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Home My WebLink About019 CIL WR Reduction Agreement Cash-In-Lieu of Water Rights Agreement with The Developer for The Oxbow Phase 2 Apts Page 1 of 6 AGREEMENT FOR OXBOW P2 LAND HOLDINGS, LLC CASH-IN-LIEU OF WATER RIGHTS This AGREEMENT is made and entered into on the date of last execution by and between Oxbow P2 Land Holdings, LLC, with offices at 1100 West Idaho Street, Suite 630, Boise, Idaho 83702, hereinafter called “The Developer” 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, The Developer is in the process of obtaining approval by the City for the development of a 132 unit apartment project containing seven (7) multi-family residential buildings, and two (2) garage structures, public parkland, common open space, and other site improvements; WHEREAS, the development is assigned by the City application numbers 24586, 24587, and 24579, are more commonly referred to as the E, F, and G Oxbow Phase 2 Apartments Site Plans and are hereinafter called the “Project”; WHEREAS, individual sites of the Project must be approved through the City’s site plan review and approval process; WHEREAS, Section 38.410.130 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 38.410.130 BMC. WHEREAS, it is the intent and purpose of The Developer and the City to hereby enter into an Agreement for The Developer 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. Project Description This agreement pertains to, and includes, the site plan project designated as City application numbers 24586, 24587, and 24579, identified as the E, F, and G The Oxbow Phase 2 Apartments Site Plan projects that is being developed by The Developer on an existing tract of land legally described as (Block 1, Lot 1, Lot 2, and Open Space Lot 2) (Block 2, Lot 1) Cottonwood Subdivision Phase 1 and 2, City of Bozeman, Gallatin County, Montana. 2. Cash in Lieu of Water Rights Requirement The Developer has been informed of, and agrees to comply with, the cash in lieu of water rights (CILWR) requirements at Section 38.410.130 BMC and understands that the Administrative Order 2013- 07 is a guidance manual for the administration of water rights requirements at Section 38.410.130 BMC. Cash-In-Lieu of Water Rights Agreement with The Developer for The Oxbow Phase 2 Apts Page 2 of 6 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]. CILWR = [Indoor Demand (AF) + Outdoor Demand (AF)] * $6000/AF [EQ-1] 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 Average Multi-Household Residential Unit Basis. The multi-household residential water demand is 0.124 AF per year per Multi-household unit (MU) The annual baseline indoor residential water demand for the Project is calculated by equation [EQ-2]. Baseline Indoor Residential Demand = 0.124AF * no. of multi-household units [EQ-2] = 0.124AF * 132 multi-household units = 16.368 AF 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: Example (1.5 gpm WaterSense® labeled) High Efficiency Clothes Washers: Example (CEE Tier 1, 2, or 3) High Efficiency Toilets: Example (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-3] = 16.368 AF * 0.796 = 13.029 AF 5. Other Indoor Demand There is no other indoor demand proposed for the project. 5. Outdoor Demand For purposes of this Agreement, a total outdoor water demand of 2.35 AF is required for irrigation. The Developer intends to use an existing groundwater well to supply the Project’s outdoor irrigation needs, thus avoiding having to irrigate with the City’s public water supply. A water right allowing for the legal right to supply the irrigation demand from the well must be demonstrated. No water right has provided at the time this agreement has been signed. Cash-In-Lieu of Water Rights Agreement with The Developer for The Oxbow Phase 2 Apts Page 3 of 6 Total Outdoor Demand = Outdoor Demand Site Plan E (AF) + Outdoor Site Plan F (AF) + Outdoor Demand Site Plan G (AF) [EQ-4] = 0.93 AF + 0.54 AF + 0.88 AF = 2.35 AF 6. Baseline Lump Sum Payment of Cash in Lieu of Water Rights Prior to the first building permit approval for any individual site plan of the Project, The Developer 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 = (.0124AF* No. of Units in Phase) * $6000/AF + Total Outdoor Demand (AF) * $6000/AF [EQ-5] Site Plan No. of Residential Units CILWR Volume (AF) Initial CILWR Payment ($) E Baseline Residential Demand 36 4.464 $26,784 F Baseline Residential Demand 36 4.464 $26,784 G Baseline Residential Demand 60 7.440 $44,640 E Irrigation - 0.93 $5,352 F Irrigation - 0.54 $3,163 G Irrigation - 0.88 $5,324 Total 132 18.718 $112,310 7. Outdoor Demand Cash in Lieu of Water Rights Rebate If the Developer is successful in obtaining a water right adequate in volume, place of use, and period of use for the site plan’s irrigation demand and provides the right to the City, the City will issue a rebate of the proportional CILWR fee at the current rate of $6,000/AF for the irrigation demand volume allowed by the right up to 2.35AF Maximum Outdoor Demand Rebate = Outdoor Demand Water Right Volume * $6,000/AF [EQ- 5] =2.31 AF* $6,000/AF = $13,840 The Developer understands and acknowledges that the City will only issue said rebate upon its confirmation and satisfaction that the water right is sufficient to supply the irrigation demand. 8. High Efficiency Cash in Lieu of Water Rights Rebate Cash-In-Lieu of Water Rights Agreement with The Developer for The Oxbow Phase 2 Apts Page 4 of 6 The City agrees to rebate back to The Developer 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-6]. High Efficiency Rebate = (Baseline Residential Demand (AF) – High Efficiency Residential Demand (AF)) * $6,000/AF [EQ-6] =(16.368 AF – 13.029) * $6,000/AF = $ 20,034 The Developer 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. The Developer must coordinate with the City to verify that fixtures meet these performance standards prior to their purchase and installation. To initiate the rebate, The Developer 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 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 The Developer per building will occur on a proportionate basis as determined by [EQ-7]. CIL Rebate per Bldg = (No. of Apartment Units in Bldg / Total Number of Units) * $20,028 [EQ- 7] 9. Installed Fixtures Not Meeting High 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. 10. Maintenance and Replacement of High Efficiency Fixtures The Developer 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. 11. Modification or Alterations No modifications or amendment of this Agreement shall be valid unless evidenced by a writing signed by the parties hereto. 12. No Assignment Cash-In-Lieu of Water Rights Agreement with The Developer for The Oxbow Phase 2 Apts Page 5 of 6 It is expressly agreed that The Developer shall not assign this Agreement in whole, or in part, without prior written consent of the City. 13. 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. 14. 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: The Cottonwood Project, LLC City of Bozeman Attn:Patrick Boel Attn: Griffin Nielsen, PE patrick@rndhouse.com gnielsen@bozeman.net 1109 Main Street, Suite 390 PO Box 1230 Boise, ID 83702 Bozeman, MT 59771 15. 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, communications, conversations, understandings and agreements between the parties, oral or written, are merged into this Agreement. 16. 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 site plans for the Project; and likewise this Agreement will expire upon final occupancy being granted by the City for all buildings shown upon the approved site plans for the Project. 17. Termination In the event of termination pursuant to noncompliance with Section 19, The Developer is entitled to CILWR rebate only for those buildings The Developer has received a grant of final occupancy from the City on or before the receipt of a Notice of Termination. 18. Laws and Regulations The Developer shall comply fully with all applicable state and federal laws, regulations and municipal ordinances. 19. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Montana. 20. Execution IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below. Cash-In-Lieu of Water Rights Agreement with The Developer for The Oxbow Phase 2 Apts Page 6 of 6 21. Consent to Electronic Signatures The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. OXBOW P2 LAND HOLDINGS, LLC BY: (Authorized Signer) NAME: TITLE: DATE: CITY OF BOZEMAN BY: DATE: