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Mitchell Impact Fee Credit Request and Appeal No. IFCR-0601.pdf
Page 1 of 5 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Chris Saunders, Assistant Director Tim McHarg, Director Chris Kukulski, City Manager SUBJECT: IFCR-0601 Mitchell Development MEETING DATE: Monday, January 10, 2010 AGENDA ITEM TYPE: Action Item RECOMMENDATION: Conduct hearing of impact fee credit request and associated appeal regarding credit eligibility. BACKGROUND: Chapter 3.24, BMC authorizes the City to conduct an impact fee program. This program includes mechanisms for impact fee credits and for appeals of administrative decisions. Mitchell Development Group made application for impact fee credits. In reviewing that application, Staff made findings on June 16, 2010 with which Mitchell Development Group disagreed. They appealed those administrative findings. An appeal committee established by Chapter 3.24 heard the initial appeal and made their decision on September 1, 2010. Mitchell Development Group now appeals that decision to the City Commission as allowed in Section 3.24.110.I, BMC. The City Commission originally set the date for consideration of the appeal on October 25, 2010. At appellant request the item was rescheduled and is now to be considered on January 10, 2011. As the appeal and the credit request are directly connected they will be presented as a single item. Summary History of credit request and appeal The MSU Foundation requested and was approved to annex 43.85 acres to the City of Bozeman. On July 29, 2002, the City Manager signed the annexation agreement. The property was subsequently sold and developed along with other property as the Bozeman Gateway commercial subdivision/PUD. The City, MDT, and developer entered into a memorandum of understanding in September 2004 regarding certain street work on West Main Street and several intersections. The MOU did not mention any specific funding amounts or means of participation. The Findings of Fact for the Bozeman Gateway subdivision were presented to the City Commission on the October 9, 2006 consent agenda. Prior to the subdivision approval, the developer, Mitchell Development Group, had begun construction of Garfield Street and Fowler Avenue on February 8, 2005. On September 28, 2006, Mitchell Development approached the City via letter about the possibility of impact fee credits for some of the infrastructure installation. Staff conducted an informal review and in a personal meeting in early October with 68 Page 2 of 5 a representative of Mitchell Development shared the conclusion that impact fee credits were not available due to a failure to meet the timing requirement for credit request and lack of compliance with other required criteria. A formal application for impact fee credits was received by the City on October 24, 2006. The initial application listed four general work elements affecting streets with a cumulative cost of $5,227,600.73, as shown on the last page of the letter dated January 25, 2007 and included in Appeal materials as Exhibit D. After the formal application was received numerous conversations in person, via telephone, and meetings were held to discuss the application and how the deficiency of timing could be overcome. Correspondence was received with additional information during this time, portions of which are included in the Appeal materials. In early 2010, it was concluded that the matter could not be overcome within administrative bounds. A formal denial of the credit was issued in writing on June 16, 2010. A copy of the denial letter is included as Exhibit F in the appellant’s materials. All administrative decisions relating to impact fees under Chapter 3.24, BMC are subject to review and appeal. An appeal of the denial was received on July 29, 2010. The first step in the appeal process is review by the Development Impact Fee Review Committee, which is established in Section 3.24.110.I, BMC. The Committee met on September 1, 2010 and after hearing from Staff and Appellant upheld the denial. A copy of their minutes, decision, and findings are attached. A decision of the Development Impact Fee Review Committee (DIFRC) may be appealed to the City Commission. An appeal from the DIFRC’s decision was received by the City Clerk on September 15, 2010. After several requests for rescheduling by the Appellant, the Commission will consider the item on January 10, 2011. The current description of the credit being sought and the applicant’s rationale is contained in the Appellant’s materials in the letter dated July 29, 2010 and beginning on page 5. Materials Provided with this Cover Memo There is considerable material involved in this item. Please recognize that the material spans a period of six years and reflects on-going discussions. This summary cover memo is the only new material generated by Staff in forwarding this appeal to the City Commission. The items are listed and attached in chronological order. There is some repetition of earlier materials in later attachments. · Initial correspondence (dated September 27, 2006) · Staff review notes (dated October 9, 2006) · Impact fee credit request (dated October 24, 2006) · Denial letter (dated June 16, 2010) · Appeal and supporting materials (dated July 29, 2010) · Staff response to appeal for Development Impact Fee Review Committee (dated September 1, 2010) · Development Impact Fee Review Committee minutes (dated September 1, 2010) · Development Impact Fee Review Committee findings (dated September 21, 2010) · Correspondence regarding Garfield Street from appellant (dated September 7, 2010) 69 Page 3 of 5 · Staff response to correspondence (dated September 20, 2010) · Appeal to Commission (dated September 15, 2010) · Appellant letter to the Commission (dated December 29, 2010) · Appellant’s supporting material to their December 29, 2010 letter (includes copies of some materials listed above) Requirements for Impact Fee Credits The City’s impact fee program is established in Title 3, Chapter 24 of the Bozeman Municipal Code. This local ordinance implements impact fees under the authorizing statute of Title 7, Chapter 6, Part 16 of the Montana Code Annotated. A mechanism for impact fee credits is required under state law and is implemented under Section 3.24.100, BMC. To qualify for an impact fee credit, a proposed infrastructure construction project must meet certain criteria. If the criteria are not met then the project is not qualified. Some of the criteria are adopted to ensure correct use of impact fees, and some are to help ensure that the impact fee program can operate smoothly and effectively. All of the criteria must be satisfied. Criteria 1) Capacity Expanding (beyond project related). Impact fees solely exist to create more infrastructure capacity to serve new development. This criteria ensures that a project is not maintenance or other ineligible activity. The measure of capacity expansion varies by infrastructure type. This is not a locally generated or flexible criteria. Criteria 2) Not Project Related. This criteria separates those capacity expanding improvements which are necessary for the minimum service to the installing development from those which expand capacity in the overall infrastructure systems. Compliance with minimum standards are included as “project related” improvements. Examples of project related improvements includes local streets and minimum diameter water mains. This is not a locally generated or flexible criteria. A local definition of Project Related is established in Section 3.24.040.M, BMC. Criteria 3) CIP Listed. The City prepares a Capital Improvement Program (CIP) to schedule the construction of infrastructure. The CIP provides a means to describe future work and its sequencing that can be available both to staff and the public. The CIP coordinates multiple funding sources, including impact fees, to support construction of major projects. The CIP contains a subset of the possible capacity expanding projects described in the facility plans. As a rolling five year document, the CIP provides a near term understanding of expected expansion work. The City Commission may amend the CIP at their discretion to add or remove projects or change the sequence in which they may occur. Criteria 4) CIP Funded. The impact fee CIP lists funding for capacity expanding projects over the next five years. Sometimes the City includes projects on the CIP which do not have full funds allocated to them. This may be due to a project spanning multiple years with initial phases at the latter end of the CIP, as an advisory of what projects are being considered as the next possibilities for funding, or to hold an option open for the Commission to adjust the CIP scheduling as needs in the community change. Projects which have no allocated funds need to be moved into the funded schedule before they are available for impact fee credits. 70 Page 4 of 5 Criteria 5) Timely Request (before construction or dedication). The City Commission has stewardship for the paid impact fee funds and the City’s infrastructure. To enable the Commission to act deliberately in establishing the impact fee work program, the provisions of Chapter 3.24 include a requirement that prior to undertaking work for which impact fee credits are desired an applicant must first get approval for impact fee credits. This enables the City Commission to manage the financial commitments of the City and the overall health of the impact fee program without unexpected surprises and funding commitments which interfere with high priority projects. The impact fee program is required to keep a positive projected fund balance at the end of the five year time horizon of the CIP. In the past, the City Attorney has noted that Criteria 5 is a protection for the City in its administration of the impact fee program. As noted above, it assists in maintaining an orderly and healthy impact fee program. However, as the criterion is for the benefit of the City, the City Commission, and only the City Commission, may choose to waive this criteria. Credit Types If a credit is requested and meets the adopted criteria, Section 3.24.100.G provides for three different means to award a credit. The three options are described in the ordinance, Section3.24.100, as follows: “Upon receipt of such a written request, the City may, at its discretion: 1. Arrange for the reimbursement of such excess credit from the impact fee fund for the same type of service or facility from development impact fees paid by others; 2 . Arrange for the reimbursement of such excess credit through the issuance of a promissory note payable in not more than ten years and bearing interest equal to the interest rate paid by the City for its long-term debt; or 3. Reject the request for cash and provide credit. Such excess credit shall be valued at one hundred percent of actual developer costs for the excess improvements, or at the actual appraised value of such excess improvements, at the City's option.” The choice of which credit mechanism to use is at the discretion of the City. The credit applicant may indicate their preference. UNRESOLVED ISSUES: 1) Does the City Commission wish to waive criterion 5 regarding timing of application for impact fee credit? 2) Does the City Commission wish to amend the impact fee CIP to cure the deficiency for criteria 3 and 4? In order to grant the appeal and award credit the City Commission must decide favorably on both of these unresolved issues. If the Commission decides favorably on the credit request, the following six items are recommended conditions of approval: 1. The credit will be made available as a balance maintained by the City against which the credit 71 Page 5 of 5 holder may draw to offset impact fees due as building permits are issued. (Option 3 in Section 3.24.100.G, BMC) 2. The final credit value will be established based upon review of final actual costs and shall be adjusted to remove any project related costs as defined in Section 3.24.040, BMC and as required by Chapter 3.24, BMC. Eligible costs are limited to those meeting the criteria of 3.24.040.J, BMC, therefore costs for temporary work or other cost attributable to construction timing or other construction management choices is not eligible for reimbursement. 3. The impact fee credit is only valid for qualifying improvements and does not include any costs necessary for the processing, design, installation, or development of the individual projects within the Bozeman Gateway development. 4. This agreement does not supersede any other agreement between the applicant and City which may limit the amount of reimbursable cost. 5. Costs generated by making application for an impact fee credit or finalizing an impact fee application are procedural costs distinct from the completion of the capacity expanding work and are not eligible for reimbursement. 6. The applicant shall agree in writing to the above listed conditions of approval, and any necessary revisions to the City’s capital improvement program shall be completed, prior to the credits becoming effective. FISCAL EFFECTS: Granting the appeal will commit impact fee funds to pay for the requested impact fee credit. Exact amount will depend on which if any of the requested credits the Commission decides to allow and final calculation of allowable costs. The requested credits apply to both transportation and sewer impact fees. The most recent correspondence notes a combined cost of $1,068,200.40, Appeal materials page 14 of the July 29, 2010 letter. ALTERNATIVES: 1) Uphold determination that the requested credit does not conform to required criteria. 2) Direct Staff to initiate amendment(s) to applicable CIP funds and approve some or all of the requested impact fee credit. Completion of this alternative will require subsequent steps by the Commission. Attachments: Initial correspondence Impact fee credit request Denial letter Appeal materials Staff response to appeal Development Impact Fee Review Committee minutes, decision and findings Correspondence re: Garfield Street from appellant Staff response to correspondence Appeal to Commission Letter from Appellant and supporting materials Report compiled on: December 30, 2011 72 73 74 planning · zoning · subdivision review · annexation · historic preservation · housing · grant administration · neighborhood coordination CITY OF BOZEMAN DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 Bozeman, Montana 59771-1230 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net October 9, 2006. Review notes regarding a letter from Mitchell Development seeking impact fee credits. Requested Item Name Project Related Capacity Expanding CIP Listed CIP Funded Timely Request Credit Qualifying Land for Garfield St Yes No No No No No Land for Fowler Ave Yes Yes No No No No Garfield Construction Yes No No No No No Fowler Construction Yes Yes No No No No College/Main reconstruction Yes? Yes? No No No No Fowler/Main Signal Yes Yes No No No No Fowler Trunk Sewer Partially Yes No No No No Definitions 3.24.040, BMC – Impact Fee Capital Improvement Program, Improvement, Initiation of Construction, Project Related Improvement 7-6-1601, MCA – Impact Fee (excludes requirements needed to meet standards, on or off-site[5iv]) Review Criteria – Must meet all criteria to be eligible for credit consideration. 7-6-1603 (4), MCA – Credits permitted if (a) – Documented need (b) – Property is appropriate (c) – Procedures established to determine worth (Bozeman established in 3.24.100, BMC) (d) – Procedures established to establish credits (Bozeman established in 3.24.100, BMC) City carries out 7-6-1603(4) through Section 3.24.100.A, BMC – Credits allowed to be considered if: (1) Project is listed on the impact fee CIP (2) Project is not a project related improvement as defined in 3.24.040.K, BMC (3) Voluntary and accepted by City of Bozeman (Not Applicable in this case) (4) Approved in writing by City in timely manner 3.24.040.H, BMC – Improvements must expand capacity 3.24.100.B, BMC Request on City form, with adequate documentation, timely submittal before initiation of construction 75 Page 2 Conditions of Approval 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 community planning zoning subdivision review annexation historic preservation neighborhood planning urban design CITY OF BOZEMAN DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 Bozeman, Montana 59771-1230 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net June 16, 2010 Mitchell Development PO Box 738 Great Falls, MT 59403 RE: Impact Fee Credit Request 0601 Dear Mr. Mitchell: The above-referenced application was received by the City on November 20, 2006. As you are aware, discussions regarding this matter have been on-going intermittently since then. As we have discussed, all impact fee credit requests must meet the standards of Chapter 3.24, Impact Fees, BMC. A proposed impact fee credit must meet the defined criteria for an impact fee credit laid out in the chapter. After further internal discussion Staff has concluded that the requested credit does not conform to the requirements of Chapter 3.24, Impact Fees, and the requested credit is beyond the ability of the Staff to grant. Therefore, this letter is to give formal notice that the request has been denied as of the date of this letter. Reasons vary across different elements of the request and include failure to be timely in submittal, to be properly listed on the capital improvements program, and to be other than project related improvements. These are the same concerns we have discussed with you earlier. Please see the material provided below. This decision may be appealed in accordance with Section 3.24.110.I which is presented below. I have also included with this letter a copy of the necessary appeal form. An appeal is the correct vehicle to be able to ultimately place this matter before the City Commission who may then consider the facts and arguments of the matter. An appeal should be submitted to my office. We will then handle scheduling of the review. “3.24.110.I. Any determination made by any official of the city charged with the administration of any part of this chapter may be appealed to the Development Impact Fees Review Committee by filing: 1. A written notice of appeal on a form provided by the City; 2. A written explanation of why the appellant feels that a determination was in error; and 3. An appeal fee of five hundred dollars with the Impact Fee Coordinator within ten working days after the determination for which the appeal is being filed. The Development Impact Fees Review Committee shall meet to review the appeal within thirty working days of the date the written appeal was presented to the Impact Fee Coordinator. If the appellant is dissatisfied with the decision of the Development Impact Fees Review Committee, the appellant may appeal the decision to the City Commission by filing a written request with the City Clerk within ten working days of the Committee's decision. At the regular meeting following the filing of the appeal, the City Commission shall fix a time and place for hearing the 92 Page 2 appeal; and the City Clerk shall mail notice of the hearing to the appellant at the address given in the notice of appeal. The hearing shall be conducted at the time and place stated in such notice given by the City Commission. The determination of the City Commission shall be final. If the City Commission concludes that all or part of a determination made by an official of the city charged with the administration of any part of this chapter was in error, then the appeal fee described above shall be returned to the appellant.” You may find the complete text of Chapter 3.24, Impact Fees, BMC on the City’s website at http://www.bozeman.net/bozeman/planning/impactFees.aspx. Supporting Facts and Analysis Summary of conformance to required criteria by IFCR-0601. Requested Credit Component Project Related Capacity Expanding (beyond project related) CIP Listed CIP Funded Timely Request (before construction or dedication) Met All Credit Criteria Land for Garfield St Yes (provided with MSU Foundation Annexation) No No No No No Land for Fowler Ave Yes (mostly provided with MSU Foundation Annexation) No No No No No Garfield Construction Yes No No No No No Fowler Construction Yes Partially No No No No College/Main reconstruction Yes Uncertain No No No No Fowler/Main Signal Yes Yes No No No No Fowler Trunk Sewer Partially Yes No No No No Applicable Definitions Section 3.24.040, BMC – Impact Fee Capital Improvement Program (CIP), Improvement, Initiation of Construction, Project Related Improvement Section 7-6-1601, MCA – Impact Fee (excludes requirements needed to meet standards, on or off- site[5iv]) Review Criteria – Must meet all criteria to be eligible for credit consideration. Section 7-6-1603 (4), MCA – Credits permitted if: (a) – Documented need (b) – Property is appropriate (c) – Procedures established to determine worth (Bozeman established in 3.24.100, BMC) (d) – Procedures established to establish credits (Bozeman established in 3.24.100, BMC) 93 Page 3 City carries out 7-6-1603(4) MCA through Chapter 3.24, BMC. Section 3.24.100.A, BMC – Credits allowed to be considered if: (1) Project is listed on the impact fee CIP (2) Project is not a project related improvement as defined in 3.24.040.K, BMC (3) Voluntary and accepted by City of Bozeman (Not Applicable in this case) (4) Approved in writing by City in timely manner Section 3.24.040.H, BMC – Improvements must expand capacity Section 3.24.100.B, BMC – Request on City form, with adequate documentation, timely submittal before initiation of construction Conditions of Approval from the project relevant to impact fees 1. The applicant must comply with all provisions of the Bozeman Municipal Code, which are applicable to this project. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or state law. 2. Raised concrete medians shall be installed on Fowler Avenue with Phase I of the subdivision. 6. Where a path is being proposed in lieu of standard sidewalk, it must be a minimum of 10' wide as shown in the Greater Bozeman Area Transportation Plan, unless a relaxation is granted by the City Commission. 11 All improvements necessary to provide adequate level of service for the analyzed intersections must be installed with the project. 19. The traffic impact analysis submitted for the project shall be approved by City Engineering and the Montana Department of Transportation. All improvements needed to provide an adequate level of service for the analyzed intersections must be installed with the project. 36. The applicant shall obtain and provide the Planning Office with the applicable access permit(s) from the Montana Department of Transportation for the access onto US 191/West Main Street from Harmon Street Boulevard and Chronicle Drive and shall comply with all requirement of the permit. 37. The traffic impact analysis submitted for the project shall be approved by City Engineering and the Montana Department of Transportation. All improvements needed to provide adequate level of service for the analyzed intersections must be installed with the project. Information reviewed in association with this decision includes, but is not limited to, the Bozeman Municipal Code, application, review materials, and related materials for the Bozeman Gateway subdivision and planned unit development, impact fee credit application and subsequent correspondence and meetings, and 7-6-1601 et. seq. MCA. Please feel free to contact me at 582-2260 if you have any questions. I will be out of the office from Friday, June 18th until Monday, June 28, 2010. Sincerely, Chris Saunders Interim Director 94 Page 4 cc: Brion Lindseth, PO Box 2269, Great Falls, MT 59403 Greg Sullivan, City Attorney Tim Cooper, City Attorney office Chris Kukulski, City Manager file 95 community planning zonin g subdivision review annexatio n historic preservation neighborhood planning urban design GIS CITY OF BOZEMAN DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 Bozeman, Montana 59771-1230 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net MEMORANDUM TO: TIM MCHARG, DEBBIE ARKELL, JASON SCHRAUGER, BOB RISK FROM: CHRIS SAUNDERS RE: MITCHELL IMPACT FEE APPEAL DATE: SEPTEMBER 1, 2010 An appeal of an administrative determination regarding impact fees has been received. The appeal and associated material is being transmitted to the Impact Fee Review Committee established in Sections 3.24.040.C and 3.24.110.I, BMC. The appeal application and supporting material is attached. The appeal will be considered by the Committee on September 1, 2010, 1:30 pm, in the Yellowstone Room of City Hall. The appeal is from an administrative decision relating to the timeliness of and qualification for an impact fee credit request. The Impact Fee Coordinator has determined that the credit is disqualified from consideration by several criteria established in Chapter 3.24, Impact Fees, Bozeman Municipal Code. A copy of the denial letter is contained in the Appellant’s materials, Exhibit F. A copy of Chapter 3.24 is provided as Attachment 7. A description of the appeal process in contained in Subsection 3.24.110.I. The Impact Fee Review Committee will make a determination. If the Appellant is not satisfied with the decision of the Committee they may make a further appeal to the City Commission. Impact fees are governed by Sections 7-6-1601 through 7-6-1604, MCA. See Attachment 1 for the text of the statute. The purpose of impact fees is to provide necessary infrastructure in support of safe development. Impact fees are not a maintenance tool. The statute limits the use of impact fees to the expansion of capacity in capital improvements. Section 7-6-1601 defines a capital improvement as: (1) (a) "Capital improvements" means improvements, land, and equipment with a useful life of 10 years or more that increase or improve the service capacity of a public facility. (b) The term does not include consumable supplies. Points of agreement with Appellant. A. As described in the appellant’s materials, the credit request which is the subject of the appeal was begun several years ago. The applicant and staff have discussed the matter from time to time. Staff notified the applicant in October 2006 in a personal meeting that requested credit items did not meet the required standards. See attached working memo, Attachment 2. B. After on-going intermittent discussions, the applicant was formally noticed of a determination that the ordinance requirements for credit approval had not been met on June 16, 2010, see the attached 96 Page 2 letter as Appellant’s Exhibit F. The letter describes those criteria necessary for approval of an impact fee credit which were not satisfied and builds upon the original working memo. C. A memorandum of understanding for was completed in the fall of 2004 between the City, Mitchell Development, and MDT. The MOU is attached as Appellant’s Exhibit B. Page 2, final paragraph of the page and page 3 final paragraph of the page does say the City will take certain actions. D. As shown on the original denial letter, Appellant Exhibit F, page 2, the City does recognize that the traffic signal at Fowler and Main Street and the oversizing of the Fowler trunk sewer are capacity expanding projects and therefore could be credit eligible if otherwise compliant with ordinance requirements. E. There was a requirement for the Parkway Plaza Subdivision to pay a partial share for design of a signal for the intersection of Fowler Avenue and Main Street. See Attachment 3. Points of disagreement related to statements in the appeal. 1. The amount required of Parkway Plaza Subdivision in 1996 was $9,000. The amount cited by the appellant of $75,050 was an amount for an improvements agreement which was 150% of the cost of deferred work. The improvements agreement did include the $9,000 for design of a traffic signal, but also included a number of other items related to the subdivision but not the intersection. This is shown in subdivision file numbers P-9405 and P-9637. A copy of a letter describing this has been included as Attachment 3. 2. The appellant notes on page 5 of the appeal a change in the ordinance focusing on wording from ‘shall’ to ‘may’. The section cited discusses when credits for work done must be considered. However, the segment of code cited in the appellant’s materials does not include the entire section which also generally describes the factors which may disqualify work from an impact fee credit. Under either version of the ordinance the same limitations to a credit request exist. These are: 1. Projects or land dedications not listed on the impact fee capital improvements program; or 2. Land dedications for, or acquisition or construction of, project-related improvements as defined in Section 3.24.040(G) or Section 3.24.040; or 3. Any voluntary land or easement dedications not accepted by the City; or 4. Any voluntary acquisition or construction of improvements not approved in writing by the City prior to commencement of the acquisition or construction. Therefore, the difference between the two versions is not material in determining whether CIP listing is a disqualifier. Please see Attachment 4 for a copy of the two sections. Paragraph A is the portion referenced by the Appellant. There are other qualifying criteria established in subsequent paragraphs. 3. Staff agrees with the importance of the concept of proportionality. However, the impact fee program is a legislative enactment, not a condition of approval or other project specific action. As such, there is greater latitude provided for how the City establishes its program. As noted in the denial letter, see Appellant Exhibit F, the requirements of state law have been considered for proportionality. There is also specific authority for the City to establish procedures and standards for awards of credit. These are enacted through Section 3.24.100 of the municipal code. Further, an impact fee is defined in Section 7-6-1601, MCA as: “(5) (a) "Impact fee" means any charge imposed upon development by a governmental entity as part of the development approval process to fund the additional service capacity required by 97 Page 3 the development from which it is collected. An impact fee may include a fee for the administration of the impact fee not to exceed 5% of the total impact fee collected. (b) The term does not include: (i) a charge or fee to pay for administration, plan review, or inspection costs associated with a permit required for development; (ii) a connection charge; (iii) any other fee authorized by law, including but not limited to user fees, special improvement district assessments, fees authorized under Title 7 for county, municipal, and consolidated government sewer and water districts and systems, and costs of ongoing maintenance; or (iv) onsite or offsite improvements necessary for new development to meet the safety, level of service, and other minimum development standards that have been adopted by the governmental entity.” (underline added) Consistent with the state authorizing language the City excludes things which meet 5 b iv from consideration as a credit. These are defined as project related improvements in Section 3.24.040, BMC. 4. The capital improvements program (CIP) is an essential component of an impact fee program. It provides for transparency of fund allocation and use, reasonable balancing of incomes and expenditures for the program to ensure financial accountability, and it provides a means for the public (including developers) to propose and comment on projects for impact fee funding. Since not all the money in an impact fee program is received at once it is necessary to have a means to rationally use the funds. The City updates its CIP annually through a public process with multiple opportunities for public participation. The City has amended its CIP on more than one occasion to support a specific project in response to changing development needs and the request by a developer. There must, by state law, be a part of the City’s budget which allocates funds to capacity expanding projects. The City uses the CIP for this purpose. As the City Commission is the only entity authorized to commit funds, the CIP is adopted by the City Commission and may only be amended by them. The statute requirement is: “7-6-1602 (2) (k) have a component of the budget of the governmental entity that: (i) schedules construction of public facility capital improvements to serve projected growth; (ii) projects costs of the capital improvements; (iii) allocates collected impact fees for construction of the capital improvements; and (iv) covers at least a 5-year period and is reviewed and updated at least every 2 years.” The CIP is a document with a purpose and character distinct from other City documents, not merely a summation. It is reviewed and adopted by the Commission as a specific action. Most of the projects listed originate within long range facility planning studies. Listing within the CIP is a deliberate action. The CIP brings together and harmonizes multiple funding sources and is not limited solely to use of impact fees. 5. Project related improvements are defined in Section 3.24.040.M, see Attachment 4, section 2. A project related improvement is not limited to the surveyed boundaries of a subdivision. Work adjacent to, leading to, or otherwise outside the surveyed boundaries may also meet the definition of project related improvement. As noted in item 3 above, the statutory definition of an impact fee specifically allows for the offsite improvements to be excluded from consideration as an impact fee under certain conditions. Improvements necessary for a development to meet minimum level of service standards are excluded from considerations. 98 Page 4 6. The memorandum of understanding states beginning at the end of page 2 that the City will “... cooperate with and reasonably assist the Developer in obtaining contributions or reimbursements from such benefited property owners for costs incurred by the Developer...” The MOU does not say that the City will waive or ignore legal or procedural requirements nor that the City would have primary responsibility. Condition 1 of the Findings of Fact for the Bozeman Gateway subdivision restates this position when the City Commission adopted a requirement which reads: “1. The applicant must comply with all provisions of the Bozeman Municipal Code, which are applicable to this project. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or state law.” The City made its regulations, including the impact fee requirements and standards for impact fee credits, available through multiple venues. 7. Failing to qualify for impact fee credits does not exclude possibilities for other options for reimbursement. 8. The restriction on review of a subdivision under the regulations in place is contained in the Subdivision and Platting Act. It has limited, if any, applicability to regulations other than the subdivision regulations. Responses to specific credit request comments. The basis of the appeal is the denial letter attached as Appellant Exhibit F. Following are some additional comments specific to issues raised in the appeal. 1. Fowler/Main Signal The City has consistently found signalization of intersections of arterial streets to be 100% impact fee eligible. This is due to the fact that arterial intersections serve large areas and a single project will seldom generate more than a few percentage points of the total users of the intersection. No funds have been spent on items not on the CIP, although as noted above, the CIP has been amended at developer request with City Commission consent. Had the project been listed on the CIP as a funded project the City would have covered the costs of the signal installation. As noted under item 4 above the City considers the CIP not only practical but a necessary part of a lawful impact fee program. The City uses its CIP to satisfy portions of the documentation requirements of 7-6-1602, MCA. The flaw for the Fowler traffic signal is one of procedure, not character. 2. Fowler Trunk Sewer Although a basic sewer line is necessary and therefore a project related improvement, the size of the ultimately installed pipe is more than incidentally larger than what the Bozeman Gateway project would require. The flaw for the Fowler trunk sewer is one of procedure, not character. 3. Fowler Avenue As shown on Appellant’s Exhibit A, Fowler Avenue passes entirely through the Bozeman Gateway development. The street is therefore internal to the development and meets that part of the project related test. The street section includes acceleration and deceleration lanes. Fowler Avenue provides the only street access to the portion of the development located to the west of Fowler Avenue. Reference to the growth policy is not the same as listing on the CIP. 99 Page 5 As the City relies on a primarily gridded street system. Therefore, few streets are limited to connection only within a development. The impact fee study for transportation specifically excludes from calculation for costs the first two lanes of any street. Since these lanes are not included in the fees charged they are likewise excluded from consideration for credits. 