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5. Latecomers Agreement - Silverbrook Estates20118' Avenue East, P.O. Box 1997, Kalispell, MT 59903 —Phone (406)758-7720 — Fax (406)758-7831 www.kallspeltcom REPORT TO: Mayor and City Council SUBJECT: Latecomer Agreement for Silverbrook Subdivision MEETING DATE: February 2, 2009 BACKGROUND: Development of the Silverbrook Subdivision required the developer, 93 and Church LLC, to install water and sewer utilities north on US 93 from Reserve Drive to Church Drive. The capacity of these improvements exceeds the requirements of the Silverbrook Subdivision. Because of this, the developer has requested a Latecomer Agreement to allow for potential recovery of the extra cost of providing the extra capacity. The developer's engineer has prepared the attached agreement. It follows the form of previous 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 water is $1,276.99 per residential unit (804 residential units of excess capacity); the reimbursement for sewer is $947.33 per residential unit (2,240 residential units of excess capacity). The City's Extension of Services Plan specifies a maximum I0-year period for Latecomer Agreements. The developer has requested a 25-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 FEBRUARY 2No , MOTION TO APPROVE THE LATECOMER AGREEMENT FOR SILVERBROOK SUBDIVISION WITH 93 AND CHURCH LLC. FISCAL EFFECTS: None. ALTERNATIVES: As suggested by the City Council r G "elf Webb of Public Works t Engineer Interim City Manager Attachment: Latecomer Agreement (exhibit A, record drawings not included) t ^{ O g7r ENGINEERS SURVEYORS IANNERS SCIENISTS 'am' ERE, INC. 125 SCHOOLHOUSE LOOP - BOX 8057•KALISPELL, MT 59904 �405-752-2216•FAX 406-752-2391 1L, Ernpirn "-of?'?d Compalcp January 9, 2009 Mr. Charlie Harball City of Kalispell 201 15t Avenue East Kalispell, Montana 59901 RE: Silverbrook Late Comers Agreement Dear Mr. Harball, Attached are revisions to the 93 and Church, LLC Late Comers Agreement for the installation of water and sanitary sewer facilities along Highway 93 North. The following revisions were made to the agreement at the request of 93 and Church: • The term of the agreement was increased from 20 to 25 years. • A revision was made in the reimbursement of the fire flow. The additional fire flow will now be calculated on a square footage basis for industrial and commercial buildings. Exhibit D of the agreement details this reimbursement. Please feel free to call me at any time at 751-5845 with any questions or comments about this agreement. Sincerely, MORRISON-MAIERLE, INC. Greg Lukasik, P.E. CC: Howard Mann, 93 and Church, LLC. Jim Hansz, City of Kalispell Frank Castles, City of Kalispell Enclosure: 93 and Church Late Comers Agreement JA000'1-438 Mise Engineering\Howard Mann LCA1City submittal_Itcdoc "Providingl_" I reSOUrces in pOPCn1ershij2 U.iitn C ::;fit:S t0 ClC€t P,Vv their "�^.C1 LATECOMERS AGREEMENT FOR REIMBURSEMENT FOR MUNICIPAL WATER AND SEWER SYSTEM EXTENSIONS AGREEMENT, made this 14th day of January, 2009, between 93 & Church LLC, ("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 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 performance; and D. The total project cost for design and construction of the Extensions amounted to $4,465,522.81 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: 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. Developer LATECOMERs AGREEMENT P. 1 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 constricted 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 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 1396 EDUs for the municipal water system extension and 2,832 EDUs for the sewer system extension, with 592 EDUs for the municipal water system extension and 592 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 $1,276.99 per EDU, adjusted annually in accordance with Section 5(e) below. The maximum number of EDUs for which Developer shall be entitled to reimbursement for the municipal water system extension shall be 804 EDUs. (b) The Assessment Fee for owners of properties who subsequently tap onto, connect to or use the sewer system extension shall be $947.33 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 sewer system extension shall LATECOMERS AGREEMr{NT P. 2 be 2,240 EDU& (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, to the assignee or successor of the Developer after notice of the transfer has been given. 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 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 LATEcomo<s AGREEMENT P. 3 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 twenty-five (25) 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 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. 