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HomeMy WebLinkAbout7_Agreement for CIL Water Rights_04-19-2018 tims@mad-eng.com From: Brian Heaston <bheaston@BOZEMAN.NET> Sent: Wednesday, November 20, 2019 2:18 PM To: 'tims@mad-eng.com' Subject: RE: Icon Phase B CIL Water rights Correct. From:tims@mad-eng.com<tims@mad-eng.com> Sent:Wednesday, November 20, 2019 2:06 PM To: Brian Heaston<bheaston@BOZEMAN.NET> Subject: RE: Icon Phase B CIL Water rights Thanks, Brian.Yes,we are still proposing 120 units for Phase B. I just want to verify that Bozeman Apartment Group has only paid for Phase A and still is required to pay the$87,000 for CILWR for Phase B. Correct? Thanks, Tim From: Brian Heaston<bheastonPBOZE MAN.NET> Sent:Wednesday, November 20, 20191:24 PM To:'tims@mad-eng.com'<tims@mad-eng.com> Subject: RE: Icon Phase B CIL Water rights There's an existing CILWR agreement in place for this project. Let me know if the unit counts in the agreement reflect Ph B site plan as it is being proposed at this point. If they're not the same,then we'll need to amend the CILWR agreement prior to final Ph B site plan approval. From:tims@mad-enR.com <tims@mad-enp.com> Sent:Wednesday, November 20, 20191:16 PM To: Brian Heaston<bheaston@BOZEMAN.NET> Subject: Icon Phase B CIL Water rights Hi Brian, Can you please review the CIL of water rights for the site plan application I am putting together for Icon Apartments Phase B? This project is part of a larger master plan development with the planning approval number of MSP 17542. Please let me know if you need any more information. Thanks, Tim Staub,PE Madison Engineering, LLC 895 Technology Boulevard, Suite 203 Bozeman, MT 59718 406.586.0262 office 406.586.5740 fax tims@mad-eng.com 1 AGREEMENT FOR BOZEMAN APARTMENT GROUP,LLC CASH-IN-LIEU OF WATER RIGHTS This AGREEMENT is made and entered into on the date of last execution by and between Bozeman Apartment Group, LLC,with offices at 1735 South 191"Avenue, Suite B,Bozeman,MT 59718, hereinafter called"BAG"and the City of Bozeman, a municipal corporation and political subdivision of the State of Montana,with offices at 121 North Rouse Avenue,PO Box 1230,Bozeman,MT 59771- 1230,hereinafter called the"City". WHEREAS,BAG is in the process of obtaining approval by the City for the development of a 336 unit apartment project containing eighteen(18)apartment buildings, a clubhouse facility with outdoor swimming pool,public parkland, common open space,and other site improvements; WHEREAS,the development is assigned by the City application number 17542,is more commonly referred to as the Icon Apartment Homes at Ferguson Farm Master Site Plan and is hereinafter called the"Project"; WHEREAS, individual phases of the Project must be approved through the City's site plan review and approval process; WHEREAS, Section 38.23.180 Bozeman Municipal Code(BMC)sets forth water rights requirements that the Project must meet to obtain site plan approval. WHEREAS,Administrative Order 2013-07 provides a manual of guidance,hereafter called the "Manual",pertaining to calculations of demand for water use as related to water rights requirements at Section 38.23.180 BMC. WHEREAS,it is the intent and purpose of BAG and the City to hereby enter into an Agreement for BAG to satisfy the cash in lieu of water rights requirement for the Project with consideration given for the installation of showerheads, clothes washers, and toilets meeting a certain high efficiency performance standard. NOW,THEREFORE, in consideration of the mutual covenants and conditions contained herein, it is hereby agreed as follows: 1. Proiect Description This agreement pertains to,and includes,the master site plan project designated as City application number 17542, identified as the Icon Apartment Homes at Ferguson Farm Master Site Plan project that is being developed by BAG on an existing tract of land legally described as Lot 3A,Minor Subdivision No. 365,City of Bozeman, Gallatin County, Montana. 