09. Developer's Extension (Latecomers) Agreement - Lone Pine Trails2011"'Avenue East, P.O. Box 1997, Kalispell, MT 59903 Phone (406)758-7720— Fax (406)758-7831
www.kalispeffcom
REPORT TO: Mayor and City Council
SUBJECT: Developer Extension Agreement for Lone Pine Trails Subdivision
MEETING DATE: April 6, 2009
BACKGROUND: Development of the Lone Pine Trails Subdivision required the developer,
Lone Pine Development LLC, to install water and sewer utilities. The capacity of the sewer
improvements exceeds the requirements of the Lone Pine Trails Subdivision. Because of this, the
developer has requested a Developer Extension Agreement to allow for potential recovery of the
extra cost of providing the extra capacity. The attached agreement is similar in form to recent
agreements and has been reviewed by the City Attorney and Public Works Department to ensure
the cost basis for recovery is accurate and appropriate. The agreement (exhibit D) indicates the
reimbursement for sewer force main of $174.16 per residential unit (645 residential units of
excess capacity); the reimbursement for the sewage lift station is $541.26 per residential unit
(282 residential units of excess capacity).
The City's Extension of Services Plan specifies a maximum 10-year period for Developer
Extension Agreements. The developer has requested a 30-year period for this agreement. The
developer will present his basis for making this request at the appropriate point in this meeting.
City staff has no preference in this matter. The period of an agreement is discretionary with City
Council.
ACTION REQUESTED: AT CITY COUNCIL MEETING OF APRIL 6', MOTION TO
APPROVE THE DEVELOPER EXTENSION AGREEMENT FOR LONE PINE TRAILS
SUBDIVISION.
FISCAL EFFECTS: None.
ALTERNATIVES: As suggested by the City Council
Respectfully
Hansz, P.E. eb
of Public Works / C' ngineer Interim City Manager
Attachment: Developer Extension Agreement (exhibit A, record drawings not included)
DEVELOPER EXTENSION AGREEMENT FOR REIMBURSEMENT
FOR MUNICIPAL
SEWER SYSTEM EXTENSIONS
AGREEMENT, made this day of , 2009, between Lone Pine
Development L.L.C., a Montana corporation ("Developer") and the City of Kalispell,
situated in Flathead County, Montana ("City").
RECITALS
A. The City owns and operates municipal water and sewer systems within and adjacent to
its City limits; and
B. Developer has constructed, under agreement with the City, extensions to said 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 performance:
and
D. 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.
E. The City has determined and Developer has agreed that the fair pro rata share of the
total costs of the Extensions, to be collected from the owners of the properties who tap
into, connect to or use the Extensions, shall be based upon 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:
1. 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 Extensions by
a bill of sale 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
Latecomers Agreementfor Reimbursementfor Municipal Sewer System Extensions Page I of 10
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 into, 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 if the utilities are constructed in
accordance to City of Kalispell Standards for Design and Construction, July 2005.
Further, the City agrees to collect from owners of properties who have not heretofore
contributed to the project costs of the Extensions, and who subsequently tap into,
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 of the Developer,
as more particularly described and set forth on Exhibit "C", and as described in
Section 8 below.
The total project costs for the Extensions including costs eligible for reimbursement
under this Agreement are itemized in 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
for by Developer. The Assessment Fees for each of the properties who subsequently
tap into, 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 726 EDUs for the 6" force main extension of which up
to 363 EDUs may terminate in the gravity sewer and lift station within the Lone Pine
development. No Assessment Fee shall be charged for and the Developer shall not
be entitled to reimbursement for the proportional costs of improvements for the 81
EDU's serviced within Lone Pine Trails pursuant to this Agreement.
(a) The Assessment Fee for owners of properties who subsequently tap into,
connect to or use only the sewer force main extension shall be $174.16 per
EDU, adjusted annually in accordance with Section 5(c) below.
(b) The Assessment Fee for owners of properties who subsequently tap into,
connect to or use the gravity sewer/lift station to the sewer force main
extension shall be $367.10 for the lift station and $174.16 for the force main
for a total of $541.26 per EDU, adjusted annually in accordance with Section
5(c) below.
(c) The per EDU Assessment Fees set forth in Sections 5(a) and (b) above shall
be increased annually, over the prior years 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. A six (6) percent administrative fee in addition to the per EDU assessment fees
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described previously in this Agreement shall be assessed by the City of Kalispell,
Montana.
7. The EDU's for purposes of computing the Assessment Fees to be collected pursuant
to this Agreement shall be determined by and in accordance with Exhibit "D",
attached hereto and incorporated herein by this reference.
8. 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.
9. 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 the
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
into, connecting to or using the Extensions.
10. 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.
11. 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.
12. 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 Extensions shall become a part under the terms of this Agreement,
pursuant to the provisions of any ordinance, resolution or policy now or hereinafter
in effect. The imposition by the City of any such requirement shall not be deemed an
impairment of this Agreement, pursuant to the provisions of any ordinance,
resolution or policy now or hereinafter 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 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.
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13. This Agreement shall become operative as of the date first written above, and shall
remain in full force and effect for a period of thirty years (30) 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
extensions, or any portions thereof, shall during the term 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.
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.
Lone Pine Development L.L.C. City of Kalispell
144 East 2" Street 201 1" Avenue E
Whitefish, MT 59937 Kalispell, MT 59901
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.
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 parry claimed to have
waived or consented.
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 THEREOF, the parties have executed this Agreement on the day and
year above written.
Lone Pine Development, LLC
A Montana Corporation
I:
name
title
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CITY OF KALISPELL
Myrt Webb
Interim City Manager
STATE OF MONTANA )
):ss
County of Flathead )
On this day of April, 2009, before me, the undersigned, a Notary Public for
the State of Montana, personally appeared in his capacity as
Managing Member of Lone Pine Development LLC, a Montana limited liability
company, that executed the foregoing instrument, and acknowledged to me that he
executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial
Seal the day and year in this certificate first above written.
Notary Public, State of Montana
Residing at
My Commission Expires
STATE OF MONTANA )
):ss
County of Flathead )
On this day of April, 2009, before me, a Notary Public in and for the State
of Montana, personally appeared MYTR WEBB, known to me to be the Interim 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 Notarial
Seal, the day and year first above written.
Notary Public, State of Montana
Residing at
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My Commission Expires
Exhibit A — prints of sewer extensions
Exhibit B — breakdown of reimbursable costs
Exhibit C — legal description of Lone Pine Trails Subdivision
Exhibit D — EDU determination
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EXHIBIT A
PRINTS OF SEWER EXTENSIONS TO BE PART OF THIS DOCUMENT
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EXHIBIT B
BREAKDOWN OF REIMBURSABLE COST
LATE COMERS AGREEMENT FOR REIMBURSEMENT FOR SEWER SYSTEM
EXTENSION
ACTIVITY SEWER
SEWAGE PUMPING $133,257.55
STATION
SEWAGE FORCE $126,442.30
MAIN
TOTAL COST 1 $259,699.85 1
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LEGAL DESCRIPTION OF LONE PINE TRAILS SUBDIVISION
The portion of the Southwest I/4 of the Southeast 13, Township 28 North, Range 22 West,
P.M., M., Flathead County, Montana, described as follows:
Commencing at the Southeast corner of Section 13;
Thence along the South line of the Southeast 1/4, South 89°57'48" West 1321.14 feet to the
Point of Beginning;
Then continuing along the South line of the Southeast '/4, South 89°57'48" West 1022.54
feet;
Thence North 02'11'14" East 259.30 feet;
Thence North 75°38'21" West 220.77 feet to the East line of Learn Lane;
Thence along the East line of the road, North 06°36'52" East 571.40 feet;
Thence North 89°42'00" East 360.05 feet;
Thence North 89°40'21" East 799.71 feet;
Thence South 00° 13' 10" East 113.02 feet;
Thence South 00°02'09" East 774.26 feet to the Point of Beginning, containing 23.08
acres of land all as shown hereon.
Subject to and together with easements of record.
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EXHIBIT D
SEWER COST PER EQUIVALENT DWELLING UNIT (EDU) DETERMINATION
The purpose of this exhibit is to clarify and document the methodology used to determine the
cost per equivalent Dwelling Unit (EDU) for reimbursement for Lone Pine Development
L.L.C. as referenced in the Late Comers Agreement for Reimbursement for Municipal Sewer
System Extensions between Lone Pine Development L.L.C. and the City of Kalispell.
The sewer lift station and force main extension was designed to meet the needs of the 81
EDU's planned in the Lone Pine Trails subdivision plus an additional hook up to the sewer
system capacity available.
If a project such as a commercial or industrial development were to connect to the sewer, the
reimbursement costs would be calculated by taking the wastewater flow and converting to an
equivalent dwelling unit.
The City of Kalispell 2002 Facility Plan indicates that One Equivalent Dwelling Unit will
generate 0.62 gallons per minute of peak wastewater flow.
The total estimated discharge from the Lone Pine Trails subdivision lift station is 225 GPM
which can be accommodated by both the sewer force main extension and the Kalispell City
gravity sewer main that the force main extends from.
The pump station installed has a rated capacity of 225 gallons per minute. At a peak flow of
0.62 gallons per minute per residence, the pump station can meet the DEQ required peak flow
rate from 363 Equivalent Dwelling Units (EDU). The construction cost of the pump station is
$133,257.55 which means a latecomers' fee of $367.10 per EDU could be collected. Lone Pine
Subdivision contains 81 Lots (EDU's). The reimbursable construction costs to the developer
of Lone Pine Trails Subdivision shall be $103,522.20 ((363 EDU's — 81 EDU's ) X
$367.10/EDU)).
The six-inch force main has a capacity of 450 gallons per minute with the velocity limited to 5
feet per second (this velocity is the recommended maximum usable velocity from PVC pipe
design guides). At a peak flow of 0.62 gallons per minute per residence, the force main can
meet the DEQ peak flow rate from 726 Equivalent Dwelling Units (EDU). The construction
cost of the six-inch force main is $126,442.30 which means a latecomers' fee of $174.16 per
EDU could be collected. Lone Pine Trails Subdivision contains 81 Lots (EDU's). The
reimbursable construction costs to the developer of Lone Pine Subdivision for the six-inch
force main shall be $112,333.20 ((726 EDU's — 81 EDU's ) X $174.16/EDU).
The Latecomers Agreement shall be for $541.26 per EDU for reimbursement if the offsite flow
terminated in the gravity system for Lone Pine Trails. This would be $367.10 per EDU for the
pump station portion and $174.16 per EDU for the force main portion. At total of 282 EDU's.
Flow terminating into the force main shall have a reimbursement of $174.16 per EDU. At a
total of 645 EDU's.
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