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Latecomers Agreement20OGi25 C e� Ok ey LATECOMERS AGREEMENT FOR REIMBURSEMENT FOR I -)L WATER AND SEWER SYSTEM EXTENSIONS MUNIC PA AGREEMENT, made this 10th day of August, 2005, between Owl Corporation, a Montana corporation ("Developer") and the City of Kalispell, situated in Flathead County, Montana ("City"). WITNESSETH: RECITALS A. The City owns and operates municipal water and sewer systems within and adjacent to its City limits; and i�o A B. Developer has constructed, under agreement with the City, extensions to said water and sewer systems (collectively the "Extensions"), as more particularly depicted on Exhibit "A," attached hereto and incorporated herein by this reference, which Extensions are capable of serving parcels now owned by the Developer and others; and C. The Extensions are located within the City's existing municipal water and sewer service area, and shall be subject to the City's public works standards for perfon-nance; and D. The total project cost for design and construction of the Extensions amounted to $939,079.74 as more specifically itemized on Exhibit "B," attached hereto and incorporated herein by this reference; and E. The City and Developer desire and intend by this Agreement to provide for collection of the fair pro rata share of the total project costs of the Extension from the owners of the properties which benefit from the Extensions, but who did not contribute to the original cost thereof. F. The City has determined and Developer has agreed that the fair pro rata share of the total project costs of the Extensions, to be collected from the owners of properties who tap onto, connect to or use the Extensions, shall be based upon the equivalent dwelling units ("EDU") associated with the expected use of the subject properties at the rates set forth in Section 5 below. NOW, THEREFORE, in consideration of the mutual covenants and agreements hereafter set forth, it is agreed by and between the parties hereto as follows: I . All of the recitals set forth above are adopted by the parties as material elements of this Agreement. 2. Developer shall transfer title, free and clear of all encumbrances, to the LATECOMERs AGREEMENT P. I Extensions, by a bill of sale to be executed and delivered by Developer to the City. Developer shall assign easement deed for utilities from State of Montana to Developer (hereinafter referred to as easement), to be executed and delivered by Developer to the City. In the event that any lien or other claim against the Extensions are asserted after conveyance to the City, Developer shall defend and save harmless the City from loss on account thereof. In the event the City shall be put to any expense in defense of such claim or otherwise, then the City shall have a lien against any funds then or thereafter deposited with it pursuant to this Agreement. 3. Developer warrants that it is the owner in title absolute of the Extensions, that it has neither permitted nor suffered any person or other entity to tap onto, connect to or use the Extensions prior to the date of this Agreement, except the real property owned by Developer as identified on Exhibit "C," and as described in Section 8 below. 4. The City agrees to accept the Extensions for ownership and maintenance as part of its facility by acceptance of the bill of sale and assignment of easement if the utilities are constructed in accordance to City of Kalispell Standards for Design and Construction, April 1996. Further, the City agrees to collect from owners of proper -ties who have not heretofore contributed to the project costs of the Extensions, and who subsequently tap onto, connect to or use the Extensions, a fee equal to the fair pro rata share of the total project costs as set forth in Section 5 below ("Assessment Fees"). Such Assessment Fees shall not be collected by the City with respect to the property by the Developer, as more particularly set forth on Exhibit "C," and as described in Section 8 below. 