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HomeMy WebLinkAboutResolutions 5546 - Approving Amendment to a Development Agreement for Lumberyard Project RESOLUTION NO. 5546 RESOLUTION APPROVING AN AMENDMENT TO A DEVELOPMENT AGREEMENT FOR A PROJECT IN THE MIDTOWN URBAN RENEWAL DISTRICT KNOWN AS THE LUMBERYARD PROJECT BE IT RESOLVED by the City Commission (the “Commission”) of the City of Bozeman, Montana (the “City”), as follows: Section 1 Recitals. 1.01. On August 15, 2023, this Commission adopted Resolution No. 5505, approving the Project (as hereinafter defined) as an urban renewal project in the Bozeman Midtown Urban Renewal District (the “District”) under the Bozeman Midtown Urban Renewal Plan. The Project consists of a two-phase residential project, the first phase of which is expected to consist of the design, engineering and construction of 21 studio apartments, 54 one-bedroom apartments, 78 two-bedroom apartments, 18 three-bedroom apartments, and related improvements, and the second phase of which is expected to consist of the design, engineering and construction of 14 studio apartments, 36 one-bedroom apartments, 52 two-bedroom apartments, 12 three-bedroom apartments, and related improvements, to be undertaken by Virga Venture I LLC (the “Developer”). The Developer expects to sell a portion of its property to a third party that will develop an affordable housing project thereon, expected to consist of not less than 90 units of housing, each affordable at 60% of area median income, and the public improvements and infrastructure to be constructed in connection with the Project will support the development of the affordable housing project. DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D Resolution 5546, Approving an Amendment to a Development Agreement for a Project in the Midtown URD Known as the Lumberyard Project 2 1.02. Pursuant to such resolution, this Commission approved a form of Development Agreement with respect to the Project, which included a requirement that restrictive covenants (the “Restrictive Covenants”) be recorded against property in the District to provide for the development of the affordable housing project. In the Development Agreement, the Restrictive Covenants are required to (i) run with the land, (ii) bind, for a period not less than 30 years from the date of issuance of a certificate of occupancy with respect to such housing units, 90 housing units to be affordable at 60% area median income (“AMI”), either as rental units or as owner- occupied units with restrictions on resale prices, with resale and rental prices tied to affordability at 60% AMI, and (iii) provide that a third-party nonprofit or government entity with experience in managing affordable housing units must manage the rental or sale of such housing units. 1.03. The form of Development Agreement approved by the Commission included a proposed form of Restrictive Covenants. However, the Developer has requested that the form of Restrictive Covenants attached to and referenced in the Development Agreement be replaced with alternative restrictive covenants, substantially in the form attached to this resolution as Exhibit A (the “Revised Restrictive Covenants”). 1.04. The Revised Restrictive Covenants (i) run with the land; (ii) bind, for a period not less than 50 years from the date that the affordable housing project is placed in service, 155 housing units to be income targeted to 60% or less of AMI; and (iii) include robust enforcement mechanisms and reporting requirements. However, the Revised Restrictive Covenants would terminate in the event that the affordable housing project is acquired by foreclosure. Section 2 Approval of the Restrictive Covenants; Amendment of the Development Agreement. 2.01. The Commission hereby finds that the Revised Restrictive Covenants are in accordance with the City’s requirements set forth in the Development Agreement. The Commission hereby approves the Revised Restrictive Covenants, substantially in the form attached hereto as Exhibit A, and approves attaching the Revised Restrictive Covenants to the DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D Resolution 5546, Approving an Amendment to a Development Agreement for a Project in the Midtown URD Known as the Lumberyard Project 3 Development Agreement as Exhibit G thereto. References in the Development Agreement to the “Restrictive Covenants” shall be read to refer to the Revised Restrictive Covenants. 2.02. The Commission hereby amends Section 3.12 of the Development Agreement to read as follows: “3.12. Affordable Housing Covenants. The Developer agrees that, as a condition to receiving any reimbursement under this Agreement, the Developer will file a restrictive covenant on the West Block, providing that any development at the West Block will include a minimum of 90 housing units (the “Restricted Units”), which will be restricted for a period not less than 30 years for use as housing affordable to households with incomes equal to 60% area median income (“AMI”). As a condition to reimbursement hereunder, the Developer shall record the restrictive covenants, substantially in the form attached hereto as Exhibit G (the “Restrictive Covenants”) against the West Block. The Restrictive Covenants must (i) run with the land, (ii) bind, for a period not less than 30 years from the date of issuance of a