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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 �-/niperfy id doer�aha w�iA uh*NW wog 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