4. Benefit to others is not necessarily equivalent to expanding capacity in the City’s major street network. Section 3.24.050.E requires that impact fee funds be used only expand capacity. This is consistent with the statutory definition of ‘capital improvement.’ Appellant’s Exhibit A shows the intersections of Huffine Lane/Main Street and College and Huffine Lane and Harmon Stream Boulevard. The intersection of Huffine and Harmon Stream was created by the addition of Harmon Stream which proceeds through the middle of the development. The required improvements were solely related to the creation of a new street to provide access to the Bozeman Gateway development. The changes at Huffine Lane and Harmon Stream Blvd do not add capacity to the major street network. Unless capacity is increased the use of impact fee funds is not allowed. Similarly, the changes at Garfield and S. 19th do not add capacity. The improvement may be useful in ensuring that minimum level of service standards are met. Classification for Garfield Street was as a local street at the time of the improvements. Local streets are excluded from impact fee funding. 5. Benefit to others is not necessarily equivalent to expanding capacity in the City’s major street network. Section 3.24.050.E requires that impact fee funds be used only expand capacity. Local streets are not eligible for impact fee funding. Appellant’s Exhibit A shows the location of Garfield Street which connects the Bozeman Gateway development to the major street network. Garfield Street is constructed as a two lane configuration. Unless capacity is increased in qualifying streets the use of impact fee funds is not allowed. Classification for Garfield Street was as a local street at the time of the improvements. Local streets are excluded from impact fee funding. The City’s transportation system for which impact fees are collected and expended is defined in Section 3.24.040.N as: “ ‘Transportation system’ means capacity-adding improvements to collectors or arterial roads of three lanes or more, which are included on the 2001 Greater Bozeman Transportation Plan Update or the City’s impact fee capital improvement program, and which will benefit new development as required by law and this chapter. The transportation system includes only those bicycle and pedestrian facilities built in conjunction with and included in a capacity-adding transportation facility improvement otherwise eligible for impact fee funding pursuant to the terms of this chapter. The “transportation system” does not include project-related improvements.” 6. The MSU Foundation annexation included the dedication of street easements for Fowler Avenue and Garfield Street through the entire length of what became the Bozeman Gateway development. See Attachment 5 for map of the annexation. The alignment for Fowler Avenue did relocate to the east as generally depicted on the Appellant’s Exhibit A. The developer thereby avoided the expenses and regulatory delays of piping the watercourse which lay within the original easement. The development was able to use the watercourse area as open space to meet performance requirements for the planned unit development. The change was therefore a relocation of open space within the project. 100 Page 6 The Appellant did make application for an impact fee credit for Fowler Avenue prior to the recording of the final plat, nor was Fowler Avenue on the CIP. See Attachment 6. The land dedication was part and parcel of the overall dedication of Fowler Avenue improvements, not a free standing dedication of land. There are timing requirements applicable to the construction beyond that of simply filing the paperwork. As shown in the two sections of ordinance below the test is two-fold; First, filing prior to initiation of construction of improvements and Second, filing before acceptance of the dedication. In this case the second portion was met but not the first and therefore the credit application was not timely. Section 3.24.100.B. “In order to obtain a credit against development impact fees otherwise due, an applicant must submit a written offer to dedicate to the City specific parcels of qualifying land or easements, or to acquire or construct specific improvements to the major street system or the City fire protection, water, or wastewater systems in accordance with all applicable State or City design and construction standards, and must specifically request a credit against such development impact fees. Such written request must be made on a form provided by the City, must contain a statement under oath of the facts that qualify the applicant to receive a credit, must be accompanied by documents evidencing those facts, and must be filed not later than the initiation of construction of improvements or the acceptance by the City of land dedications, or the applicant's claim for the credit shall be waived. The granting of credit shall be approved by the City Commission.” (emphasis added) 3.24.040.L "Initiation of construction" means the date of the preconstruction meeting with the City Engineer or his/her designee, or the date of the first visible change in the physical condition of the improved site caused by the first person furnishing services or materials to effect construction of the improvement, whichever occurs first. 101 102 103 104 105 106 107 108 CITY OF BOZEMAN planning • zoning • subdivision review • annexation • historic preservation • housing • grant administration • neighborhood DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPME Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net Bozeman Montana 59771-1230 October 9, 2006. Review notes regarding a letter from Mitchell Development seeking impact fee credits. Requested Item Name Project Related Capacity Expanding CIP Listed CIP Funded Timely Request Credit Qualifying Land for Garfield St Yes No No No No No Land for Fowler Ave Yes Yes No No No No Garfield Construction Yes No No No No No Fowler Construction Yes Yes No No No No College/Main reconstruction Yes? Yes? No No No No Fowler/Main Signal Yes Yes No No No No Fowler Trunk Sewer Partially Yes No No No No Definitions 3.24.040, BMC – Impact Fee Capital Improvement Program, Improvement, Initiation of Construction, Project Related Improvement 7-6-1601, MCA – Impact Fee (excludes requirements needed to meet standards, on or off-site[5iv]) Review Criteria – Must meet all criteria to be eligible for credit consideration. 7-6-1603 (4), MCA – Credits permitted if (a) – Documented need (b) – Property is appropriate (c) – Procedures established to determine worth (Bozeman established in 3.24.100, BMC) (d) – Procedures established to establish credits (Bozeman established in 3.24.100, BMC) City carries out 7-6-1603(4) through Section 3.24.100.A, BMC – Credits allowed to be considered if: (1) Project is listed on the impact fee CIP (2) Project is not a project related improvement as defined in 3.24.040.K, BMC (3) Voluntary and accepted by City of Bozeman (Not Applicable in this case) (4) Approved in writing by City in timely manner 3.24.040.H, BMC – Improvements must expand capacity 3.24.100.B, BMC Request on City form, with adequate documentation, timely submittal before initiation of construction coordination 110 Conditions of Approval Page 2 111 112 113 Page 1 of 7 Attachment 4 Section 1 – Ordinance wording in effect in 2001. 3.24.100 Credits Against Development Impact Fees A. After the effective date of this chapter, all mandatory or voluntary land or easement dedications for street, fire protection, water, or wastewater improvements, and all mandatory or voluntary acquisition or construction of improvements to the major street system or the city fire protection, water, or wastewater systems by an applicant in connection with a proposed development shall result in a pro rata credit against the development impact fee for the same type of service or facility otherwise due for such development, except that no such credit shall be awarded for: 1. Projects or land dedications not listed on the impact fee capital improvements program; or 2. Land dedications for, or acquisition or construction of, project-related improvements as defined in Section 3.24.040(G) or Section 3.24.040; or 3. Any voluntary land or easement dedications not accepted by the City; or 4. Any voluntary acquisition or construction of improvements not approved in writing by the City prior to commencement of the acquisition or construction. B. In order to obtain a credit against development impact fees otherwise due, an applicant must submit a written offer to dedicate to the City specific parcels of qualifying land or easements, or to acquire or construct specific improvements to the major street system or the City fire protection, water, or wastewater systems in accordance with all applicable State or City design and construction standards, and must specifically request a credit against such development impact fees. Such written request must be made on a form provided by the City, must contain a statement under oath of the facts that qualify the applicant to receive a credit, must be accompanied by documents evidencing those facts, and must be filed not later than the initiation of construction of improvements or the acceptance by the City of land dedications, or the applicant's claim for the credit shall be waived. The granting of credit shall be approved by the City Commission. C. The credit due to an applicant shall be calculated and documented as follows: 1. Credit for qualifying land or easement dedications shall, at the applicant's option, be valued at: a. One hundred percent of the most recent assessed value for such land as shown in the records of the City Assessor; or b. That fair market value established by a private appraiser acceptable to the City in an appraisal paid for by the applicant. 2. In order to receive credit for qualifying acquisition or construction of street, fire protection, water, or wastewater improvements, the applicant shall submit complete engineering drawings, specifications, and construction cost estimates to the City. The City shall determine the amount of credit due based on the information submitted, or, if it 114 Page 2 of 7 Attachment 4 determines that such information is inaccurate or unreliable, then on alternative engineering or construction costs acceptable to the City. D. Approved credits shall become effective at the following times: 1. Approved credit for land or easement dedications shall become effective when the land has been conveyed to the City in a form acceptable to the City, and at no cost to the City, and has been accepted by the City Commission. When such conditions have been met, the City shall note that fact in the credit record maintained by the City Finance Department. Upon request of the credit holder, the City shall send the credit holder a letter stating the credit balance available to him (or her). 2. Approved credits for the acquisition or construction of street, fire protection, water, or wastewater improvements shall generally become effective when: a. All required construction has been completed and has been accepted by the City; and b. A suitable maintenance and warranty bond has been received and approved by the City; and c. All design, construction, inspection, testing, bonding, and acceptance procedures have been completed in compliance with all applicable City and State procedures. However, approved credits for the construction of improvements may become effective at an earlier date if the applicant posts security in the form of a performance bond, irrevocable letter of credit, or escrow agreement, and the amount and terms of such security are accepted by the City. At a minimum, such security must be in the amount of the approved credit or an amount determined to be adequate to allow the City to construct the improvements for which the credit was given, whichever is higher. When such conditions have been met, the City shall note that fact in the credit record maintained by the City Finance Department. Upon request of the credit holder, the City shall also send the credit holder a letter stating the credit balance available to him (or her). E. Approved credits may be used to reduce the amount of development impact fees due from any proposed development for the same type of service or facility for which the applicant dedicated land or acquired or constructed improvements until the amount of the credit is exhausted. Each time a request to use credit from a mandatory or voluntary dedication, acquisition, or construction is presented to the City, the City shall reduce the amount of the development impact fee of the same type otherwise due from the applicant and shall note in the city records the amount of credit remaining, if any. In the case of a mandatory dedication, acquisition, or construction, any credit in excess of the amount of the development impact fee otherwise due under this chapter shall be deemed excess credit that is remaining and available for use by the applicant. In the case of a voluntary dedication, acquisition, or construction, any credit in excess of the amount of the development 115 Page 3 of 7 Attachment 4 impact fee of the same type and applicable to the project, as shown in Tables 3.24.050, 3.24.060, 3.24.070, or 3.24.080, shall be deemed excess credit that is remaining and available for use by the applicant. Upon request of the credit holder, the City shall also send the credit holder a letter stating the amount of credit remaining to him (or her). F. Approved credit shall only be used to reduce the amount of development impact fees of the same type otherwise due under this chapter and shall not be paid to the applicant in cash or in credit against any development impact fees for a different type of facility or service or against any other monies due from the applicant to the City, except as described in Subsection G of this section. G. If the amount of approved credit for a mandatory dedication, acquisition, or construction exceeds the amount of the development impact fees of the same type otherwise due under this chapter, the applicant may request in writing that the City provide for reimbursement of any excess credit to the applicant in cash. Such written request must be filed not later than the initiation of construction of improvements, or the acceptance by the City of land dedications, or the applicant's claim shall be waived. Upon receipt of such a written request, the City may, at its discretion: 1. Arrange for the reimbursement of such excess credit from the impact fee fund for the same type of service or facility from development impact fees paid by others; 2 . Arrange for the reimbursement of such excess credit through the issuance of a promissory note payable in not more than ten years and bearing interest equal to the interest rate paid by the City for its long-term debt; or 3. Reject the request for cash and provide credit. Such excess credit shall be valued at one hundred percent of actual developer costs for the excess improvements, or at the actual appraised value of such excess improvements, at the City's option. H. Credit may be transferred from one holder to another by any written instrument clearly identifying the credit issued under Subsection C of this section that is to be transferred, provided that such instrument is signed by both the transferror and transferee, and that the document is delivered to the City for registration of the change in ownership. I. In the event that land is annexed into the city from Gallatin County after the effective date of this chapter, and that road or fire impact fees have been previously paid to the County at the time of subdivision or minor subdivision of such land, an applicant proposing a development on the land may request in writing a credit against the street impact fee equal to the amount of any road impact fee paid to the County for the same land and may also request a credit against the fire protection impact fee equal to the amount of any fire protection impact fee paid to the County for the same land. Such written request must be filed not later than the time when an applicant applies for the first permit of a type listed in Sections 3.24.050(A)(1) or 3.24.060(A)(1) that creates an obligation to pay the type of development impact 116 Page 4 of 7 Attachment 4 fee against which the credit is requested, or the applicant's claim shall be waived. (Ord. 1471 § 8, 1998; Ord. 1418 § 8, 1996; Ord. 1414 § 1 (part), 1996) Section 2 – Ordinance wording in effect currently 3.24.100 Credits Against Development Impact Fees A. After the effective date of this chapter, mandatory or voluntary land or easement dedications for transportation, fire protection, water, or wastewater improvements, and mandatory or voluntary acquisition or construction of capital improvements to the transportation system or the city fire protection, water, or wastewater systems by an applicant in connection with a proposed development may result in a pro rata credit against the development impact fee for the same type of service or facility otherwise due for such development, except that no such credit shall be awarded for:1. Projects or land dedications not listed on the impact fee capital improvements program; or 2. Land dedications for, or acquisition or construction of, project-related improvements as defined in Section 3.24.040(G) or Section 3.24.040; or 3. Any voluntary land or easement dedications not accepted by the City; or 4. Any voluntary acquisition or construction of improvements not approved in writing by the City prior to commencement of the acquisition or construction. B. In order to obtain a credit against development impact fees otherwise due, an applicant must submit a written offer to dedicate to the City specific parcels of qualifying land or easements, or to acquire or construct specific improvements to the transportation system or the City fire protection, water, or wastewater systems in accordance with all applicable State or City design and construction standards, and must specifically request a credit against such development impact fees. Such written request must be made on a form provided by the City, must contain a statement under oath of the facts that qualify the applicant to receive a credit, must be accompanied by documents evidencing those facts, and must be approved not later than the initiation of construction of improvements or the acceptance by the City of land dedications, or the applicant's claim for the credit shall be waived. The granting of credit shall be approved by the City Commission. The City shall approve a credit only after showing that the need for the dedication or construction is clearly documented pursuant to section 7-6-1602 of the Montana Code Annotated, and that any land dedication proposed for credit is determined to be appropriate for the proposed use. 1. Upon receipt of a complete application for impact fee credit the Impact Fee Coordinator shall coordinate review of the application for compliance with the requirements of this chapter and other relevant requirements. Upon completion of the review the Impact Fee Coordinator shall either: forward the application to the City Manager, or when required to the City Commission, for approval or; if the application is insufficient or otherwise does not conform to the City’s requirements shall communicate in writing to the applicant the reason the credit request failed. If the application satisfies the requirements and is 117 Page 5 of 7 Attachment 4 approved the credit may be provided in any of the allowed forms as described in Subsection G. a. Factors for Consideration (1) When credit is sought for an improvement listed in the second through fifth years of the CIP after the current fiscal year there shall be a rebuttable presumption that any credit shall be awarded as a credit balance and not as cash. (2) The final decision to approve a credit request in excess of $1,000,000 from a single impact fee fund shall be made by the City Commission. (3) In the event that the City Manager believes that a credit request may result in a significant effect on policy decisions the credit request may be referred to the City Commission for final action regardless of the dollar amount. (4) In the event that the City considers that award of a credit may negatively impact its ability to construct improvements listed sooner in time on the CIP they may decline to award a credit at that time without removing the item from the CIP. 2. Appeals relating to staff decisions on credit requests may be appealed to the City Commission per Subsection 3.24.110.I C. The credit due to an applicant shall be calculated and documented as follows: 1. Credit for qualifying land or easement dedications shall, at the applicant's option, be valued at: a. One hundred percent of the most recent assessed value for such land as shown in the records of the City Assessor; or b. That fair market value established by a private appraiser acceptable to the City in an appraisal paid for by the applicant. 2. In order to receive credit for qualifying acquisition or construction of transportation, fire protection, water, or wastewater improvements, the applicant shall submit complete engineering drawings, specifications, and construction cost estimates to the City. The City shall determine the amount of credit due based on the information submitted, or, if it determines that such information is inaccurate or unreliable, then on alternative engineering or construction costs acceptable to the City. D. Approved credits shall become effective at the following times: 1. Approved credit for land or easement dedications shall become effective when the land has been conveyed to the City in a form acceptable to the City, and at no cost to the City, and has been accepted by the City Commission. When such conditions have been met, the City shall note that fact in the credit record maintained by the City Finance Department. Upon request of the credit holder, the City shall send the credit holder a letter stating the credit balance available to him (or her). 118 Page 6 of 7 Attachment 4 2. Approved credits for the acquisition or construction of transportation, fire protection, water, or wastewater improvements shall generally become effective when: a. All required construction has been completed and has been accepted by the City; and b. A suitable maintenance and warranty bond has been received and approved by the City; and c. All design, construction, inspection, testing, bonding, and acceptance procedures have been completed in compliance with all applicable City and State procedures. However, approved credits for the construction of improvements may become effective at an earlier date if the applicant posts security in the form of a performance bond, irrevocable letter of credit, or escrow agreement, and the amount and terms of such security are accepted by the City. At a minimum, such security must be in the amount of the approved credit or an amount determined to be adequate to allow the City to construct the improvements for which the credit was given, whichever is higher. When such conditions have been met, the City shall note that fact in the credit record maintained by the City Finance Department. Upon request of the credit holder, the City shall also send the credit holder a letter stating the credit balance available to him (or her). E. Approved credits may be used to reduce the amount of development impact fees due from any proposed development for the same type of service or facility for which the applicant dedicated land or acquired or constructed improvements until the amount of the credit is exhausted. Each time a request to use credit from a mandatory or voluntary dedication, acquisition, or construction is presented to the City, the City shall reduce the amount of the development impact fee of the same type otherwise due from the applicant and shall note in the city records the amount of credit remaining, if any. In the case of a mandatory dedication, acquisition, or construction, any credit in excess of the amount of the development impact fee otherwise due under this chapter shall be deemed excess credit that is remaining and available for use by the applicant. In the case of a voluntary dedication, acquisition, or construction, any credit in excess of the amount of the development impact fee of the same type and applicable to the project, as shown in Tables 3.24.050, 3.24.060, 3.24.070, or 3.24.080, shall be deemed excess credit that is remaining and available for use by the applicant. Upon request of the credit holder, the City shall also send the credit holder a letter stating the amount of credit remaining to him (or her). F. Approved credit shall only be used to reduce the amount of development impact fees of the same type otherwise due under this chapter and shall not be paid to the applicant in cash or in credit against any development impact fees for a different type of facility or service or against any other monies due from the applicant to the City, except as described in Subsection G of this section. G. If the amount of approved credit for a mandatory dedication, acquisition, or construction exceeds the amount of the development impact fees of the same type 119 Page 7 of 7 Attachment 4 otherwise due under this chapter, the applicant may request in writing that the City provide for reimbursement of any excess credit to the applicant in cash. Such written request must be approved not later than the initiation of construction of improvements, or the acceptance by the City of land dedications, or the applicant's claim shall be waived. Upon receipt of such a written request, the City may, at its discretion: 1. Arrange for the reimbursement of such excess credit from the impact fee fund for the same type of service or facility from development impact fees paid by others; 2 . Arrange for the reimbursement of such excess credit through the issuance of a promissory note payable in not more than ten years and bearing interest equal to the interest rate paid by the City for its long-term debt; or 3. Reject the request for cash and provide credit. Such excess credit shall be valued at one hundred percent of actual developer costs for the excess improvements, or at the actual appraised value of such excess improvements, at the City's option. H. Credit may be transferred from one holder to another by any written instrument clearly identifying the credit issued under Subsection C of this section that is to be transferred, provided that such instrument is signed by both the transferror and transferee, and that the document is delivered to the City for registration of the change in ownership. I. In the event that land is annexed into the city from Gallatin County after the effective date of this chapter, and that road or fire impact fees have been previously paid to the County, an applicant proposing a development on the land may request in writing a credit against the transportation impact fee equal to the amount of any road impact fee paid to the County for the same land and may also request a credit against the fire protection impact fee equal to the amount of any fire protection impact fee paid to the County for the same land. Such written request must be filed not later than the time when an applicant applies for the first permit of a type listed in Sections 3.24.050(A)(1) or 3.24.060(A)(1) that creates an obligation to pay the type of development impact fee against which the credit is requested, or the applicant's claim shall be waived. 120 121 122 123 124 125 126 127 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 1 Chapter 3.24 IMPACT FEES Sections: 3.24.010 Legislative Findings 3.24.020 Authority and Applicability 3.24.030 Intent 3.24.040 Definitions 3.24.050 Transportation Impact Fees 3.24.060 Fire Protection Impact Fees 3.24.070 Water Impact Fees 3.24.080 Wastewater Impact Fees 3.24.090 Refunds of Development Impact Fees Paid 3.24.100 Credits Against Development Impact Fees 3.24.110 Miscellaneous Provisions 3.24.010 Legislative Findings The City Commission of the City of Bozeman, Montana finds that: A. The protection of the health, safety, and general welfare of the citizens of the city requires that the street, fire protection, water, and wastewater systems of the city be expanded and improved to accommodate continuing growth within the city and within those areas directly served by its Fire Department and within those areas connected to its water and wastewater systems. B. New residential and nonresidential development imposes increased and excessive demands upon existing city facilities. C. New development often overburdens existing public facilities, and the tax revenues generated from new development often do not generate sufficient funds to provide public facilities to serve the new development. D. New development is expected to continue and will place ever-increasing demands on the city to provide public facilities to serve new development. E. The creation of an equitable development impact fee system would enable the City to impose a proportionate share of the costs of required improvements to the city's transportation, fire protection, water, and wastewater systems on those developments that create the need for them. F. All types of development that are not explicitly exempted from the provisions of this chapter will generate demand for city's transportation, fire protection, water, and wastewater services or facilities that will require improvements to city facilities and equipment. G. The city's transportation impact fee study, dated October 31, 2007, prepared by Tindale-Oliver & Associates and as updated, and the fire/EMS impact fee study dated July 2008 and as updated, prepared by HDR Engineering, and water and wastewater impact fee studies dated July 2007, prepared by HDR Engineering, set forth reasonable methodologies and analyses for determining the impacts of various types of 128 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 2 development on the city's street, fire protection, water and wastewater systems and for determining the cost of acquiring land and the cost of acquiring or constructing facilities and equipment necessary to meet the demands for such services created by new development. H. The City establishes as city standards the assumptions and service standards referenced in the impact fee studies and other duly adopted documents as part of its current plans for the transportation system and for the city's fire protection, water, and wastewater systems. I. The documentation required by 7-6-1602, MCA is collectively contained in the City’s facility plans, impact fee studies, development regulations, financial records, capital improvements program, design and specification manual, and other city documents J. The development impact fees described in this chapter are reasonably related to the service demands and needs of new development and are based on the above-cited impact fee studies and documentation and do not exceed the costs of acquiring additional land and the costs of acquiring or constructing additional facilities or equipment required to serve the new developments that will pay the fees. K. All transportation improvements upon which the transportation impact fees are based and upon which transportation impact fee revenues will be spent, based on the limitations set forth in this chapter will benefit all new development in the city; and it is, therefore, appropriate to treat the entire city as a single service area for purposes of calculating, collecting, and spending the transportation impact fees, while recognizing differences in the demand for service based upon the identified factors set forth in the transportation impact fee study. L. All of the fire protection improvements listed in the fire impact fee study will benefit all new development that receives fire protection service directly from the City Fire Department; and it is, therefore, appropriate to treat the entire city and all properties served directly by the City Fire Department as a single service area for purposes of calculating, collecting, and spending the fire protection impact fees. M. All of the water system improvements listed in the water impact fee study will benefit all new development that connects to the city water system; and it is, therefore, appropriate to treat the entire city and all properties connected to the city water system as a single service area for purposes of calculating, collecting, and spending the water impact fees. N. All of the wastewater system improvements listed in the wastewater impact fee study will benefit all new development that connects to the city wastewater system; and it is, therefore, appropriate to treat the entire city and all properties connected to the city wastewater system as a single service area for purposes of calculating, collecting, and spending the wastewater impact fees. O. There is both a rational nexus and a rough proportionality between the development impacts created by each type of development covered by this chapter and the development impact fees that such development will be required to pay. P. The City’s facility planning, capital improvement program, development review, and bidding processes create a public process by which, on a specific and detailed basis, the capacity expanding components of construction can be identified and funded 129 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 3 distinctly from those components which are not capacity expanding by providing for evaluation by the City and the Impact Fee Advisory Committee of future needs related to growth, identification of applicable funding sources, and monitoring of construction and payments. Q. This chapter creates a system by which development impact fees paid by new developments will be used to expand or improve the city transportation, fire protection, water, and wastewater systems in ways that benefit the development that paid each fee within a reasonable period of time after the fee is paid. R. This chapter creates a system under which development impact fees shall not be used to cure existing deficiencies in public facilities or to pay maintenance or operations costs associated with providing public facilities. 3.24.020 Authority and Applicability A. This chapter is enacted pursuant to the city's self-government powers, the authority granted to the City by the Montana State Constitution, Sections 7-6-1601 through 7-6- 1604, and Sections 7-1- 4123, 7-1-4124, 7-3-4313, 7-7-4404, 7-7-4424, 7-13-4304, and 69-7-101 of the Montana Code Annotated. B. The provisions of this chapter shall apply to all of the territory within the limits of the city. C. The provisions of this chapter related to the fire protection impact fees shall also apply to all properties located outside the city that are served directly by the City Fire Department. D. The provisions of this chapter related to water impact fees shall also apply to all properties located outside the city that are connected to the city water system. E. The provisions of this chapter related to wastewater impact fees shall also apply to all properties located outside the city that are connected to the city wastewater system. 3.24.030 Intent A. This chapter is adopted to help implement the comprehensive plan of the city, the city's 2001 transportation plan update prepared by Robert Peccia & Associates, and as updated, the September 2006 draft of the water facility plan prepared for the City by Allied Engineering and Robert Peccia and Associates, and as updated, and the May 2006 draft of the wastewater facility plan prepared for the City by HDR Engineering and Morrison-Maierlie, Inc., and as updated, the August 2006 draft of the Fire Protection Master Plan prepared for the City by Emergency Services Consulting, Inc, and as updated. B. The intent of this chapter is to ensure that new development bears a proportionate share of the cost of improvements to the city transportation, fire protection, water, and wastewater systems; to ensure that such proportionate share does not exceed the cost of the transportation, fire protection, water, and wastewater facilities and equipment required to serve such new developments; and to ensure that funds collected from new developments are actually used to construct improvements to the city transportation, fire protection, water, and wastewater systems that reasonably relate to the benefits accruing to such new developments. 