Notice may be delivered to such other parties or addresses as the parties may
designate in wnting from time to time
4
E 4543145 E 0586 P 138
4 13 This Pre -Annexation Agreement, including Exhibits A, B, and E, shall be recorded
in the Grand County land records The remaining provisions of the Agreement shall
be held by the City of Moab Recorder
IN WITNESS WHEREOF, this Agreement has been executed by the City of Moab, acting
by and through the Moab City Council, which has duly authonzed execution, and by James P
Koehler, as of the date(s) specified below
CITY OF MOAB
E
r
Mayor rid L Anson Date
i
'; • ar{;'
STt _
C111hel-Elliso�
J$ecGirder ,
KOEHLER
STATE OF St1111111125A
CO be
COUNTY OF BR6'V N-
)s s
Date
F-,27, 6.?
Date
Subscnbed to and executed before me by James P Koehler this gay of Atasttus-i-
2002 Witness my hand and official seal My commission expires - 41 -go-we
RACHEL E ELLISON
Notary Public
SYoY of Ulm
My Camm EiMti Ju12,200S
liblAbNZ15aill rUra11llR I
5
C� lX C?, - 4c��
Notary Public, State of<Seutlt-Beta
Add•rp ss ll l j W 2 at, 50
NID4a) , yr 9)146 9 a.
E 45-8145 ➢ 058E, P 139
SCHEDULE OF EXHIBITS
Exlubit A - Legal Descnphon of Koehler Property
Exhibit B - Site Plan of the Holiday Inn Express
Exhibit C - Water Line Design Specifications
Exhibit D - Cost Reimbursement Agreement
Exlubit E- Restnctive Covenant for Annexation
E 458145 B 058e p 140
EXHIBIT 4
The property descnption of the parcel owned by James P Koehler which is referred to as the
Holiday Inn Express site, is as follows
Parcel No 02-126-0142
Bemnning at a point which bears North 49°3E" West 1011 8 feet from the South quarter
comer of Section 26, Township 25 South, Range 21 East, Salt Lake Base and Mendian,
thence North 53°35' East 700 9 feet, along the Westerly n Vht of way of Highway 191,
thence South 47°40' East 439 7 feet, thence South 72°55' West 847 9 feet, thence North
31°20' West 151 3 feet to the point of beginning
County of Grand, State of Utah
E 458145 B 0586 P 141