2. Cash in lieu of Water Rights Requirement BAG has been informed of, and agrees to comply with,the cash in lieu of water rights(CILWR) requirements at Section 38.23.180 BMC and understands that the Administrative Order 2013-07 is a guidance manual for the administration of water rights requirements at Section 38,23.180 BMC. Demands for water for which CILWR apply are those demands supplied from the City's municipal water system anticipated on an annual basis.CILWR is calculated by equation [EQ-1]. Cash-In-Lieu of Water Rights Agreement with BAG for Icon Apts Page 1 of 6 CILWR =[Indoor Demand(AF) + Outdoor Demand(AF)] *$60001AF[EQ-11 3. Baseline Residential Indoor Demand Part III of the Manual contains demand calculation methodologies for CILWR. For purposes of this Agreement,the calculation methodology employed for baseline indoor residential demand is the comparable water usage basis. Water meter records with a billing year of 2016 and cold weather billing months of January,February,March,November and December for all multi-family buildings connected to the City's municipal water system will serve as the comparable water using basis. These meter records represent indoor water use occurring in the City for the multi-family housing type since outdoor irrigation does not occur during cold weather months.Analysis of these water meter records determine a daily per capita indoor residential water demand of 50.2 gped. The annual baseline indoor residential water demand for the Project is calculated by equation [EQ-2]. For purposes of this Agreement each housing unit of the Project contains 2.15 persons in accordance with the U.S. Census Bureau ACS 2011-15 data for the City of Bozeman. Baseline Indoor Residential Demand=gpcd *no. ofpersons *365 days/yr *I AF1325,851 gal [EQ-21 = 50.2 gpcd *336 units *2.15 persons/unit *365 days/yr *1 AF1325,851 gal = 40.6AF 4. High Efficiency Indoor Residential Demand Baseline indoor residential water demand is reduced through the installation of certain high efficiency showerheads,clothes washers,and toilets. A 20.4%reduction in baseline indoor residential demand is achieved by the high efficiency performance standards listed below for these water using fixtures. High Efficiency Showerhead: 1.5 gpm WaterSense®labeled High Efficiency Clothes Washers: CEE Tier 1,2,or 3 High Efficiency Toilets: 1.28 gpf WaterSense®labeled The annual high efficiency indoor residential water demand for the Project is calculated by equation [EQ-3] High Efficiency Indoor Residential Demand=Baseline Indoor Demand *(1-0.204)[EQ-31 =40.6 AF*0.796 =32.3 AF 5. Other Indoor Demand The Project contains a leasing office,clubhouse,and outdoor pool facility that will be supplied water from City's municipal system. For purposes of this agreement these water uses will be considered other indoor demands and will employ comparable water usage basis from Part III of the Manual to determine the anticipated average annual water demand. Since there are no comparable facilities in the City,the anticipated average annual water demand will be based on other BAG developments that contain comparable facilities. The anticipated annual water demand for comparable facilities is based on Cash-In-Lieu of Water Rights Agreement with BAG for Icon Apts Page 2 of 6 Creekside Apartment Homes in Broken Arrow,OK which 0.3 AF and has been verified by the City to be applicable for the Project and purposes of this Agreement. 5. Outdoor Demand For purposes of this Agreement,an outdoor water demand of 0.0 AF applies since BAG intends to use three separate exempt groundwater wells to supply the Project's outdoor irrigation needs,thus avoiding having to irrigate with the City's public water supply. The City confirms that the MT DNRC has verified in writing that three exempt wells are allowable for the Project so long as they are not manifold into a common system. 6. Baseline Lump Sum Payment of Cash in Lieu of Water Rialits Prior to each site plan approval for any individual phase of the Project,BAG agrees to pay a baseline lump sum amount for CILWR to the City as calculated by equation [EQ-4]. Table 1 provides a breakdown by phase of the initial CILWR payments for the Project. The lump sum payment will be deposited into the City's CILWR fund. Initial CILWR Payment = (50.2 gpcd *No. of Units in Phase *2.15 persons/unit *365 days/yr I AF1325,851 gal) + Other Indoor(AF)) *$60001AF [EQ-41 No.of Residential Residential CILWR Other Indoor Initial CILWR Payment Phase Units Volume (AF) (AF) ($) A 216 26.1 0.3 ' $ 158,400 B 120 14.5 0.0 $ 87,000 Total 336 40.6 0.3 $ 254,400 7. Hiah 11JficiencN, Cash in Lieu of Water Rights Rebate The City agrees to rebate back to BAG from its CILWR fund that portion of its baseline cash in lieu of water rights payment attributable to the reduction in baseline water use from high efficiency showerhead,clothes washer, and toilet installations meeting the performance standards contained in Part 4 of this Agreement installed within the apartment units. The maximum rebate amount for the Project is calculated by[EQ-5]. High Efficiency Rebate = (Baseline Residential Demand(AF)—High Efficiency Residential Demand(AF)) *$6,0001AF[EQ-SI _ (40.6 AF—32.3 AF) *$6,0001AF _ $49,800 BAG understands