130 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 4 C. It is the further intent of this chapter that new development pay for its proportionate share of public facilities through the imposition of development impact fees that will be used to finance, defray, or reimburse all or a portion of the costs incurred by the City to construct improvements to the city transportation, fire protection, water, and wastewater systems that serve or benefit such new development. D. It is not the intent of this chapter to collect any money from any new development in excess of the actual amount necessary to offset new demands for transportation, fire protection, water, or wastewater improvements generated by that new development. E. It is not the intent of this chapter that any monies collected from any development impact fee and deposited in an impact fee fund ever be co-mingled with monies from a different impact fee fund or ever be used for a type of facility or equipment different from that for which the fee was paid. 3.24.040 Definitions A. “Central Business District” (CBD) means land uses established within the B-3, “Central Business District,” zoning district. B. "Development" means any construction or expansion of a building, structure, or use, any change in use of a building or structure, or any change in the use of land, which creates additional demand for public services. C. "Development impact fees" means the transportation impact fee, fire protection impact fee, water impact fee, and wastewater impact fee established by this chapter. D. "Development Impact Fees Review Committee" means the committee composed of the Impact Fee Coordinator, the Building Official, the Director of Public Service, the Fire Chief, and the Director of Planning and Community Development, or their designees appointed to serve in the member's place at a meeting. E. "Encumber" means to legally obligate by contract, or otherwise commit to use by appropriation or other official act of the City. F. "Impact Fee Capital Improvement Program" means the capital improvements program for the transportation system, the city fire protection system, and the city water and wastewater systems, which shall assign monies from each impact fee fund to specific projects and related expenses for improvements to the type of facilities or services for which the fees in that fund were paid, and shall not include improvements needed to correct existing deficiencies or operations or maintenance costs. G. “Impact Fee Coordinator” means the Director of the City’s Department of Planning and Community Development or the Director’s designee. H. "Impact fee funds" means the transportation impact fee fund, fire protection impact fee fund, water impact fee fund, and wastewater impact fee fund established by this chapter. I. "Impact fee studies" means the transportation impact fee study, dated October 31, 2007, prepared by Tindale-Oliver & Associates and as updated, and the fire impact fee study, dated October 1995 and as updated, prepared by James Duncan and Associates, and the water and wastewater impact fee studies dated May 2007, prepared by HDR Engineering. 131 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 5 J. "Improvement" means planning, land acquisition, engineering design, construction inspection, on-site construction, off-site construction, equipment purchases, and financing costs associated with new or expanded facilities, buildings, and equipment that expand the capacity of a facility or service system and that have an average useful life of at least ten years. “Improvement” does not include maintenance, operations, or improvements that do not expand capacity. K. "Independent fee calculation study" means a study prepared by an applicant for a building permit or water or wastewater connection permit calculating the cost of expansions or improvements to the city's transportation, fire protection, water, or wastewater systems required to serve the applicant's proposed development; that is performed on an average cost (not marginal cost) methodology; uses the service units and unit construction costs stated in the impact fee studies; and is performed in compliance with any criteria for such studies established by this chapter or by the City. L. "Initiation of construction" means the date of the preconstruction meeting with the City Engineer or his/her designee, or the date of the first visible change in the physical condition of the improved site caused by the first person furnishing services or materials to effect construction of the improvement, whichever occurs first. M. "Project-related improvements" means site-related improvements including, without limitation, all access streets adjacent to the proposed development or leading only to the proposed development and not included on the transportation system; all streets and driveways within the development; all acceleration, deceleration, right, or left turn lanes leading to any streets and driveways within the development; all traffic control devices for streets and driveways within the development; all water lines or facilities adjacent to, leading to, or located within the development and serving only the development; all wastewater lines or facilities adjacent to, leading to, or located within and serving only the development; and all off-site improvements necessary for the safety and code compliance of a development. Credit for incidental improvements shall not be allowed. The presumption shall be made that the minimum improvement needed to serve a project shall be deemed to be a project improvement even if additional capacity is thereby created that may be potentially used by other developments presently or in the future. N. “Transportation system” means capacity-adding improvements to collectors or arterial roads of three lanes or more, which are included on the 2001 Greater Bozeman Transportation Plan Update or the City’s impact fee capital improvement program, and which will benefit new development as required by law and this chapter. The transportation system includes only those bicycle and pedestrian facilities built in conjunction with and included in a capacity-adding transportation facility improvement otherwise eligible for impact fee funding pursuant to the terms of this chapter. The “transportation system” does not include project-related improvements. O. “Trip Exchange District” means a defined geographic area that meets the following criteria, pursuant to the transportation fee study and an independent fee calculation study as provided in section 3.24.050(B)(3), BMC: 1. The use of shared and consolidated parking; 2. A high degree of pedestrian and bicycle access to and throughout the proposed development; 132 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 6 3. The availability of public transit; 4. Extensive trip capture within the proposed development where trips to the proposed development result in visits to multiple businesses in the area via a mode other than automobile; The following additional physical development characteristics are associated with trip exchange district land uses: 1. The majority of buildings associated with the proposed development are multi-story buildings, often more than two stories; 2. Diverse business proprietorships within the development; 3. Primary use at the ground floor is commercial; 4. The majority of individual businesses within the development are less than 20,000 square feet; 5. Structures within the development are in near to each other and the public street (with small or no setbacks); 6. Having a high percentage building coverage on the lot and typically in excess of 0.5; and 7. The physical characteristics are shared among the entire business area, not just one or a few of the businesses. 8. The area should be at least 50% developed as measured by lot area utilized. 9. The area is the subject of a city enforceable common plan of development, such as an urban renewal plan. 3.24.050 Transportation Impact Fees A. Imposition of Transportation Impact Fees 1. On or after March 23, 1996, any person who seeks to obtain any of the following forms of development approval is required to pay a transportation impact fee in the amount specified in Table 3.24.050: a. A building permit; b. Any other permit that will result in the construction of improvements that will generate additional traffic; or c. Any extension of any such permit that was issued before the effective date of this chapter;; or d. Any delayed payment of impact fees as specified and approved by the City Commission in accordance with the BMC Title 17, Chapter 2 for Workforce Housing Lots. 2. Notwithstanding the above subsection, no impact fee shall be imposed earlier than the issuance of a building permit for developments requiring a building permit. 133 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 7 3. No permits of the types described in Subsection A(1) of this section shall be issued until the transportation impact fee described in this chapter has been paid, unless the development for which the permit is sought is exempted by Subsection F of this section. B. Computation of Amount of Transportation Impact Fee 1. An applicant required by this chapter to pay a transportation impact fee may choose to have the amount of such fee determined pursuant to either Subsection (B)(2) or (B)(3) of this section. The amount of the fee calculated pursuant to either Subsection (B)(2) or (B)(3) shall be subject to the following adjustment: a. For the first expansion of an existing nonresidential building, the amount calculated shall not include the amount calculated for the expansion of up to thirty percent as compared with its size on February 22, 1996, or two thousand square feet, whichever is less. b. The transportation impact fees adopted are those shown in Table 3.24.050, BMC and as updated as provided for in this Chapter. 1. Beginning on February 16, 2008 the amount of the fee collected shall be sixty percent (60%) of the amount calculated. 2. Unless an applicant requests that the City determine the amount of such fee pursuant to Subsection (B)(3) of this section, the City shall determine the amount of the required transportation impact fee by reference to Table 3.24.050. The fee amounts set forth in such table include credits for expected future receipts of state and federal highway funds and expected future receipts of gas tax revenues, and all other non-impact fee sources of funding anticipated to be made by or as a result of new development to be applied to the transportation improvements required to serve new development. a. If the applicant's development is of a type not listed in Table 3.24.050, then the City shall use the fee applicable to the most nearly comparable type or land use in the table. In making a decision about which use is most nearly comparable, the City shall be guided by the most recent edition of "Trip Generation: An Information Report" prepared by the Institute of Transportation Engineers; or if such publication is no longer available, then by a similar publication. If the City determines that there is no comparable type of land use listed in the table, then a new fee shall be determined by: 1. Finding the most nearly comparable trip generation rate from the above publication; and 2. Applying the formula set forth in Subsection (B)(3)(d) of this section. b. If the applicant's development includes a mix of those uses listed in Table 3.24.050, then the fee shall be determined by adding up the 134 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 8 fees that would be payable for each use if it were a freestanding use pursuant to Table 3.24.050. c. If the applicant is applying for an extension of a permit issued previously, then the fee shall be the net increase between the fee applicable at the time of the current permit application and any transportation impact fee previously paid pursuant to this chapter for the same structure. In the event that the fee applicable at the time of the current permit application is lower than the transportation impact fee previously paid pursuant to this chapter for the same structure, there shall be no refund of transportation impact fees previously paid. d. If the applicant is applying for a permit to allow a change of use or the expansion, redevelopment, or modification of an existing development, the fee shall be based on the net positive increase in the fee for the new use as compared to the previous use. However, no new fee shall be imposed unless an additional unit of service demand is created, in accordance with Table 3.24.50. If necessary to determine such net increase, the City shall be guided by the most recent edition of "Trip Generation: An Information Report" prepared by the Institute of Transportation Engineers; or if such publication is no longer available, then by a similar publication. In the event that the proposed change of use, expansion, redevelopment, or modification results in a net decrease in the fee for the new use or development as compared to the previous use or development, there shall be no refund of transportation impact fees previously paid. 3. An applicant may request that the City determine the amount of the required transportation impact fee by reference to an independent fee calculation study for the applicant's development prepared by qualified professional traffic engineers and/or economists at the applicant's cost and submitted to the City Engineer. Any such study must show the traffic engineering and economic methodologies and assumptions used, including, but not limited to, those forms of documentation listed in Subsections (B)(3)(a) and (B)(3)(b) of this section and must be acceptable to the City pursuant to Subsection (B)(3)(c) of this section. a. Traffic engineering studies must include documentation of trip generation rates, trip lengths, any percentage of trips from the site that represent net additions to current trips from the site, the percentage of trips that are new trips as opposed to pass-by or divert-link trips, and any other trip data for the proposed land use. b. Economic studies must include documentation of any special factors that the applicant believes will reduce the traffic volumes otherwise attributable to the proposed land use. c. The City shall consider all such documentation and any independent fee calculation study submitted by the applicant, but shall not be 135 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 9 required to accept any such study or documentation that the City deems to be inaccurate or unreliable and may request that the applicant submit additional or different documentation for consideration. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or accepted with modifications by the City as the basis for calculating transportation impact fees. d. Upon acceptance, or acceptance with modifications, of an independent fee calculation study and documentation, the City shall use the following formulas to determine the transportation impact fee: Net Impact Fee = Total Impact Cost – Gas Tax Credit – Ad Valorem Credit Where: Total Impact Cost = ((Trip Rate × Assessable Trip Length × % New Trips) / 2) × (1 -Interstate Adj. Factor) × (Cost per Lane Mile / Avg. Capacity Added per Lane Mile) Total Gas Tax Credit = Present Value (Annual Gas Tax Credit), given 4.6% interest rate & 25-year facility life Annual Gas Tax Credit = (((Trip Rate × Total Trip Length × % New Trips) / 2) × Effective Days per Year × $/Gallon to Capital) / Fuel Efficiency And where: Trip Rate = the average daily trip generation rate, in vehicle-trips/day Assessable Trip Length = the actual average trip length for the category, in vehicle miles Total Trip Length = the assessable trip length plus an adjustment factor of half a mile is added to the trip length to account for the fact that gas taxes are collected for travel on all roads including local roads % New Trips = adjustment factor to account for trips that are already on the roadway Divide by 2 = The total daily miles of travel generated by a particular category (i.e., rate X length X % new trips) is divided by two to prevent the double-counting of travel generated among land use codes since every trip has an origin and a destination. Interstate Adjustment Factor = adjustment factor to account for the travel demand occurring on interstate highways (15.0%) Cost per Lane Mile = unit cost to construct one lane mile of roadway, in $/lane mile($3,678,522 per study and will be subject to inflationary adjustments) Average Capacity Added per Lane Mile = represents the average daily traffic on one travel lane at capacity for one lane mile of roadway, in vehicles/lane-mile/day (8,658 per study) Cost per Vehicle Mile of Capacity = unit cost to construct to provide a vehicle mile of capacity ($472.92 per study) 136 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 10 Present Value = calculation of the present value of a uniform series of cash flows, gas tax payments in this case, given an interest rate, “i,” and a number of periods, “n;” for 4.6% interest and a 25-year facility life, the uniform series present worth factor is 14.6768 Effective Days per Year = 365 days $/Gallon to Capital = the amount of gas tax revenue per gallon of fuel that is used for capital improvements, in $/gallon ($0.102) Fuel Efficiency = average fuel efficiency of vehicles, in vehicle- miles/gallon (17.70) C. Payment of Transportation Impact Fee 1. An applicant for any of the permits or extensions listed in Subsection (A)(1) of this section shall pay the transportation impact fee required by this chapter to the City prior to the issuance of any such permit. 2. All funds paid by an applicant pursuant to this chapter shall be identified as transportation impact fees and shall be promptly deposited in the transportation impact fee fund described in Subsection D of this section. D. Transportation Impact Fee Funds 1. A single transportation impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those transportation impact fees collected pursuant to this chapter and any interest which may accrue from time to time on such amounts. E. Use of Transportation Impact Fee Funds. The monies in the transportation impact fee fund shall be used only as follows: 1 To acquire land for and/or acquire or construct capacity-adding capital improvements to the transportation system reasonably related to the benefits accruing to new development subject to the terms of this chapter, in accordance with the requirements of Montana law; or 2 To pay debt service on such capital improvements to the transportation system; or 3 For purposes of refunds or credits, as described in Sections 3.24.090 or 3.24.100(G)); and 4. May not be used for a. operations or maintenance purposes; b to correct existing deficiencies; or c. for bicycle or pedestrian facilities not built in conjunction with and included in a capacity-adding transportation system facility, otherwise eligible for impact fee funding. F. Exemptions from Transportation Impact Fee 137 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 11 1. The following types of development shall be exempted from payment of the transportation impact fee: a. Alterations, remodeling, rehabilitations, expansions of existing buildings, or other improvements to an existing structure where no additional vehicle trips will be produced over and above those produced by the existing use; b. Construction of accessory buildings or structures that will not produce additional vehicle trips over and above those produced by the primary building or land use; c. The replacement of a destroyed or partially destroyed building or structure with a new building or structure of the same size and use where no additional vehicle trips will be produced over and above those produced by the original building or structure; d. The installation or replacement of a mobile home on a lot or a mobile home site when a transportation impact fee for such lot or site has previously been paid pursuant to this chapter or where a mobile home legally existed on such site on or prior to the effective date of this chapter;e. Any other type of development for which the applicant can demonstrate that the proposed land use and development will produce no more vehicle trips from such site over and above the trips from such site prior to the proposed development, or for which the applicant can show that a transportation impact fee for such site has previously been paid in an amount that equals or exceeds the transportation impact fee that would be required by this chapter for such development. 2. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit or a type listed in Subsection (A)(1) of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 3. The City Manager or his designee shall determine the validity of any claim for exemption pursuant to the criteria set forth in Subsection (F)(1) of this section. TABLE 3.24.050 The following transportation impact fees apply to developments not located in the Central Business District or a designated Trip Exchange District. ITE LUC Land Use Unit Fee* RESIDENTIAL: 210 Single Family (Detached) Less than 1,500 sf and very low income(2) du $2,171 Less than 1,500 sf and low income (3) du $3,147 Less than 1,500 sf du $3,968 138 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 12 ITE LUC Land Use Unit Fee* 1,500 to 2,499 sf du $5,396 2,500 sf or larger du $6,082 220 Apartments du $3,339 230 Residential Condominium/ Townhouse du $2,946 240 Mobile Home Park du $1,593 LODGING: 310 Hotel room $3,063 320 Motel room $1,678 RECREATION: 430 Golf Course hole $12,295 411 City Park acre $546 444 Movie Theaters 1,000 sf $6,463 INSTITUTIONS: 610 Hospital 1,000 sf $6,023 620 Nursing Home bed $381 520 Elementary School student $315 530 High School student $477 540 University (7,500 or fewer students) (4) student $609 550 University (more than 7,500 students) (4) student $529 560 Church/ Synagogue 1,000 sf $2,428 565 Day Care 1,000 sf $7,433 OFFICE: 710 50,000 sf or less 1,000 sf $3,977 710 50,001-100,000 sf 1,000 sf $3,623 710 100,001-200,000 sf 1,000 sf $3,084 710 greater than 200,000 1,000 sf $2,460 720 Medical Office 1,000 sf $9,584 RETAIL: 820 under 50,000 sf 1,000 sf $9,378 820 50,000-99,000 sf 1,000 sf $9,587 820 100,000-199,000 sf 1,000 sf $9,331 820 200,000-299,000 sf 1,000 sf $8,567 820 greater than 300,000 sf 1,000 sf $8,144 812 Building Material/ Lumber 1,000 sf $21,209 813 Discount Super-Store 1,000 sf $26,996 817 Nursery/Garden Center 1,000 sf $18,903 851 Convenience Store 1,000 sf $44,607 931 Quality Restaurant 1,000 sf $22,036 934 Fast Food Rest w/ Drive-Thru 1,000 sf $61,225 841 New/Used Auto Sales 1,000 sf $12,033 890 Furniture Store 1,000 sf $1,684 912 Bank/ Savings Drive-in 1,000 sf $31,706 INDUSTRY: 110 General Light Industrial 1,000 sf $2,290 140 Manufacturing 1,000 sf $1,250 139 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 13 ITE LUC Land Use Unit Fee* 150 Warehouse 1,000 sf $1,627 151 Mini-Warehouse 1,000 sf $810 (1) Source: Transportation Impact Fee Study, Appendix F, Table F-1 (2) Defined as 50% of city median income based on 2007 Gallatin County Average Median Income (AMI) (3) Defined as 80% of city median income based on 2007 Gallatin County Average Median Income (AMI) (4) Impact fee to be assessed on structures with classroom facilities. All auxiliary structures such as administrative buildings and research centers are to be charged at the office land use rate. The following transportation impact fees apply to developments located in the Central Business District or within a designated Trip Exchange District. ITE LUC Land Use Unit Fee* RESIDENTIAL: 210 Single Family (Detached) Less than 1,500 sf and very low income(2) du $2,171 Less than 1,500 sf and low income(3) du $3,147 Less than 1,500 sf du $3,968 1,500 to 2,499 sf du $5,396 2,500 sf or larger du $6,082 220 Apartments du $3,339 230 Residential Condominium/ Townhouse du $2,946 240 Mobile Home Park du $1,593 LODGING: 310 Hotel room $2,835 320 Motel room $1,333 RECREATION: 430 Golf Course hole $4,333 411 City Park acre $182 444 Movie Theaters 1,000 sf $2,333 INSTITUTIONS: 610 Hospital 1,000 sf $6,023 620 Nursing Home bed $381 520 Elementary School student $315 530 High School student $477 540 University (7,500 or fewer students) (4) student $609 550 University (more than 7,500 students) (4) student $529 560 Church/Synagogue 1,000 sf $2,428 565 Day Care 1,000 sf $7,433 OFFICE: 710 50,000 sf or less 1,000 sf $3,187 710 50,001-100,000 sf 1,000 sf $2,911 710 100,001-200,000 sf 1,000 sf $2,475 140 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 14 ITE LUC Land Use Unit Fee* 710 greater than 200,000 sf 1,000 sf $1,974 720 Medical Office 1,000 sf $9,584 RETAIL: 820 under 50,000 sf 1,000 sf $5,284 820 50,000-99,000 sf 1,000 sf $5,452 820 100,000-199,000 sf 1,000 sf $5,182 820 200,000-299,000 sf 1,000 sf $5,115 820 greater than 300,000 sf 1,000 sf $4,999 812 Building Material/Lumber 1,000 sf $21,209 813 Discount Super-Store 1,000 sf $26,996 817 Nursery/Garden Center 1,000 sf $18,903 851 Convenience Store 1,000 sf $44,607 931 Quality Restaurant 1,000 sf $6,009 934 Fast Food Rest w/ Drive-Thru 1,000 sf $22,164 841 New/ Used Auto Sales 1,000 sf $12,033 890 Furniture Store 1,000 sf $1,684 912 Bank/ Savings Drive-in 1,000 sf $24,133 INDUSTRY: 110 General Light Industrial 1,000 sf $2,290 140 Manufacturing 1,000 sf $1,250 150 Warehouse 1,000 sf $1,627 151 Mini-Warehouse 1,000 sf $810 (1) Source: Transportation Impact Fee Study, Appendix F, Table F-2 (2) Defined as 50% of city median income based on 2007 Gallatin County Average Median Income (AMI) (3) Defined as 80% of city median income based on 2007 Gallatin County Average Median Income (AMI) (4) Impact fee to be assessed on structures with classroom facilities. All auxiliary structures such as administrative buildings and research centers are to be charged at the office land use rate. *Compiler's Note: The Transportation Impact Fees listed in this formula shall be adjusted annually as per 3.24.110.K. 3.24.060 Fire Protection Impact Fees A. Imposition of Fire Protection Impact Fees 1. On or after March 23, 1996, any person who seeks to obtain: a. A building permit; or b. Any other permit that will result in construction that will generate demand for fire protection services; or c. Any extension of any such permit that was issued before the effective date of this chapter, is required to pay a fire protection impact fee in the amount specified in this chapter; or 141 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 15 d. Any delayed payment of impact fees as specified and approved by the City Commission in accordance with the BMC Title 17, Chapter 2 for Workforce Housing Lots. 2. No permits of the types described in Subsection (A)(1) of this section shall be issued until the fire protection impact fee described in this chapter has been paid, unless the development for which the permit is sought is exempted by Subsection F of this section. B. Computation of Amount of Fire Protection Impact Fee 1. An applicant required by this chapter to pay a fire protection impact fee may choose to have the amount of such fee determined pursuant to either Subsection (B)(2) or (B)(3) of this section. The amount of the fee calculated pursuant to either Subsection (B)(2) or (B)(3) of this section shall be subject to the following adjustment: a. For the first expansion of an existing nonresidential building, the amount calculated shall not include the amount calculated for the expansion of up to thirty percent as compared with its size on February 22, 1996, or two thousand square feet, whichever is less. 2. Unless an applicant requests that the City determine the amount of such fee pursuant to Subsection (B)(3) of this section, the City shall determine the amount of the required fire protection impact fee by reference to Table 3.24.060. a. If the type of development that a permit is applied for is not listed in Table 3.24.060, then the City shall use the fee applicable to the most nearly comparable type or land use in the table. b. If the type of development that a permit is applied for includes a mix of those uses listed in Table 3.24.060, then the fee shall be determined by adding up the fees that would be payable for each use if it were a freestanding use pursuant to Table 3.24.060. c. If the applicant is applying for an extension of a permit issued previously, then the fee shall be the net increase between the fee applicable at the time of the current permit application and any fire protection impact fee previously paid pursuant to this chapter for the same structure. In the event that the fee applicable at the time of the current permit application is lower than the fire protection impact fee previously paid pursuant to this chapter for the same structure, there shall be no refund of fire protection impact fees previously paid. d. If the applicant is applying for a permit to allow a change of use or for the expansion, redevelopment, or modification of an existing development, the fee shall be based on the net increase in the fee for the new use as compared to the previous use. In the event that the proposed change of use, expansion, redevelopment, or modification results in a net decrease in the fee for the new use or development 142 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 16 as compared to the previous use or development, there shall be no refund of fire protection impact fees previously paid. 3. An applicant may request that the City determine the amount of the required fire protection impact fee by reference to an independent fee calculation study for the applicant's development prepared at the applicant's cost by qualified professional fire protection experts and/or economists and submitted to the City Fire Chief. Any such study shall be based on the same service standards and unit costs for fire protection used in the fire impact fee study prepared by HDR Engineering dated July 2008 and as updated, and must document the economic methodologies and assumptions used. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or accepted with modifications by the City as the basis for calculating fire protection impact fees. If such study is accepted or accepted with modifications as a more accurate measure of the demand for new fire protection facilities and equipment created by the applicant's proposed development than the applicable fee shown in Table 3.24.060, then the fire protection impact fee due under this chapter may be calculated according to such study. C. Payment of Fire Protection Impact Fees 1. An applicant required by this chapter to pay a fire protection impact fee shall pay such fee to the City prior to the issuance of any of the permits listed in Subsection (A)(1) of this section. 2. All funds paid by an applicant pursuant to this chapter shall be identified as fire protection impact fees and shall be promptly deposited in the fire protection impact fee fund described in Subsection D of this section. D. Fire Protection Impact Fee Funds 1. A single fire protection impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those fire protection impact fees collected pursuant to this chapter and any interest which may accrue from time to time on such amounts. E. Use of Fire Protection Impact Fee Funds. The monies in the fire protection impact fee fund shall be used only: 1 To acquire or construct fire protection improvements within the city; or 2 To pay debt service on any portion of any future general obligation bond issue or revenue bond issue used to finance the acquisition or construction of fire protection improvements within the city; or 3 As described in Sections 3.24.090 or 3.24.100(G). F. Exemptions from Fire Protection Impact Fee 1. The following types of development shall be exempted from payment of the fire protection impact fee: 143 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 17 a. Reconstruction, expansion, or replacement of a previously existing residential unit that does not create any additional residential units. b. Construction of unoccupied accessory units related to a residential unit. c. Projects that the applicant can demonstrate will produce no greater demand for fire protection from such land than existed prior to issuance of such permit. d. Projects for which a fire protection impact fee has previously been paid in an amount that equals or exceeds the fire protection impact fee that would be required by this chapter. 2. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit of a type listed in Subsection (A)(1) of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 3. The City Manager or his designee shall determine the validity of any claim for exemption pursuant to the criteria set forth in Subsection (F)(1) of this section. Table 3.24.060 Type of Development Impact Fee* Detached residential per dwelling unit $780.20 Attached residential, per dwelling unit $655.92 Commercial/Industrial/Institutional per 1,000 gross sq. ft. of building space $178.84 *Compiler's Note: The Fire Protection Impact Fees listed in this formula shall be adjusted annually as per 3.24.110.K. 3.24.070 Water Impact Fees A. Imposition of Water Impact Fees 1. On or after March 23, 1996, any person who seeks to obtain a permit for connection to the city water system, or who is subject to subsection (B)(2)(b) and applies for a city permit to expand or add to the structure served by a previously approved water connection, or any extension of such a permit issued before the effective date of this chapter, is required to pay a water impact fee in the amount specified in this chapter; or 2. Any delayed payment of impact fees as specified and approved by the City Commission in accordance with the BMC Title 17, Chapter 2 for Workforce Housing Lots. 3. No permits for connection to the city water system shall be issued until the water impact fee described in this chapter has been paid, unless the 144 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 18 development for which the permit is sought is exempted by Subsection F of this section. B. Computation of Amount of Water Impact Fee 1. The City shall determine the amount of the required water impact fee by reference to Table 3.24.070 unless the applicant chooses to submit an individualized calculation pursuant to subsection (B)(2)(a) or the City determines the application to be subject to subsection (B)(2)(b). If the applicant is applying for a replacement for a water connection permit issued previously, then the fee shall be the net positive difference between the fee applicable at the time of the current permit application and any water impact fee previously paid pursuant to this chapter for the same structure. In the event that the fee applicable at the time of the replacement permit application is lower than the water impact fee previously paid pursuant to this chapter for the same structure, there shall be no refund of water impact fees previously paid. 2. Individualized Calculations. a. An applicant may request that the City determine the amount of the required water impact fee by reference to an independent fee calculation study for the applicant's development prepared at the applicant's cost by a professional engineer and/or economist and submitted to the City Public Service Director. Any such study shall be based on the same service standards and unit costs used in the water impact fee study prepared by HDR Engineering dated May 2007, and as updated, and must document the economic methodologies and assumptions used. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or accepted with modifications by the City as the basis for calculating water impact fees. If such study is accepted, or accepted with modifications, as a more accurate measure of the demand for new water facilities created by the applicant's proposed development than the applicable fee shown in Table 3.24.070, then the water impact fee due under this chapter may be calculated according to such study. b. The City may identify a user as having extraordinary demands for water service which are not accurately represented by the average usage which was relied upon by the methodology which generated Table 3.24.070. In this circumstance the City shall prepare a customized calculation based upon the Large Meter calculation methodology in Exhibit 6 of the Water Impact Fee study. The impact fee paid for water meters larger than 3 inches as of the effective date of this ordinance may be adjusted based on actual usage. If usage is greater than 110% of anticipated volume during the 12 month period of time beginning 6 months after building occupancy is granted by the City, an additional impact fee may be charged, using the same techniques for calculating peak day and storage EDUs and multiplying by the peak day impact fee cost per EDU and the storage impact fee cost per EDU then in effect. The additional impact fee is the positive net between a previously calculated impact fee and the 145 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 19 impact fee based upon the metered demand. C. Payment of Water Impact Fee 1. An applicant required by this chapter to pay a water impact fee shall pay such fee to the City prior to the issuance of a water connection permit. 