certificate of occupancy with respect to the Restricted Units, the Restricted Units to be affordable at 60% AMI, either as rental units or as owner-occupied units with restrictions on resale prices, with resale and rental prices tied to affordability at 60% AMI, and (iii) provide that a third- party nonprofit or government entity with experience in managing affordable housing units must manage the rental or sale of the Restricted Units robust enforcement mechanisms and reporting requirements. In addition, the Restrictive Covenants will provide that the Restricted Units are prohibited from being used, rented or made available as short term rentals, as that term is defined in the Bozeman Municipal Code. The affordability requirements in the Restrictive Covenants will be index-based, tied to AMI, and pursuant to the Restrictive Covenants, permissible rental and sale/resale prices of the Restricted Units will be based on the most recent affordability data available through the Housing and Urban Development’s Housing Availability Data System or other similar affordability data that is available at the time of rental or sale/resale. The Developer’s covenants described in this Section 3.12 are referred to herein as the “Affordable Housing DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D Resolution 5546, Approving an Amendment to a Development Agreement for a Project in the Midtown URD Known as the Lumberyard Project 4 Covenants.” The Developer acknowledges and agrees that the Affordable Housing Covenants are fundamental to the City’s agreements hereunder. The Parties acknowledge that, as development proceeds at the West Block, it may be necessary or desirable to record other instruments to implement the Affordable Housing Covenants and provide for the affordability of the Restricted Units, either in addition to or in replacement of the Restrictive Covenants to be recorded as a condition to reimbursement of the Developer under this Agreement, and the Parties agree to cooperate with respect to recording such other instruments if necessary or desirable. The Developer acknowledges that, as determined by the City, one-person household pricing relates to studios, two-person household pricing relates to one bedroom units, three-person household pricing relates to two bedroom units, and four-person household pricing relates to three bedroom units. The City and the Developer acknowledge that the Restrictive Covenants terminate in the event that the affordable housing project is acquired by foreclosure, and the City and the Developer agree that any such termination of the Restrictive Covenants shall constitute an event of default hereunder.” 2.03. Approval of the Development Agreement, amended and supplemented as described in this Section 2, is hereby ratified and confirmed. DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D Resolution 5546, Approving an Amendment to a Development Agreement for a Project in the Midtown URD Known as the Lumberyard Project 5 PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 24 day of October, 2023. ___________________________________ CYNTHIA ANDRUS Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE I, the undersigned, being the duly qualified and acting recording officer of the City of Bozeman, Montana (the “City”), hereby certify that the attached resolution is a true copy of Resolution No. 5546 entitled: “RESOLUTION APPROVING AN AMENDMENT TO A DEVELOPMENT AGREEMENT FOR A PROJECT IN THE MIDTOWN URBAN RENEWAL DISTRICT KNOWN AS THE LUMBERYARD PROJECT” (the “Resolution”), on file in the original records of the City in my legal custody; that the Resolution was duly adopted by the City Commission of the City at a regular meeting on October 24, 2023, and that the meeting was duly held by the City Commission and was attended throughout by a quorum, pursuant to call and notice of such meeting given as required by law; and that the Resolution has not as of the date hereof been amended or repealed. I further certify that, upon vote being taken on the Resolution at said meeting, the following Commission members voted in favor thereof: ; voted against the same: ; abstained from voting thereon: ; or were absent: . WITNESS my hand and seal officially this 24 day of October, 2023. (SEAL) __________________________________ MIKE MAAS City Clerk DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D I Ho Pomeroy Jennifer Madgic, Christopher Coburn Cynthia L. Andrus, Terry Cunningham Resolution 5546, Approving an Amendment to a Development Agreement for a Project in the Midtown URD Known as the Lumberyard Project A-1 EXHIBIT A [Form of Revised Restrictive Covenants] DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D RESOLUTION NO. 5548 RESOLUTION APPROVING CERTAIN INFRASTRUCTURE IMPROVEMENTS AS AN URBAN RENEWAL PROJECT WITH RESPECT TO THE DOWNTOWN BOZEMAN IMPROVEMENT DISTRICT AND THE BOZEMAN MIDTOWN URBAN RENEWAL DISTRICT; MAKING FINDINGS WITH RESPECT THERETO AND APPROVING THE USE OF TAX INCREMENT REVENUES TO REIMBURSE COSTS THEREOF AND APPROVING A RELATED DEVELOPMENT AGREEMENT BE IT RESOLVED by the City Commission (the “Commission”) of the City of Bozeman, Montana (the “City”), as follows: Section 1 Recitals. 