5. The total project costs for the Extensions including costs eligible for reimbursement under this Agreement are as itemized on Exhibit "B." Said eligible portion of the total project costs includes costs for design engineering, surveying, construction, construction inspection and construction contract administration incurred and paid by Developer. The Assessment Fees for each of the properties who subsequently tap onto, connect to or use the Extensions shall be based upon the estimated equivalent dwelling units ("EDUs") associated with such properties in the amounts set forth in Section 5(a) and (b). The amounts set forth in Sections 5(a) and (b) are based upon total capacity of 2,467 EDUs for the municipal water system extension and 1,136 EDUs for the sewer system extension, with 127 EDUs for the municipal water system extension and 127 EDUs for the sewer system extension being allocated to the property owned by Developer as described on Exhibit "C," for which no Assessment Fee shall be charged and for which Developer shall not be entitled to reimbursement pursuant to this Agreement. (a) The Assessment Fee for owners of properties who subsequently tap onto, connect to or use the municipal water system extension shall be $164.28 per EDU, adjusted annually in accordance with Section 5(c) below. The maximum number of EDUs for which Developer shall be entitled to reimbursement for the municipal water system extension shall be 2,340 EDUs. (b) The Assessment Fee for owners of properties who subsequently tap onto, connect to or use the sewer system extension shall be $469.89 per EDU, adjusted annually in accordance with Section 5(c) below. The maximum number of EDUs for LATECOMERs AGREEMENT P. 2 which Developer shall be entitled to reimbursement for the sewer system extension shall be 1,009 EDUs. (c) The per EDU Assessment Fees set forth in Sections 5(a) and (b) above shall be increased annually, over the prior year's Assessment Fee, on the first day of January each year, based upon the ten (10) year United States Treasury Note rate as of the last day of the immediately preceding November, plus 1.5%. 6. The EDUs for purposes of computing the Assessment Fees to be collected pursuant to this Agreement shall be determined by in accordance with Exhibit "D," attached hereto and incorporated herein by this reference. 7. Notwithstanding anything to the contrary in this Agreement, the Assessment Fees to be collected pursuant to this Agreement shall not be collected with respect to property owned by Developer as described on Exhibit "C," attached hereto and incorporated herein by this reference. 8. The City agrees not to allow any tapping into, connecting to or using of the Extensions without the owners of properties to be benefited from said tapping or connecting having first paid to the City the Assessment Fees and such other charges as set forth in Sections 4 and 5 above. During the term of this Agreement, the City shall not have the authority to waive the Assessment Fees for tapping into, connecting to or using the Extensions, without the prior written consent of Developer. To the extent that the City does waive any Assessment Fees, the City shall be responsible for payment to Developer of the Assessment Fees that would have otherwise been payable by the owner of such properties benefiting from tapping onto, connecting to or using the Extensions. 9. The City shall pay to Developer the sums agreed by it to be collected pursuant to the provisions of this Agreement within sixty (60) days after receipt thereof at the address of Developer as set forth hereinafter or at such other addresses as Developer shall provide to the City. 10. In the event of the assignment or transfer of the rights of Developer voluntarily, involuntarily or by operation of law, the City shall pay all benefits accruing hereunder, after notice, to such successor of Developer as the City, in its sole judgment, deems entitled to such benefits; and in the event conflicting demands are made upon the City for benefits accruing under this Agreement, the City may, at its option, commence an action in interpleader joining any party claiming rights under this contract, or other parties which the City believes to be necessary or proper, and the City shall be discharged from further liability upon paying the person or persons whom any court having jurisdiction of such interpleader action shall determine, and in such action the City shall be entitled to recover its reasonable attorneys' fees and cost, which fees and costs shall constitute a lien upon all funds accrued or accruing pursuant to this Agreement. 