Latecomers Agreement/Owl Corporationt NeK�N wi-l�-tom
kl
2006125
..........
LATECOMERS AGREEMENT FOR REIMBURSEMENT FOR
M NICIPAAL WATER AND SEWED. SYSTEM EXTENSIONS
AGREEMENT, made this t of i day of August, 2005, between Owl Corporation, a
Montana corporafton ("Developer") and the City of Kalispell, situated in Flathead County,
Montana "'City.
WNE S S H
''. 1T A ,
pry. A. The City owns and operates municipal water and sever systems within and
x adjacent to its City limits; and
t
B. Developer has constructed, under agreement with the City extensions to said
stems(collectivelytb��tensions as more artzcar icte on
water and sewey
xbibit "A " attached hereto and incorporated herein by this reference, which Extensions are
capable of serving parcels now owned by the Developer and others; an
C. The Extensions are located within the City's existing municipal grater and sewer
service area., and shall be subject to the City's public works standards for p erforma .ce; and
D. The total project cost for design and construction of the Extensions amounted to
$939,079.74 as more specifically itemized on. Exhibit " ," 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 detennined and Developer has agreed that the fair pro rata share of
the total project casts 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:
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
2006i2s ORD 0
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. hi 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.
. Developer warrants that it 1s the owner 1n 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.
. 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 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 prof et 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`, and
as described in Section 8 below.
. 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 constriction 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 ` E s" associated
with such properties in the amounts set forth in Section a and the amounts set forth in
Sections a and h are based upon total capacity of 2,467 EDUs for the municipal al water
system extension and 11,1 E Us for the sewer system extension, with 127 E Us for the
municipal water system extension and 127 EDs for the sewer system extension being allocated
to the property owned by Developer as described on Exhibit "C," for which no Assessment Fee
shall he 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 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 E Us.
(b) The Assessment Fee for owners of properties who subsequently tap onto,
connect to or use the sewer system extension shall be $469.$9 per EDU, adjusted
annually in accordance with Section 5(c) below. The maximum number of EDtJs for
2$��i6125 N030
which Developer shall e entitled to reimbursement for the sewer system extensi
ron shall
be 1, s.
c The per EDU Assessment Fees set forth in Sections 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 1 year United States Treasury Note rate as of
the last day of the immediately preceding November, plus 1. %.
6. The EDUs for purposes of computing the Assessment Fees to he collected
pursuant to this Agreement hall be determined by in accordance with Exhibit " �" attached
hereto and incorporated herein by this reference.
'. �otwithstardin anything to the contrary in this Agreement, the Assessment Foos
to he collected pursuant to this Agreement ent shall not be collected with respect to property owned
y Developer as described on Exhibit "C," attached hereto and incorporated herein by this
reference.
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
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.
. The City shall pay to Developer the suns agreed by it to be collected pursuant to
the provisions of this Agreement within sixty 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. I. 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 ting demands are made upon the City for benefits accruing
under this Agreement, the City ma � at its option, commence an action in rnterpleader joining
any party claiming rights under this contract, or other parties which the City believes to be
necessary or proper-, and the City shall he 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 he 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.
1. 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
L TECOMF. ems A1 Rf.-EME 'r P.
0 '006125 ()qo,20
rlo
Extensions shall become a part under the terns of this Agreement,, ent, 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 impairne .t of this Agreement though it may be
imposed in such a manner as to refuse s r price 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 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 Cit 's municipal water or sever systems,
then the City's obligation to collect for Developer eloper 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 meting and signed by a duly authon'zed representative of the City and
Developer.
15. All communications regarding this Agreement shall e sent to the parties at t o
addresses listed belowl unless notified to the contrary.
Owl Corporation City of Kalispell
Ir. Mark Owens Mr. Janes 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 o
Montana, and jurisdiction of any resulting dispute shall be in flathead County, Montana. The
prevailing party in any legal action an'sing from this Agreement shall be entitled to all costs and
expenses including attorneys' fees, expert witness fees or other witness foes and any such fees
and expenses incurred on appeal.
. 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.
. No term or provision herein shall he deemed waived and no breach excused unless
such waiver or consent shall he in writing and signed by the party claimed to have waived or
consented.
LATECOMERS A EMENT .