13. An administrative fee of six (6) percent, 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. 93 & Church LLC Mr. Howard Mann 3430 US Highway 93 North Kalispell, Montana 59901 City of Kalispell Mr. Myrt Webb, City Manager PO Box 1997 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. 20. This Agreement, including its exhibits and all documents referenced herein, LATECOMERS AGREEMENT P. 4 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. 93 & CHURCH LLC, BY: DATE [NAME] [TITLE] ,2008 CITY OF KALISPHLL, MONTANA LIM DATE NOTARY BLOCS - Exhibit A — Sewer and Water system extension drawings Exhibit B — Breakdown of Reimbursable Costs Exhibit C — Legal Description of Silverbrook Exhibit D — EDU determination [NAME] [TITLE] ,2008 LAIhCOMERs AGREEMENT P. 5 EXHIBIT B '— ----` SYSTEM EXTENSIONS ACTIVITY WATER F7777SEWER TOTAL Design Engineering Construction General Construction Req. Easement Costs $173,813.85 $1,436,015.38 $172,845.11 $0.00 $260,607.38 $2,153,086.20 $259,154,89 $10,000.00 $434,421.23 $3,589,101.58 $432,000.00 $10,OD0.00 TOTAL COST $1,782,674.34 1 $2,682,848.47 $4,465,522.81 I�i_.I'it3YYiJ LEGAL DESCRIPTION The land referred to in this agreement is described as follows: Tract 3 of Certificate of Survey No. 15896 in the North Half of the Northeast Quarter and in the Northeast Quarter of the Northwest Quarter of Section 13, Township 29 North, Range 22 West, P.M.M., Flathead County, Montana. U26M Tract 4 of Certificate of Survey No. 15896 in the Southwest Quarter of the Northeast Quarter and in the South Half of the Northwest Quarter of Section 13, Township 29 North, Range 22 West, P.M.M., Flathead County, Montana. F."C Tract 5 of Certificate of Survey No. 15896 in the Southeast Quarter of the Northeast Quarter and in the North Half of the Southeast Quarter and in the Northeast Quarter of the Southwest Quarter of Section 13, Township 29 North, Range 22 West, P.M.M., Flathead County, Montana. EXHIBIT D COST PER EQUIVALENT DWELLING UNIT (EDU) DETERMINATION The purpose of this exhibit is to document the methodology used to determine the cost per Equivalent Dwelling Unit (EDU) for reimbursement to 93 & Church as referenced in the Late Comers Agreement for Reimbursement for Municipal Water and Sewer System Extensions between the 93 & Church 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) = 2.50 (Ref. City of Kalispell Water Facility Plan) Average Day Water Demand = 184 gallons per person per day (0.128 gallons per person per minute) (Ref. City of Kalispell Water Facility Plan Update, August, 2007, page 1-22) Average Day/Maximum Day Pealing Factor = 2.7 (Ref. City of Kalispell Water, Wastewater, and Storm Drainage Facility Plan, January, 2002, Page 3-6) Maximum Day Demand per EDU = (2.50 peoplelEDU)x(0.128 GPMtperson)x(2.7)= 0.864 GPM per EDU The 93 & Church water main has been oversized in accordance with the City of Kalispell Water Facility Plan Upgrade, August, 2007 in order to serve future growth in the area. Since capacity of a water mail 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 Silverbrook. It is important to note this flow establishes the base point for the reimbursement to 93 & Church. 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 93 & Church water main, the capacity at Silverbrook is 2206 gallons per minute (GPM) at a residual pressure of 20.05 psi. It is assumed Silverbrook and other residential developments in the area will require a minimum fire flow of 1,000 GPM. Therefore, the leftover domestic capacity of the main is 1,206 GPM. The maximum number of FDU'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 1,396 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 Silverbrook. Subtracting the 592 EDU's for the Silverbrook Subdivision leaves a total of 804 EDU's of leftover capacity in the main that are eligible for reimbursement to 93 & Church. The maximum daily demand for the 592 lots in Silverbrook is (592 EDU's) x (0,864 GPM/EDU) = 511.5 GPM. Subtracting the fire flow and domestic demands for Silverbrook leaves 694.5 GPM of additional capacity in the water main not being used by Silverbrook. Dividing the leftover capacity by the total domestic capacity gives (694.5 GPM/ 1206 GPM) equals 57.6%, which is the maximum percentage of reimbursement 93 & Church 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 93 & Church. With a total project cost of $1,782,674.34 and the total EDU's served of 1,396, the cost per EDU is $1,276.99. With the