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Resolution 6088 - Owl Corp Latecomers Agmt 2nd Amendment (Agmt NR)RESOLUTION NO.6088 A RESOLUTION APPROVING A SECOND AMENDMENT OF THE LATECOMER AGREEMENT EXECUTED WITH OWL CORPORATION ON AUGUST 10, 2005 TO CLARIFY THE MANNER IN WHICH REMAINING EQUIVALENT DWELLING UNITS SHALL BE ASSESSED LATECOMER FEES. WHEREAS, on August 10, 2005, Owl Corporation and the City of Kalispell entered into a Latecomers Agreement for Reimbursement for Municipal Water and Sewer System Extensions ("Agreement") and recorded the Agreement on May 5, 2006, under Document No. 200612509030, records of Flathead County, Montana; and WHEREAS, the Agreement required Owl Corporation extend oversized water and sewer mains to the West View Estates development and set forth the fair pro rata share of the total project cost of the extension in exceedance of the requirement to service the development, to be collected from the owners of property who tap onto, connect, or use the extension. The water and sewer extension latecomer fees are based upon an Equivalent Dwelling Unit ("EDU"); and WHEREAS, on May 10, 2011, Owl Corporation and the City of Kalispell agreed to amend the Agreement to extend the term of the Agreement to thirty years through an Amendment to Latecomers Agreement for Reimbursement for Municipal Water and Sewer System Extensions ("First Amendment") and recorded the First Amendment on May 18, 2011, under Document No. 201100010326, records of Flathead County, Montana; and WHEREAS, the water EDU reimbursable amount to the developer was completed in 2011, therefore, only sewer EDUs remain for collection of latecomer fees; and WHEREAS, in accordance with the Agreement, Owl Corporation oversized the sewer main extension to West View Estates to service future growth. Based on the sewer extension's capacity, the total EDUs that can be served is 1,136. A total of 127 EDUs were set aside for West View Estates, leaving a total of 1,009 EDUs of leftover capacity reimbursable to Owl Corporation; and WHEREAS, lots within West View Estates were sold by Owl Corporation to third parties who then built dwelling units on those lots. Latecomer fees were not initially collected by the City from third party owners who constructed residences and other improvements within West View Estates, and the Developer did not notify the City that such parcels belonging to third parties within West View Estates would not be exempt from the latecomer fee; and WHEREAS, the City understood the agreement to indicate all houses built within West View Estates were exempt from latecomer fees, conversely Owl Corporation understood only houses constructed by Owl Corporation within West View Estates were exempt from latecomer fees; and WHEREAS, the Second Amendment to and Clarification of Latecomer Agreement for Reimbursement for Water and Sewer System Extensions ("Second Amendment") provides that the City shall hereafter apply a sewer latecomer fee to every new EDU connecting to the sewer extension and provide notice of the latecomer fee to Owl Corporation. The City shall not provide any exemptions to the latecomer fees unless and until it has received a written communication from Owl Corporation directing that an exemption be applied; and WHEREAS, the Second Amendment clarifies any ambiguity in the Original 2005 Agreement between the City and Owl Corporation and reconciles exempt latecomer fee collections per the amendment as of September 15, 2021. The Second Amendment does not alter the number of reimbursable EDUs to Owl Corporation per the Original 2005 Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL AS FOLLOWS: SECTION 1. The City Manager is hereby authorized to execute the Second Amendment to and Clarification of Latecomer Agreement for Reimbursement for Water and Sewer System Extensions with Owl Corporation. PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE CITY OF KALISPELL, THIS 1 ST DAY OF AUGUST, 2022. ATTEST: A Ai ee Brunckhorst, CMC City Clerk Mark Jo Mayor o P - ;os 1892 