20061215 NO 0
20. Th1s Agreement., including its exhibits and all documents referenced here..,
constitutes the entire agreement between the City and Developer, and supersedes all proposals,
oral or written, between the parties on the subject.
M WITNESS WHEREOF, the parties have executed this Agreement on the day and year
above written.
State o _
County.*
ray C dm, -
4
i 9 At
i
•F a
State of MonpAthf
Count of (JIV
Signed b�io x' this �ay of
�4t
Ry C mii xrl`�.
SEAL
�s r
NOTARY o s
OWL CORPORATION',
[NAME]
[DTLE]
DTr' 13 /jg , Zoo
CITY of KALISPELL, MONTANA
Exhibit i A — sewer and water system extension. drawing
Exhibit B — breakdown of reimbursable costs
. . . . ............
�NAME]
ow4 TITLE]
DATE . (,,, , 2005
Exhibit it C — legal description. of West View Estates Subdivision
Exhibit D — EDU determination
200612.5 D'lCj;(')
EXHIBIT
Water and Sevier Main Drawing
200GI25 CqOW
. ................................... ............ ... . . .
EXHIBIT
,ATE COMERS AGREEMENT FOR REIMBURSEMENT FOR WATER AND
SEWER SYSTEM EXTENSIONS
ACTIVITY
WATER
SEWER
TOTAL.
Design Engineering
$, ,00 .
$02# 1.00
$ 1 #357. 1
Construction
$33 ,07'3.51
$ 0 5 33.82
$7401207,33
Easements Costs
$12,392,00
$OO x 1, .00
$ 2 � 0 .00
Easement Fees
$0.00
$0.00
$1 00.00
MDEQ Review Fees
$25.00
$25.00
$ 0.00
SWPPP Fees
$ 00.00
$900.00
$ T300.00
Eby Surveying
$675.00
$675,00
$1 73 0.00
hands Surveying
$3,36 .00
$ ,0 7.00
$311.00
TOTAL COST
40 ,23 .32
$533,794-42
$939,079.74
200GIL25 DqO',20
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., RANG
22 WEST, .M.M.1, FLATHEAD COUNTY, M N 'ANA, AND MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGGING at the southwest comer of the Southwest Quarter of Section 25, Townshl.p
29 North, Range 22 West, P.M.M., Flathead County, Montana, which is a. Toured pin on
the centerline of a 60 foot county road known as Stillwater Road; Thence along the west
boundary of said SW 14 anal along said centerline Noo'o""W 19. feet; Thence
leaving said west boundary and said eenterfi e N 9' 9' 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 So°0'23"W 19.86 feet to the southeast corner
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 V4 N 9°53' 2"W
1323.89 feet to the point of beginning innin and containing 60.396 ACRES, Subject to and
together with all appurtenant easements of record.
030
EXHIBIT D
COST PER EQUIVALENT DWELLING UNIT (EDU) DETERMINATION
The purpose of this exhibit is to document the methodology used to deter -nine the cost
per Equivalent Dwelling Unit U for reimbursement to owl Corporation as
referenced in the Late Corners Agreement for Reimbursement for Municipal Water and
Sever 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
E U is defined as the maximum daily demand of a residential single family home. This
demand Is calculated as follows:
Total people per home (VDU) = 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, Page3-6)
Average e ay Maximum Day Peaking Factor == 2.7 (Ref City of Kalispell water,
Wastewater, and Storm Drainage Facility Plan, January, Zoo, Page 3-6)
Day Demand per EDU = (2,31 people/EDU)x(0.10 GPM/ erspn)x(2.7)= 0.62
GPM per EDIJ
The owl Corporation water 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. Since capacity of a water main varies with pressure (and
elevation), and since use of capacity is hove 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 necessaffly 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 lover
elevations).
Based on the design report for the Section 36 Water and Sewer Extensions, the capacity
at Wet 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 I NO GPM. Therefore, the leftover domestic capacity of the main
is 1,530 GPM. The maximum number of E U's that can be serviced with this capacity is
figured by dividing this capacity by the Maximum Day Demand per E '1 , which gives a
total number 2,4 DU's that can be served by this main. 1t should be noted that all
development in the area will benefit from. the 1,000 GPM fire flow required by West
2006125 CR ()5L,)
View Estates. Subtracting the 12 EDU's for the west View Estates Subdivision leaves a
total of 21)4Us of leftover capacity in the main that are eligible for reimbursement
to Owl Corporation.