and acknowledges that the City will only issue said rebate upon its confirmation and satisfaction,by inspection occurring at the time of final occupancy for individual apartment buildings of the Project,that high efficiency showerheads, clothes washers,and toilets meeting the performance standards of Part 4 of this Agreement are installed. BAG must coordinate with the City to verify that fixtures meet these performance standards prior to their purchase and installation. To initiate the rebate,BAG agrees to make a written request along with a statement certifying that requisite high efficiency performance standards are met by the showerheads, clothes washers and toilets Cash-In-Lieu of Water Rights Agreement with BAG for Icon Apts Page 3 of 6 installed within the building(s) for which the rebate is requested and provide supporting documentation as requested by the City which may include but not necessarily be limited to order invoices for the subject fixtures and installation invoices for the subject fixtures. The rebate amount issued back to BAG per building will occur on a proportionate basis as determined by [EQ-6]. CIL Rebate per Bldg= (No. of Apartment Units in Bldg/336 Units) *$49,800[EQ-61 8. Installed Fixtures Not Meeting Hieh Efficiency Performance Standards Any installed fixtures determined by the City to not meet the requisite high efficiency performance standards listed in Part 4 of this Agreement are deemed ineligible for cash in lieu of water rights rebate. Should this provision be activated, a CILWR rebate amount will be determined based upon those high efficiency fixtures contained in Part 4 of this Agreement that are verified to have been installed. 9. Maintenance and Replacement of High Efficiency Fixtures BAG agrees to maintain all approved high efficiency fixtures for the life of the fixtures. Replacements must at a minimum meet the same efficiency performance standards. The City reserves the right to verify approved fixtures are in place at any time over the life of this Agreement. 10. Modification or Alterations No modifications or amendment of this Agreement shall be valid unless evidenced by a writing signed by the parties hereto. 11. No Assienment It is expressly agreed that BAG shall not assign this Agreement in whole,or in part,without prior written consent of the City. 12. Successors This Agreement shall be binding upon,in inure to the benefit of,and be enforceable by the parties hereto and their respective heirs, successors and assigns. 13. Notice All notices,requests or other communication to any party hereunder, shall be in writing and sufficient if personally delivered,or by facsimile or email(with confirmation of receipt),or by registered or certified mail,postage prepaid,return receipt requested addressed as follows: BAG City of Bozeman Attn: Will Ralph Attn:Brian Heaston,PE wralpliLcObraxton-development.eom bheaston6a bozeman.net 1735 S l 9"'Ave, Ste B PO Box 1230 Bozeman,MT 59718 Bozeman,MT 59771 14. Entire Agreement This Agreement embodies and constitutes the entire understanding between the parties with respect to the transaction contemplated herein,and all prior or contemporaneous negotiations, Cash-In-Lieu of Water Rights Agreement with BAG for Icon Apts Page 4 of 6 communications,conversations,understandings and agreements between the parties,oral or written,are merged into this Agreement. 15. Term of Agreement This Agreement remains active and will survive until final occupancy is granted by the City for all buildings shown upon the approved master site plan for the Project; and likewise this Agreement will expire upon final occupancy being granted by the City for all buildings shown upon the approved master site plan for the Project. 18. Termination In the event of termination pursuant to noncompliance with Section 19,BAG is entitled to CILWR rebate only for those buildings BAG has received a grant of final occupancy from the City on or before the receipt of a Notice of Termination. 19. Laws and Reeulations BAG shall comply fully with all applicable state and federal laws,regulations and municipal ordinances. 20. Governinz Law This Agreement shall be governed by and construed in accordance with the laws of the State of Montana. Cash-In-Lieu of Water Rights Agreement with BAG for Icon Apts Page 5 of 6 21. Execution IN WITNESS WHEREOF,the parties have executed this Agreement as of the date set forth below. BOZEMAN APARTMENT GROUP,LLC BY: (A �.ed S �r) �NAME:TITLE: DATE: CITY OF BOZEMAN BY:Crai Woollard,Director ofPublic Works DATE: Cash-In-Lieu of Water Rights Agreement with BAG for Icon Apts Page 6 of 6