1.01. Under the provisions of Montana Code Annotated, Title 7, Chapter 15, Parts 42 and 43, as amended (the “Act”), the City is authorized to create urban renewal areas, prepare and adopt an urban renewal plan therefor and amendments thereto, undertake urban renewal projects therein, provide for the segregation and collection of tax increment with respect to property taxes collected in such areas, and apply tax increment revenues to pay eligible costs. 1.02. Pursuant to the Act and Ordinance No. 1685 adopted by the City Commission of the City (the “City Commission”) on November 27, 2006, as amended and supplemented by Ordinance No. 1925, adopted by the City Commission on December 16, 2015 (as so amended and supplemented, the “M-URD Ordinance”), the City has created the Bozeman Midtown Urban Renewal District (the “M-URD”) as an urban renewal district and has approved the Bozeman Midtown Urban Renewal Plan (the “M-URD Plan”) as an urban renewal plan in accordance with DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D Resolution 5548, Approving Infrastructure Improvements in the Downtown Bozeman Improvement District and Midtown Urban Renewal District in Connection with a Project Known as the 5th and Main Project 2 the Act, which M-URD Plan provides for the segregation and collection of tax increment revenues with respect to the M-URD. 1.03. Pursuant to the Act and Ordinance No. 1409, adopted by the City Commission on November 20, 1995, as amended and supplemented by Ordinance No. 1628, adopted by the City Commission on March 7, 2005 (as so amended and supplemented, the “DBID Ordinance”), the City has created the Downtown Bozeman Improvement District (the “DBID”) as an urban renewal district and has approved the City of Bozeman Urban Renewal Plan (the “DBID Plan”) as an urban renewal plan in accordance with the Act, which DBID Plan provides for the segregation and collection of tax increment revenues with respect to the DBID. 1.04. Freestone on Main, LLC (the “Developer”) proposes to undertake the construction of a new residential and mixed use project, expected to consist of the design, engineering and construction of approximately 121 residential units and 1,700 square feet of leasable space for office or retail use, together with related improvements (collectively, the “Project”), on land located in the DBID at 421, 411 and 407 West Main Street, Bozeman, Montana. In connection with the Project, the Developer desires to construct improvements to the City’s municipal sanitary sewer system that will benefit the Project as well as future development in the M-URD and DBID, including the removal and replacement of aged six-inch sanitary sewer main lines with new eight-inch sanitary sewer main in Mendenhall Street from 5th Avenue to Grand Avenue and appurtenant work (the “Infrastructure Improvements”), which Infrastructure Improvements are located in the M-URD and the DBID. The Developer has requested that the City use tax increment of the DBID and the M-URD to reimburse it for a portion of the costs of the Infrastructure Improvements. Section 2 Approval of the Infrastructure Improvements as an Urban Renewal Project. The Commission hereby approves the Infrastructure Improvements as an urban renewal project under the Act, the DBID Plan and the M-URD Plan. The Infrastructure Improvements DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D Resolution 5548, Approving Infrastructure Improvements in the Downtown Bozeman Improvement District and Midtown Urban Renewal District in Connection with a Project Known as the 5th and Main Project 3 are contemplated by and within the scope of the DBID Plan and the M-URD Plan, and the costs of the Infrastructure Improvements are eligible for tax increment financing under the Act. Section 3 Findings. The Commission hereby finds with respect to the Infrastructure Improvements as follows: a. no persons will be displaced from their housing by the Infrastructure Improvements; b. the DBID Plan, the M-URD Plan and the Infrastructure Improvements conform to the Bozeman Community Plan or parts thereof for the City as a whole; c. the DBID Plan, the M-URD Plan and the Infrastructure Improvements will afford maximum opportunity, consistent with the needs of the City as a whole, for the rehabilitation or redevelopment of the District by private enterprise; d. taking into account the use of tax increment revenues to reimburse the Developer for a portion of the Infrastructure Improvements, there is expected to be a sound and adequate financial program for the financing of the Infrastructure Improvements; and e. the Infrastructure Improvements constitute an urban renewal project within the meaning of the Act, the DBID Plan and the M-URD Plan. Section 4 Development Agreement; Use of Tax Increment. 4.01. Staff of the City’s Economic Development Department and the Developer have negotiated a Development Agreement, the form of which is attached hereto as Exhibit A. The DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D Resolution 5548, Approving Infrastructure Improvements in the Downtown Bozeman Improvement District and Midtown Urban Renewal District in Connection with a Project Known as the 5th and Main Project 4 Development Agreement is hereby approved in substantially the form attached. The City Manager, or in the event of his absence or disability, his designee, is hereby authorized and directed to finalize, approve, execute and deliver to the Developer the Development Agreement, substantially in the form attached as Exhibit A, with such changes as such officer shall deem necessary or appropriate. The execution and delivery by an appropriate officer of the City of the Development Agreement shall be conclusive as to the approval of such officer of the terms of the Development Agreement. 