2. All funds paid by an applicant pursuant to this chapter shall be identified as water impact fees and shall be promptly deposited in the water impact fee fund described in Subsection D of this section. D. Water Impact Fee Funds 1. A single water impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those water impact fees collected pursuant to this chapter and any interest which may accrue from time to time on such amounts. E. Use of Water Impact Fee Funds. The monies in the water impact fee fund shall be used only: 1. To acquire or construct improvements to the city water system; or 2. To pay debt service on any portion of any future general obligation bond issue or revenue bond issue used to finance improvements to the city water system; or 3. As described in Sections 3.24.090 or 3.24.100(G). F. Exemptions from Water Impact Fees 1. The following types of development shall be exempted from payment of the water impact fee: a. Alteration or expansion of an existing building that does not require an additional or larger water meter; b. Replacement of a building or structure of the same size that does not require an additional or larger water meter; c. The location of mobile home on a site for which a water impact fee was previously paid, and that does not require an additional or larger water meter. 2. The installation of fire lines for fire protection shall be exempted from payment of the water impact fee. 3. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit of a type listed in Subsection (A)(1) of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 4. The City Manager or his designee shall determine the validity of any claims for exemption pursuant to the criteria set forth in Subsections (F)(1) and (F)(2) of this section. 146 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 20 Table 3.24.070 WATER IMPACT FEE SCHEDULE* SIZE OF WATER METER COST PER METER 3/4 inch $ 3,310 1 inch $ 8,275 1 ½ inch $ 16,550 2 inch $ 26,480 3 inch $ 52,960 Larger than 3 inch calculated *Compiler's Note: The Cost Per Meter Fees listed in this formula shall be adjusted annually as per 3.24.110.K. 3.24.080 Wastewater Impact Fees A. Imposition of Wastewater Impact Fees 1. On or after March 23, 1996, any person who seeks to obtain a permit for connection to the city wastewater system, or who is subject to subsection (B)(2)(b) and applies for a city permit to expand or add to the structure served by a previously approved water connection, or any extension of such a permit issued before the effective date of this chapter is required to pay a wastewater impact fee in the amount specified in this chapter; or 2. Any delayed payment of impact fees as specified and approved by the City Commission in accordance with the BMC Title 17, Chapter 2 for Workforce Housing Lots. 3. No permits for connection to the city water system shall be issued until the water impact fee described in this chapter has been paid, unless the development for which the permit is sought is exempted by Subsection F of this section. B. Computation of Amount of Wastewater Impact Fee 1. The City shall determine the amount of the required wastewater impact fee by reference to Table 3.24.080 070 unless the applicant chooses to submit an individualized calculation pursuant to subsection (B)(2)(a) or the City determines the application to be subject to subsection (B)(2)(b). If the applicant is applying for a replacement for a wastewater connection permit issued previously, then the fee shall be the net positive difference between the fee applicable at the time of the current permit application and any wastewater impact fee previously paid pursuant to this chapter for the same structure. In the event that the fee applicable at the time of the replacement permit application is lower than the wastewater impact fee previously paid pursuant to this chapter for the same structure, there shall be no refund of wastewater impact fees previously paid. 2. Individualized Calculations. 147 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 21 a. An applicant may request that the City determine the amount of the required wastewater impact fee by reference to an independent fee calculation study for the applicant's development prepared at the applicant's cost by a professional engineer and/or economist and submitted to the City Public Service Director. Any such study shall be based on the same service standards and unit costs used in the wastewater impact fee study prepared by HDR Engineering dated May 2007, and as updated, and must document the economic methodologies and assumptions used. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or modified by the City as the basis for calculating wastewater impact fees. If such study is accepted or accepted with modifications as a more accurate measure of the demand for new wastewater facilities created by the applicant's proposed development than the applicable fee shown in Table 3.24.080, then the wastewater impact fees due under this chapter shall be calculated according to such study. b. The City may identify a user as having extraordinary demands for wastewater service which are not accurately represented by the average usage which was relied upon by the methodology which generated Table 3.24.080. In this circumstance the City shall prepare a customized calculation based upon the methodology in the Water Impact Fee study. When applicable an adjustment for high strength discharge will be applied. The impact fee paid for water meters larger than 3 inches as of the effective date of this ordinance may be adjusted based on actual usage. If usage is greater than 110% of anticipated volume during the 12 month period of time beginning 6 months after building occupancy is granted by the City, an additional impact fee may be charged, using the same techniques for calculating treatment and collection in EDUs and multiplying by the impact fee cost per EDU. The additional impact fee is the positive net between a previously calculated impact fee and the impact fee based upon the metered demand. C. Payment of Wastewater Impact Fee 1. An applicant required by this chapter to pay a wastewater impact fee shall pay such fee to the City prior to the issuance of a wastewater connection permit. 2. All funds paid by an applicant paid pursuant to this chapter shall be identified as wastewater impact fees and shall be promptly deposited in the wastewater impact fee fund described in Subsection D of this section. D. Wastewater Impact Fee Funds 1. A single wastewater impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those wastewater impact fees collected pursuant to this chapter and any interest which may accrue from time to time on such amounts. 148 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 22 E. Use of Wastewater Impact Fee Funds. The monies in the wastewater impact fee fund shall be used only: 1. To acquire or construct improvements to the city wastewater system; or 2. To pay debt service on any portion of any future general obligation bond issue or revenue bond issue used to finance improvements to the city wastewater system; or 3. As described in Section 3.24.090 or Section 3.24.100(G). F. Exemptions from Wastewater Impact Fees 1. The following types of development shall be exempted from payment of the wastewater impact fee: a. Alteration or expansion of an existing building that does not require an additional or larger water meter; b. Replacement of a building or structure of the same size that does not require an additional or larger water meter; c. The location of mobile home on a site for which a wastewater impact fee was previously paid and that does not require an additional or larger water meter; 2. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit of a type listed in Subsection (A)(1) of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 3. The City Manager or his designee shall determine the validity of any claim for exemption pursuant to the criteria set forth in Subsection (F)(1) of this section. Table 3.24.080 WASTEWATER IMPACT FEE SCHEDULE SIZE OF WATER METER COST PER METER* 3/4 inch $ 2,955 1 inch $ 7,388 1 ½ inch $ 14,775 2 inch $ 23,640 3 inch $ 47,280 Larger than 3 inch calculated *Compiler's Note: The Cost Per Meter Fees listed in this formula shall be adjusted annually as per 3.24.110.K. 3.24.090 Refunds of Development Impact Fees Paid Refunds of development impact fees shall be made only in the following instances and in the following manner: 149 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 23 A. Upon application to the Impact Fee Coordinator by the applicant, the City shall refund the development impact fee paid if capacity is available and service is denied. B. 1. Upon application to the Impact Fee Coordinator, the City shall refund the development impact fee paid and not expended or encumbered within ten years from the date the development impact fee was paid or spent in a manner not in accordance with this chapter or section 17-6-1602 of the Montana Code Annotated. Refunds shall be paid to the owner of the property at the time the refund is due. In determining whether development impact fees have been expended or encumbered, fees shall be considered encumbered on a first-in, first-out (FIFO) basis. 2. When the right to a refund exists due to a failure to expend or encumber development impact fees, the City shall publish written notice within thirty days after the expiration of the ten year period from the date development impact fee was paid. The published notice shall contain the heading "Notice of Entitlement to Development Impact Fee Refund." C. If an applicant has paid a development impact fee required by this chapter and has obtained any of the types of permits or extensions listed in Sections 3.24.050 (A)(1), 3.24.060 (A)(1), 3.24.070 (A)(1), or 3.24.080(A)(1), and the permit or extension for which the fee was paid later expires without the possibility of further extension, then the applicant who paid such fee shall be entitled to a refund of the fee paid, without interest. In order to be eligible to receive such refund, the applicant who paid such fee shall be required to submit an application for such refund within thirty days after the expiration of the permit or extension for which the fee was paid. D. A refund application shall be made to the Impact Fee Coordinator within one year from the date such refund becomes payable under Subsections A and B of this section, or within one year from the date of publication of the notice of entitlement of a refund under Subsection B of this section, whichever is later. Any refund not applied for within said time period shall be deemed waived. E. A refund application shall include information and documentation sufficient to permit the Impact Fee Coordinator to determine whether the refund claimed is proper and, if so, the amount of such refund. F. A refund shall include a pro rata share of interest actually earned on the unused or excess development impact fee paid. G. All refunds shall be paid within sixty days after the Impact Fee Coordinator determines that such refund is due. (Ord. 1418 § 7, 1996; Ord. 1414 § 1 (part), 1996) H. Any refund payable pursuant to Subsections A and B of this section, shall be made to the record owner of property as of the date the refund was due. 3.24.100 Credits Against Development Impact Fees A. After the effective date of this chapter, mandatory or voluntary land or easement dedications for transportation, fire protection, water, or wastewater improvements, and mandatory or voluntary acquisition or construction of capital improvements to the 150 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 24 transportation system or the city fire protection, water, or wastewater systems by an applicant in connection with a proposed development may result in a pro rata credit against the development impact fee for the same type of service or facility otherwise due for such development, except that no such credit shall be awarded for: 1. Projects or land dedications not listed on the impact fee capital improvements program; or 2. Land dedications for, or acquisition or construction of, project-related improvements as defined in Section 3.24.040(G) or Section 3.24.040; or 3. Any voluntary land or easement dedications not accepted by the City; or 4. Any voluntary acquisition or construction of improvements not approved in writing by the City prior to commencement of the acquisition or construction. B. In order to obtain a credit against development impact fees otherwise due, an applicant must submit a written offer to dedicate to the City specific parcels of qualifying land or easements, or to acquire or construct specific improvements to the transportation system or the City fire protection, water, or wastewater systems in accordance with all applicable State or City design and construction standards, and must specifically request a credit against such development impact fees. Such written request must be made on a form provided by the City, must contain a statement under oath of the facts that qualify the applicant to receive a credit, must be accompanied by documents evidencing those facts, and must be approved not later than the initiation of construction of improvements or the acceptance by the City of land dedications, or the applicant's claim for the credit shall be waived. The granting of credit shall be approved by the City Commission. The City shall approve a credit only after showing that the need for the dedication or construction is clearly documented pursuant to section 7-6-1602 of the Montana Code Annotated, and that any land dedication proposed for credit is determined to be appropriate for the proposed use. 1. Upon receipt of a complete application for impact fee credit the Impact Fee Coordinator shall coordinate review of the application for compliance with the requirements of this chapter and other relevant requirements. Upon completion of the review the Impact Fee Coordinator shall either: forward the application to the City Manager, or when required to the City Commission, for approval or; if the application is insufficient or otherwise does not conform to the City’s requirements shall communicate in writing to the applicant the reason the credit request failed. If the application satisfies the requirements and is approved the credit may be provided in any of the allowed forms as described in Subsection G. a. Factors for Consideration (1) When credit is sought for an improvement listed in the second through fifth years of the CIP after the current fiscal year there shall be a rebuttable presumption that any credit shall be awarded as a credit balance and not as cash. (2) The final decision to approve a credit request in excess of $1,000,000 from a single impact fee fund shall be made by the City Commission. 151 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 25 (3) In the event that the City Manager believes that a credit request may result in a significant effect on policy decisions the credit request may be referred to the City Commission for final action regardless of the dollar amount. (4) In the event that the City considers that award of a credit may negatively impact its ability to construct improvements listed sooner in time on the CIP they may decline to award a credit at that time without removing the item from the CIP. 2. Appeals relating to staff decisions on credit requests may be appealed to the City Commission per Subsection 3.24.110.I C. The credit due to an applicant shall be calculated and documented as follows: 1. Credit for qualifying land or easement dedications shall, at the applicant's option, be valued at: a. One hundred percent of the most recent assessed value for such land as shown in the records of the City Assessor; or b. That fair market value established by a private appraiser acceptable to the City in an appraisal paid for by the applicant. 2. In order to receive credit for qualifying acquisition or construction of transportation, fire protection, water, or wastewater improvements, the applicant shall submit complete engineering drawings, specifications, and construction cost estimates to the City. The City shall determine the amount of credit due based on the information submitted, or, if it determines that such information is inaccurate or unreliable, then on alternative engineering or construction costs acceptable to the City. D. Approved credits shall become effective at the following times: 1. Approved credit for land or easement dedications shall become effective when the land has been conveyed to the City in a form acceptable to the City, and at no cost to the City, and has been accepted by the City Commission. When such conditions have been met, the City shall note that fact in the credit record maintained by the City Finance Department. Upon request of the credit holder, the City shall send the credit holder a letter stating the credit balance available to him (or her). 2. Approved credits for the acquisition or construction of transportation, fire protection, water, or wastewater improvements shall generally become effective when: a. All required construction has been completed and has been accepted by the City; and b. A suitable maintenance and warranty bond has been received and approved by the City; and c. All design, construction, inspection, testing, bonding, and acceptance procedures have been completed in compliance with all applicable City and State procedures. 152 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 26 However, approved credits for the construction of improvements may become effective at an earlier date if the applicant posts security in the form of a performance bond, irrevocable letter of credit, or escrow agreement, and the amount and terms of such security are accepted by the City. At a minimum, such security must be in the amount of the approved credit or an amount determined to be adequate to allow the City to construct the improvements for which the credit was given, whichever is higher. When such conditions have been met, the City shall note that fact in the credit record maintained by the City Finance Department. Upon request of the credit holder, the City shall also send the credit holder a letter stating the credit balance available to him (or her). E. Approved credits may be used to reduce the amount of development impact fees due from any proposed development for the same type of service or facility for which the applicant dedicated land or acquired or constructed improvements until the amount of the credit is exhausted. Each time a request to use credit from a mandatory or voluntary dedication, acquisition, or construction is presented to the City, the City shall reduce the amount of the development impact fee of the same type otherwise due from the applicant and shall note in the city records the amount of credit remaining, if any. In the case of a mandatory dedication, acquisition, or construction, any credit in excess of the amount of the development impact fee otherwise due under this chapter shall be deemed excess credit that is remaining and available for use by the applicant. In the case of a voluntary dedication, acquisition, or construction, any credit in excess of the amount of the development impact fee of the same type and applicable to the project, as shown in Tables 3.24.050, 3.24.060, 3.24.070, or 3.24.080, shall be deemed excess credit that is remaining and available for use by the applicant. Upon request of the credit holder, the City shall also send the credit holder a letter stating the amount of credit remaining to him (or her). F. Approved credit shall only be used to reduce the amount of development impact fees of the same type otherwise due under this chapter and shall not be paid to the applicant in cash or in credit against any development impact fees for a different type of facility or service or against any other monies due from the applicant to the City, except as described in Subsection G of this section. G. If the amount of approved credit for a mandatory dedication, acquisition, or construction exceeds the amount of the development impact fees of the same type otherwise due under this chapter, the applicant may request in writing that the City provide for reimbursement of any excess credit to the applicant in cash. Such written request must be approved not later than the initiation of construction of improvements, or the acceptance by the City of land dedications, or the applicant's claim shall be waived. Upon receipt of such a written request, the City may, at its discretion: 1. Arrange for the reimbursement of such excess credit from the impact fee fund for the same type of service or facility from development impact fees paid by others; 2 . Arrange for the reimbursement of such excess credit through the issuance of a promissory note payable in not more than ten years and bearing interest equal to the interest rate paid by the City for its long-term debt; or 153 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 27 3. Reject the request for cash and provide credit. Such excess credit shall be valued at one hundred percent of actual developer costs for the excess improvements, or at the actual appraised value of such excess improvements, at the City's option. H. Credit may be transferred from one holder to another by any written instrument clearly identifying the credit issued under Subsection C of this section that is to be transferred, provided that such instrument is signed by both the transferror and transferee, and that the document is delivered to the City for registration of the change in ownership. I. In the event that land is annexed into the city from Gallatin County after the effective date of this chapter, and that road or fire impact fees have been previously paid to the County, an applicant proposing a development on the land may request in writing a credit against the transportation impact fee equal to the amount of any road impact fee paid to the County for the same land and may also request a credit against the fire protection impact fee equal to the amount of any fire protection impact fee paid to the County for the same land. Such written request must be filed not later than the time when an applicant applies for the first permit of a type listed in Sections 3.24.050(A)(1) or 3.24.060(A)(1) that creates an obligation to pay the type of development impact fee against which the credit is requested, or the applicant's claim shall be waived. 3.24.110 Miscellaneous Provisions A. Interest earned on monies in any impact fee fund shall be considered part of such fund and shall be subject to the same restrictions on use applicable to the impact fees deposited in such fund. B. No monies from any impact fee fund shall be spent for periodic or routine maintenance of any facility of any type or to cure deficiencies in public facilities existing on the effective date of this chapter. C. Nothing in this chapter shall restrict the City from requiring an applicant to construct reasonable project improvements required to serve the applicant's project, whether or not such improvements are of a type for which credit is available under Section 3.24.100. D. The City shall maintain accurate records of the development impact fees paid, including the name of the person paying such fees, the project for which the fees were paid, the date of payment of each fee, the amounts received in payment for each fee, and any other matters that the City deems appropriate or necessary to the accurate accounting of such fees, and such records shall be available for review by the public during city business hours. E. At least once during each fiscal year of the City, the City Administrative Services Director shall present to the City Commission a proposed impact fee capital improvements program for the transportation system, fire protection system, water system, and wastewater system, which identifies the capacity-adding capital improvements that will benefit new development subject to the terms of this chapter, exclusive of any improvements needed to correct existing deficiencies or for operation or maintenance purposes. Such capital improvements program shall assign monies from each impact fee fund to specific projects and related expenses for improvements 154 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 28 to the type of facilities or services for which the fees in that fund were paid. Any monies, including any accrued interest, not assigned to specific projects within such capital improvements program and not expended pursuant to Sections 3.24.090 or 3.24.100(G) shall be retained in the same impact fee fund until the next fiscal year. The Impact Fee Capital Improvements Program shall be adopted by the City Commission as a supplemental document to the city budget. The Impact Fee Capital Improvements Program shall schedule the construction of capital improvements to serve projected growth and project capital improvement costs, expenditures and impact fee fund revenues for a five year period. The individual fee funds shall maintain a positive fiscal balance. The program may be amended by a majority vote of the City Commission. The City Manager shall adopt and revise, as needed, an administrative impact fee manual to carry out the purposes of this chapter. F. The City shall be entitled to retain not more than five percent of the development impact fees collected as payment for the expenses of collecting the fee and administering this chapter. G. If a development impact fee has been calculated and paid based on a mistake or misrepresentation, it shall be recalculated. Any amounts overpaid by an applicant shall be refunded by the City to the applicant within thirty days after the City's acceptance of the recalculated amount, with interest at the rate of five percent per annum since the date of such overpayment. Any amounts underpaid by the applicant shall be paid to the City within thirty days after the City's acceptance of the recalculated amount, with interest at the rate of five percent per annum since the date of such underpayment. In the event the underpayment is caused by an error attributed solely to the City, the applicant shall pay the recalculated amount without interest. In the case of an underpayment to the City, the City shall not issue any additional permits or approvals for the project for which the development impact fee was previously paid until such underpayment is corrected; and if amounts owed to the City are not paid within such thirty day period, the City may also repeal any permits issued in reliance on the previous payment of such development impact fee and refund such fee to the then current owner of the land. H. In order to promote affordable workforce housing of the City, the City Commission may waive impact fees for Workforce Housing Lots approved by the City Commission pursuant to the BMC Title 17, Chapter 2 by paying some or all of the impact fee from other funds of the city that are not restricted to other uses. In order to promote the economic development of the city and the provision of affordable housing in the city, the City Commission may agree to pay some or all of the development impact fees imposed on a proposed development by this chapter from other funds of the city that are not restricted to other uses. Any such decision to pay development impact fees on behalf of an applicant shall be at the discretion of the City Commission and shall be made pursuant to goals and objectives previously adopted by the City Commission to promote economic development and/or affordable housing. I. Any determination made by any official of the city charged with the administration of any part of this chapter may be appealed to the Development Impact Fees Review Committee by filing: 1. A written notice of appeal on a form provided by the City; 155 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 29 2. A written explanation of why the appellant feels that a determination was in error; and 3. An appeal fee of five hundred dollars with the Impact Fee Coordinator within ten working days after the determination for which the appeal is being filed. The Development Impact Fees Review Committee shall meet to review the appeal within thirty working days of the date the written appeal was presented to the Impact Fee Coordinator. If the appellant is dissatisfied with the decision of the Development Impact Fees Review Committee, the appellant may appeal the decision to the City Commission by filing a written request with the City Clerk within ten working days of the Committee's decision. At the regular meeting following the filing of the appeal, the City Commission shall fix a time and place for hearing the appeal; and the City Clerk shall mail notice of the hearing to the appellant at the address given in the notice of appeal. The hearing shall be conducted at the time and place stated in such notice given by the City Commission. The determination of the City Commission shall be final. If the City Commission concludes that all or part of a determination made by an official of the city charged with the administration of any part of this chapter was in error, then the appeal fee described above shall be returned to the appellant. J. Updating of impact fee information. 1. The facility plans described in this chapter shall be reviewed by the City at least once every five years and if a revision of a facility plan to address changed conditions is deemed necessary, by the City, the plan shall be updated. 2. The development impact fees described in this chapter, fee studies, data and analysis relied upon and required by section 7-6-1602, MCA, and the administrative procedures and manual of this chapter shall be updated at least once every three fiscal years. 3. The impact fee capital improvement program shall be reviewed and updated as provided in section 3.24.110(E) above. 4. The purpose of the review and updating of impact fee related documentation is to ensure that: a The demand and cost assumptions underlying such fees are still valid; b. The resulting fees do not exceed the actual cost of constructing improvements that are of the type for which the fee was paid and that are required to serve new development; c. The monies collected or to be collected in each impact fee fund have been, and are expected to be, spent for improvements of the type for which such fees were paid; and d. That such improvements will benefit those developments for which the fees were paid. K. The development impact fees shown in Tables 3.24.050, 3.24.060, 3.24.070, and 3.24.080 shall be adjusted annually to reflect the effects of inflation on those costs for 156 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 30 improvements set forth in the impact fee studies. On January 1st of each year unless and until the fees in Tables 3.24.050, 3.24.060, 3.24.070, and/or 3.24.080 are revised or replaced, and then beginning in the subsequent calendar year, each fee amount set forth in each such table shall be adjusted by multiplying such amount by one (1) plus the value of the Construction Cost Index published in the first December edition of the current year. – Source: Engineering News Record. The right-of-way component of the transportation impact fee shall be adjusted by multiplying the value of the right-of-way component of the fee by one (1) plus the percentage value of the increase in taxable value from the preceding year. – Source: Montana Department of Revenue. Such adjustments in such fees shall become effective immediately upon calculation by the City and shall not require additional action by the City Commission to be effective. M. The section titles used in this chapter are for convenience only and shall not effect the interpretation of any portion of the text of this chapter. N. Any judicial action or proceeding to attack, review, set aside, or annul the reasonableness, legality, or validity of any development impact fee must be filed and service of process effected within ninety days following the date of imposition of the fee or the final determination of the City Commission, whichever is the later. 157 1 Development Impact Fee Review Committee Meeting– September 1, 2010 MINUTES DEVELOPMENT IMPACT FEE REVIEW COMMITTEE ITEM 1: CALL TO ORDER AND ATTENDANCE Chairperson Arkell called the meeting to order at 1:37 p.m., in the Yellowstone Meeting Room, City Hall, 121 North Rouse Avenue, Bozeman, Montana. Members Present Staff Present Debbie Arkell Chris Saunders, Assistant Planning Director/Impact Fee Coordinator Jason Schrauger Bob Murray, City Engineer Bob Risk Tara Hastie, Recording Secretary Tim McHarg Tim Cooper, City Attorney Members Absent None Visitors Present Ted Mitchell Brion Lindseth Keith Scott ITEM 2: PUBLIC COMMENT Please state your name and address in an audible tone of voice for the record. This is the time for individuals to comment on matters falling within the purview of the Bozeman Impact Fee Review Committee. Please limit your comments to three minutes. There was no public comment forthcoming. ITEM 3: APPEAL OF IMPACT FEE ADMINISTRATIVE DECISION REGARDING APPLICATION FOR IMPACT FEE CREDIT FOR MITCHELL DEVELOPMENT GROUP, BOZEMAN GATEWAY A. Description of appeal process by Impact Fee Coordinator (5 min) Impact Fee Coordinator Chris Saunders presented the description of the Appeal process. He stated the City had adopted impact fees in 1996 and state law guidance was adopted by legislature in 2005. He stated there were specific requirements for assessment of capacity expansion. He stated both the statute and local ordinance included a mechanism for the valuing of credits and for the appeal process. He stated there were specific sections setting the two stage appeal process; the current appeal was for an Administrative Decision and there would be an opportunity to further appeal to the City Commission. He stated the City Manager had some authority to grant impact fee credits under limited circumstances that did not apply for the current request. He stated the appellant, Mitchell Development Group, had been in discussions 158 2 Development Impact Fee Review Committee Meeting– September 1, 2010 with the Planning Department regarding whether or not certain improvements qualified for impact fee credits. He stated the Committee had been given a copy of the appeal materials submitted by the applicant as well as Staff’s response to the Appeal. He stated Mr. Murray had been asked to attend as the project Engineer for the Bozeman Gateway Subdivision. He stated that unless the committee had general questions, he would suggest to moving on to item B. B. Presentation by Appellant (10 min) Brion Lindseth, representative, addressed the Committee. He confirmed that members had received the applicant and Staff materials. He stated he did not want to reiterate all the items covered in detail in the appeal documentation; he would be available to answer questions or clarify information. He stated he would like to make additional comments and noted that Mr. Mitchell or Mr. Scott might add to the discussion. He stated the Fowler/Main signal and Fowler/Main trunk line were items for discussion; they were in agreement that those items would be eligible for impact fee credits. Mr. Lindseth stated the procedural issues were what he would like to discuss; procedural allowances and concessions had been granted by the City before and the applicant would like the same consideration to be consistent with past history and with the Memorandum of Understanding containing pertinent language regarding the agreement that some of the improvements would provide benefits beyond those provided by the Gateway Development. He stated the existence of the agreement provided further justification of the reason for the request and suggested joint recommendations to the City Commission be made. Mr. Lindseth stated the construction of Fowler, as well as various other intersections, and the extension of Garfield Street provided benefits to the development, but also to the infrastructure of the City of Bozeman; a two lane would have been required but a five lane was being constructed. He stated those improvements would allow traffic flow down Fowler and across Garfield and would benefit the development. Mr. Mitchell stated he believed that Garfield had a current traffic count close to 9,000 cars per day now that the traffic survey for Kohl’s had been completed. Mr. Lindseth stated the point was that the improvement to those streets would provide benefit greater than just to the Bozeman Gateway development. He stated the infrastructure had been installed to provide additional capacity; he added they could all agree that the infrastructure installed would cover what was needed for the development itself. He stated they had already installed the capacity needed for future development of the site; the applicant was requesting a reduction in future assessments for similar improvements to recognize the fact that the infrastructure had been installed in a superior manner and they felt they would be paying twice for those improvements. He stated easements for Fowler had been granted to the City by MSU; the original location had been described in Impact Fee Coordinator Saunders’ reply to the Appeal. He directed the Committee to a rendering of the original location of Fowler and had required additional grants from Bozeman Gateway for improvements. He stated they would like the Committee to support procedural allowances and concessions to allow decent credits for the Fowler/Main signal and Fowler trunk line sewer; he asked for abatements to future assessments as well – not full reimbursement, but partial reimbursement to avoid paying twice for those improvements. 159 3 Development Impact Fee Review Committee Meeting– September 1, 2010 Mr. Mitchell added he wanted it to be clear that he came to the City and asked if he could build Fowler and Garfield and those were constructed as agreed. He stated he did not know at the time that a 21 inch sewer line would be required to be installed; he had committed to building Fowler and Garfield – the commitment would be honored though the streets had been over built. He asked the Committee to help with the 21 inch sewer and intersection costs; the MOU had indicated aid in reimbursement for those improvements. He stated the City had money in the coffers for the intersection and he had not yet seen the money for those improvements; the fund amount was unclear. He stated Town & Country should have participated in the funding of the intersection. He asked the Committee to consider the request to help prevent paying of the same fees twice. He stated the north portion of Fowler Avenue had been placed on the Gateway land to prevent ruination of the natural beauty of the site. He stated the Appeal indicated what was being asked for and urged the Committee to forward a recommendation to the City Commission to allow impact fee credits for future assessments. Chairperson Arkell asked for clarification of the MOU. Mr. McHarg directed Chairperson Arkell to the MOU. Mr. Lindseth read the pertinent section. Mr. Risk asked what additional fees would be assessed in the future. Impact Fee Coordinator Saunders responded impact fees were charged at the time of connection to the system; three constructed buildings had been assessed and paid for. He added the rest of the buildings would be assessed as they applied for Building Permits for construction. Mr. Risk asked if the infrastructure had been wholly installed. Impact Fee Coordinator Saunders responded impact fees were not assessed for on-site work, which had been partially completed. Mr. Murray added there would be additional streets internal to the subdivision that had not yet been constructed. Mr. Lindseth added that the items discussed currently had been completed. Mr. McHarg stated he thought he understood the request relative to some credit application of Garfield Street and asked if the applicant if they had a methodology to quantify the credit amount. Mr. Lindseth responded it had been the subject of several discussions; there was a means to assess individual assessments, but capacity expansion amounts could not be agreed upon; an agreement could be reached to forward a recommendation to the City Commission and the amount was negotiable in the interest of agreement. He suggested excess capacity could be discussed to determine an overall future offset figure; there might be some intersections further from the development that would provide more benefit to the City than the development itself. He stated a combination of the three items could be addressed; they were not seeking to be fully reimbursed on what was being requested. Mr. Mitchell added the figure had been calculated using the extra costs for the increased size of the sewer and intersections. Chairperson Arkell asked for clarification that the Committee could approve or deny the request at today’s meeting. Impact Fee Coordinator Saunders responded the City Commission would be the ultimate authority due to the amount of money being discussed. Mr. Lindseth added he would have liked to alleviate the City Commission review step. Attorney Cooper stated the Committee had the authority to superimpose judgment over the Impact Fee Coordinator, but could not award a credit; the City Commission was the only entity that could award a credit. He stated Mitchell Development could have gone to the Commission without first consulting the 160 4 Development Impact Fee Review Committee Meeting– September 1, 2010 Impact Fee Committee; the Committee did not have the authority to overrule the code requirement but could provide recommendations. Mr. Lindseth asked if a portion of the reimbursement were to come by reduction or waiver of future impact fee assessments, would it be an issue resolvable by the Committee or the City Commission. Attorney Cooper responded some of those items would be outside of the impact fee credit discussion and would need to be discussed by the Commission based on the terms of the MOU. Mr. Murray cited not paying for Kohl’s impact fees was an example of what the applicant was requesting. Attorney Cooper responded impact fees had to be paid per the ordinance. C. Presentation of Staff position by Impact Fee Coordinator (10 min) Chairperson Arkell stated she was under the assumption that the decision today could be appealed to the City Commission due to the language included on the Staff memo. Impact Fee Coordinator Saunders clarified that there were specific criteria in the ordinance; Staff would offer a recommendation on whether or not the request met those criteria. The applicant’s request was twofold – the committee finds that some items were disqualified or qualified for credits and forwarded to the City Commission. He stated the hope by the applicant was that the Committee would find in favor of a different recommendation to the Commission; credits were allowed under certain conditions. He stated the charge was not to say whether or not the credit was approved, but instead to determine whether or not the credit request met the criteria from the ordinance. Mr. Lindseth added there were three different mechanisms the City Commission could grant to award those credits and listed those methods. He stated that for the purpose of the impact fee program, there was not a material difference between a cash payment or a balance; the request for credit by a reduction would be a credit balance option that would be available for the applicant to draw against. Mr. Lindseth stated the key discussion would be whether or not the review criteria had been satisfied; he referred to exhibit F as the basis for Staff’s decision. He stated some elements had agreed upon by Staff and the applicant and some were procedural elements that had not been agreed upon. Mr. Lindseth stated the funds available for the intersection through the Parkway Plaza Subdivision were roughly $9,000.00 and could be brought forward. He stated there had been some discussion regarding credit calculations and traffic calculations had caused less agreement as those would be more difficult; he added Staff concurred that many things could be done that were beneficial and cost sharing could occur but not meet the criteria for impact fee credits. He stated Staff believed that some of the projects requested for credit benefitted others, but did not satisfy the improvements required – he cited Garfield Street as a local street, for which impact fee credits could not be used, as a remaining disagreement. 161 5 Development Impact Fee Review Committee Meeting– September 1, 2010 Impact Fee Coordinator Saunders generally noted that there had been ten appeals so far and 35 requests for impact fee credits with 29 of those being approved having complied with procedural requirements from the CIP. D. Review, Discussion, and Decision by Committee Mr. Lindseth asked for clarification that the main issues were not procedurally listed as being CIP funded and the applicant had requested that the CIP list be adjusted to recognize those projects and making them eligible for impact fee credits and they would like the Committee’s concurrence that those items should be amended to be included in the CIP. Mr. Murray added it was not retroactively listing the items, but approval to use those credits as well; neither request was made prior to construction. Chairperson Arkell asked if the applicant had been informed of the opportunity to request the items be added to the CIP. Impact Fee Coordinator Saunders responded that discussions subsequent to 2006 had included the CIP amendment. Mr. Murray responded the first discussions regarding impact fees had been post construction. Mr. McHarg asked if the applicant had discussed anything relative to those credits or amendment to the CIP with regard to changes to the impact fee program. Impact Fee Coordinator Saunders responded there had been no changes to the impact fee program. Mr. McHarg asked if the applicant had discussed credits or amendments to the CIP at the time of development of the site. Mr. Lindseth responded they had known of the opportunity for credit requests since 2006. Mr. McHarg stated it would be fair to say the applicant knew of the CIP and procedural requirements in 2006 and asked if the projects being added to the CIP had ever been suggested to the applicant. Mr. Lindseth responded they had not been approached with the suggestion to amend the CIP. Mr. McHarg responded there were massive gaps in correspondence from 2004 as most of those discussions had taken place in person. Mr. Mitchell added he had not been involved in the original discussions, but the MOA had indicated the City would help with some of those costs. Mr. McHarg stated the language in the MOU did not specifically reference impact fee credits and asked if the City had held up its end of the MOU. Mr. Murray responded the information would be presented to the City Commission as part of the payback district, which had been the intent of the language in the MOA. Mr. McHarg stated the only thing paid was the contribution from the applicant. Mr. Murray responded the City was going to bank money until the intersection could be paid for; he added the City would not have been involved in the MOU unless MDOT had been involved and the City was a third party in the agreement. Mr. McHarg asked for clarification of the other projects that had been awarded impact fee credits. Impact Fee Coordinator Saunders responded there had been 31 impact fee credit requests; some circumstances involved multiple party participation though there were a variety of different situations that had all gone through the City Commission per the ordinance. Mr. McHarg asked if the requests resulted in entitlements. Impact Fee Coordinator Saunders responded they did sometimes involve entitlements; though in one circumstance the Commission had agreed to an after the amendment to the CIP. Mr. Risk stated on page 2, Exhibit E, there were areas of agreement regardless of the disagreement of numbers and asked for clarification of how far off the timeline had been. Mr. 162 6 Development Impact Fee Review Committee Meeting– September 1, 2010 Murray responded the projects had been completed before credit request. Impact Fee Coordinator Saunders responded that somewhere between 2004 and 2006, with no exact date, the work had been completed in 2005. Mr. Mitchell responded the streets had been completed first (2004) and the intersection had been completed in 2006. Mr. Lindseth stated he was unclear as to what amount was included in an annexation agreement that would require a contribution of $75,000 for participation in improvements. Impact Fee Coordinator Saunders responded the City Commission had assigned $9,000.00 as the amount of the contribution for Fowler/Main improvements and explained that the City had the overall security of the Improvements Agreement and Findings of Fact which included the contribution amount of $9,000.00. Mr. Lindseth asked if any other line items related to the improvements of the intersection. Impact Fee Coordinator Saunders responded no other line items were related to those improvements. Mr. Lindseth asked for clarification of the other forms of reimbursement. Impact Fee Coordinator Saunders listed those options and added it was not uncommon for someone to do a significant lead ahead on improvement and the payback district would become the method of awarding those credits. Mr. Lindseth asked if future development of the site could be awarded those credits. Impact Fee Coordinator Saunders responded those credits could be awarded to future development of the site. Chairperson Arkell directed the Committee and applicant to a letter from City Staff regarding agreements on listed items. Mr. Murray added that Fowler had not been discussed with regard to a specific dollar amount. Impact Fee Coordinator Saunders responded the sewer line had a greater degree of agreement upon it as the calculation was more firm and specific. Mr. Lindseth stated his recollection of the 25% on Fowler had been agreed upon by Engineering Staff. Mr. Murray responded the sewer might have been agreed upon as it was a determined calculation, but percentages had never been agreed upon until procedural issues had been clarified. Chairperson Arkell clarified that the sewer line would be easy to determine as they would have been required an 8 inch line and had installed a 21 inch line. She asked if the applicant would have been required to install all of Garfield with phase 1 of the development. Mr. Murray responded they would not have had to install Garfield if the traffic still worked without those improvements; he added it had not been conditioned one way or the other and he could not tell for certain without seeing a traffic study. Chairperson Arkell asked what standard Garfield had been built to. Mr. Murray responded it had been constructed as a local street, but was listed as a collector in the newly adopted Transportation Plan. Chairperson Arkell asked what happened to the land previously dedicated by MSU as right of way. Mr. Murray responded a similar determination on Valley West had occurred; what was dedicated then had been relocated but was still dedicated. Chairperson Arkell stated the Committee was tasked with determining whether or not the request met the review criteria as well as whether the CIP should be considered by the Commission for adjustment. Impact Fee Coordinator Saunders responded Chairperson Arkell was correct. Chairperson Arkell stated the College work had likely been included in the CIP as well as the intersection in question. Mr. Murray responded he thought it had been included. 163 7 Development Impact Fee Review Committee Meeting– September 1, 2010 Mr. Schrauger stated charts had been included in correspondence to Mitchell Development Group; he was mostly in agreement with those items as listed and asked why land for Fowler Avenue had changed. Impact Fee Coordinator Saunders responded that part of the change had been for further discussion and evaluation as well as his notes for discussion - the June 16, 2010 letter was the basis of the appeal. Mr. Murray responded that with the annexation there had been an easement granted for Fowler in a straight alignment in that location. Chairperson Arkell clarified that the applicant was not asking for credit for Garfield land, but for overall improvements. Mr. Lindseth responded if an agreement was reached that would be close to one million dollars, the Garfield land would not be included. Chairperson Arkell noted the appeal request asked for construction of Garfield, but not land. Mr. Lindseth responded Chairperson Arkell was correct. Chairperson Arkell stated it had been an odd request by the applicant to build Garfield Street; had he not done those improvements, Staff could have indicated that impact fee credits could be applied to the site. Chairperson Arkell stated the applicant chose to relocate the Fowler right of way, but if Fowler had to be extended they would have had to go the neighbor or purchase the property. Mr. Lindseth responded the applicant was not requesting credit for the MSU dedicated land, just the portion of Bozeman Gateway that had been dedicated later. Chairperson Arkell asked if crossed out items on the CIP list had been completed or removed from the list. MOTION: #1 – land for Fowler – Mr. McHarg moved, Mr. Schrauger seconded, that land was project related as Staff suggested and does not qualify for CIP, or CIP amendment. The motion carried 4-0. Chairperson Arkell clarified that Garfield had been built to half a collector standard though it had not been required. MOTION: #2 – Garfield Street construction – Mr. McHarg moved, Mr. Schrauger seconded, to concur with Staff that it was project related, not CIP listed or funded, CIP not amended. Mr. Risk stated he concurred with everything other than the capacity. Mr. McHarg responded there really was no information provided analyzing the capacity issue, he didn’t have a lot to go on based on capacity. Mr. Schrauger agreed that he struggled with the capacity. Chairperson Arkell stated she believed it did have capacity expansion as it had begun operating at a collector level after construction. Mr. Risk stated he was considering actual usage of the street and noted it was heavily traveled. Mr. Lindseth stated the applicant would be willing to concede the Garfield Street request if agreements were reached further on in the list. Mr. Murray stated the critical point was that the capacity difference between a collector and a local street; a local street had been constructed though the half ROW for a collector street had been maintained. Mr. McHarg asked if there was a lower standard of street construction that could have been installed. Mr. Murray responded there was not a lower standard. Mr. Mitchell added that he believed the street had been constructed wider than what had been required and the agreement with MSU had indicated there would be a 12 foot easement to expand the street. Mr. Schrauger asked the width standards for local, collector, and arterial streets. Mr. Murray explained those standards; the Garfield physical constructed width was equivalent to a local street. The motion carried 4-0. 164 8 Development Impact Fee Review Committee Meeting– September 1, 2010 MOTION: #3 – Fowler construction – Mr. Schrauger moved, Mr. McHarg seconded, concur with Staff, project related, partial capacity expansion. Chairperson Arkell asked if the applicant would have been advised of impact fee credits if the item were listed on the CIP. Impact Fee Coordinator Saunders responded the applicant would have been informed. Mr. Murray responded the standard procedure was the requirement of the project to construct their half of those streets; a subdivision required improvement. Mr. Lindseth responded the applicant’s argument would have been that a five lane road did, to some degree, expand the capacity of the road. Mr. Lindseth stated being required to build both halves does not change the fact that the road was constructed to a five lane, which would have been only required to construct a three lane standard. Mr. Schrauger asked if he owned a field where the street network plan showed a five lane road going through his property, would he be required to construct the five lane. Mr. Murray responded Mr. Schrauger would have been required to construct the five lane. Mr. Lindseth responded that the five lane would not be project related as the development further along would generate the capacity. Mr. McHarg stated he concurred with Mr. Lindseth. Attorney Cooper stated the Transportation Plan indicated how streets would be designated and the applicant was aware of those requirements prior to the development of the property. The motion carried 4-0. MOTION: #3 part 2 – Chairperson Arkell moved, Mr. Risk seconded, to support the applicant’s option to request to amend CIP for Fowler capacity expansion. Mr. McHarg stated he did not think he had enough information to forward a recommendation of approval to the City Commission to amend the CIP; he did not know competing projects or current items listed in the CIP. Attorney Cooper responded the determination that something might be capacity expanding was in support of the applicant requesting amendment of the CIP from the City Commission. The motion was withdrawn. MOTION: #4 – Fowler/Main signal – Mr. McHarg moved, Mr. Schrauger seconded, to concur with Staff recommendations, did not meet criteria. The motion carried 4-0. MOTION: #5 – Fowler trunk sewer – Mr. McHarg moved, Mr. Schrauger seconded, to concur with Staff recommendations. The motion carried 4-0. Chairperson Arkell asked for clarification of the College/Main construction. Impact Fee Coordinator Saunders stated work had been done at the intersection; it had prevented traffic jams and had been a safety concern. He stated he thought it was more maintaining the existing level of service standards instead of increasing the capacity. Mr. Murray added the access permit by MDOT would not have been granted if that intersection had not been improved; they were all MDOT related improvements. Chairperson Arkell asked if previous studies would indicate whether or not it was a capacity increase. Mr. Murray responded the study would not indicate whether there had been a capacity increase; MDOT had required the improvements and the applicant could provide that information to the City Commission. Mr. Lindseth asked if the Committee would consider tabling the item until they could present the traffic study. Mr. Risk suggested they should submit the information to the City Commission directly. Mr. McHarg suggested the information be submitted to City Staff prior to presentation to the City Commission. Mr. Murray stated City Engineering had never considered the improvements as 165 9 Development Impact Fee Review Committee Meeting– September 1, 2010 capacity expansion. Impact Fee Coordinator Saunders stated there were significant connections to potential development internal to the Bozeman Gateway project itself. MOTION: #6 – College/Main reconstruction – Mr. McHarg moved, Mr. Risk seconded, to agree with partial project related, not capacity expanding unless additional information was provided. Did not meet criteria. The motion carried 4-0. ITEM 4: ADJOURNMENT There being no further business to come before the Committee at this time, Chairperson Arkell adjourned the meeting at 4:10 p.m. _____________________________________ _____________________________________ Debbie Arkell, Chairperson Chris Saunders, Assistant Planning Impact Fee Advisory Committee Director/Impact Fee Coordinator City of Bozeman Dept of Planning & Community Development City of Bozeman 166 Page 1 of 2 DEVELOPMENT IMPACT FEE REVIEW COMMITTEE CITY OF BOZEMAN, MONTANA * * * * * * * MITCHELL DEVELOPMENT GROUP, LLC DECISION APPEAL OF DECISION BY THE IMPACT FEE COORDINATOR ____________________________________________ WHEREAS, the Development Impact Fee Review Committee (“Committee”) is established to review appeals of administrative decisions made by the Impact Fee Coordinator or his designee, and WHEREAS, the Committee received an application for an appeal of a decision by the Impact Fee Coordinator relating to whether certain infrastructure installed by the appellant at Bozeman Gateway subdivision qualified for impact fee credits, and WHEREAS, the Development Impact Fee Review Committee held a meeting to conduct a review of the appeal, on September 1, 2010, and WHEREAS, the Development Impact Fee Review Committee heard the presentation from the appellant, Mitchell Development Group, and WHEREAS, Impact Fee Coordinator Chris Saunders presented the basis for the original decision regarding the application, and WHEREAS, Assistant City Attorney Tim Cooper confirmed the authority of the Committee to provide for reasonable interpretations of the provisions of Ch. 3.24 of the Municipal Code (the impact fee ordinance), and to reach a different decision than the Impact Fee Coordinator, but that the Committee could not grant deviations or exceptions to the ordinance nor make the ultimate determination to award an impact fee credit, and WHEREAS, the Committee found that the appeal would be best determined by addressing each component of the impact fee credit request individually and that the Committee would decide upon those elements requiring staff judgment. THEREFORE, the Development Impact Fee Review Committee, being fully advised of all matters having come before it on the matter of the appeal, makes the following findings, conclusions, and decision. 1. In considering the request for credit for land dedicated for Fowler Avenue, the Committee finds on a vote of 4-0 that the dedication of land for Fowler Avenue was project related and was not capacity expanding beyond the scope of project relationship; and that the credit request did not meet the procedural requirements for award of impact fee credits of the Bozeman Municipal Code. 2. In considering the request for credit for construction of Garfield Street, the Committee finds on a vote of 4-0 that the construction of Garfield Street was equivalent to a local street and therefore was project 167 Page 2 related and was not capacity expanding beyond the scope of project relationship and the credit request did not meet the procedural requirements for award of impact fee credits of the Bozeman Municipal Code. 3. In considering the request for credit for construction of Fowler Avenue, the Committee finds on a vote of 4-0 that while the majority of the construction was project related there was some yet to be finally defined portion that was capacity expanding; and that the credit request did not meet the procedural requirements for award of impact fee credits of the Bozeman Municipal Code. 4. In considering the request for credit for construction of the traffic signal at the intersection of Fowler Avenue and Main Street, the Committee finds on a vote of 4-0 that construction was capacity expanding; and that the credit request did not meet the procedural requirements for award of impact fee credits of the Bozeman Municipal Code. 5. In considering the request for credit for construction of the Fowler Avenue trunk sewer, the Committee finds on a vote of 4-0 that a portion of the construction was capacity expanding beyond the definition of project related improvements; and that the credit request did not meet the procedural requirements for award of impact fee credits the Bozeman Municipal Code. 6. In considering the request for credit for construction of the intersection reconfiguration of College Street and Main Street, the Committee finds on a vote of 4-0 that the work at least partially met the definition of project related improvements and that there was not adequate information to find that it was capacity expanding; and that the credit request did not meet the procedural requirements for award of impact fee credits the Bozeman Municipal Code. In consideration of these findings and conclusions, the analysis as presented by Staff is upheld. An appeal of this determination, and/or an application for impact fee credit notwithstanding this decision, may be had by filing a written request with the City Clerk within ten (10) business days of the date of this written decision. Decided on September __, 2010 Development Impact Fee Review Committee _________________________ Debra Arkell, Director of Public Service Chair of Committee _________________________ Tim McHarg, Director of Planning and Community Development __________________________ Jason Schrauger, Fire Chief __________________________ Bob Risk, Chief Building Official 168 1 Chris Saunders From:Ted Mitchell [ted@mdandi.com] Sent:Tuesday, September 07, 2010 2:19 PM To:Debbie Arkell Cc:JSchrauger@BOZEMAN.NET; Bob Risk; Chris Saunders; Tim Cooper; Tim McHarg; 'Jim Ullman'; lindseth@jardinelaw.com; 'Keith Scott'; melissa@mdandi.com Subject:Procedure Request - Pictures of Garfield street Attachments:west garfield 001.jpg; west garfield 002.jpg; west garfield 003.jpg Debbie, During our Appeal hearing last week we believe inaccurate information was relayed to the Committee regarding West Garfield Street. Our notes from the meeting indicate the Committee was told that Garfield was built and is operating as a “local” street. We believe a motion was made based on that information to NOT consider West Garfield Street as capacity expanding (beyond project related). Attached please see photographs of West Garfield that clearly shows the street is striped and is operating as a “collector”. It is confusing to us how anyone would state and justify that Garfield is NOT capacity expanding when one considers: the amount of traffic the street handles on a daily basis (6,000 plus cars), the relief the street has made in the congestion of the intersections of S 19th and College, S 19th and West Main, the reduction of hundreds of peak hour vehicular movements on the intersection of College and West Main, the City at the time of construction required us to widen the right‐of‐way in order to accommodate a collector boulevard rather than a standard local width boulevard. We feel the Committee’s motion and vote would have been different had they been given correct information as there is absolutely no question what the installation of Garfield Street has done for the City of Bozeman. Therefore, we are requesting the procedures we would need to follow in order for us to formally present the correct information to the Committee so they can ultimately make a fully informed decision. We would also like to thank you and the Committee for the time spent on our Appeal last week. Hope you had a great weekend. Ted Ted Mitchell Mitchell Development & Investments, LLC P.O. Box 738 Great Falls, MT 59403 Phone: 406-761-4400 Fax: 406-761-4401 Cell: 406-868-2200 169 170 171 172 community planning zoning subdivision review annexation historic preservation neighborhood planning urban design CITY OF BOZEMAN DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 Bozeman, Montana 59771-1230 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net September 20, 2010 Mitchell Development PO Box 738 Great Falls, MT 59403 RE: Impact Fee Credit Request 0601 Dear Mr. Mitchell: We have received your email correspondence of September 7, 2010 regarding the Garfield Street construction. You presented additional information that you believed useful to the Development Impact Fee Review Committee who had considered an appeal regarding impact fee credit eligibility on September 1st. The additional information was in support of the assertion that Garfield Street was constructed to a standard eligible for impact fee credits. As noted in several emails from yourself and Committee members staff was to consider the materials. I and Mr. Bob Murray have carefully considered the information you have provided. Our conclusion is that although the long term design for Garfield Street was for a three lane facility, only two lanes were constructed with other improvements, including additional asphalt, bike lane, and curbing to be added to the south. As a two lane road is a minimum standard improvement the construction fall within the definition of a project related improvements and is not impact fee eligible. The materials you provided will be included with the information packet presented to the City Commission when the meeting is set to consider the question of impact fee credits. Please feel free to contact me at 582-2260 if you have any questions. I will be out of the office from September 22-25th. Sincerely, Chris Saunders Assistant Director cc: Brion Lindseth, PO Box 2269, Great Falls, MT 59403 Greg Sullivan, City Attorney Tim Cooper, City Attorney office Chris Kukulski, City Manager 173 Page 2 Bob Murray, City Engineering Bob Risk, Building Official Debbie Arkell, Director of Public Service Jason Schrauger, Fire Chief file 174 175 176 177 178 179 180 181 182 183 184 185 CITY OF BOZEMAN DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M. Stiff Professional Building phone 406-582-2260 20 East Olive Street fax 406-582-2263 P.O. Box 1230 planning@bozeman.net Bozeman,Montana 59771-1230 www.bozeman.net June 16,2010 Mitchell Development PO Box 738 Great Falls,MT 59403 RE:Impact Fee Credit Request 0601 Dear Mr.Mitchell: The above-referenced application was received by the City on November 20, 2006. As you are aware, discussions regarding this matter have been on-going intermittently since then. As we have discussed,all impact fee credit requests must meet the standards of Chapter 3.24, Impact Fees, BMC. A proposed impact fee creditmust meet the defined criteria for an impact fee credit laid out in the chapter. After further internal discussion Staff has concluded that the requested credit does not conform to the requirements of Chapter 3.24, Impact Fees, and the requested credit is beyond the ability of the Staff to grant.Therefore,this letter is to give formal notice that the request has been denied as of the date of this letter.Reasons vary across different elements of the request and include failure to be timely in submittal, to be properly listed on the capital improvements program, and to be other than project related improvements. These are the same concerns we have discussed with you earlier.Please see the material provided below. This decision may be appealed in accordance with Section 3.24.110.1 which is presented below. I have also included with this letter a copy of the necessary appeal form. An appeal is the correct vehicle to be able to ultimately place this matter before the City Commission who may then consider the facts and arguments of the matter. An appeal should be submitted to my office. We will then handle scheduling of the review. "3.24.110.1.Any determination made by any official ofthe city charged with the administration of any part ofthis chapter may be appealed to the Development Impact Fees Review Committee by filing: 1. A written notice ofappeal on a form provided by the City; 2. A written explanation ofwhy the appellant feels that a determination was in error;and 3. An appeal fee of five hundred dollars with the Impact Fee Coordinator within ten working days after the determination for which the appeal is being filed. The Development Impact Fees Review Committeeshall meet to review the appeal within thirty working days of the date the written appeal was presented to the Impact Fee Coordinator. If the appellant is dissatisfied with the decision of the Development Impact Fees Review Committee, the appellant may appeal the decision totheCity Commission by filinga written request with the City Clerk within ten working days of the Committee's decision. At the regular meeting community zoning subdivision annexation historic neighborhood urban planning review preservation planning designMDG Impact Fee Appeal Page 1 186 following the filing ofthe appeal,theCity Commission shall fixatimeandplacefor hearing the appeal;andtheCityClerkshallmailnotice ofthe hearing tothe appellant atthe address given in the noticeof appeal.The hearingshallbe conducted at the time andplace stated in suchnotice given by the City Commission. The determination ofthe City Commission shall be final.Ifthe City Commission concludes that all or part of a determination made by an official of the city charged with the administration of any part of this chapter was in error,then the appeal fee described above shall be returned to the appellant." You may find the complete text of Chapter 3.24, Impact Fees, BMC on the City's website at http://www.bozeman.netfaozeman/planning/impactFees.aspx. Supporting Facts and Analysis Summary ofconformance to required criteria by IFCR-0601. Requested Credit Component Project Related Capacity Expanding (beyond project related) CIP Listed CIP Funded Timely Request (before- construction or dedication) Met All Credit Critena Land for Garfield St Yes (provided with MSU Foundation Annexation) No No No No No Land for Fowler Ave Yes (mostly provided with MSU Foundation Annexation) No No No No No Garfield Construction Yes No No No No No Fowler Construction Yes Partially No No No No College/Main reconstruction Yes Uncertain No No No No Fowler/Main Signal Yes Yes No No No No Fowler Trunk Sewer Partially Yes No No No No | Applicable Definitions Section3.24.040,BMC- ImpactFee Capital Improvement Program (CIP),Improvement,Initiation of Construction,Project Related Improvement Section 7-6-1601,MCA -Impact Fee (excludes requirements needed to meet standards,on or off- site[5iv]) Review Criteria -Must meet all criteria to be eligible for credit consideration. Section 7-6-1603 (4), MCA - Credits permitted if: (a) -Documented need (b) -Property is appropriate (c) -Procedures established to determine worth (Bozeman established in 3.24.100,BMC) (d) -Procedures established to establish credits (Bozeman established in 3.24.100,BMC) Page 2 MDG Impact Fee Appeal Page 2 187 City carries out 7-6-1603(4) MCA through Chapter 3.24, BMC. Section 3.24.100.A,BMC -Credits allowed to be considered if: (1)Project is listed on the impact fee CIP (2)Project is not a project related improvement as defined in 3.24.040.K,BMC (3)Voluntary and accepted by City ofBozeman (Not Applicable in this case) (4)Approved in writing by City in timely manner Section 3.24.040.H,BMC -Improvements must expand capacity Section 3.24.100.B,BMC -Request on City form,with adequate documentation,timely submittal before initiation ofconstruction Conditions ofApproval from the project relevant to impact fees 1. The applicant must comply with all provisions ofthe Bozeman Municipal Code,which are applicable to this project. The applicant is advised that unmet code provisions,or code provisions that are not specifically listed, does not, in any way,create a waiver or other relaxation ofthe lawful requirements ofthe Bozeman Municipal Code or state law. 2.Raised concrete medians shall be installed on Fowler Avenue with Phase I ofthe subdivision. 