11. Nothing contained herein shall be construed to affect or impair in any manner the right of the City to regulate the use of its municipal water system or sewer system, of which the LATECOMERs AGREEMENT P. 3 Extensions shall become a part under the terms of this Agreement, pursuant to the provisions of any ordinance, resolution or policy now or hereafter in effect. The imposition by the City of any such requirement shall not be deemed an impairment of this Agreement though it may be imposed in such a manner as to refuse service to an owner or owners of a parcel in the benefited area in order to secure compliance with any such requirement of the City. 12. This Agreement shall become operative as of the date first written above, and shall remain in full force and effect for a period of seventeen (17) years after the date first written above, or until Developer, or its successors or assigns, shall have been fully reimbursed as aforesaid, whichever event occurs earlier; provided, that in the event the Extensions, or any portions thereof, shall during the terin of this Agreement, be rendered useless by the redesign or reconstruction of a portion of the Extension, or of the City's municipal water or sewer systems, then the City's obligation to collect for Developer the Assessment Fees provided pursuant to this Agreement shall cease. 13. An administrative fee in addition to the per EDU assessment fees described previously in this Agreement will be assessed by the City of Kalispell, Montana. 14. No waiver, alteration or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Developer. 15. All communications regarding this Agreement shall be sent to the parties at the addresses listed below, unless notified to the contrary. Owl Corporation City of Kalispell Mr. Mark Owens Mr. James Patrick, City Manager 500 Palmer Drive PO Box 1997 Kalispell, Montana 59901 Kalispell, Montana 59903 16. All of the provisions, conditions, regulations and requirements of this Agreement shall be binding upon the successors and assigns of Developer, as if they were specifically mentioned herein. 17. This Agreement shall be construed in accordance with the laws of the State of Montana, and jurisdiction of any resulting dispute shall be in Flathead County, Montana. The prevailing party in any legal action arising from this Agreement shall be entitled to all costs and expenses, including attorneys' fees, expert witness fees or other witness fees and any such fees and expenses incurred on appeal. 18. Any invalidity, in whole or in part, of any of the provisions of this Agreement shall not affect the validity of any other of its provisions. 19. No term or provision herein shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. LATECOMERs AGREEMENT P. 4 20. This Agreement, including its exhibits and all documents referenced herein, constitutes the entire agreement between the City and Developer, and supersedes all proposals, oral or written, between the parties on the subject. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year above written. 01 W-1 � MR-MAM-11 my edmkWE 1Q)p�-e�-?,,plres Sig at�. kililill State of Mon A F County of a a t Signed be.:�ore-"m'e hisk.;�ay of My Cdrmigsic�n ExlTiTes: it. NOTARY BLOCS OWL CORPORATION, A MONTANA CORPORATION BY: &,,k Mtg-�c 0(�&��J [NAME] -:Scc-� 7-P-o-&- - [TITLE] DATE 2005 CITY OF KALISPELL, MONTANA Exhibit A - sewer and water system extension drawing Exhibit B - breakdown of reimbursable costs Z^J-pd-�K,6j C)A�7� NAME] Aw4ogAr. TITLE] DATE�/ 40 oa 2005 Exhibit C - legal description of West View Estates Subdivision Exhibit D - EDU determination LATECOMERs AGREEMENT P. 5 EXHIBIT A Water and Sewer Main Drawing E 0 U M EXHIBIT B LATE COMERS AGREEMENT FOR REIMBURSEMENT FOR WATER AND SEWER SYSTEM EXTENSIONS ACTIVITY WATER SEWER TOTAL Design Engineering $51,905.81 $62,451.60 $114,357.41 Construction $335,973.51 $404,233.82 $740,207.33 Easements Costs $12,392.00 $60,412.00 $72,804.00 Easement Fees $50.00 $50.00 $100.00 MDEQ Review Fees $25.00 $25.00 $50.00 SWPPP Fees $900.00 $900.00 $1,800.00 Eby Surveying $675.00 $675.00 $1,350.00 Sands Surveying $3,364.00 $5,047.00 $8,411.00 ITOTAL COST $Z0-5,285.32 $533,794.42 1 $�,079�.74 EXHIBIT C DESCRIPTION A TRACT OF LAND, SITUATED, LYING AND BEING IN THE WEST HALF OF THE SOUTHWEST QUARTER OF SECTION 25, TOWNSHIP 29 NORTH, RANGE 22 WEST, P.M.M., FLATHEAD COUNTY, MONTANA, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING at the southwest comer of the Southwest Quarter of Section 25, Township 29 North, Range 22 West, P.M.M., Flathead County, Montana, which is a found pin on the centerline of a 60 foot county road known as Stillwater Road; Thence along the west boundary of said SW 1/4and along said centerline NOO'06'40"W 1982.69 feet; Thence leaving said west boundary and said centerline N89'59'1 1 "E 1327.96 feet to a set iron pin on the east boundary of the West Half of Southwest Quarter of said Section 25; Thence along said east