4.02. The Commission hereby approves the use of tax increment revenues to reimburse the Developer for costs of the Infrastructure Improvements, subject to the terms and conditions of the Development Agreement. DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D Resolution 5548, Approving Infrastructure Improvements in the Downtown Bozeman Improvement District and Midtown Urban Renewal District in Connection with a Project Known as the 5th and Main Project 5 PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 17th day of October, 2023. ___________________________________ CYNTHIA ANDRUS Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE I, the undersigned, being the duly qualified and acting recording officer of the City of Bozeman, Montana (the “City”), hereby certify that the attached resolution is a true copy of Resolution No. 5548 entitled: “RESOLUTION APPROVING CERTAIN INFRASTRUCTURE IMPROVEMENTS AS AN URBAN RENEWAL PROJECT WITH RESPECT TO THE DOWNTOWN BOZEMAN IMPROVEMENT DISTRICT AND THE BOZEMAN MIDTOWN URBAN RENEWAL DISTRICT; MAKING FINDINGS WITH RESPECT THERETO AND APPROVING THE USE OF TAX INCREMENT REVENUES TO REIMBURSE COSTS THEREOF AND APPROVING A RELATED DEVELOPMENT AGREEMENT” (the “Resolution”), on file in the original records of the City in my legal custody; that the Resolution was duly adopted by the City Commission of the City at a regular meeting on October 17, 2023, and that the meeting was duly held by the City Commission and was attended throughout by a quorum, pursuant to call and notice of such meeting given as required by law; and that the Resolution has not as of the date hereof been amended or repealed. I further certify that, upon vote being taken on the Resolution at said meeting, the following Commission members voted in favor thereof: ; voted against the same: ; abstained from voting thereon: ; or were absent: . WITNESS my hand and seal officially this 17th day of October, 2023. (SEAL) __________________________________ MIKE MAAS City Clerk DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D Jennifer Madgic, Christopher Coburn Cynthia L. Andrus, Terry Cunningham I Ho Pomeroy Resolution 5548, Approving Infrastructure Improvements in the Downtown Bozeman Improvement District and Midtown Urban Renewal District in Connection with a Project Known as the 5th and Main Project A-1 EXHIBIT A [Form of Development Agreement] DocuSign Envelope ID: 0FE8848A-7FF3-45FA-9AF7-1E738165D94D Certificate Of Completion Envelope Id: 0FE8848A7FF345FA9AF71E738165D94D Status: Completed Subject: Complete with DocuSign: Resolution_5546_approving_changes_to_Lumberyard_development_agreement.p... Source Envelope: Document Pages: 14 Signatures: 8 Envelope Originator: Certificate Pages: 5 Initials: 0 Alex Newby AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) Stamps: 3 anewby@bozeman.net IP Address: 69.145.83.100 Record Tracking Status: Original 10/26/2023 1:36:19 PM Holder: Alex Newby anewby@bozeman.net Location: DocuSign Security Appliance Status: Connected Pool: StateLocal Storage Appliance Status: Connected Pool: City Manager Location: DocuSign Signer Events Signature Timestamp Greg Sullivan gsullivan@bozeman.net Bozeman City Attorney City of Bozeman, Montana Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 69.145.83.100 Sent: 10/26/2023 1:41:15 PM Viewed: 10/26/2023 2:21:33 PM Signed: 10/26/2023 2:21:44 PM Electronic Record and Signature Disclosure: Accepted: 10/26/2023 2:21:33 PM ID: adcc00fb-e889-4001-925d-fe55ce0b93a3 Cynthia Andrus candrus@bozeman.net MAYOR Security Level: Email, Account Authentication (None)Signature Adoption: Drawn on Device Using IP Address: 63.76.69.42 Sent: 10/26/2023 2:21:45 PM Viewed: 10/26/2023 3:20:52 PM Signed: 10/26/2023 3:21:07 PM Electronic Record and Signature Disclosure: Accepted: 8/24/2022 8:25:30 PM ID: 798e3b08-f9de-4a01-893c-7fbae9705c49 Mike Maas mmaas@bozeman.net City Clerk City of Bozeman Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 69.145.83.100 Sent: 10/26/2023 3:21:08 PM Viewed: 10/26/2023 3:57:10 PM Signed: 10/31/2023 10:46:52 AM Electronic Record and Signature Disclosure: Accepted: 8/23/2022 2:22:44 PM ID: b1bb90fd-5db8-4a5f-9451-9536f39ef003 In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp David Fine dfine@bozeman.net Urban Renewal Program Manager Security Level: Email, Account Authentication (None) Sent: 10/31/2023 10:46:54 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 10/26/2023 1:41:15 PM Envelope Updated Security Checked 10/26/2023 2:02:34 PM Envelope Updated Security Checked 10/26/2023 2:02:34 PM Envelope Updated Security Checked 10/26/2023 2:02:34 PM Envelope Updated Security Checked 10/26/2023 2:02:34 PM Envelope Updated Security Checked 10/26/2023 4:03:01 PM Envelope Updated Security Checked 10/26/2023 4:04:05 PM Certified Delivered Security Checked 10/26/2023 3:57:10 PM Signing Complete Security Checked 10/31/2023 10:46:52 AM Completed Security Checked 10/31/2023 10:46:54 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City Manager (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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