'T . Return to: City Clerk P.O. Box 1997 Kalispell, MT 59903 SECOND AMENDMENT TO AND CLARIFICATION OF LATECOMER AGREEMENT FOR REIMBURSEMENT FOR WATER AND SEWER SYSTEM EXTENSIONS A + THIS AGREEMENT (herein the "Second Amendment") is made and entered into this l — day of� 2022, by and between OWL CORPORATION, a Montana corporation, of 500 Palmer Drive, Kalispell, Montana 59901-2767 (herein "Developer"), and the CITY OF KALISPELL, of 201 First Avenue East, Kalispell, Montana 59901 (herein "City"). The Developer and the City are herein sometimes referred to as the "parties," and individually as a "party." WHEREAS, on August 10, 2005, the parties entered into a Latecomers Agreement for Reimbursement for Municipal Water and Sewer System Extensions (herein the "Agreement" or "Original Agreement"), which Agreement was thereafter recorded on May 5, 2006, under Document No. 200612509030, records of Flathead County, Montana; and WHEREAS, the parties subsequently modified and amended the Agreement by that certain Amendment to Latecomers Agreement for Reimbursement for Municipal Water and Sewer System Extensions, which Amendment is dated May 10, 2011, and which was thereafter recorded on May 18, 2011, under Document No. 201 100010326 (herein the "Amendment" or "First Amendment") and in which the obligation to the Developer for the Water System extension upsize was satisfied; and WHEREAS, the original Agreement between the parties allocated to Developer 127 EDUs, which allocated EDUs entitled 127 equivalent dwelling units to be connected to the City water and sewer systems which were extended by the Developer to the property owned by the Developer as described on Exhibit "C", without paying or incurring any latecomer fee (as that term is defined in the parties' Agreement); and WHEREAS, residences and other property improvements have been constructed upon the property described in Exhibit "C", an incorporated and integral part of the Original Agreement, by both the Developer and by certain other third parties who purchased lots from the Developer. Latecomer fees were not initially collected by the City from third parties who constructed residences and other improvements on the property described in Exhibit "C" for the reason that the Developer did not notify the City that such parcels belonging to third parties would not be exempt from the latecomer fee; and WHEREAS, the City believes that the purpose of Exhibit "C" was to identify the land area in which the Developer would construct EDUs to be served by the water and sewer capacity required by these EDUs and provided to them by the conveyance utilities constructed by the Developer and thereby exempt from latecomer fees, while the Developer believes that it was the intention of the parties under their Agreement for only those parcels of the Exhibit "C" land which are developed by Developer itself to be exempt from latecomer fees; and WHEREAS, because of the different beliefs and understandings of the parties they now wish to further amend and clarify the Agreement, as amended by the previous Amendments, to document the manner in which the Page 1 of 3 remaining equivalent dwelling units (herein "EDUs") of the original 127 EDUs shall be designated as exempt from paying the latecomer fees and distinguish them from the EDU's that will be charged latecomer fees by the City. NOW THEREFORE, in consideration of and furtherance of the foregoing recitals (which are hereby incorporated as a part hereof this), in order to clarify any ambiguity in the Original Agreement, as amended by the First Amendment, and in consideration of the following terms, conditions and covenants, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the parties, the parties mutually covenant and agree as follows: 1. Release of Liability: The City shall not have any liability or obligation to Developer for latecomer fees which have not been charged to any third party prior to the date of this Second Amendment with respect to connections to the sewer extensions by any such third