6.Where a path is being proposed in lieu ofstandard sidewalk,it must be a minimum of 10'wide as shown in the Greater Bozeman Area Transportation Plan, unless a relaxation is granted by the City Commission. 11 All improvementsnecessary to provide adequate level ofservice for the analyzed intersections must be installed with the project. 19.Thetrafficimpactanalysissubmittedfor the projectshallbe approvedby City Engineeringand the MontanaDepartment ofTransportation. All improvementsneeded to provide an adequate level of servicefor the analyzed intersections must be installedwith the project. 36.The applicant shallobtainandprovidethe Planning Officewiththe applicable accesspermit(s)from the Montana Department ofTransportation for the access onto US 191/West Main Street from Harmon StreetBoulevard andChronicleDriveandshallcomplywith allrequirement ofthepermit. 37.Thetrafficimpactanalysissubmitted forthe projectshallbe approvedby City Engineeringand the MontanaDepartment ofTransportation. All improvementsneeded to provide adequate level of servicefor the analyzed intersections must be installed with the project. Informationreviewedin association with this decision includes,but is not limited to, the Bozeman Municipal Code,application,review materials,and related materials forthe Bozeman Gateway subdivision andplanned unit development,impact feecredit application and subsequent correspondence and meetings, and 7-6-1601 et. seq. MCA. Pleasefeel free to contact me at 582-2260 if you have any questions. I will be out of the office from Friday,June 18th until Monday,June 28,2010. Sincerely, Chris Saunders Interim Director Page 3 MDG Impact Fee Appeal Page 3 188 cc: Brion Lindseth,PO Box 2269, Great Falls, MT 59403 Greg Sullivan, City Attorney Tim Cooper,City Attorney office Chris Kukulski, City Manager file Page 4 MDG Impact Fee Appeal Page 4 189 MDG Impact Fee Appeal Page 5 190 oarvw.b^and JARDINE,STEPHENSON,BLEWETT "™»,JOSHUA I.CAMPBELL 7 7 JAMES E.AIKEN LONT.HOLDEN ^IWAWP Pf DONALD J.HAMILTONJOSEPHD.HOUSTON ©£ TVMLlf\.V JLIY,X •^ •JACK L.LEWIS DANIELT.JONES ATTORNEYS AT LAW ARTHUR G.MATTEUCCI JON J.KUDRNA 300 CentralAvenue J0HN D-STEPHENSON BRIONC.LINDSETH Seventh Floor,U.S.BankBuilding SUEANN LOVE P.O.BOX2269 GEORGE N.McCABE GreatFaLls,Montana 59403-2269 ROBERT B.PFENNIGS Tel:(406)727-5000 BRIAN L.TAYLOR FaX:(406)727-5419 PATRICK R.WATT E-MAIL:lindseth@jardinelaw.com WARRENC.WENZ July 29,2010 Chris Saunders City ofBozeman 20 East Olive Street P.O.Box 1230 Bozeman,MT 59771 Re:Mitchell Development Group,LLC /The Bozeman Gateway Impact Fee Credit Appeal of Administrative Decision Ladies and Gentlemen: The purpose of this letter is to appeal from an adverse administrative decision regarding Mitchell Development Group,LLC's ("Applicant")and The Bozeman Gateway Development's ("Project") request for impact fee credits or other types of reimbursement for certain capital improvements and dedications made and installed by the Applicant. Factual Background The Applicant negotiated to purchase approximately 72 acres of real property nearthe intersection ofHuffine Lane and College Street ("Property").An initial map of the overall Project is attached hereto as Exhibit A and incorporated herein by this reference. In conjunction with Applicant's acquisition ofthe Property, the Applicant also negotiated with Montana State University to acquire an easement necessary to extend Garfield Street from 19th to the proposed location of Fowler Avenue ("Garfield Easement").The City of Bozeman ("City")had been working to acquire the Garfield Easement for years with no success, thus, the City was overjoyed when Applicant succeeded in acquiring the Garfield Easement for the City.The Garfield Easement was dedicated to the City by Montana State University directly as a part of the Applicant's acquisition ofthe Property. In one of the initial phases ofthe Project, the City,Applicant and the Montana Department ofTransportation ("DOT") enteredinto a Memorandum ofUnderstanding, a copy of which is attached hereto as Exhibit B and incorporated herein by this Appeal from adverse administrative decision Page 1of 15 MDG Impact Fee Appeal Page 6 191 Chris Saunders City ofBozeman July 29, 2010 Page 2 reference ("MOU").The MOU dealt with the installation and/or improvement of certain streets and intersections,specifically including but not limited to the intersections of Huffine Lane and Fowler Avenue,Huffine Lane and College Street, and Garfield and South 19 . The MOU included the following provision: "...The City acknowledges and agrees that the improvements to be constructed by the Developer hereunder will benefit other property owners and the City agrees that they will cooperate with and reasonably assist the Developer in obtaining contributions or reimbursements from such benefited property owners for the costs incurred by the Developer in designing and constructing such improvements." Based on the MOU and in conjunction with the City and DOT,the Applicant,at its own cost and expense,proceeded to: 1.Install the intersection at Huffine Lane and Fowler Avenue; 2. Install all required signals associated with the intersection of Huffine Land and Fowler Avenue; 3.Modify the intersection ofHuffine Lane and College Street; 4.Install the intersection of College Street and South 29th; 5.Install Fowler Avenue,a five lane minor arterial spanning a distance of approximately 1,250 feet; 6.Install,extend and widen Garfield Street from South 19th to Fowler Avenue;and 7.Modify the intersection ofGarfield Street and South 19th. As described in the MOU,the Applicant completed,installed and paid for the improvements to the intersection of Huffine Lane and Fowler Avenue,which are specifically acknowledged by the terms of the MOU to benefit more than just the Project.It is also important to note that with respect to at least some of the improvements described above,the City has already received contributions from other adjacent land owners designated specifically to pay for the installation of the improvements made and funded by Applicant.Specifically,pursuant to an Improvements Agreement for Parkway Plaza Unit Development ("Parkway Plaza Agreement"),the City and Robert R.Nelson agreed that Mr.Nelson would either install signals and associated lighting in the intersection of Fowler and Huffine Lane (US Highway 191) or deposit with the City a total of $76,050.00 for the purpose of paying to have the improvements installed. The improvements were not installed by Robert R. Nelson, and instead I believe the City collected the payment referenced above to be used to pay for the improvements described in the Parkway Plaza Agreement.The City,however,required the Applicant to install the signals and intersection improvements described in the Parkway Plaza Agreement which Applicant completed Appealfromadverseadministrativedecision Page2 of 15 MDG Impact Fee Appeal Page 7 192 Chris Saunders City ofBozeman July 29,2010 Page 3 without the City offering or providing any assistance despite the specific language set forth above which was included in the MOU.In fact, as of the date of this letter,the City has neither offered nor paid to Applicant any of the funds the City has already collected for the installation ofthe intersection improvements made by Applicant. In addition to the street and roadway improvements described above, the Applicant also installed, at its own cost and expense, a 21 inch sanitary sewer line running from the north of West Main to the southern edge of the Property to allow developments to the south to tie into the City's sewer. The 21 inch line installed by the Applicant dramatically exceeded the capacity required by the Project. In addition, the City was so anxious to have the sewer line installed, that they hooked on to the south end of the 21 inch main and extended it southward for the benefit of another developmenteven prior to the Applicant's dedication ofthe line to the City. During the permitting process for Rosauers, the Applicant was advised for the first time by the City that, despite the terms of the MOU and the specific language whereby the City promised to assist the Applicant in being reimbursed,ifthe Applicant desired to receive reimbursement for its various investments in capital improvements, the Applicant must file a formal request for reimbursement.Therefore,by letter dated October 20, 2006, a copy of which is attached hereto as Exhibit C and incorporated herein by this reference, the Applicant specifically requested reimbursement for the investments it had made in capital improvements,infrastructure and dedications. The plat for phase 1 of the Project, including the dedication of the land under Fowler Avenue, was thereafter accepted by the City and recorded on or about November 9, 2006. Thereafter the Applicant provided the City with information regarding the specific costs associated with many of the capital improvements and dedications described above with a letter dated January 25,2007,a copy ofwhich is attached hereto as Exhibit D and incorporated herein by this reference.Applicant's subsequent discussions with the City resulted in certain areas of agreement.The items on which the City and Applicant were able to agree are described in a letter from the Applicant to the City dated November 25, 2009, a copy of which is attached hereto as Exhibit E and incorporated herein by this reference. Unfortunately, as is evidenced by the adverse administrative decision from which Applicant now appeals, a copy ofwhich is attached hereto as Exhibit F and incorporated herein by this reference,the parties were unable to come to an overall agreement regarding reimbursement or credits against future impact fees. The remainder of this letter will address the specific issues addressed in the attached adverse administrative decision. Appeal from adverse administrative decision Page 3 of 15MDG Impact Fee Appeal Page 8 193 Chris Saunders City ofBozeman July 29,2010 Page 4 Impact Fees: Althoughthe Applicantis awareof the City's familiaritywith the legalbasis for, and limits of, the fees that can be exacted by way ofimpact fees as well as the expenses and inconveniences associated with resulting litigation, we believe it may be appropriate to review the underlying principles behind impact fees and the statutes authorizing their usage. The underlying premise for virtuallyall regulation concerning impact fees is that the fee or improvements required are valid when they bear a reasonable relationship to the benefits received by the developer or the proposed project. See Home Builders Assn.ofDayton & theMiami Valley v.Beavercreek 729 N.E.2d 349 (2000). Consistently, Mont. Code Ann. § 76-3-510,concerning the requirements that can be assessed to a specific project for capital facilities, requires in part "...The costs [of extending capital facilities] must reasonably reflect the expected impacts directly attributable to the subdivision." If the application of any particular local rules,regulations,ordinances or requirements result in a particular developer or project bearing more than its proportionalshare of the cost of capital improvements,then such application may give rise to a claim. Consistently,Bozeman Municipal Code ("BMC")§3.24.030 requires in pertinent part: "(B)The intent of this chapter is to ensure that new development bears a proportionate share of the cost of improvements to the city transportation, fire protection,water and wastewater systems;to ensure that such proportionate share does not exceed the cost of the transportation,fire protection,water and wastewater facilities and equipment required to serve such new developments:...(emphasis added) (D) It is not the intent of this chapter to collect any money from any new development in excess of the actual amount necessary to offset new demands for transportation,fire protection,water or wastewater improvements generated by that new development." When a development contributes substantially more to the City's infrastructure than the burden the particular development causes,then the development should be entitled to credits against future assessments for such infrastructure in order to maintain the proportionality embodied in the BMC and required by Montana statutes.The BMC Appealfrom adverse administrative decision Page 4 of 15 MDG Impact Fee Appeal Page 9 194 Chris Saunders City ofBozeman July 29,2010 Page 5 grants such credits by and through BMC § 3.24.100 which sets forth certain specific criteria,however all such specific criteria must be weighed against the overarching principal of proportionality and should be disregarded to the extent that they would violate that requirement. It is also important to note that the version of the BMC that was in effect at the time ofthe Applicant's application differs in some respects from the current BMC.One of those differences is important in this case. At the time of Applicant's initial application, BMC § 3.24.100 concerning credits against development impact fees was as follows: "After the effective date of this chapter, all mandatory or voluntary land or easement dedications for street,fire protection,water or wastewater improvements,and all mandatory or voluntary acquisition or construction of improvements to the major street system or the city fire protection,water or wastewater systems by an applicant in connection with a proposed development shall result in a pro rata credit against the development impact fee for the same type ofservice or facility..."(emphasis added) After the Applicant filed its request for credits,BMC §3.24.100 was amended as follows: "After the effective date of this chapter,att mandatory or voluntary land or easement dedications for street transportation,fire protection,water or wastewater improvements,and aft mandatory or voluntary acquisition or construction of capital improvements to the major street transportation system or the city fire protection,water or wastewater systems by an applicant in connection with a proposed development shall may result in a pro rata credit against the development impact fee for the same type of service or facility..."(redline added) The key changes made to §3.24.100 include the deletion of "all"and the change from "shall"to "may".Since all applications are to be evaluated under the regulations in the time they are made,the previous version of the BMC must be used when evaluating the Applicant's claims and appeal. Discussion of Issues: The specific issues associated with the Applicant's request appear to be set forth in a table included in the City's denial letter attached hereto as Exhibit F ("Table"). These issues will be addressed by the Requested Credit Component as described in the Table. Appealfromadverseadministrativedecision Page5 of 15 MDG Impact Fee Appeal Page 10 195 Chris Saunders City ofBozeman July 29,2010 Page 6 Fowler/Main Signal:This Fowler/Main Signal as described in the Table concerns the costs associated with the signalization and related modifications to the intersection of Huffine Lane and Fowler Avenue ("Fowler Signal").The Fowler Signal is one ofthe items dealt with in the MOU referred to above. As described in the MOU,the City was actually the applicant with the DOT for the construction of the Fowler Signal.As described in the letter attached hereto as Exhibit E, the cost ofinstallation for the Fowler Signal was $384,579.40. A.Project Related:The Table indicates that the Fowler Signal would not be considered capacity expanding. The definition for "Project Related Improvements"as set forth in the BMC provides in pertinent part that: "Project related improvements" means ...all traffic control devises for streets and driveways within the development..."(this provision is currently located at BMC §3.24.040(M),however at the time of Applicant's application,it was located at §3.24.040(K)). As you can see from the map included at Exhibit A, the Fowler Signal is NOT located within the development as described in the above referenced definition and should therefore NOT be considered a project related improvement. Furthermore,as discussed above,the Fowler Signal was included in the 1996 Parkway Plaza Agreement described above which resulted in the City receiving approximately $76,050.00 from the developer under the Parkway Plaza Agreement toward the construction of the Fowler Signal.Therefore, the Fowler Signal should NOT be considered a project related improvement ofthe Project. B.Capacity Expanding:The Table also indicates that the Fowler Signal is capacity expanding which is consistent with the City's position as described in the letter attached hereto as Exhibit E.The Applicant and the City agree that the Fowler Signal was 100%capacity expanding. C.CIP Listed:The Table indicates that the project was not CIP listed.As described in BMC §3.24.040(F),which at the time of Applicant's application was §3.24.040(E),describes the CIP or Impact Fee Capital Improvement Program as the manner in which the City disburses or dispenses the money accumulated in each respective impact fee fund. We understand the Capital Improvements Program to be a listing of the projects that the City believes to be beneficial for the expansion of the City as it may from time to time be amended. Appeal from adverse administrative decision Page6 of 15 MDG Impact Fee Appeal Page 11 196 Chris Saunders City ofBozeman July 29,2010 Page 7 The City certainly considered the Fowler Signal to be an important project as the City required the Fowler Signal in the 1996 Parkway Plaza Agreement referred to above and was included in the City's 20/20 plan.In addition,the City was the applicant with the DOT for the installation ofthe Fowler Signal as described in the MOU.Obviously if the City applied for the approval for the Fowler Signal, they were considered important improvements. Furthermore,as the applicant on the Fowler Signal project,the project was really the City's own project, but was performed and paid for by Applicant. It seems that using the City's means ofdispensing money from the impact fee funds as a limitation on the credits that may be granted for capacity expanding acquisition or construction of capital improvements may, in certain circumstances,lead to the improper requirement that a developer bear more than its proportional share of the costs of such capital improvements. Such a limitation may violate the underlying proportionality requirement of the statutes authorizing the use ofimpact fees. Finally, we are aware that in other instances the City has added certain projects to the CIP listing based on developers' applications because the projects fit within the criteria for the capital improvements program whether or not they were currently represented on the list.Failing to treat the Applicant in a similar manner would be arbitrary and capricious in nature. D.CIP Funded:The Table indicates that the Fowler Signal was not CIP funded. As described above, the City had already received funds pursuant to the Parkway Plaza Agreement for the Fowler Signal. Additionally, the Applicant refers the Committee to the Applicant's response set forth in the CIP Listed section above. Finally,the Applicant believes that the requirement that in order for a project to be eligible for impact fee credits, the City must have already allocated funds for the project does not fit within the statutorily authorized basis for the assessment of impact fees set forth in Mont.Code Ann. §7-6-1601 et. sec. and may violate the proportionality requirement embodied in Mont.Code Ann.§76-3-510. E.Timely Request:The Applicant's request for reimbursement and credits for various capital improvements Applicant was required to install goes all the way back to the MOU dated August 25,2004,which specifically stated: Appeal from adverse administrative decision Page 7 of 15MDG Impact Fee Appeal Page 12 197 Chris Saunders City of Bozeman July 29,2010 Page 8 "...The City acknowledges and agrees that the improvements to be constructed by the Developer hereunder will benefit other property owners and the City agrees that they will cooperate with and reasonably assist the Developer in obtaining contributions or reimbursements from such benefited property owners for the costs incurred by the Developer in designing and constructing such improvements." The City and Applicant had been in close contact and discussion about all of the improvements required of and made by the Applicant and the City was involved each step of the way. Not only was the City the actual party applying for the permission to install the Fowler Signal,but the city also designated, monitored and approved all plans and specifications for the Fowler Signal. The City was contractually obligated as described in the MOU to 'cooperate with and reasonably assist'the Applicant in obtaining reimbursements.If the City believed that the Applicant should have taken additional steps necessary to be eligible for reimbursement,the City was obligated to inform the Applicant thereof. As soon as the Applicant learned that the City expected additional steps for eligibility for impact fee credits or other reimbursements,the Applicant filed its formal application as described above on or about September 27,2006. 2.Fowler Trunk Sewer:The Fowler Trunk Sewer as described in the Table refers to a 21 inch sanitary sewer line which the Applicant installed from north ofWest Main to the southern boundary of the Project ("Sewer Line"). The Sewer Line extends beyond the southern boundary of the Project and was hooked on to in order to service other developments to the south of the Project even before the Sewer Line was dedicated to the City. A.Project Related:The Tableindicatesthat the Sewer Line may be considered partially project related. The definition for project related improvements referenced above states in pertinent part: "'Project-related improvements'means ...all wastewater lines or facilities adjacent to, leading to or located within the development and serving only the development..." The Sewer Line is certainly not installed to serve only the development in this case and should therefore not be considered project related. B.Capacity Expanding:Again the City and Applicant agree that the Sewer Line is capacity expanding.As is detailed in the letter attached hereto as Exhibit E which documents the Applicant's discussions with the City in this Appeal from adverse administrative decision Page 8 of15MDG Impact Fee Appeal Page 13 198 Chris Saunders City ofBozeman July 29, 2010 Page 9 regard, the Applicant and City agree that, based on the Project's projected use of the Sewer Line, 92%of the Sewer Line exceeds the reasonably expected usage ofthe development. C.CIP Listed:Once again the Table indicates that the Sewer Line was not 'CIP Listed'.The Applicant refers the Committee to the discussion concerning the CIP list set forth above. Not only did the City approve of the expansion, the City was so eagerto hook up to the Sewer Line expansion that the connection was made to the Sewer Line expansion even before it had actually been dedicated by the Applicant to the City.Just as other desirable capacity expanding projects have in the past, the Sewer Line extension should be considered to have met the CIP criteria for purposes of granting impact fee credits to Applicant. D.CIP Funded:Please see the Applicant's discussion above concerning CIP listing and CIP funding. E.Timely Request:The City was aware of,approved of and involved with the installation of the Sewer Line each step of the way.The Sewer line demanded by the City exceeded the capacity necessary for the Project by a mutually agreed 92%.Applicant reiterates the discussion above concerning the provisions of the MOU and the City's duty to inform Applicant if the City believed there were any additional steps that the Applicant would be required to take to obtain credit or reimbursement for the portion of the Sewer Line that exceeded the Project's reasonable capacity. 3.Fowler Construction:Fowler Construction as described on the Table refers to the Applicant's construction of a five lane minor arterial running in a slight S- shape from the intersection of Fowler Avenue and Huffine Lane on the north border ofthe Project to the intersection of Garfield Street and Fowler Avenue on the south border of the Project ("Fowler Avenue").The costs associated with the installation of Fowler Avenue were $289,435.75 and were detailed in the attachments to the letter included herewith as Exhibit E.Fowler Avenue was designated on the City's 20/20 plan as a minor arterial and the Applicant was required to construct Fowler Avenue in compliance therewith. A.Project Related:The Table indicates the construction of Fowler Avenue may be project related,however the definition of project related provides in pertinent part: "Project-related improvements means ...all access streets adjacent to the proposed development or leading only to the proposed development;all Appeal fromadverseadministrative decision Page9 of 15 MDG Impact Fee Appeal Page 14 199 Chris Saunders City ofBozeman July 29,2010 Page 10 streets and driveways within the development;all acceleration and deceleration, right or left turn lands leading to any streets and driveways within the development..." In this case,Fowler Avenue does not lead only to the development and is in no way internal to the development as can be seen from the map included herewith as Exhibit A. Certain portions of Fowler Avenue may be considered acceleration and deceleration lanes,but a five lane arterial is certainly not fully project related. B.Capacity Expanding:The City and Applicant agreed that certain portions of Fowler Avenue were capacity expanding which is accurately reflected on the Table.As described in the letter attached as Exhibit E, the City previously indicated that it believed Fowler Avenue was 25% capacity expanding. The Applicant, however, believes that, as installed, Fowler Avenue exceeds the requirements ofthe Project by more than 25%. C.CIP Listed:Fowler Avenue was included in the City's 20/20 plan as a five lane minor arterial. Thus, the City required the Applicant to install Fowler Avenue to such specifications. Applicant again refers the Committee to the previous discussions concerning the CIP list. D.CIP Funded:Fowler Avenue was included in the City's 20/20 plan as a five lane minor arterial. Thus, the City required the Applicant to install Fowler Avenue to such specifications. Applicant again refers the Committee to the previous discussions concerning the CIP funding. E.Timely Request:As described above, the MOU acknowledged that certain improvements the Applicant was required to make exceeded the burden caused by the Project and benefitted other properties.Furthermore,the City agreed to assist the Applicantin obtaining credits or reimbursements for such types of expenditures. Applicant refers the Committee to the previous discussions regarding this issue as set forth above. 4.College/Main Reconstruction:I believe the College/Main Reconstruction refers to certain off site modifications that the Applicant made to the intersections at: i.Huffine Lane and College; ii.Huffine Lane and Harmon Stream;and iii.Garfield Street and South 19th. Appeal from adverse administrative decision Page 10 of ISMDG Impact Fee Appeal Page 15 200 Chris Saunders City ofBozeman July 29, 2010 Page 11 For the purposes ofthis response, all ofthe above intersection modifications will be referred to together ("Intersection Modifications").As described in the letter attached as Exhibit E, the costs of these Intersection Modifications totaled $459,005.42.Each ofthe Intersection Modifications were off site modifications made to correct certain dangerous conditions that existed with regard to the respective intersections. A.Project Related:The Table indicates that the Intersection Modifications were all project related.However,the modifications made to the intersection of Huffine Lane and College were neither located within the bounds of the Project nor did they directly lead to the Project and were certainly not serving "...only the development..."as is referenced in the definition of project related improvements set forth above. With regard to the intersection ofGarfield and South 19th,the modifications made were several blocks from the Project.These modifications should clearly not be considered project related. The modifications made to the intersection of Huffine Lane and Harmon Stream do lead to the Project, but are not exclusive to the Project. In this regard,Applicant would bring the Committee's attention to a recent decision concerning this issue. The decision was issued in Montana First Judicial District Court in and for Lewis and Clark County in a case called Christison v.Board of County Commissioners of Lewis and Clark County, Cause No.BDV-2006-348.There are currently at least six other similar cases pending which address the same issue. The issue concerns the ability of a city or county to require a developer to construct improvements outside the bounds oftheir proposed development. B.Capacity Expanding:The Table indicates that whether the Intersection Modifications were capacity expanding or not is uncertain.Applicant certainly contends that improvements to intersections NOT within the bounds of the Project, and some of which were several blocks from the nearest point of the Project, are certainly capacity expanding.Please see additional commentary concerning this issue included above. C.CIP Listed:The City specifically requested that the Intersection Improvements be made at significant cost to the Applicant to improve the traffic flow and safety of the affected intersections.The Applicant worked hand in hand with the City concerning all of the Intersection Modifications. The Applicant refers the Committee to the discussion set forth above Appeal from adverse administrative decision Page 11of15 MDG Impact Fee Appeal Page 16 201 Chris Saunders City of Bozeman July 29,2010 Page 12 concerning this issue, including but not limited to the City's obligations as described in the MOU. D.CIP Funded:The Applicant refers the Committee to the discussions concerning this issue as set forth above. E.Timely Request:The Applicant refers the Committee to the discussions concerning this issue as set forth above. 5.Garfield Construction:The Garfield Construction described in the Table refers to the Applicant's installation of the roadway along Garfield Street extending from South 19th to Fowler Avenue ("Garfield Construction").The Garfield Construction was completed at a cost of approximately $1,951,560.16. Only a relatively small portion of the Garfield Construction was adjacent to the Project with the majority of the Garfield Construction neither located within nor adjacent to the Project. A.Project Related:The Table indicates the Garfield Construction may be project related,however the definition ofproject related provides in pertinent part: "Project-related improvements means ...all access streets adjacent to the proposed development or leading only to the proposed development; all streets and driveways within the development;all acceleration and deceleration,right or left turn lanes leading to any streets and driveways within the development..." In this case, the Garfield Construction does not lead only to the development and is in no way internal to the development as can be seen from the map included herewith as Exhibit A and the description above.Thus,the Garfield Construction should not be considered Project Related. B.Capacity Expanding:The Table indicates that the Garfield Construction may not be capacity expanding.Applicant contends that the Garfield Construction was not located within the Project,and in fact, the majority of the Garfield Construction was not even adjacent to the Project.The Garfield Construction certainly expanded the City's infrastructure and traffic capacity. Please see additional commentary concerning this issue included above. C.CIP Listed:The Applicant refers the Committee to the discussions concerning this issue as set forth above. Appeal from adverse administrative decision Page 12 of15MDG Impact Fee Appeal Page 17 202 Chris Saunders City ofBozeman July 29,2010 Page 13 D.CIP Funded:The Applicant refers the Committee to the discussions concerning this issue as set forth above. E.Timely Request:The Applicant refers the Committee to the discussions concerning this issue as set forth above. 