total leftover EDU's of 804, the maximum amount of reimbursement to 93 & Church will be (804 EDU's x $1276.99/EDU) = $1,026,697.83 for the year 2008. Per Section 5.0 in the Late Coiner'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 Reimbursement Reimbursement Amount Year Factor per EDU 2009 1.00 $1, 276.99 2010 1.06 $1,353.61 2011 1.12 $1,434.82 2012 1.19 $1, 520.91 2013 1.26 $1,612.17 2014 1.34 $1, 708.90 2015 1.42 $1,811.43 2016 L50 $1,920.12 2017 L59 $2,035.32 2018 1.69 $ 2,157.44 2019 1.79 $2,286.89 2020 1.90 $2,424.10 2021 2.01 $2,569.55 2022 2.13 $2,723.72 2023 2.26 $2,887 15 2024 2.40 $3,060.37 2025 2.54 $3,244.00 2026 2.69 $3,438.64 2027 2.85 $3,644 95 2028 3.03 — $3,863.65 — -- 2029 3.21 $------ 2030 -------- ---------------------------- 3.40 $4,341.20 -------------------------------- 2031 3.60 $4,601.67 2032 --- -- -- ---------- 3.82 --- ------------- $4,877.77 --------- ---------------------- 2033 4.05 $5,170.44 n9awyl Me The 93 and Church, LLC water main has also been oversized to provide fire flow in excess of the 1,000 gpm minimum. The late comers fee for all projects that require a fire flow in excess of 1,000 glint shall be based on the following schedule: Fire Flow Reimbursement Schedule Fire Flow Cost per Square Foot of Structure 1,000 —1,500 $2.00 -1,501 —2,000 ----- ------------------- $2.50 2,001 —2,500 ------------------------------ $3.00 — 2,501 — 3,000 $3,50 8,001—3,500---- ------------ $4.00----------- 3,501 —4,000 ------- --------- $4,50 ------------ 4,000 S6.66 Total reimbursement to 93 and Church, LLC is based on the total number of reimbursable ERUs (804). The total number of ERUs attributable to the fire flow fee paid the developer will need to be converted to ERUs by dividing the total fire flow fee by the $/ERU for the given year. For example, if a project in 2010 had a $50,000 fire flow fee, the number of equivalent ERUs would be $50,000/($1,353.61/ERU) = 36.9 ERUs. SEWER 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) = 2.50 (Ref. City of Kalispell Wastewater Facility Plan Update, August 2007) Average -Day Wastewater Demand = 129 gallons per person per day (0,0896 gallons per person per minute) (Ref. City of Kalispell Wastewater Facility Plan Update, August, 2007) Average-Day/Peak Hour Factor = 2.82 (Ref, Montana Department of Environmental Quality, equation for peak hourly flow based on population; Population determined by the total build out to be served by the extension) Maximum Peak Hour Flow per EDU = (2.50 people/EDU)x(0.0896 GPM/person)x(2.82)= 0.632 GPM/EDU. The sewer main has been oversized in accordance with the City of Kalispell Wastewater Facility Upgrade, August, 2007 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 1790 GPM. Using a Maximum Peale Hour flow of 0.632 GPM per EDU, the total number of EDU's that can be served is 2,832. Subtracting the 592 EDU's for Silverbrook Estates leaves a total of 2240 EDU's of leftover capacity reimbursable to 93 & Church LLC. The maximum peak flow Silverbrook Estates will have in the sewer main will be (0.632 GPM/EDU x 592 EDU) = 374.1 GPM. This leftover capacity is (1790 GPM - 374.1. GPM) = 1415.9 GPM. 'Dividing the leftover capacity by the total capacity of the sewer main gives (1415.9 GPM/ 1790 GPM) equals 79.1%, which is the percentage of reimbursement 93 & Church LLC 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 93 & Church. With a total project cost of $2,682,848.47 and the total EDU's served of 2,832, the cost per EDU is $947.33. With the total leftover EDU's of 2,240, the maximum amount of reimbursement to 93 & Church will be (2,240 EDU's x $947.33/EDU) = $2,122,027.04 for the year 2008. 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%: Yeddy Reimbursement Costs/EDU--Sewer Reimbursement Reimbursement Amount Year Factor per EDU 2009 1.00 $947.33 2010 1.06 $1,004.17 2011 1.12 $1,064.42 2012 1.19 $1,128.29 2013 1.26 $1,195 99 2014 1.34 $1,267.75 2015 1.42 $1,343 81 2016 1.50 _.--- $1,424.44 __— 2017 1.59 $1,509.91 2018 .__... 1.69 -_.._ _ _-..-....-- - $1,600.50 -- - ---- - 2019 139 $1,69653 2020 L90 $1,798.32 2021 2.01 $1,906.22 2022 2.13 $2,020.59 2023 2.26 $2,141.83 2024 2.40 $2,270.34 2025 2.54 $2,406.56 2026 2.69 ---$2,550.95 2027 2.85 $2,704.01 2028 3.03 $2,866.25 2029 3.21 $3,038.23 2030 3.40 $3,220.52 2031 3.60 $3,413.75 2032 3.82 $3,618.58 2033 4.05 $3,835.69 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 determined by taking the EDU directly from the current impact fee calculation table. 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)J(0.632 GPM per dwelling unit) which would equal 395 dwelling units.