parties who constructed residences or other buildings and improvements on any of the real property described in Exhibit "C" of the Original Agreement. Assessment of Future Latecomer Fees: The parties agree that the City shall hereafter invoice a sewer latecomer fee to every new EDU connecting to the sewer extension and provide notice of the invoices to the Developer. The City shall not provide any exemptions to the latecomer fees unless and until it has received a written communication from the Developer directing that an exemption be applied. The parties agree that, as of the date above written, the Developer has expended a total of 55.6 EDUs within Exhibit C of the original Agreement, leaving a total of 71.4 EDUs available for the Developer to exempt. The parties agree that Exhibit "A", attached hereto, is an accurate reconciliation spreadsheet identifying the allocation of the EDU's to the latecomer fees as of the date above -written. Remittance to Developer of any Previously Collected Latecomer Fees: The City shall remit to Developer, within five (5) business days from the date this Second Amendment has been executed by both of the parties, any and all sewer latecomer fees which the City has collected from and after September 15, 2021, less the amount which the City is entitled to retain pursuant to that which is set forth in the Original Agreement. Additionally, the City shall remit to Owl Corporation the latecomer fees which the City has collected from the Developer itself with 209 Sawyer Lane (8.8 EDUs) and 143 Owl Loop (1.0 EDUs), which Latecomer fees are in the amount of $9,136.25. Such amount shall also be remitted to Developer within five (5) business days from the date this Second Amendment is executed by both parties. 4. Amendment of Originalgreement: To the extent the Original Agreement, as amended by the First Amendment, provides differently or is in any way inconsistent with that which is provided for in the above Section 2 of this Second Amendment, the Original Agreement is hereby modified and amended. 5. Other Terms and Provisions of Orijzinal Agreement and First Amendment: All other terms and provisions of the Original Agreement, as amended by the First Amendment, which are not inconsistent with that which is set forth in this Second Amendment shall continue to be applicable and binding upon the parties and their respective successors and assigns. IN WITNESS WHEREOF the parties have hereunto set their hands and seals the day and year first above written. CITY OF KALISPELL By IVU-917xussell, City Manager Page 2 of 3 OWL CORPORATION By � _ -- Mark Owens, Secretary -Treasurer STATE OF MONTANA ) ) ss. County of Flathead ) On this day of July, 2022, before me, a Notary Public in and for the State of Montana, personally appeared DOUG RUSSELL, known to me to be the City Manager of the City of Kalispell, a municipality, that executed the within instrument, and acknowledged that such City Manager subscribed, sealed and delivered said instrument as the free and voluntary act of said municipality, for the uses and purposes therein set forth, and that he was duly authorized to execute the same on behalf of said municipality. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary Seal, the day and year first above written. /0� AIMEE BRUNCKHORST NOTARY PUBLIC for the NoraRiAL-_ _* seNL *_ State of Montana Residing at L P=`� Lakeside, Montana My Commission Expires December 04, 2024 STATE OF MONTANA ) ) ss. County of Flathead ) N6116ry Public, State of Montana Printed Name: _Ain� -Ea c.,�r c. *o► + Residing at: L4 My Commission expires: (2 4 _2¢ On this day of July, 2022, before me, a Notary Public in and for the State of Montana, personally appeared MARK OWENS, in his capacity of Secretary -Treasurer of Owl Corporation and acknowledged that in such capacity he has the legal authority to execute this instrument for the uses and purposes therein stated. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary Seal, the day and year first above written. SANK E. F CHRISTINA E. FARRIER S AR NOTARY NOTARY PUBLIC for the p State of Montana * SEAL * Residing at Kalispell, Montana Notary Public, Skeof Montana o�P�Q My Commission Expires Printed Name: S May 06, 2025 Residing at: My Commission expires: to Page 3 of 3 EXHIBIT A Owl Corporation Reconciliation Summary - May 2022 Y Lot ,c^ Phase Built (1Y/N-) Address Street Owner Contractor Owl EDUs 1 1 1 101 Taelor Rd Philip Pappas Philip Pappas 0 2 1 105 Taelor Rd 0 3 1 111 Taelor Rd Rod Leese Brian Wiley Construction 0 4 1 1 115 Taelor Rd Owl Corp Owl Corp 1 5 1 1 119 Taelor Rd Corey and Mellisa Wiley CM Wiley Inc 0 6 1 123 Taelor Rd 0 7 1 1 1 127 Taelor Rd Corey and Melisa Wiley CM Wiley Inc 0 8 2 1 1 131 Taelor Rd Jeff and Molly Claridge CM Wiley Inc 0 9 2 1 1 135 Taelor Rd Aaron Duval Const Aaron Duval Const 0 10 2 1 139 Taelor Rd Owl Corp Owl Corp 1 11 2 1 143 Taelor Rd Robert Brinton Brinton Construction 0 12 2 1 147 Taelor Rd Philip Hall Construction Philip Hall Construction 0 13 2 1 151 Taelor Rd Bill and Jana Pursell J Martin BUilders 0 14 2 155 Taelor Rd 0 15 2 1 159 Taelor Rd Alpine Homes Alpine Homes 0 16 2 1 163 Taelor Rd 1&F Const J&F Const 0 17 2 1 167 Taelor Rd Looks Builders Lipka Builders 0 18 2 1 104 Owens Ct Steve Manaras 0 19 2 1 108 Owens Ct Pickering Family Homes 0 20 2 1 112 Owens Ct XW Consulting XW Consulting 0 21 2 1 116 Owens Ct Brain Solan Brian Solan 0 22 2 1 171 Taelor Rd RM Allen Const RM Allen Const 0 23 2 1 175 Taelor Rd Endorses Investments J&F Const 0 24 2 1 179 Taelor Rd Victor Duffy Victor Duffy 0 25 2 1 183 Taelor Rd BID Inc BID Inc 0 26 2 1 187 Taelor Rd Griz Properties Aaron Duval Construction 0 27 2 1 191 Taelor Rd Vic Dufffy Vic Duffy 0 28 2 1 195 Taelor Rd Owl Corp Owl Corp 1 29 2 1 199 Taelor Rd Chris & Marie West Westward Bound Const 0 30 2 1 203 Taelor Rd RM Allen Const RM Allen Const 0 31 2 1 207 Taelor Rd Levi Oja Levi Oja 0 32 2 1 211 Taelor Rd Aaron Duval Construction Aaron Duval Construction 0 33 2 1 202 Taelor Rd Josiah ooney Northwind Developments 0 34 5 1 176 Owl Loop Brian Wiley Brian Wiley Construction 0 35 5 1 172 Owl Loop Mark Pond Mark Pond General Contracting 0 36 5 168 Owl Loop 0 37 5 1 164 Owl Loop Lee Munio Lee Munio 0 38 5 160 Owl Loop 0 39 5 1 156 Owl Loop Northwind Developments Northwind Developments 0 40 5 1 152 Owl Loop Northwind Developments Northwind Developments 0 41 5 150 Owl Loop 0 42 5 148 Owl Loop 0 43 5 146 Owl Loop 0 44 4 1 280 Landing Ln Mark Neiman Mark Neiman 0 45 4 1 276 Landing Ln Chris and Jeannin Potter Brian Wiley Construction 0 46 4 1 272 Landing Ln Josiah and Amber Mooney Northwind Developments 0 47 4 1 268 Landing Ln 0 48 4 1 271 Landing Ln Nicholas and Eva Tanninen Nicholas and Eva Tanninen 0 49 4 1 27S Landing Ln Kent Property LLC Montana Craft Homes LLC 0 50 4 140 Owl Loop Dan Sarkkinen Scandia Builders Inc. 0 51 4 1 136 Owl Loop Kent Property LLC Montana Craft Homes LLC 0 52 4 1 132 Owl Loop 0 53 4 1 128 Owl Loop Northwind Developments Northwind Developments 0 54 4 1 116 Owl Loop Brad Watti Brad Watti 0 55 4 1 112 Owl Loop Hugh Fenwick Aaron Duval Const 0 56 4 1 1 108 Owl Loop Hugh Fenwick Aaron Duval Const 0 57 1 1 130 Taelor Rd Northwind Developments Northwind Developments 0 58 No Lot 0 59 No Lot 0 60 No Lot 0 61 No Lot 0 62 No Lot 0 63 1 1 134 Taelor Rd Alpine Homes LLC Alpine Homes LLC 0 64 4 1 107 Owl Loop Northwind Developments Northwind Developments 0 65 4 1 111 Owl Loop Cameron Homola Cameron Homola 0 66 4 1 115 Owl Loop RM Allen Const RM Allen Const 0 67 4 1 119 Owl Loop Michael Allen RM Allen Const 0 68 4 1 123 lOwl Loop Kirk Pederson Kirk Pederson 0 69 S 1 127 jOwI Loop IStrouds Blanton Investments jSapphire Construction Services 0 Lot Phase Built (1Y/N-) Address Street Owner Contractor Owl EDUs 70 5 131 Owl Loop 0 71 5 1 135 Owl Loop Northwind Developments Northwind Development 0 72 5 139 Owl Loop 0 73 5 1 143 Owl Loop Owl Corp Owl Corp, Corey Wiley 1 74 5 1 147 Owl Loop Kirk Pederson Kirk Pederson 0 75 5 1 151 Owl Loop RM Allen Const RM Allen Const 0 76 5 SSS Owl Loop 0 77 5 1 159 Owl Loop Nedelko Milijasevic