The maximum daily dernand for the 12 lots in west View Estates is 12 EDU's) x
(0.62 GPM GPM. Subtracting the fire flow and don estic 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/ 1. 5 30 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 U's the main can supply
results in a east per EDU reimbursable to owl Corporation# with a. total project cost of
$405 285.32 and the total EDUs served of 2 467 the east. per E U is $164.28. 'with the
total leftover U's of 2,340, the maximum amount of reimbursement to owl
Corporation will he (2,340 EDU's x $1 4.2 1 = $ ,4 l .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
summanzes the yearly reimbursement costs per E U based on a 'treasury Note Rate of
. 5 %, giving an annual interest rate of . 0%
Yearly i b r en Costs - Water
Year
Reimbursement Factor
Reimbursement Amount per EDU
1 M
$164.28
1.06
$ 7. 1
3
1.12
$184.00
.1
$195.50
$ 07. o
1.3
$ 20.1
7
1.42
$, 33.28
.o
$246.42
.
$261.21
10
1.
$277.64
11
.
$294.07
12
1.90
$312.14
13
2.01
$330. 1
14
2.13
$349.92
15
2.
$37.23
16
2.
$417.28
7
2.69
$441.92
f 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 he 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
200GI25 0903�0
GPM, the cost will he 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.
n 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 nt of flow
provided from the water main extended by the Owl Corporation. The impact per EDU to
this 1 -inch main will be determined and will be reimbursed appropriately.
SEWER
n equivalent dwelling unit for wastewater is also defined as a single family home. The
maximum wastewater flow per EI will he defined as the peak hourly flow from
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
Environmental Quality, equation for peak hourly flow based on population)
Maximum Peak Hour Flow per EDU = (2.31 - people/EDU)x(Q.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 Maim 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 E U, the total number of 's that can be served is
1,136. Subtracting the 127EDU's for West view Estates leaves a total of 1,009 EDU's
of leftover capacitor reimbursable to oval Corporation.
The maximum peak flow West Vier Estates will have in the sewer main will he(0.66
GPM/EDU x 127 EDU = 83.8 GPM. This leftover capacity is 7 G M — 83.8 GPM)
666.2 GPM. Dividing the leftover capacity by the total capacity of the sewer maim gives
(666.2 GPM 750 GPM) equals 9 , which 1s the percentage of reimbursement Oval
Corporation is entitled to.
Dividing the total project cost by the maximum number of EDU's the saver main can
supply results in a cost per B U reimbursable to Owl Corporation. With a total project
cost of $533,,794.42 and the total EDU's served of IJ36, the cost per EDU is $469.89.
With the total leftover EDU's of 1,009, the maximum amount of reimbursement to owl
2006125 0qO,5L'
Corporation will he (1,009 EDU' x $ . E = $474,119.01 for the year .boo .
Per Section 5.0 in the Late Cor .er "s Agreement, the annual reimbursement fee will be
increased annually based on the U.S. Treasury Note Rate phis 1.5%. The following table
summarizes the yearly reimbursement costs per EDU based on a Treasury Note Rate o
4. %, giving an annual interest rate of 6.0%-.
Yearly Reimbursement Co E _ Surer
Yeas
Reimbursement Factor
Reimbursement Amount per EDU
.09
$49.9
2
1.06
49.0
1.12
$526.28
1.19
$559.17
12
92.0
1.34
9.6
.42
$667.24
.o
$704.83
1.59
$747.12
o
1.69
$ 94.11
11
1.79
$ 41. o
12 1
1.90
$892.79
3
2.01
$944.4
15
2.
X1.9
17
2,69
$1 , 4.0
As with the grater, if a project such as a eonnnereial or industrial development were to
connect to the sewer, the reimbursement costs would be figured by taking the wastewater
flog 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 E U"s would
he figured by dividing the flog by the flow per dwelling unit. For this example, the
number of EU's would b 20 GPM)/(0.66 GPI per dwelling unit) which would equal
9 dwelling units.