6.Land for Fowler Avenue:The Land for Fowler Avenue as referenced in the Table refers to the land dedicated by the Applicant to the City on which Fowler Avenue was constructed. Originally Fowler Avenue was to run directly from the northern border of the Project almost straight south to the southern border of the project. However, when the final plan for the location of Fowler Avenue was reached,Fowler Avenue ended up bending to the east slightly.Thus,Fowler ended up being located entirely on land held by the Project and required the dedication of additional property at the filing and acceptance of the plat for phase 1 of the Project. The plat for phase 1 of the Project which included the dedication of the land under Fowler Avenue, was accepted by the City and recorded on or about November 9,2006. A.Project Related:The Table indicates that the land under Fowler Avenue may be project related and indicates that it was '...mostly provided with MSU Foundation Annexation".As discussed above,the land dedication for Fowler Avenue was not made for the exclusive benefit ofthe Project and the benefits certainly extend beyond the requirements of the Project. While certain portions of the land on which Fowler is located may have been dedicated as a part of the MSU Foundation Annexation,the location of Fowler Avenue was changed and required that the Project dedicate additional land on which Fowler would be constructed.As indicated above,the additional dedication of the land on which Fowler now sits was accepted by the City and recorded on or about November 9,2006. B.Capacity Expanding:The Table included in Mr.Saunders'current letter indicates that the dedication of the land for Fowler Avenue may not have been capacity expanding.However, a prior version ofthe Table provided to Applicant on or about October 9, 2006 indicates that the dedication of land for Fowler is capacity expanding.The dedication ofland for Fowler Avenue certainly exceeds any reasonable requirements ofthe Project.Otherwise,the Applicant would have retained ownership ofthe land under Fowler as it did with other roads which were internal to the Project.For the reasons and on the basis referred to herein and above, the Applicant agrees with the position ofthe City as set forth in the 2006 version ofthe Table which agrees that the land dedicated for Fowler Avenue was indeed capacity expanding. Appeal from adverse administrative decision Page 13of15MDG Impact Fee Appeal Page 18 203 Chris Saunders City ofBozeman July 29,2010 Page 14 C.CIP Listed:The Applicant refers the Committee to the discussions concerning this issue as set forth above. D.CIP Funded:The Applicant refers the Committee to the discussions concerning this issue as set forth above. E.Timely Request:The Applicant refers the Committee to the discussions concerning this issue as set forth above.Furthermore,the Applicant points out that the Applicant's formal application was filed with the City on October 20,2006 and the dedication ofthe land under Fowler was not accepted by the City and recorded until November 9,2006. Applicant has, at times in the past, communicated to the City that Applicant would be willing to bear more than its proportional share, and up to all,of the costs associated with installation of Fowler and Garfield.As set forth below,Applicant remains willing to bear those costs so long as Applicant and the City can reach an agreement concerning the remaining issues addressed in this Appeal. However, the extent to which the cost burden placed on the Applicant has exceeded the Project's proportional share of the capital improvements that Applicant has made to the City's infrastructure is far greater than Applicant anticipated or intended to bear. Specifically, the 21"Fowler Sewer installed by the Applicant dramatically exceeds any reasonably anticipated capacity requirements of the Project.Furthermore,as specifically set forth in the language of the MOU, the Applicant was relying on the City to provide the assistance it promised for reimbursement ofthe costs associated with the installation of the Fowler Signal. As evidenced by the City's failure to even disclose to Applicant the existence of the Parkway Plaza Agreement discussed above, the Applicant cannot be assured of the City's future cooperation concerning promised reimbursements. Therefore,ifthe Commission and the City agree to reimburse Applicant for the Fowler Signal and intersection alterations (cost of$843,584.82 as described in detail in Exhibit D) and Fowler Sewer Line (cost of $224,615.61 as described in detail in Exhibit E), then Applicant would be willing to forego the remainder of its claims for reimbursement or credits which are the subject ofthis appeal.In addition,even though the City has apparently already collected funds toward the construction of at least the Fowler Signal,the Applicant would be willing to accept reimbursement for the Fowler Signal and Sewer Line by way of impact fee credits to be applied toward the satisfaction offuture assessments. While the Applicant believes that the information set forth herein and attached hereto sets forth Applicant's position regarding the various issues addressed,the Applicant reserves the right to supplement and add to this information from time to time.Furthermore,the Applicant remains willing and available to discuss any of the issues referred to herein,provide any additional information that the Committee may Appeal from adverse administrative decision Page 14of 15MDG Impact Fee Appeal Page 19 204 Chris Saunders City ofBozeman July 29,2010 Page 15 reasonably request and remains committed to working toward a mutually agreeable compromise and resolution to each of the issues addressed above.Thank you in advance for your time and attention to this matter. Very truly yours, JARDINE,STEPHENSON,BLEWETT &WEAVER,P.C. Enclosures By:/\^JA^n Brion C.Lindseth Appeal from adverse administrative decision Page 15of 15 MDG Impact Fee Appeal Page 20 205 EXHIBIT A MDG Impact Fee Appeal Page 21 206 MEMORANDUM OF UNDERSTANDING BETWEEN THE MONTANA DEPARTMENT OF TRANSPORTATION, THE CITY OF BOZEMAN, AND THE MITCHELL DEVELOPMENT GROUP,LLC SrvfrJL 8rn* August 25,2004EXHIBIT BMDG Impact Fee Appeal Page 22 207 yflB^Wfv y*S^v This Memorandum of Understanding (MOU)byand amongthe MONTANA DEPARTMENTOFTRANSPORTATION, 2701 Prospect Avenue,P.O. Box 201001, Helena,MT 59620-1001 (STATE or MDT),THE CITY OF BOZEMAN,411 East Main, Bozeman,MT 59771-0640 (CITY)and MITCHELL DEVELOPMENT GROUP,LLC, P.O.Box738,Great Falls,MT 59403 (DEVELOPERS)sets forth the coordination ofthe planning,design,and costsof necessary future accessto and construction of roadway accesses understate jurisdiction,specifically Huffine Lane,to accommodate the safety ofthe traveling public and increased traffic flow on such roadways due to the DEVELOPERS proposed actions. WHEREAS, the MDT is responsible for planning,designing,constructing,and maintaining State Highways and roadways andassociatedtransportation facilities, including associated pull-offs,parking areas,and rest areas for the use and benefit of the traveling public,in a safe and efficient manner in accordance with Title 23 United States Codes (U.S.C.)and Title 60,Montana Code Annotated (MCA);and WHEREAS,the CITY is responsible for planning,designing, constructing, and maintaining Bozeman City roadways and associated transportation facilities in a safe and efficient manner and has overall approvalauthorityfor development of the Bozeman Gateway Mixed-Use Development; and WHEREAS,the DEVELOPERS have or will individually proposed and submitted a pre- application design for a major subdivision south of Huffine Lane which will affect roadways and streets underthe jurisdiction ofthe MDT andthe CITY;and WHEREAS, the parties mutually agreethata cooperativedelineation and identification ofthe statutory,regulatory and agreedduties and responsibilities of the parties is essential to the overall development process; NOW,THEREFORE,the parties set forth the fundamental duties and responsibilities necessaryto accommodatethe safetyofthe traveling public due to increased traffic flow on the affected MDTand CITY roadways resulting from the DEVELOPERS proposed actions. Design -The DEVELOPERS shall, in consultation with MDT,be responsible for developing and completingthe design of the necessary state roadway improvements for access to Huffine Lane (P-50)US 191 and College Street (U- 1210).Final design approval will be subjectto the reasonable reviewand approval ofthe MDT for all aspects affecting state roadways. DEVELOPERS will: Pay for costs associated with the development, design and construction of the necessary improvements on state roadways related to the proposed actions of the DEVELOPERS,including any costs related to utility relocations,environmental mitigation or traffic control.The City acknowledges and agrees that the improvements to be constructed by the Developer hereunder will benefit other property owners and the CityEXHIBIT BMDG Impact Fee Appeal Page 23 208 ; .3agreesthattheywillcooperatewithandreasonablyassisttheDeveloper in obtaining contributions or reimbursements from such benefited property ^owners for the costs incurred by the Developer in designing and V constructing such improvements. Develop project geometries and detailed design in accordance with MDT Geometric Standards,MDT Traffic Engineering Manual,The Manual of Uniform Traffic Control Devices and the MDT Road Design Manual. Comply with MDT application processes for requests for new access or alteration to existing access.This includes preparing any documents necessary for compliance with the Montana Environmental Policy Act. Support and be responsible for the development drainage.Storm water drainage cannot be discharged upon Huffine Lane. Provide asetoffinal plans that have been approved by MDT for the access and improvements onstateroadways prior to MDT issuance of any permits.Improvements tothe roadways are as follows: o A traffic signal at the intersection of Fowler Avenue and Huffine Lane to include geometric improvements and striping associated with a new signalized intersection, o A%movement (No left turn out)private access (Harmon Stream Blvd.) intersecting Huffine Lane from the south between Fowler Avenue and College Street This will also include geometric improvements and^SK^striping. f o Intersection improvements at Huffine Lane and College Street. o Intersection improvements atSouth 19th Avenue and Garfield Street, o Arestricted movement access (Right-in,Right-out only)on College Street that includes associated geometric improvements and striping. MDT will: Provide MDT data and technical requirements and assistance necessary for the development,completion and approval ofthe geometric and/or traffic signal design for necessary roadway improvements. As soon as reasonably practicable,review plans,designs and data submitted by the DEVELOPERS and if found acceptable,approve individual submissions,insuring all MDT design standards are met. Coordinate with the Developer and the CITY in the overall review ofthe plans. CITY will: Agree to make approvals for the Bozeman Gateway development contingent on agreed upon design features related to city and state roadways.EXHIBIT BMDG Impact Fee Appeal Page 24 209 Coordinate and consult with the Developer and MDT on review of plans. Be the applicant and responsible party for the Fowler Avenue/Huffine Lane intersection with the traffic signal and associated geometric improvements and striping. 2.Construction DEVELOPERS will: Be responsible for acquiring all permits and authorizations including all environmental clearances,such as compliance with the Montana Environmental Policy Act,necessary for the associated roadway improvements and for developing a plan acceptable to the MDT for those aspects of the development affecting state roadways. Submit for MDT approval a traffic control plan that is sufficient to protect the traveling public and maintain traffic flow through the construction sites on state roadways. Insure inspection services are provided under the supervision of a licensed professional engineer during construction ofthe roadway improvements. To the extent applicable to its responsibilities hereunder,comply with the Americans With Disabilities Act (ADA),the Montana Governmental Code of Fair Practices,49-3-207,MCA, Title VI of the Civil Rights Act,the Civil Rights Act of 1964, and allother relevant nondiscrimination and labor statutes,regulations or procedures. Provide MDT a set of revised construction plans depicting the as-built condition in Microstation format. Insure the traffic signal at Huffine Lane and Fowler Avenue is turned on and operational 45 days after the installation ofthe first signal pole.This is subject to MDT and the City performing their respective obligations hereunder and subject to events and circumstances beyond the reasonable control of the Developer (excluding financial). MDT will: As soon as reasonably practicable review and approve if adequate the DEVELOPERS submittals related to the required traffic control plan and traffic signal control equipment.At the required time conduct signal turn- on and coordination with other signals. Request additional approvals or concurrence from the Transportation Commission as needed,throughout the course of the activitiesEXHIBIT BMDG Impact Fee Appeal Page 25 210 contemplated by this agreement. Conduct final inspection ofwork requiring MDT approval. Issue approach permits for access to Huffine Lane once all MDT requirements for the approaches have been met. 3.Modifications and Amendment This MOU may be modified or amended,in writing,by the mutual agreement of the parties involved.This MOU is assignable by the DEVELOPERS only upon the written acceptance ofthe assignee by MDT. 4.Termination All parties agree to act reasonably,exercise good faith and due diligence and move in an efficient and expeditious manner towards development ofthese proposals underthe conditions specified within this document.Any party may terminate this agreement,and all obligations of all parties hereunder,with 30-day notice in writing to the other parties ofthe intention to do so.The MOU may not be terminated once the contract or contracts have been awarded for construction of the associated highway projects. 6.Governing Law This agreement shall be governed by the laws ofthe State of Montana.Venue for any litigation will be in Lewis and Clark County,State of Montana.In case of conflict between the obligation imposed by this MOU and Montana law then Montana law will control. 7.Supplementation of Agreement The parties agree that itmay be desirable to provide individual or more specific provisions, which may be accomplished through the execution of supplements to this agreement as needed. Approved for Legal Sufficiency Date:fiua.-25.7Mj By:%^SiTylaA^ " 'Montana Department of Transportation Montana Department ofTransportation Date:September 20,2004 By: City of BozemanEXHIBIT BMDG Impact Fee Appeal Page 26 211 SIGNATURE PAGE -Mitchell Development Group LLC State of Montana County of Gallatin By:/J^f/lW^j£> ^-^Mitchell Development Group,LLC ManagerDate:<g -3 O~0*/ This instrument was acknowledged before me on %-fln -o4 by Theodore J.Mitchell as Manager ofthe Mitchell Development Group LLC. lotary Public of MontanaNotaryPublic c My commission expires:\.15.0u EXHIBIT BMDG Impact Fee Appeal Page 27 212 n Mitchell Development Group commercial real estate development October 20,2006 Chris Saurfciers VIA:OVERNIGHTMAIL 20 EastX)live Street P.C^Box 1230 >zeman,MT 59771 Re:Supplemental information to the Development Impact Fee Credit Requestfiled with the City ofBozeman byMitchell Development Group,LLC Dear Mr.Saunders: This letter accompanies a Development Impact Fee Credit Request ("Credit Request")that Mitchell Development Group,LLC ("MDG")has filed with the City of Bozeman ("City")requesting credits that may be applied against development impact fees ("Credits").This letter sets forth both the location of certain credit items and descriptions of the basis and facts that create a qualification for Credits sought through the Credit Request and therefore constitutes a part of the accompanying Credit Request submitted in compliance with Bozeman Municipal Code section 3.24.100(B). MDG's Credit Request originates with and relates back to the Memorandum of Understanding between the City,MDG and the Montana Department ofTransportation ("MDT"),a copy of which is attached hereto and incorporated into the Credit Request by this reference ("Memorandum of Understanding").The Memorandum of Understanding was signed and dated August 25,2004.The Memorandum of Understanding contained the following provision: "...The City acknowledges and agrees that the improvements to be constructed by the Developer hereunder will benefit other property owners and the City agrees that they will cooperate with and reasonably assist the Developer in obtaining contributions or reimbursements from such benefited property owners for the costs incurred by the Developer in designing and constructing such improvements..." Location ofCredit Items:The location ofthe credit items for which the Credit Request is filed are as follows: 1.The land MDG purchased that will be dedicated to the City for Garfield Street and Fowler Avenue ("Dedicated Land"); 2.The easement MDG provided to the City in order to allow the installation ofGarfield Street all the way to South 19th Avenue ("Garfield Easement"); P.O.Box738,Great Falls,MT 59403 Ph.406-76-4400 Fax 406-761-4401EXHIBIT CMDG Impact Fee Appeal Page 28 213 0fi\ Saunders City ofBozeman Page 2. 3.The extension ofa 21 inch City trunk-line sanitary sewer by burrowing a distance of approximately 140 feet north to south under West Main and extending the line an additional 1250 feet along Fowler Avenue to Garfield Street which the City has already authorized further extensions to provide city services to users and other developments in southwest Bozeman; 4.The planning and construction of Fowler Avenue,afive-lane minor arterial,extending south from West Main to Garfield Street a distance of 1250 feet; 5.The planning and construction of Garfield Street from Fowler Avenue eastto South 19th Avenue,a distance of approximately 1 mile,allof which was expanded toa collector status inanticipation ofthe transportation system growth inWestBozeman; 6.The reconfiguration of the West Main/College Street intersection that has resulted in the elimination ofa dangerous right lane sling shot movement off West Main onto College Street;and 7. The revamping ofthe West Main/Fowler Avenue intersection that included the installation of a new traffic signal, the widening ofFowler north of West Main and the construction of a right turn/deceleration lane for east bound motorists on West Main turning south on Fowler Avenue. Description ofthe Basis and Facts:The basis and facts upon which MDG requests Credits are as follows: Mont.Code Ann.§7-6-1603(4)provides for a governmental entity orthe City to"...accept the dedication of land orthe construction of public facilities inlieu of impact fees if: a.The need forthe dedication or construction is clearly documented pursuant to 7-6- 1602; b. The land proposed for dedication for the public facilities to be constructed is determined tobeappropriate for the proposed use by the governmental entity; c.Formulas and procedures for determining the work of proposed dedications or constructions are established aspartofthe impact fee ordinance or resolution;and d. A means to establish credits against future impact fee revenue has been created as part ofthe adopting ordinance or resolution if the dedication of land or construction of public facilities is of worth in excess of the impact fee due from an individual development." Mont.Code Ann.§7-6-1601(7)defines a "public facility"as including "... a transportation facility,including roads,streets,bridges,rights-of-way,traffic signals and landscaping...". Mont.Code Ann.§7-6-1603(6)(b)also provides for a governmental entity such as the City granting credits "...in accordance with a voluntary agreement ...between the governmental entity and the individual orentity..."such asthe Memorandum ofUnderstanding.EXHIBIT CMDG Impact Fee Appeal Page 29 214 /0^\ Saunders City ofBozeman Page 3. The Bozeman municipal code,section 3.24.100(A)provides that,subject to certain exceptions,all mandatory orvoluntary land oreasement dedications for street orwastewater improvements,and all mandatory or voluntary acquisition or construction of improvements to the major street systems,shallresultin credit against the payment of impact fees. Land Dedication and Easement Procurement:MDG has,from the planning stages of the Bozeman Gateway Project,solicited and received the City's continued approval and support for the dedication of certain land and easements necessary forthe construction of Garfield Street and Fowler Avenue.Prior to MDG's involvement,the City had attempted to obtain the Garfield Easement from Montana State University which the City believed was needed for improved traffic flow and development ofthe area.MDG,by and through negotiations with Montana State University,provided the City with the Garfield Easement running from Fowler Avenue alltheway to South 19th Avenue.In addition to the Garfield Easement,MDG has made available to the City the Dedicated Land on which portions of Garfield Street and Fowler Avenue are located.Both the Dedicated Land as well as the Garfield Easement fall within the definition ofa Public Facility.The fact that both MDG and the City see the need for these dedications is documented by and through the Memorandum ofUnderstanding and the course of dealings between MDG,the City and others.The City,MDG and MDT all agreed that the land and easements MDG proposed to dedicate are appropriate for use by the City,and the City is preparing to accept these dedications.The fair market value of the Dedicated Land and Garfield Easement will be subsequently established bya mutually agreeable private appraiser. City Sewer Extension and Construction of Garfield Street and Fowler Avenue:MDG has extended a 21 inch City trunk-line sanitary sewer by burrowing a distance of approximately 140 feet under West Main and installing another 1,250 feet of21 inch trunk-line sanitary sewer along Fowler Avenue to Garfield Street.Once again,both MDG and the City agreed that these extensions of the sanitary sewer lines were needed for the southerly expansion of Bozeman and their benefits extend well beyond the Bozeman Gateway Project.In fact,the sanitary sewer extensions paid for by MDG,and the excess capacity thereof,have already been used,relied on and expanded by others for the further development of West Bozeman,even prior to their dedication to the City.MDG's extensions of the sanitary sewer have likely already,or will in the future,provide the basis for the City's collection of additional fees from others.MDG discussed these extensions with the City and received the City's approvalbefore beginningconstruction. MDG has also constructed both Garfield Street and Fowler Avenue with the full approval,input and knowledge ofthe City prior to the initiation oftheir construction.The construction ofGarfield'Street and Fowler Avenue was in accord with the City's pre-existing transportation plans.Fowler Avenue is a5 lane minor arterial running south from West Main to Garfield Street and exceeds the capacity required by the Bozeman Gateway Project.Prior to the construction ofGarfield Street and Fowler Avenue,MDG completed traffic studies of the area surrounding the Bozeman Gateway Project and presented these traffic studies to the City for review.The City reviewed and concurred with the findings and conclusions set forth in these traffic studies in approving Garfield Street and Fowler Avenue.Although the 5 lane capacity ofFowler Avenue exceeds the needs of the Bozeman Gateway Project,MDG's traffic studies indicate that the installation of Fowler Avenue and Garfield Street was necessary to relieve already congested traffic flow atthe intersections ofSouth 19th and College Avenue aswell asHuffine Lane andEXHIBIT CMDG Impact Fee Appeal Page 30 215 Saunders rCityofBozeman Page 4. College Avenue.In fact,the City has already acquired the land necessary to continue the extension of Fowler Avenue south to serve additional area and developments and likely either has already,orwill in the future,collect fees from other developers and landowners for the improvements and expansions made by MDG. Garfield Street runs a distance ofapproximately one mile extending along the southern border of the Bozeman Gateway Project,connecting Fowler Avenue to South 19th Avenue.MDG,with the assistance and approval of the City,planned and expanded Garfield Street to collector status in anticipation and accommodation ofthe increasing traffic volumes,development and expansion of West Bozeman.The Capacity ofGarfield Street again exceeds the needs ofthe Bozeman Gateway Project and serves toalleviate the traffic congestion apparent from MDG's traffic study.These Public Facilities will lead to and connect with other future developments and their benefits again extend well beyond the bounds ofthe Bozeman Gateway Project. The costs of the installation of the City sanitary sewer mains and the construction of Garfield Street and Fowler Avenue totalapproximately $2,350,000.00. Traffic Signal and Intersection Upgrades:MDG also reconfigured the intersection to West Main and College Street,revamped the intersection of West Main and Fowler Avenue including the installation ofa new traffic signal,and the expansion ofFowler Avenue north ofWest Main.All ofthese upgrades were done with the approval ofand in conjunction with the City.In fact,the City actually filed r application for the approach permit with MDT for the installation of Fowler Avenue south of Huffine Lane and for which MDG now seeks Credits.Furthermore,many,if not all,of these upgrades and expansions were done on property outside the boundary of the Bozeman Gateway Project.The Memorandum of Understanding confirms MDG and the City's agreement that the benefits of each of these projects extended well beyond the Bozeman Gateway Project.MDG's efforts eliminated potentially dangerous traffic conditions,relieved congestion at these intersections and,as intended by MDG as well asthe City,accommodated future expansion of West Bozeman. The costs ofthese reconfigurations,alterations and installations were approximately $900,000.00. MDG has and intends to continue to invest in many other improvements such as streets,sewerextensions,roads,trails and other necessary upgrades that benefit the Bozeman Gateway Project as well as the City.MDG is not currently seeking credits for those items ofmore limited benefit.However,each ofthe projects and expansions described above were,from their inception,planned and constructed to accommodate and facilitate future expansion ofthe City of Bozeman.Without receiving the Credits MDG has applied for,MDG,by payment of separately assessed impact fees,would be bearing a disproportionately high share of the costs incurred by the City in accommodating the development of Bozeman. Each ofthe projects and dedications referred to above fit squarely within the definition ofPublic Facilities set forth in Mont.Code Ann.§7-6-1601.The need for each ofthese projects and dedications is clear and from the inception,the City and MDG agreed that these proposed projects and dedications were appropriate for the proposed use.The projects and dedications provided by MDG and described hereinEXHIBIT CMDG Impact Fee Appeal Page 31 216 Saunders City ofBozeman Page 5. are exactly the types of projects and dedications for which the State of Montana impact fee statutes contemplate granting credits and allowing offsets to the payment of impact fees.These projects and dedications were made with the approval and encouragement of the City and provide for the continued growth and expansion of West Bozeman in accordance with the City's growth plan.If the projects and dedications provided by MDG do not warrant the grant of the requested Credits,what possible types of projects and dedications could qualify? MDG now seeks the City's assistance as discussed and promised in the Memorandum of Understanding to obtain credit,contribution and reimbursement for the costs MDG has fronted for the benefit ofand to facilitate the expansion ofWest Bozeman. Yours very truly, Mitchell DevelopmentGroup, LLC cc:John Davison dipt Ward i/Grion Lindseth -Ted J.Mitchell,Operating Manager EXHIBIT CMDG Impact Fee Appeal Page 32 217 CITY OF BOZEMAN DEVELOPMENT IMPACT FEE CREDIT REQUEST Date Received Dav ___Streets Month Year • Fire •Water _%Wastewater Applicant Street/P.O.Box City/State/Zip Owner Street/P.O.Box City/State/Zip Legal Desc. Site Address ProjectTitle Project Desc. Mitchell Development Group,LLC P.O.Box 738 Great Falls,MT 59403 Mitchell Development Group, LLC P.O.Box 738 Great Falls,MT 59403 Tract 2A ofthe AmendedPlat ofWestCollegeMinor SubdivisionNo. 195A Situated inthe NW Va Section 14andtheNE V<Section 15,T2S,R5E,P.M.M.Cityof Bozeman,Gallatin County,Montana Southeast Hufflne Lane and Fowler Avenue Bozeman Gateway Project Mixed-use Development Reason For CreditRequest __Dedications ^Excess Capacity On-Site Improvements ^Project Unrelated OfffSite Improvements Location ofCreditItems Pleaseseethestatementattachedheretoand incorporated hereinbvthis reference. Description ofthe basis and facts which create a qualification for Credit Please see the statement attached hereto and incorporated herein bv this reference. Prepared by: Address Mitchell Development Group.LLC 3beingfirst dulyswornuponoath,statesthatall information contained in this request is true,correct and complete tothe best ofmy knowledge and all attached materials anddocuments arecorrect andcomplete. Subscribed and sworn to before me this 3.0^day of TW^V^^,r9,$rn& Publikfor the State of pr\o<\Wc\o, Reviewed by: . Department ' Value ofCreditsRequested Comments:_____ APPROVED: NAME APPROVED: NotaryPublikfor the State of PTWvVc^oi residing at W^K mT MyCommissionExpires ts-^mn Value ofCredits Approved: PateCreditsActivated FILE DATE NAME TheCilywillretain2%ofthe feescollectedfor Administrative Costs.FILE DATEEXHIBIT CMDG Impact Fee Appeal Page 33 218 /fff^ MEMORANDUM OF UNDERSTANDING BETWEEN THE MONTANA DEPARTMENT OF TRANSPORTATION, THE CITY OF BOZEMAN, AND THE MITCHELL DEVELOPMENT GROUP,LLC ST7p7<u£P/fT. August 25,2004 /SPn EXHIBIT CMDG Impact Fee Appeal Page 34 219 This Memorandum of Understanding (MOU)by and among the MONTANA DEPARTMENT OF TRANSPORTATION,2701 Prospect Avenue,P.O.Box 201001, Helena, MT 59620-1001 (STATE or MDT),THE CITY OF BOZEMAN,411 East Main, Bozeman,MT 59771-0640 (CITY) and MITCHELL DEVELOPMENT GROUP,LLC, P.O. Box 738,Great Falls, MT 59403 (DEVELOPERS)sets forth the coordination ofthe planning,design,and costs of necessary future access to and construction of roadway accesses under state jurisdiction,specifically Huffine Lane, to accommodate the safety ofthe traveling public and increased traffic flow on such roadways due to the DEVELOPERS proposed actions. WHEREAS,the MDT is responsible for planning,designing,constructing,and maintaining State Highways and roadways and associated transportation facilities, including associated pull-offs,parking areas,and rest areas for the use and benefit of the traveling public,in a safe and efficient manner in accordance with Title 23 United States Codes (U.S.C.)and Title 60, Montana Code Annotated (MCA); and WHEREAS,the CITY is responsible for planning,designing, constructing, and maintaining Bozeman City roadways and associated transportation facilities in a safe and efficient manner and has overall approval authority for development of the Bozeman Gateway Mixed-Use Development;and WHEREAS, the DEVELOPERS haveor will individually proposedand submitted a pre- application design for a major subdivision south of Huffine Lane which will affect roadways and streets under the jurisdiction of the MDT and the CITY; and WHEREAS, the parties mutually agreethata cooperative delineation and identification ofthe statutory,regulatory and agreed duties and responsibilities ofthe parties is essential to the overall development process; NOW,THEREFORE,the parties set forth the fundamental duties and responsibilities necessary to accommodate the safety of the traveling public due to increased traffic flow onthe affected MDT and CITY roadways resulting from the DEVELOPERS proposed actions. 1.Design -The DEVELOPERS shall,in consultation with MDT,be responsible for developing and completing the design ofthe necessary state roadway improvements for access to Huffine Lane (P-50)US 191 and College Street (U- 1210).Final design approval will be subjectto the reasonablereviewand approval ofthe MDT for all aspects affecting state roadways. DEVELOPERS will: Pay for costs associated with the development,designand construction of the necessary improvements on state roadways related tothe proposed actions ofthe DEVELOPERS,including anycosts related to utility relocations,environmental mitigation or traffic control.The City acknowledges and agrees that the improvements tobe constructed bythe Developer hereunder will benefit other property owners and the CityEXHIBIT CMDG Impact Fee Appeal Page 35 220 3 agrees that they will cooperate withand reasonably assist the Developer in obtaining contributions or reimbursements from such benefited property ^owners for the costs incurred by the Developer in designing and v constructing such improvements. Develop projectgeometries and detailed design in accordance with MDT GeometricStandards,MDT Traffic Engineering Manual,The Manual of Uniform Traffic Control Devices and the MDT Road Design Manual. Comply with MDT application processes for requests for new access or alteration to existing access.This includes preparing any documents necessary for compliance with the Montana Environmental PolicyAct. Support and be responsible for the development drainage.Storm water drainage cannot be discharged upon Huffine Lane. Provide a set of final plans that have been approved by MDT for the access and improvements on state roadways priorto MDT issuance of any permits.Improvements to the roadways are as follows: o A traffic signal at the intersection of Fowler Avenue and Huffine Lane to include geometric improvements and striping associated with a new signalized intersection, o rA Yd movement (No left turn out)private access (Harmon Stream Blvd.) intersecting Huffine Lane from the south between Fowler Avenue and College Street.This will also include geometric improvements and striping, o Intersection improvements at Huffine Lane and College Street, o Intersection improvements atSouth 19th Avenue and Garfield Street, o A restricted movement access (Right-in,Right-out only)on College Street that includes associated geometric improvements and striping. MDT will: Provide MDT data and technical requirements and assistance necessary for the development,completion and approval ofthe geometric and/or traffic signal design for necessary roadway improvements. As soon as reasonably practicable,review plans,designs and data submitted by the DEVELOPERS and iffound acceptable, approve individual submissions,insuring all MDT design standards are met. Coordinate with the Developer and the CITY in the overall review of the plans. CITY will: Agree to make approvals for the Bozeman Gateway development contingent on agreed upon design features related to city and state roadways.EXHIBIT CMDG Impact Fee Appeal Page 36 221 -Coordinate and consult with the Developer and MDT on review of plans. -Be the applicant and responsible party for the Fowler Avenue/Huffine Lane intersection with the traffic signal and associated geometric improvements and striping. 2.Construction DEVELOPERS will: Be responsible for acquiring all permits and authorizations including all environmental clearances,such as compliance with the Montana Environmental Policy Act,necessary for the associated roadway improvements and for developing a plan acceptable to the MDTfor those aspects ofthe development affecting state roadways. Submit for MDT approval a traffic control plan that is sufficient to protect the traveling public and maintain trafficflow through the construction sites on state roadways. Insure inspection services are provided under the supervision of a licensed professional engineer during construction of the roadway improvements. (^-To the extent applicable to its responsibilities hereunder,comply with the Americans With Disabilities Act (ADA),the Montana Governmental Code of Fair Practices,49-3-207,MCA, Title VI of the Civil Rights Act,the Civil Rights Act of 1964, and all other relevant nondiscrimination and labor statutes,regulations or procedures. Provide MDT a set of revised construction plans depicting the as-built condition in Microstation format. Insure the trafficsignal at Huffine Lane and Fowler Avenue is turned on and operational 45 days afterthe installation of the first signal pole. This is subject to MDT and the City performing their respective obligations hereunder and subject to events and circumstances beyond the reasonable control of the Developer (excluding financial). MDT will: As soon as reasonably practicablereview and approve if adequate the DEVELOPERS submittals related to the required traffic control plan and traffic signal control equipment.At the required time conduct signal turn- on and coordination with other signals. Request additional approvals or concurrence from the Transportation Commission as needed,throughout the course ofthe activitiesEXHIBIT CMDG Impact Fee Appeal Page 37 222 contemplatedbythis agreement. Conduct final inspection of work requiring MDT approval. Issue approach permits for access to Huffine Lane once all MDT requirements forthe approaches have been met 3-Modifications and Amendment tT,hJSnoiiLU may»beJ™£?8d °r amended«•"writing,by the mutual agreement ofheparties.nvolved.This MOU is assignable by the DEVELOPERS only uponthewrittenacceptanceoftheassigneebyMDT. 4.Termination All parties agree to act reasonably,exercise good faith and due diligence and move in an efficient and expeditious manner towards development oftheseproposalsundertheconditionsspecifiedwithinthisdocument.Any party mayterminatethisagreement,and all obligations of all parties hereunder,with 30-daynotice,n wntmg to the other parties of the intention to do so.The MO^may not nf thlT3^*0^*u6 Corrtract 0r contracts nave been awar°*ed for constructionoftheassociatedhighwayprojects. 6. Governing Law This agreement shall be governed by the laws of the State of Montana.Venue ''• ™JEX k'f °n !?beuln Uwis and C,ark Countv»state of Montana.In case ofconflictbetweentheobligationimposedbythisMOUandMontanalawthen Montana law will control. 