boundary SOO'00'23"W 1985.86 feet to the southeast comer thereof and the centerline of a 60 foot county road known as West Reserve Drive; Thence along said centerline and along the south boundary of SW V4N89'53'02"W 1323.89 feet to the point of beginning and containing 60.396 ACRES. Subject to and together with all appurtenant easements of record. EXHIBIT D COST PER EQUIVALENT DWELLING UNIT (EDU) DETERMINATION The purpose of this exhibit is to document the methodology used to deten-nine the cost per Equivalent Dwelling Unit (EDU) for reimbursement to Owl Corporation as referenced in the Late Comers Agreement for Reimbursement for Municipal Water and Sewer System Extensions between the Owl Corporation and the City of Kalispell. WATER An equivalent dwelling unit is defined as a single family home. The water demand of an EDU is defined as the maximum daily demand of a residential single family home. This demand is calculated as follows: Total people per home (EDU) = 2.31 (Ref, 2000 Census Data) Average Day Water Demand = 145 gallons per person per day (0. 10 gallons per person per minute) (Ref. City of Kalispell Water, Wastewater, and Storm Drainage Facility Plan, January, 2002, Page 3-6) Average Day/Maximum Day Peaking Factor = 2.7 (Ref. City of Kalispell Water, Wastewater, and Storm Drainage Facility Plan, January, 2002, Page 3-6) Maximum Day Demand per EDU = (2.31 people/EDU)x(O.10 GPM/person)x(2.7)= 0.62 GPM per EDU The Owl Corporation water main has been oversized in accordance with the City of Kalispell Water, Wastewater, and Storin Drainage Facility Plan, January, 2002 in order to serve future growth in the area. Since capacity of a water main varies with pressure (and elevation), and since use of capacity is how reimbursement will be based, it is necessary to establish a point on which capacity for the Late Comers Agreement will be based. This point will be the entrance to West View Estates. It is important to note this flow establishes the base point for the reimbursement to Owl Corporation. However, this flow does not necessarily define the actual capacity of the water main as capacity may change depending on the location along the water main (e.g. capacity is greater at lower elevations). Based on the design report for the Section 36 Water and Sewer Extensions, the capacity at West View Estates is 2,530 gallons per minute (GPM) at a residual pressure of 26.5 psi. It is assumed West View Estates and other developments in the area will require a minimum fire flow of 1,000 GPM. Therefore, the leftover domestic capacity of the main is 1,530 GPM. The maximum number of EDU's that can be serviced with this capacity is figured by dividing this capacity by the Maximum Day Demand per EDU, which gives a total number 2,467 EDU's that can be served by this main. It should be noted that all development in the area will benefit from the 1,000 GPM fire flow required by West View Estates. Subtracting the 127 EDU's for the West View Estates Subdivision leaves a total of 2,340 EDU's of leftover capacity in the main that are eligible for reimbursement to Owl Corporation. The maximum daily demand for the 127 lots in West View Estates is (127 EDU's) x (0.62 GPM/EDU) = 79 GPM. Subtracting the fire flow and domestic demands for West View leaves 1,451 GPM of additional capacity in the water main not being used by West View Estates. Dividing the leftover capacity by the total domestic capacity gives (1,451 GPM/ 1530 GPM) equals 95%, which is the maximum percentage of reimbursement Owl Corporation is entitled to. Dividing the total project cost by the maximum number of EDU's the main can supply results in a cost per EDU reimbursable to Owl Corporation. With a total project cost of $405,285.32 and the total EDU's served of 2,467, the cost per EDU is $164.28. With the total leftover EDU's of 2,340, the maximum amount of reimbursement to Owl Corporation will be (2,340 EDU's x $164.28/EDU) = $384,415.20. for the year 2005. Per Section 5.0 in the Late Comer's Agreement, the annual reimbursement fee will be increased annually based on the U.S. Treasury Note Rate plus 1.5%. The following table summarizes the yearly reimbursement costs per EDU based on a Treasury Note Rate of 4.5%, giving an annual interest rate of 6.0%: Yearly Reimbursement Costs/EDU - Water Year Reimbursement Factor Reimbursement Amount per EDU 1 1.00 $164.28 2 1.06 $174.14 3 1.12 $184.00 4 1.19 $195.50 5 1.26 $207.00 6 1.34 $220.14 7 1.42 $233.28 8 1.50 $246.42 9 1.59 $261.21 10 1.69 $277.64 11 1.79 $294.07 12 1.90 $312.14 13 