BID Inc 0 78 5 163 Owl Loop 0 79 5 1 167 Owl Loop BID Inc BID Inc 0 80 5 1 171 Owl Loop Mark Dennehy Brian Wiley Construction 0 81 2 1 198 Taelor Rd RM Allen Const RM Allen Const 0 82 1 2 1 194 Taelor Rd RM Allen Const RM ALlen Const 0 83 2 1 190 Taelor Rd Gillette Const Gillette Const 0 84 2 1 186 Taelor Rd Robinson Craig Trademark Properties LLC 0 85 2 1 182 Taelor Rd 0 86 3 1 168 Ali Loop Brad and Hailey Waatti Brad and Halley Waatti 0 87 3 1 164 Ali Loop Chris & Marie West Westward Bound Cont 0 88 3 1 160 Ali Loop BID Inc BID inc 0 89 3 1 156 Ali Loop BID Inc BID inc 0 90 3 1 152 Ali Loop Owl Corp Owl Corp 1 91 3 1 148 Ali Loop Ryan Dunn Ryan Dunn 0 92 3 1 144 Ali Loop Owl Corp Owl Corp 1 93 3 1 140 Ali Loop Owl Corp BID inc 1 94 3 1 136 Ali Loop Tyson Moir Alpine HOmes LLC 0 95 3 1 1 132 Ali Loop BID Inc BID inc 0 96 3 1 128 Ali Loop Cheryl Main CM Wiley Inc 0 97 3 1 124 Ali Loop Kirk Pederson Kirk Pederson 0 98 3 1 120 Ali Loop Alex Evans Head Const 0 99 3 1 116 Ali Loop Owl Corp Owl Corp 1 100 3 1 112 Ali Loop Derek Janie Toren Gillette Construction 0 101 3 1 108 Ali Loop Gillette Construction Gillette Construction 0 102 3 1 104 Ali Loop Doug Lundell Doug Lundell 0 103 2 1 100 Ali Loop Brandon and Lacy Nielson Gillette Construction 0 104 2 1 142 Taelor Rd Owl Corp Owl Corp 1 105 2 1 146 Taelor Rd Arie Gray Arie Gray 0 106 2 1 150 Taelor Rd Gillette Construction Gillette Construction 0 107 2 1 154 Taelor Rd Gillette Construction Gillette Construction 0 108 2 1 158 Taelor Rd BID Inc BID inc 0 109 2 1 162 Taelor Rd Jon Battle & Carey Lyn Hill Jon Battle & Carey Lyn Hill 0 110 2 1 166 Taelor Rd Jarrod Auric XW Consulting 0 111 2 1 170 Taelor Rd Lipka Builders Lipka Builders 0 112 2 1 174 Taelor Rd Sally & Kit Clark Iron Start Construction 0 113 2 1 178 Taelor Rd Thomson Moir Davison Development Co. 0 114 3 172 Ali Loop 0 115 3 1 176 Ali Loop Owl Corp Owl Corp 1 116 3 1 180 Ali Loop Brian and Mikki Wiley Brian Wiley Const 0 117 3 1 184 Ali Loop XW Consulting XW Consulting 0 118 3 1 188 Ali Loop Gillette Const Gillette Const 0 119 1 3 1 192 JAH Loop Owl Corp Owl Corp 1 120 3 1 196 JAIi Loop Owl Corp Owl Corp 1 121 3 1 200 Ali Loop Chris Semler Pioneer Property Solutions 0 122 3 1 201 Ali Loop Davison Development Davison Development 0 123 3 1 197 Ali Loop J&F Construction J&F Construction 0 124 3 1 193 Ali Loop Pioneer Property Solutions Pioneer Property Solutions 0 125 3 1 189 Ali Loop John Olsen Stumptown Deisgn Build 0 126 3 1 185 Ali Loop Matt Ek Iron Star Construction 0 11 I SF = 1Z1 lub v Lot ,c^ 'Phase ••V,'•Built (lY/N-) Address Street Owner Contractor Owl EDUs la 1 120 Taelor Rd Owl Corp Owl Corp 1 lb 1 118 Taelor Rd Owl Corp Owl Corp 1 2a 1 116 Taelor Rd Owl Corp Owl Corp 1 2b 1 114 Taelor Rd Owl Corp Owl Corp 1 3a 112 Taelor Rd 3b 110 Taelor Rd a ITH= 6 4 Total Single Family Lots = 127 Single Family Houses built = 109 Remaining Single Family Lots = 18 n—I Vinw fuhrlivicinn Lot Phase Apt Units Address Street Owner Contractor Owl EDUs 3 1 8 201 Sawyer Ln Owl Corp Owl Corp 6 2A 1 8 202 Sawyer Ln Owl Corp Owl Corp 6 3 1 8 20S Sawyer Ln Owl Corp Owl Corp 6 2A 1 8 206 Sawyer Ln Owl Corp Owl Corp 6 3 1 8 207 Sawyer Ln Owl Corp Owl Corp 6 1A 1 2 11 1 209 Sawyer Ln Owl Corp Owl Corp 9.6 2 12 Sawyer Ln Owl Corp Owl Corp 0 2 12 Sawyer Ln Owl Corp Owl Corp 0 2 12 Sawyer Ln Owl Corp Owl Corp 0 2 12 Sawyer Ln Owl Corp Owl Corp 0 2 12 Sawyer Ln Owl Corp Owl Corp 0 2 12 Sawyer Ln Owl Corp Owl Corp 0 2 12 Sawyer Ln Owl Corp Owl Corp 0 2 12 Sawyer Ln Owl Corp Owl Corp 0 2 12 Sawyer Ln Owl Corp Owl Corp 0 108 Total EDUs from Single Family Built = Total EDUs from Apartments = 109 39.6 Total EDUs Built in Exhibit C = 148.6 Total Remaining Single Family EDUs = Estimated Future Apartment EDUs = 18 86.4 Total EDUs Remaining in Exhibit C = 104.4 Total Owl Corp EDUs in Exhibit C Notes: White cells were not charged per Agreement Yellow highlighted cells were charged to Owl Corp within Exhibit C Blue highlighted cells were charged within Exhibit C Green highlighted cells are pending Owl Corp Review