2.01 $330.21 14 2.13 $349.92 15 2.26 $371.28 16 2.54 $417.28 1 17 1 2.69 $441.92 If a project with a fire flow requirement higher than the base fire flow of 1,000 GPM were to connect to the main, the future development would benefit from this extra capacity due to the oversized pipe. Therefore, there would have to be a payment for the additional fire flow above and beyond the 1,000 GPM already supplied. This fire flow cost would be figured by converting the extra demand to an equivalent number of dwelling units. For example, if a new development were to need a fire flow of 1,500 GPM, the cost will be figured by converting the extra 500 GPM to the number of dwelling units that will use 500 GPM. In this case, this would be 500 GPM/ 0.62 GPM per dwelling unit, which equals 806 dwelling units. In the future, if another main from the City of Kalispell system is extended to connect to this main creating a "looping system," the reimbursable costs to Owl Corporation will be figured by an engineering analysis of the system in order to estimate the amount of flow provided from the water main extended by the Owl Corporation. The impact per EDU to this 14-inch main will be determined and will be reimbursed appropriately. M A A"J ON An equivalent dwelling unit for wastewater is also defined as a single family home. The maximum wastewater flow per EDU will be defined as the peak hourly flow from a residential single family home. This demand is calculated as follows: Total people per home (EDU) = 2.31 (Ref. 2000 Census Data) Average -Day Wastewater Demand = 100 gallons per person per day (0.07 gallons per person per minute) (Ref. Montana Department of Environmental Quality) Average-Day/Maximum Day Peaking Factor = 4.1 (Ref. Montana Department of Environinental Quality, equation for peak hourly flow based on population) Maximum Peak Hour Flow per EDU = (2.31-people/EDU)x(O.07 GPM/person)x(4.1)= 0.66 GPM/EDU. The sewer main has been oversized in accordance with the City of Kalispell Water, Wastewater, and Storm Drainage Facility Plan, January, 2002 in order to serve future growth in the area. Sewer Main reimbursement costs are much easier to figure since the capacity of the sewer main is dependent only on pipe diameter and slope. Based on the slope and pipe diameter, the capacity of the sewer main is 750 GPM. Using a Maximum Peak Hour flow of 0.66 GPM per EDU, the total number of EDU's that can be served is 1,136. Subtracting the 127 EDU's for West View Estates leaves a total of 1,009 EDU's of leftover capacity reimbursable to Owl Corporation. The maximum peak flow West View Estates will have in the sewer main will be (0.66 GPM/EDU x 127 EDU) = 83.8 GPM. This leftover capacity is (750GPM — 83.8 GPM) = 666.2 GPM. Dividing the leftover capacity by the total capacity of the sewer main gives (666.2 GPM/ 750 GPM) equals 89%, which is the percentage of reimbursement Owl Corporation is entitled to. Dividing the total project cost by the maximum number of EDU's the sewer main can supply results in a cost per EDU reimbursable to Owl Corporation. With a total project cost of $533,794.42 and the total EDU's served of 1,136, the cost per EDU is $469.89. With the total leftover EDU's of 1,009, the maximum amount of reimbursement to Owl Corporation will be (1,009 EDU's x $469.89/EDU) = $474,119.01 for the year 2005. Per Section 5.0 in the Late Comer's Agreement, the annual reimbursement fee will be increased annually based on the U.S. Treasury Note Rate plus 1.5%. The following table summarizes the yearly reimbursement costs per EDU based on a Treasury Note Rate of 4.5%, giving an annual interest rate of 6.0%: Yearly Reimbursement Costs/EDU - Sewer Year Reimbursement Factor Reimbursement Amount per EDU 1 1.00 $469.89 2 1.06 $498.08 3 1.12 $526.28 4 1.19 $559.17 5 1.26 $592.06 6 1.34 $629.65 7 1.42 $667.24 8 1.50 $704.83 9 1.59 $747.12 10 1.69 $794.11 11 1.79 $841.10 12 1.90 $892.79 13 2.01 $944.48 14 2.13 $1,000.86 15 2.26 $1,061.95 16 2.54 $1,193.52 1 17 1 2.69 1 $1,264.00 As with the water, if a project such as a commercial or industrial development were to connect to the sewer, the reimbursement costs would be figured by taking the wastewater flow and converting to an equivalent dwelling unit. For example, if a new industry were to connect with an estimated peak hourly flow of 250 GPM, the number of EDU's would be figured by dividing the flow by the flow per dwelling unit. For this example, the number of EDU's would be (250 GPM)/(0.66 GPM per dwelling unit) which would equal 379 dwelling units.