7-Supplementation of Agreement The parties agree that it may be desirable to provide individual or more specific provisions,which may be accomplished through the execution ofsupplements to this agreement as needed. Approved for Legal Sufficiency Date:(\^S.?OOj By:%^^adh Montana Department ofTransportation Date By: Montana Department of Transportation Date:September 20,2004 By:QS^^A."p{^LjU5U City of BozemanEXHIBIT CMDG Impact Fee Appeal Page 38 223 0$>\ SIGNATURE PAGE -Mitchell Development Group LLC State of Montana County of Gallatin By:/MIM5«^JP ^-""Hvlitchell Development Group, LLC ManagerDate:<%-,3 o -0?j This instrument was acknowledged before me on ft -9r\-qh by Theodore J.Mitchell as Managerof the Mitchell Development Group LLC. Notary Public of Montana My commission expires:*J_15-oU EXHIBIT CMDG Impact Fee Appeal Page 39 224 JAMES E.AIKEN GARY W.BJELLAND DONALDJ.HAMILTON LONT.HOLDEN JON J.KUDRNA BRION C.LINDSETH SUEANN LOVE GEORGEN.McCABE TYLERG.MOSS ROBERTB.PFENNIGS JARDINE,STEPHENSON,BLEWETT &WEAVER,P.C. City ofBozeman Chris Saunders 20 East Olive Street P.O.Box 1230 Bozeman,MT 59771 ATTORNEYSATLAW 300CentralAvenue Seventh Floor,U.S.BankBuilding P.O.BOX2269 GreatFalls,Montana 59403-2269 TEL:(406)727-5000 FAX:(406)727-5419 E-MAIL:lindseth@jardinelaw.com January 25, 2007 JOHN D.STEPHENSON BRIANL.TAYLOR PATRICK R.WATT WARRENC.WENZ RETIRED: JACKL.LEWIS ARTHUR G.MATTEUCCI K.DALE SCHWANKE Re: MitchellDevelopment Group,LLC Impact Fee Credit Request Dear Mr.Saunders:t Thank youfortakingthe time tomeet with Mr.Davison and I last month.I am gladto see that we are able to move in a positive direction.During our meeting,you requested that Mitchell Development Group,LLC ("MDG")provide you with additional information regarding the costs incurred by MDG intheconstruction of certain public facilities and making certain dedications.The detailed information you requested accompanies this letter. Construction of Garfield and Fowler:A detailed itemization of the costs MDG incurred to construct Garfield Street and Fowler Avenue is attached hereto as Exhibit A.The costs described in detail in Exhibit A total $2,240,995.91.MDG is therefore seeking impact fee credits or reimbursement in that amount for the construction of Garfield Street and Fowler Avenue.Please be aware that the total set forth above does not include the cost of the installation of street lightsforwhich MDG will also beseeking credits or reimbursement. Construction of Intersections:A detailed itemization of the costs MDG incurred to construct and improve the intersections along Huffine Lane between and including College and Fowler Avenues as well as Garfield Street and South 19th Avenue and to install a left turn restrictive device at the intersection of Garfield Street and Fowler Avenue is attached hereto as Exhibit B.The costs described in detail in Exhibit B total $843,584.82.MDG is therefore seeking impact fee credits or reimbursement in that amount for the improvement and construction of the intersections along Huffine Lane and the installation of the traffic flow improvements at the intersection ofGarfield Street and Fowler Avenue. Dedication of Land:MDG has attached as Exhibit Ca detailed summary ofthe value MDG is currently willing to accept for MDG's dedication of land for the construction of Garfield Street and Fowler Avenue.As MDG set forth in its application for impact fee credits as well as other previous correspondence,MDG requests that the land dedicated by MDG, which has been accepted by the Cityof Bozeman for the construction of Garfield Street and Fowler Avenue,be valued at fair market value.Unless MDG and the City arrive at amutually EXHIBIT D MDG Impact Fee Appeal Page 40 225 agreeable estimate of.the fair market value of the land MDG dedicated, then the Bozeman Municipal Code provides that the fair market value may be established by a private appraiser. Although MDG believes the value of the dedicated land is much higher, for purposes of this letter and for purposes of this offer only,MDG would be willing to accept a valuation of the dedicated land based on S8.00 per square foot. MDG feels confident that the fair market value of the land as determined by a private appraiser would be far higher than the $8.00 per square foot MDG is currently willing to accept and MDG reserves the right to seek and rely on a fair market value set by a private appraiser in the future.As is more particularly described in Exhibit C, the value of the dedicated land at $8.00 per square foot is $1,643,016.00.MDG is thereforeseeking impact fee credits or reimbursements in that amount for the dedication ofthe land on which Garfield Street and Fowler Avenue are constructed. Procurement ofEasement:In addition to the dedication ofthe land referred to above, MDG also procured an easement for the benefit of the City that allowed the construction and extension of Garfield Street from Fowler Avenue all the way to South 19th Avenue.MDG estimatesthat the value of the easement procured by MDG to be at least $500,000.00.MDG is therefore seeking impact fee credits or reimbursements in that amount for the procurement of the easement allowing the extension of Garfield Street to South 191 Avenue. t Thus, the total amount for which MDG is currently seeking reimbursement by impact fee credits or otherwise is as follows: Construction ofGarfield and Fowler $2,240,995.91 Construction ofintersection at Huffine and Fowler $843,584.82 Dedication ofland for Garfield and Fowler $1,643,020.00 Procurement of easement for Garfield $500.000.00 Total $5.227.600.73 I also want to point out that the costs set forth in this letter do not include any reimbursement for the time, administrative expenses, interest or other costs related to the availability of capital incurred by MDG in the planning and completing of the projects, procurements and dedications describedabove.MDG is cuiTently willing to bear the burden of these and other costs associated with the public facilities described above,however,if we are unable to come to a mutually agreeable solution,MDG reserves the right to add those and other costs and expenses to the amount that MDG seeks to recover. I will contact you after you havehad an opportunityto review the information provided with, and attached to, this letter. Thank you in advance for your continued assistance and cooperation in this matter,and please contact me with any questions or comments you may have. Very truly yours, JARDLNE,STEPHENSON,BLEWETT &WEAVER,P.C. Brion C.Lindseth EXHIBIT D MDG Impact Fee Appeal Page 41 226 '•:L:•.-'•''.&.;;:*;.:-;;^;;:->:-'-.• i feV-...;_•- f^^la^i OH **1 _2)033'0 63-78 +^^c^/.^i:.^Ix^P^^ j 400-00 +:;. ; ^^Zfec,^ ~_ft-^durt-f-fL\rl •fnrf.a-+k:_ ••&*&•Sfjgflg /i/H I///Au4 nof print-. -v 11928^51-48 -'.<Zifitit*!***" 130;939-69 ~ ' • '•:•' ..I -1^07 f\a\aJoif^j <^i^^j^^.^M^^^'^^^^u •A. A, : • ' EXHIBIT D MDG Impact Fee Appeal Page 42 227 Statement ofAccount 14500 MITCHEL GROUP P0 BOX 738 !GREAT FALLS,MT 59403 • 'statement of Account as of 12/22/2006 $&Q%:-. Invoice Description Date Non-Contract Cash receipt Cash receipt 10/14/2005 07/13/2006 Non-ContractTotals: 05007-LS BOZEMAN GATEWAY DEVLOPEMENT Invoice feJj^/C^Jitjo(08/25/2006Invoice'*/yj?*rJ 11/30/2006 05007-LS BOZEMAN GATEWAY DEVLOPEMENTTotals: 1101216 ;101434 06017-LS HUFFINE SIGNAL IMPROVEMENTS 1101220 Invoice 08/31/2006 j101371 Invoice 10/31/2006 !06017-LS HUFFINE SIGNAL IMPROVEMENTS Totals:% Statement Totals; Current Over 30 Over 60 Over 90 Charges 0.00 64,064.94 66,874.75 130.939.6& Sime Construction,Inc. MAILING:7720A Shedhom Dr,PMB140 STREET:190 Ramshorn Drive Bozeman,MT 59718 406-582-9841 Credits 0.48 0.01 0.49 4r i y1®r"^.oo' St Finance Charge 0.00 0.00 7,664.92 |22,001.4| jH.666.401 -fit 0.00 0.00 '$<&,; ?P.UUiUUDTU9 Over 120 0.49 Outstanding Amount 0.00 66,874.75 22,001.48 0.00 71,729.86 -0.49 160,605.60 Sime Construction.Inc.12/22/2006 Page 1 of 1 EXHIBIT D MDG Impact Fee Appeal Page 43 228 BOZEMANGATEWAY Total Total May 2006 Current % Item*Description Est.Qty Unit Unit Price Amount Installed Amount BHIed Installed AmountBilled Complete SCHEDULE 1 STORM SEWER ANDSITEGRADING RELATED ITEMS 101 02-0030 CLEARING ANDGRU8BING/T0PS0IL REMOVAL 11.600.00 CY $1.25 $14,500.00 11692 S 14.615.00 3 101% 102 03-0200 STREET EXCAVATION/EM8 29.700.00 CY S2.25 $66,825.00 25997 3 58.493.25 S 68% 103 06-1300 PITRUNGRAVEL 44,900.00 CY $8.25 $370,425.00 37584 S 310.068.00 S 84% 104 06-1400 1.5"MINUS CRUSHEDBASE COURSE 12.600.00 CY $14.50 S182,700.00 12296 S 170.292.00 s 86% 10S 06-3100 HOT PLANTMIX ASPHALT SURF COURSE 7.700.00 TN 332.50 $250,250.00 7000 $227.50000 s 91% 106 06-2600 CONCRETE CURB AND GUTTER 7.800.00 LF 59.00 $70,200.00 7508 S 67.572.00 3 96% 106A 06-2600 MEDIANCURB 750.00 LF $12.00 $9,000.00 3 3 107 09-3000 FOWLER AVE POND #1 1.00 LS 52.000.00 $2,000.00 1 3 2.000.00 3 100% 108 09-3000 FOWLER AVEPOND #2 1.00 LS S2.000.00 $2,000.00 1 3 2.00000 3 100% 109 09-3000 FOWLER AVE POND #3 1.00 LS S2.000.00 $2,000.00 1 3 2.000.00 3 100% 110 11-0006 PRECAST DIVERS STRUCT FOWLERAVEAVESTA8*25 1.00 LS $9,988.10 $9,988.10 1 S 9.988.10 3 100% 111 09-3000 GARFIELDSTREETPOND #1 1.00 LS $2,000.00 $2,000.00 1 3 2.000.00 3 100% 112 09-3000 GARFIELDSTREETPOND #2 1.00 LS .**.$2,000.00 32.000.00 1 S 2.000.00 3 100% 113 09-3000 GARFIELDSTREETPOND #3 1.00 LS .-^Sy*5*-..32.000.00 'S2.000.00 1 S 2.000.00 $100% 114 08-1112 12"PVC STORM ORAINPIPE 340.00 LF ,s fc $30.00 $10,200.00 346 3 10.380.00 3 102% 115 08-1115 15"PVCSTORM DRAINPIPE 480.00 L5w .:$35.00 $16,800.00 602 3 21.070.00 5 125% 116 OB-1124 24"RCP STORM DRAIN PIPE 260.00 H0&>x:;•"••'••$40.00 $10,400.00 265 S 10.600.00 3 102% 117 09-2085 18"X28.5"ARCPSTORM DRAIN PIPE 66.00 LF $60.00 $3,960.00 66 3 3.960.00 3 100% 116 09-2080 22.5X36.25ARCP STORM DRAIN PIPE 160.00 LF $60.00 $10,800.00 1B0 3 10.800.00 3 100% 119 09-1495 36"RCP STORM DRAIN PIPE 90.00 LF $90.00 P S8.100.00 90 3 8.100.00 3 100% 120 09-1490 30"RCP STORM DRAIN PIPE 85.00 w*-,^:x S5.312.50 64 3 5.250.00 S 99% 121 09-2060 31X51 ARCPSTORM DRAINPIPE 90.00 LF *K#ii&oo •vtfSs*SI4,130.00 88 3 13.816.00 3 98% 122 09-2050 36-X58.5"ARCP STORM DRAIN PIPE 810.00 LF 3150.00 mx*'-S121.500.00 863 S 129.450.00 S 107% 123 09-2040 54"X 88"ARCPSTORM DRAINPIPE 130.00 LF W*r viSmm&eoM 130 S .47.060.00 5 100% 124 09-8020 STORM SEWERMANHOLE 1.00 EA S2.tJ06.00 $$?'-$2,000.00 1 3 2.000.00 3 100% 125 09-4010 STORM SEWER INLET 8.00 EA»$1,750.00 ^;-.,...*-3a#abo.oo 8 3 14.000.00 S 100% 126 11-0001 CONNTOEXT48"RCPSIPHONINCLUOINQREMOVEEXTX5STRUCT 1.00 LS $13,052.53 .,v£SS#si3.052:53 1 S 13.052.53 3 100% 127 11-0002 PRECASTSOVAULT8-X6'2.00 EA S9.021.O0 <$pr'si&oag&o 2 3 18.04200 S 100% 128 11-0003 PRECASTSDVAULTB'XB'2.00 EA $9,829.50 ...$$$659.00 ..-JSS*2 3 19.659.00 S 100% 129 02-0100 TOPSOIL PLACEMENT 11.600.00 CY $2.00 SS??$23;20QjOO <W 11600 S 23.200.00 5800 3 11.600.00 100% 130 03-0280 SEEDING 1.00 LS $5,000.00 ssjoaim 3 3 131 02-0190 TREE REMOVAL 1.00 LS S5.000.00 S5.000.00 :$ 5.000.00 3 100% 132 06-6175 SIGNAGE.STOP.NOPARK.BIKELN.STREET.TRAFFIC 39.00 EA $350.00 $13,650*8)**-1 S^jt 350.00 $3% 133 06-0640 UTILITYCULV.12"HDPE 1,265.00 LF $10.00 S12.650r.-00 :%1189 «$:....:.11.890.00 3 94% 134 06-0635 UTILITYCULV.18"HDPE 1.265.00 LF $14.00 $17,710.00 "T1BS •$'W 16.646.00 3 94% 135 06-OS60 IRRIG SYSTEMCROSSING.6"PVC SCH 110 220.00 LF S15.00 $3,300.00 220 $..aSS-3.300.00 3 100% 136 11-0004 SANITARY SEWER CASING PIPE 75.00 LF S 150.00 $11,250.00 65 3 9;750.00 3 87% 137 06-5100 PAVEMENT MARKINGS. 4"WHITE 11,750.00 LF $0.25 $2,937.50 3 ,x#Sir 3 138 06-5100 PAVEMENTMARKINGS 4"YELLOWSOLID 4.975.00 LF S0.25 $1,243.75 t""•%.^^SSf^.3 139 06-5100 PAEMENTMARKINGS 4"WHITE DASHED 3,900.00 LF 30.12 3468.00 ^y $..-:>:&?&>-•".3 140 06-5100 PAVEMENTMARKINGS.4"DOUBLEYELLOWC.L 3.540.00 LF $0.45 $1,593.00 5 141 06-5100 PAVEMENTMARKINGS.24"WHITE STOP BAR 20.00 LF.318.00 $360.00 S"'*S 142 06-5100 PAVEMENTMARKNGS.24" WHITE AND YELLOW BOO.OO LF $3.50 S2.600.00 s 3 143 06-5100 PAVEMENTMARKINGS.8"WHITE 1.000.00 LF 36.75 $6,750.00 3 3 144 06-5100 PAVEMENTMARKINGS.WORDSAND SYMBOLS 375.00 SF S17.50 36.562.50 3 3 145 NOTUSED 3 3 146 04-0010 REMOVEANO REPLACEFENCETOEASEMENT LINE 2.500.00 LF 32.50 $6,250.00 2500 3 6.250.00 2500 3 6.250.00 100% 147 07-8901 ADJUSTFIREHYDRANT 3.00 EA 31.000.00 $3,000.00 3 3 3.000.00 3 100% 148 07-7721 ADJUSTVALVE BOX 10.00 EA $250.00 S2.500.00 10 3 2.50000 3 100% 149 08-8200 ADJUSTSANITARY SEWERMANHOLE 3.00 EA $250.00 $750.00 3 3 75000 3 100% ISO 06-2100 CONCRETESIDEWALK 6.72S.00 SF $3.10 $20,847.50 3775 3 11.702.50 3 56% 151 06-2700 CONCRETEAPPORACHES 290.00 SF $7.00 52.030.00 275 3 1.925.00 3 95% SCHEDITOTAL $1,450,756.38 $1,302,031.38 317.850.00 90% PMEST1MM&SEVEN.OCT.»04 Page 1 5/2272006 EXHIBIT D MDG Impact Fee Appeal Page 44 229 V BOZEMAN GATEWAY Total Total May 2006 Current % Item*Description Est Qty Unit Unit Price Amount Installed Amount Billed Installed Amount Billed Complete SCHEDULE IISANITARY SEWERRELATED ITEMS 201 08-1108 8"SANITARYSEWER 170.00 LF S50.00 58,500.00 277 S 13.850.00 S 163% 202 08-1121 21 INCH SANITARYSEWER 1,720.00 LF $40.00 568.800.00 1749 $09,960.00 s 102% 203 08-8020 60"X 5'SS MANHOLE 10.00 EA 53.500.00 S35.000.00 10 S 35.000.00 s 100% 204 08-8100 MODIFY EXT'G MANHOLE/CONNTO EXT'G SS 1 00 LS 55,000.00 55.000.00 1 S 5.000.0O s 100% 205 08-8200 60"SS MH.ADDN'L DEPTH 92.30 VF 5200.00 S18.460.00 91.4 S 18.23000 s 99% 206 07-0850 JACKAND BORECASING.36" DIA 140.00 LF 5827.91 5115,907.40 140 S 115.907.40 s 100% 207 08-7011 6"SANTARYSEWERSERVICE 1.00 EA 51.500.00 51.500.00 S s SCHEDII TOTAL S253,167.40 5257.997.40 102% SCHEDULE III WATER RELATED ITEMS 301 07-1108 8"WATER MAIN 5.550.00 LF 52400 5133.200.00 5538 S 132.912.00 s 100% 302 07-1106 6"WATER MAIN 160.00 LF S27.00 S4.320.00 169 S 4.563.00 s 106% 303 07-1110 10"WATER MAIN 65.00 LF S35.00 S2.275.00 65 S 2.27500 S 100% 304 07-1250 CONNECTTO EXISTINGMAIN 2.00 EA ...52,500.00 S5.000.00 3 S 7.500.00 s 150% 305 07-7721 8"VALVE 21.00 EA 4 31,000.00 521.000.00 22 S 22.000.00 s 105% 306 07-1508 8"CROSS 4.00 EA 575000 S3.000.00 3 S 2.250.00 3 75% 307 07-1510 8"X10"X8"X10"CROSS 1.00 EA-:51,250.00 51.250.00 1 S 1.250.00 s 100% 308 07-1208 8"TEE.ALL SIZES 19.00 EA S4CO00 S7.600.00 19 S 7.600.00 s 100% 309 07-1608 8"BEND 4.00 EA S2iOO0 51.000.00 3 S 750.00 s 75% 310 07-1708 8"END CAP 10.00 EA 525000 S2.SOO.00 11 S 2,750.00 s 110% 311 07-1710 10"END CAP 2.00 EA :-5400CO SH30.00 2 $800.00 s 100% 312 07-8851 2"WATER SVC 4.00 EA :S1;6COOO :.000 4 S 6.000.00 s 100% 313 o7.j-eeo 4"FIRE SVC LINE 4.00 EA SI.ceo on $4,000 CO 4 S 4.000.00 s 100% 314 07-8901 FIRE HYDRANT SETTINGS 11.00 EA 52,500 00 $27 hCO.00 11 S 27.50000 3 100% 315 07-8902 TYPICAL BLOWOFF 11.00 EA 51,200 00 S13.2CO0O 10 S 12,000.00 5 91% SCHED III TOTAL ,.$232.64500 5234.150.00 101% SCHEDULE IV MISC ITEMS 401 11-0005 ASPHALT TRENCH RESTORATION 200.00 LF SSOOO S10 COO 00 34 S 1.700.00 3 17% 402 10-7100 UNDERGROUND FACILITY CROSSINGS 5.00 EA 52.500 00 ".SI2 f;DO.OG 11 S 27.5C0.CO S 220% 403 10-7000 ALTERNATE.EXPLOR/EXTRA WORK.MAINLINECREW 20.00 HR .S4SO.00 J9.C00.00 :x33.6 S 15.122.70 S 168% 404 10-7000 ALTERNATE.EXPLOR/EXTRA WORK.SMALLCREW 20.00 HR 5250.00 S5.COO.00 •:•••:::••24.6 S 6.15000 s 123% 405 06-6200 FURNISH.ERECTANDMAINTAIN TRAFFIC CONT 1.00 LS 510.000.00 510,00000 1 %:n ccn -0 s 100% 406 10-2000 FURNISH.ERECTAND MAINTAIN EROSION CONT 1.00 LS 55,000.00 55,00000 1 J 5.0C000 s 100% 407 01-1000 M03/DEMOB -1.00 LS 525,000.00 S25.000.00 1 $25.000 CO s 100% 408 01-3000 TAXES.BONDS &INS 1.00 LS 520.000 00 S20.000.CO 1 J 23.COC 0-3 s 100% SCHED IV TOTAL 596.500.00 $110.472 70 114% TOTALS SCHEDI TOTAL S1.450.756.38 S1.302.031 38 517,850.00 90% SCHED IITOTAL S253.167.40 S2S7.997 40 102% SCHED III TOTAL S232.645.00 S234.150.00 101-;= SCHED IV TOTAL S96,500.00 S110.472.70 114% ALL TOTALS S2,033,068.78 31,904,651.48 S17.850.00 94% CHANGE ORDER CHANGE ORDER 1 5 23.500.00 S 23.500 00 100% 37-0830 INSULATION 8.00 SHEE1 550.00 5 40000 s 09-1497 48"RCP CL III PIPE W/FLARE (set!CO.1)1.00 LS ;':''•'••'•'.:•'• 11-0007 PRECASTSTORMDRAIN VAULT 6X6 (see CO.1)1.00 LS :-,".'.,": ' ': ..':."£''•;-•"''•''}}.:.'..: .'•}'..-•'•'.':••'' "-;.;.'.'--•: . QWEST VAULT(SUPPLYONLY)(manhours)1 LS 6662.84 S 6.66284 100% FABRIC 7200 SY 1.25 S 9.000.00 SHOULDER GRAVEL 91.25 CY 14.5 SI,323.13 S 2.056,968.78 $1.928.151.48 517,850.00 94% PAY ESTIMATESEVEH Page 2 5/22/200G EXHIBIT D MDG Impact Fee Appeal Page 45 230 BOZEMANGATEWAY Total Total May2006 Current % Item*Description Est Qty Unit Unit Price Amount Installed AmountBilled Installed Amount Billed Complete CONTRACTAMOUNT S2.O33.068.7t CHANGEORDER1 3 23,500.00 INSULATION 3 400.00 QWESTVAULT 3 6.662.84 SHOULDER GRAVEI S FABRIC 3 #RER TOTAL CONTRACTAMOUNT $2.063.631.62 CURRENTCOMPLETEO S17.850.OC TOTALCOMPLETEDTO DATE:31.928.1S1.4E *\ PLUSMATERIALSONSITE:$ LESS RETAINAGE ,.$19.281.51 LESS PREVIOUS PAYMENTS: CHECKNO.166S :.S.164.943.eS CHECKNO.163£.v-:*Si&414.899.71 CHECKNO.170£••&.:$&£<•'•S--W-.173.388.16 CHECKNO.1721 •*:*i!i!>.SM&?205.766.15 CHECKNO.1741 .;.£!;:SSF*'238.443.3S CHECKNO.177C 3 .v£S;$#183,774.9S CHECK NO.179;*•SSST 4C^B3.51 CHECK NO.181;S x^::-f:$£g&r;S7Z08 CHECKNO.184C S^SiSP'-MJBffiff *SJ"1.89*j,185;89 .-.•....'^5 *"<• TOTALEARNEDTHIS PAY ESTIMATE:3 ;*#17.684-^. ^ AMOUNTDUETHISESTIMATE:3 17.684Oft *." 1 « ' APPROVED: CONTRACTOR:DATE: i). , ENGINEER:DATE ....) PKV ESTIMATESEVEN.OCT. 2005 .'peyli.C**-0* Pajge 3 572272006 EXHIBIT D MDG Impact Fee Appeal Page 46 231 0-00 - J --i 4, ••••:•:•••••:•:••:•.: 0Mf:'•!:*.; ' 1 ',11 W ? EXHIBIT D MDG Impact Fee Appeal Page 47 232 1 P^F7*%»r~ •mvm MORRISON MAIERLE.inc. An Employee-Owned Company INVOICE ENGINEERSMNVVIVLSURVEYORS PLANNERS SCIENTISTS 1ENGINEERING PLACE •P.O.BOX 6147 •HELENA,MT •59604 •406-442-3050 •FAX:406-442-7862 TIN 81-0217149 Mitchell Development &Investments P.O.Box 738 Great Falls,MT 59403 invoice Date:12/31/2004 Date Written :1/13/2005 invoice #;50010 Project#;3638.002 ATTN:Ted Mitchell Mitchell Dev -The Bozeman Gateway For professional servicesrendered through:12/31/2Q04 i • |Professional engineering services provided for The Bozeman Gateway -Garfikl&Fowler Design. *j Project Ceiling:$43,900.00 Labor Expenses Total Cost 6 /* tj*V Stratton,Gregory J Earned to Date Invoiced Previously Current Charges 53,003.00 37,400.82 15,602.18 4,761.55 2,891.18 1,870.37 57,764.55 40,292.00 Exceeded 17,472.55 Maximum Fee (13,864.55) Amount Due This Invoice 3,608.00 p fu.1 •i /o^st.s* Amounts Are Dimand Pav/ahlr»I Innn -Renaml «f ln\/r>ire> Grp:" '/>V EXHIBIT D MDG Impact Fee Appeal Page 48 233 MORRISON MAIERLE,inc. An Employee-Owned Company Mitchell Development &Investments pO.Box 738 Great Falls, MT59403 Mitchell Dev-Fowler/Garfield Const INVOICE ENGINEERS SURVEYORS PLANNERS SCIENTISTS 1ENGINEERING PUCE•P.O.BOX6147•HELENA.MT•59604•406-442-3050 • FAX:406-442-7862 TIN 81-0217149 invoice Date:2/17/2006 Date Written :2/24/2006 Invoice # ;60248 Grpr Project #;3638.002.01 For professional services rendered through:2/17/2006 Professionalengineering serivices provided forFowler/Garfield Construction Services. Labor Expenses Total Cost j^Y Stratton,Gregory J Earned to Date 7S,104;06 104495.68 88,599.74 invoiced Previously 69,097.43 8,600.31 77,697.74 Current Charges 9.006.63 1,895.37 10.902.00 moc^- P 3 - 30 -ob AmnnnlR Arp flMP f*X\A Pawnhlo I W\n Ros>atn1rrf Inwni/'.o EXHIBIT D MDG Impact Fee Appeal Page 49 234 Change Order No.ONE (1) Dateof Issuance:April11,2005 Effective Date: Project:FowlerAve.andWest Garfield Infrastructure Improvements Owner MitchellDevelopment Group, LLC Owner's Contract No.: Contract:FowlerAve.and West Garfield Infrastructure Improvements Dateof Contract:February7.2005 Contractor.Sime Construction Engineer's Project No.:3638.002.01.050.0310 TheContract Documents are modified as follows upon execution of this Change Order: Description:Addition of120 lineal feet of 48-inch concrete culvert north ofHuffine Lane for extension ofexisting siohon culvert.Including an8'x8'SDvault and connectiontoexisting siphonculvert. Attachments:(Listdocuments supporting change): See Exhibit "A" CHANGE IN CONTRACT PRICE: Original Contract Price: S 2.033.068.78 Increase from previouslyapproved Change Orders No. 0 to No. 1 : Contract Price prior to thisChange Order: 2.033.068.78 Increase of this Change Order S 23.500.00 -W:S Contract Price incorporatingthis Change Order. 2.056.568.78 v& >';^:':. CHANGE IN-CONTRACT TIMES: Original Contract Times:•^Working days •Calendar days Substantial completion (days or date): Ready forfinal payment (daysordate): [Increase][Decrease]from previously approved ChangeOrders No.to No.: Substantial completion (days): Readyforfinal payment (days): :Contract Times prior to this Change Order P Substantial completion (days ordate): Ready forfinal payment (days ordate): [Increase][Decrease]ofthisChange Order: Substantial completion (daysor date): Ready forfinal payment (days ordate): Contract Times with all approved Change Orders: Substantial completion (daysor date): Ready for final payment (daysordate): RECOMMENDED:ACCEPTED: m± /Engineer (Authorized Signature) Dale:*/-//'<)£ Approved byFundingAgency(ifapplicable): vner (Authorized Signature Date:ty'//T~QS Change Order -Page 1 of 2-- H:\3638\002-01\DOCS\Construction\PayEstimates\ChangeOrder-1.doc 4/11/05 Date: EXHIBIT D MDG Impact Fee Appeal Page 50 235 Change Order Instructions A.GENERAL INFORMATION This document was developed to provide a uniform format for handling contract changes that affect Contract Price or Contract Times.Changes that have been initiated by a Work Change Directive must be incorporated intoa subsequent Change Order iftheyaffect Price or Times. Changes that affect Contract Price or Contract Times should be promptly covered by a Change Order. The practice of accumulating Change Orders to reduce the administrative burden may lead to unnecessary disputes. If Milestones have been listed in the Agreement,any effect of a Change Order thereon should be addressed. For supplemental instructions and minor changes not involving a change in the Contract Price or Contract Times,a Field Order should be used. B.COMPLETING THE CHANGE ORDER FORM , Engineer normally initiates the form, including a description of the changes involved and attachments based upon documents and proposals submitted byContractor,or requestsifrpm Owner, or both. Once Engineer has completed and signed the form,all copiesj;should |e sent to Owner or Contractor for approval, depending on whether the Change Order is a trie order to the Contractor or the formalization of a negotiated agreement for a previously performed change-!;After approval by one contracting party, all copies should be sent to the other party for approval....^Engineer'should make distribution of executed copies after approval by both parties. If achange only applies to price orto times,crossout tri&lpart ofthetabulation thatdoes not apply. Change Order -Page 2 of 2 H:\3638\002-01\DOCS\Construction\PayEstimates\Change Order-1.doc 4/11/05 EXHIBIT D MDG Impact Fee Appeal Page 51 236 IhMORRISONflJMAlERLE,iNc. Am£m*t»y»m*Owm*4Cmm/wiy April 11.2005 MWt 363B.002.01.050.0310 PAGE ONE (1) FOWLER AVENUE AND WEST GARFIELD INFRASTRUCTURE IMPROVEMENTS Bozeman,Montana EXHIBIT A -CHANGE ORDER No.1 OWNER'S NAME AND ADDRESS: MITCHELL DEVELOPMENTGROUP.LLC POBOX738 GREATFALLS, MT 59403 CONTRACTOR'SNAME AND ADDRESS: SIME CONSTRUCTION 7720A SHEDHORN PMB 140 BOZEMAN.MT 59718 ITE M 1 DESCRIPTION-:•—: " r;:.=.:.•.:'•'•:;^:--;ESTIMATED QUANTITY UNIT UNITPRICE AMOUNT 48-inch RCP culvert 120 LF $78.00 $9,360.00 2 Precast SDVault 8'x8'•1 EA $8.000:00 $8,000.00 3 Pipe Bedding Material 50 CY $14.80 $740.00 .4 Labor(LargeCrew and Equipment)..12 HR $450.00 $5.400.0o| $23,500.00 |CHANGEORDERTOTAL. *&•» M EXHIBIT D MDG Impact Fee Appeal Page 52 237 Project.-Fowler Ave. &Garfield St. Infrastructure Improvements Notice of Award Dated 01/10/05 owner Mitchell Development Groupy/^(|0v'nef's contract No contract Fowler Ave.&W.Garfield St.Infrastructure Improvements N/A Engineer'sProject No.: 3638.002.040.03110Bidder.Sime Construction Bidder's Address:(send Certified Mail,Return Receipt Requested) 7720A Shedhorn PMB 140 Bozeman,MT 59718 You are notified that your Bid dated January7,2005 for thp ahnw rnntraM hnn h«-.ware.he Successful Bidder end are awarded aContract far gkS t^eZ£Z22&£.J£Improvements schedules I.II.Ill &IV.^^ggnjgjg street inrrasiructure (Indicate total Work,alternates or sections or Work awarded.) The Contract Price of your Contract is Two Million,thirty three thousand sixty eight anri 7R/mn • .Dollars ($2,033,068.78). Four copies of each of the proposed Contract Documents except Drawings accompany this Notice of Award. Four sets of the Drawings will be delivered separately or otherwise made available to you immediately. of Award mUSt C°mPly Wjth the f0"Owin9 conditions Precedent within fifteen days of the date you receive this Notice 1.Deliver1o the Owner four fully executed counterparts of the Contract Documents. 2.Deliver^with Ihe execute^'Contract Documents the Contract security Bonds as specified in theSS*«***£*(^,cle 20>'%**•»Conditions (Paragraph 2.01 and 5.01)andSupplementaryConditions(Paragraph SC-2.01).' 3. Other conditionsprecedent: anJS^^^^- —°™*>consider you in default. •J^^SffiSSSF'with ,he above conditions'0wner wi"retum ,0 you tao ful,y e*ecuted Mitchell Development Group.\I C Owner I MIC I Copy toEngineer u„Mn,„„Notice of Award -Paqe 1of 1H:\3638\002-ENG\docs\specs\Notice ofAward-Sime.doc •1/31/05 EXHIBIT D MDG Impact Fee Appeal Page 53 238 W" SECTION 00500 AGREEMENT FORM THIS AGREEMENT is dated as of the /_day of y^rin the year 2005 (effective date),by and between Mitchell Development Group.LLC,(hereinafter called OWNER) and Sime Construction (hereinafter called CONTRACTOR). OWNER and CONTRACTOR,in consideration of the mutual covenants hereinafter set forth,agree as follows: ARTICLE 1-WORK 1.01 CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents.The Work is generally described in the Invitation to Bid and is described in detail in'the Contract Documents and the technical construction drawings.The work covered under this Contract includes the Fowler Avenue and West Garfield Street Infrastructure Improvements./--, ARTICLE 2 -THE PROJECT 2.01 The Project for which the Work under the pon'tract Documents may be the whole or only a part is generally described as the fowler ''Avenue and West Garfield Street Infrastructure Improvements..*{^\->y ARTICLE 3-ENGINEER «,,,;%- 3.01 The Project has been designedly:* Morrison-Maierle,lg&I :ftiftw;901 Technology Blvj|:A |:4 Bozeman;Montana ^71|l :ij$£v who is hereinafter called ENGINEER and who is to act as OWNER'S representative, assume all duties and responsibilities',and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with the completion ofthe Work in accordance with the Contract Documents. ARTICLE 4 -CONTRACT TIMES 4.01 Time ofthe Essence H:\3638\002-01\DOCS\Constructicn\00500.rtf Page 1 of9 EXHIBIT D MDG Impact Fee Appeal Page 54 239 A.All time limits for milestones,if any,Substantial Completion,and completion and readiness for final payment as stated inthe Contract Documents are of the essence of the Contract. B. The CONTRACTOR agrees to complete the work within the time(s)specified herein. 4.02 Daysto Achieve SubstantialCompletion and Final Payment A. The work will be substantially complete within 150 calendar days after the date when the Contract Time commences to run, as provided in paragraph 2.03 of the General Conditions,and will be complete and ready for final payment in accordance with paragraph 14.07 ofthe General Conditions within 180 calendar days after the date when the ContractTime commences to run. 4.03 Liquidated Damages A.CONTRACTOR and OWNER recognize that||me is of the essence of thisAgreementandthatOWNERwillsufferfinanciallossIftl||!||ork is not completed within the times specified in paragraph 4.02 above,plus anyfexlehsions thereof allowed in accordance with Article 12 of the General Qgpdjbns.fhe parties also recognize the delays,expense,and difficulties involved in pr|yiS|.in a legal or arbitration proceeding the actual loss suffered by OWNER if thl^^^lt completed on time.Accordingly, instead of requiring any such proq|3||r%r^and CONTRACTOR agree that asliquidateddamagesfordelay(but not a|a|e|alty),CONTRACTOR shall pay OWNER $500.00 (Five Hundred and noitoQsdoiiarsf'for each day that expires after the time specified in paragraph 4.02 for %is%pllil Completion until the Work is substantially complete.After Substantial Cqfhp1||iclPf;if CONTRACTOR shall neglect,refuse,or fail to complete the remaining M$®jk -within the Contract Time or any proper extensionthereofgrantedbyOJ^jjIEg,CCfVRACTOR shall pay OWNER $500.00 (Five Hundredandno/100 dollarsVforlych gaf that expires after the time specified in paragraph 4.02forcompletionandreadl^sjilbr final payment until the Work is completed and ready for final payment f ^ B.Liquidated damages for unscheduled employment ofthe ENGINEER shall be paid by the CONTIRACTOR to the OWNER as specified in the Bid Form. ARTICLE 5 •CONTRACT PRICE 5.01 OWNER shall pay CONTRACTOR for completion ofthe Work inaccordance with the Contract Documents an amount in current funds equal to the sum of Two million, thirty three thousand,sixty eight and 78/100 dollars ($2.033,068.78).based on the H:\3638\00241\DOCS\Construction\00500.rtf Page 2 of 9 EXHIBIT D MDG Impact Fee Appeal Page 55 240 rices stipulated in the Bid Form and subject to adjustment as provided in the Contract pocuments. A. As provided in paragraph 11.01 of the General Conditions,CONTRACTOR agrees that lump sum amount(s)constitute full payment for the work and that these iurnp sum amount(s)represent a true measure of the labor and materials required to perform the work,including all allowances for overhead,profit,taxes,bonds,insurance, and all other costs for each type and unit of work called for in these Contract Documents. B. As provided in paragraph 11.03 of the General Conditions,estimated unit price quantities used for bidding purposes are not guaranteed,and determinations of actual quantities and classifications are to be made by ENGINEER as provided in paragraph 9.08.of the General Conditions.Unit prices have been computed as provided in paragraph 11.03ofthe General Conditions. ARTICLE 6 -PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A.CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions.Applications for Payment will be processed by ENGINEER as provided in the General Conditions or other portions of the Contract Documents. 6.02 Progress Payments;Retainage: A. OWNER shall make progress payments on account of the Contract Price on the basis of CONTRACTOR'S Applications for Payment once each month during performance of the Work as provided in paragraphs 6.02.A.1 and 6.02.A.2 below.All such payments will be measured by the schedule of values established in paragraph 2.07.A of the General Conditions or in the case of Unit Price Work based on the number of units completed or, in the event there is no schedule of values,as provided in the General Conditions: 1. Prior to Substantial Completion,progress payments will be made in an amount equal to the percentage indicated below but, in each case,less the aggregate of payments previously made and less such amounts as ENGINEER may determine or OWNER may withhold,in accordance with paragraph 14.02 of the General Conditions: H:\3638\002-01\DOCS\Construction\0O500.rtf Page 3 of 9 EXHIBIT D MDG Impact Fee Appeal Page 56 241 a.The OWNER shall retain 5%of the amount of each payment until final completion and acceptance of all work covered by the Contract Documents.At any time,however,after the Work has been 50%completed as determined by ENGINEER,and if the character and progress of the Work have been satisfactory to OWNER and ENGINEER OWNER on recommendation of ENGINEER,may determine that as long as the character and progress of the Work remain satisfactory to them,there will be no retainage on account of Work subsequently completed,in which case the remaining progress payments prior to Substantial Completion will be in an amount equal to 100%of the Work completed less the aggregate of payments previously made.Reduction of retainage is at sole discretion of OWNER.OWNER is not obligated to reduce retainage. in b.Retainage will be 5%of materials and equipment not incorporated the Work (but delivered,suitably stored and accompanied by documentation satisfactory to OWNER as provided in paragraph 14.02 of the General Conditions). 2.Upon Substantial Completion,OWNER shall pay an amount sufficient to increase total payments to CONTRACTOR to 97%of the Work completed,less such amounts as ENGINEER shall kptejmine i;n accordance with paragraph •14.02.B.5 of the General Conditions ah%less.100%of ENGINEER'S estimate of the value of Work to be completed:or,corrected as shown on the tentative list of items to be completed or corrected attached to the certificate of Substantial Completion. B.CONTRACTOR shall submit applications for payment on the 20th day of each month.The OWNER shall make progress payments on or before the 10th day of the month following the CONTRACTOR'S application for payment. £ $"l0^ 6.03 Final Payment A.Upon final completion and acceptance of the Work in accordance with paragraph 14.07 of the General .Conditions,OWNER shall pay the remainder of the Contract Price as recommended by ENGINEER as provided in said paragraph 14.07. ARTICLE 7 -INTEREST 7.01 All moneys not paid when dueas provided in Article 14 of the General Conditions shall bear interest at the maximum rate allowed by.law at the place of the Project. H:\3638\002-01\DOCS\Construction\00500.rtf Page 4 of 9 EXHIBIT D MDG Impact Fee Appeal Page 57 242 ARTICLE 8 -CONTACTOR'S REPRESENTATIONS 8.01 In orderto induce OWNER to enter into this Agreement,CONTRACTOR makes the following representations: A.CONTRACTOR has examined and carefully studied the Contract Documents (including all Addenda listed in Article 9)and the other related data identified in the Bidding Documents. B. CONTRACTOR has visited the Site and become familiar with and is satisfied as to the general,local, and site conditions that may affect cost, progress, and performance or furnishing of the Work. C.CONTRACTOR is familiar with and is satisfied as to ail federal, state, and local Laws and Regulations that may affect cost,progress,performance,and furnishing of the Work.|. D.CONTRACTOR has carefully studied all:(1)rep|*r%pf explorations and tests of subsurface conditions at or contiguous tojhe.Site ajhd'all drawings of physical conditions in or relating to existing surface or sjjbs||face structures at or contiguous to the Site (except Underground Facilities)^lcl|.have been identified in theSupplementaryConditionsasprovidedin.^;r||r^;.|lfe of the General Conditions and(2)reports and drawings of a Hazardcfs ^/i^rirliental Condition,if any,at the Site whicti has been identified in the Supple|jen%rf Conditions as provided in paragraph 4.06 of the General Conditions.i|pl^|T^|gf6R acknowledges that such reports anddrawingsarenotContractDocumlliylrirJ^fhay not be complete for CONTFSACTOR'spurposes.CONTIRACTOR acknopel|efthat OWNER and ENGINEER do not assume responsibility for the acc)Mc^^(^tvp\eXeness of information and data shown or indicated in the Contrajt |ocun|ifes with respect to Underground Facilities at or contiguous to the site. ''•>$&••• E.CONTRACTOR fjll obtained and carefully studied (or assumes responsibility for having done so)all additional or supplementary examinations,investigations, explorations,tests,studies,and data concerning conditions (surface,subsurface,and Underground Facilities)at or contiguous to the Site which may affect cost, progress, performance, or furnishing of the Work or which relate to any aspect of the means, methods,techniques,sequences,and procedures of construction to be employed by CONTRACTOR,including applying the specific means, methods,techniques, sequences,and procedures of construction,if any,expressly required by the Contract Documents to be employed by the CONTRACTOR,and safety precautions and programs incident thereto. H:\3638\002-01\DOCS\Construction\00500.rtf Page 5 of9 EXHIBIT D MDG Impact Fee Appeal Page 58 243 F.CONTRACTOR does not consider that any additional examinations, investigations,explorations,tests,studies,or data are necessary for the performance and furnishing of the Work at the Contract Price,within the Contract Times,and in accordance with the other terms and conditions of the Contract Documents. G. CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at the Site that relates to the Work as indicated in the Contract Documents. H.CONTRACTOR has correlated the information known to CONTRACTOR, information and observations obtained from visits to the Site,reports and drawings identified in the Contract Documents,and all additional examinations,investigations, explorations,tests,studies,and data withthe Contract Documents. I.CONTRACTOR has given ENGINEER written notice of all conflicts,errors, ambiguities,or discrepancies that CONTRACTOR has discovered in the Contract Documents,and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR.$:!!>, J. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for perfonjnance'and furnishing oftheWork. ARTICLE 9-CONTRACT DOCUMENTS1!J,t/ •".*%'''9.01 Contents ;:& fy ' A.The Contract Documeotl^i|pPi||sl of the following: ¥.<£• 1.This Agr.e€me1rli%§ges 1to 10,inclusive);• 2.PeribrrrififceTElpIld (pages 1to 2,inclusive); 3.F>ayment Bond (pages 1 to 2, inclusive); 4.Other Bonds (paqes to ,inclusive); a. •inclusive); (pages to » b.(paaes to # inclusive); H:\3638\002-01\DOCS\Construction\00500.rtf Page 6 of 9 EXHIBIT D MDG Impact Fee Appeal Page 59 244 i c. inclusive); 5.General Conditions (pages 1to44,inclusive); 6.Supplementary Conditions (pages 1to 12,inclusive); 7. Specificationsas listed in thetable of contents ofthe Project Manual; .8.Drawings consisting ofa cover sheet and sheets numbered _ (pages to inclusive,with each sheet bearing the following general title:Fowler Avenue and West Garfield Street Infrastructure Improvements:(Note:Drawings are not attached hereto). 9.Addenda (numbers to ^_t inclusive); 10.Exhibits to this Agreement (enumerated ai||pllows): a.Notice to Proceed (page 1,inclusivejf fr b.CONTRACTOR'S Bid Forrr|||||es T^to ,inclusive); c.Documentation syibrf|^|tl|lCONTRACTOR prior to Notice of Award (pages 1td*2|,ir%j||vej; *\;\c/_; 11.The following wt>ich may be delivered or issued on or after the Effective Date ofthe Agreernent ana are not attached hereto: a.Written Amendments; b.Work Change Directives; c.Change Order(s). B. The documents listed in paragraph 9.01.A are attached to this Agreement (except as expressly noted otherwise above). C.There are no Contract Documents other than those listed above in this Article 9. H:\3638\002-01\DOCS\Construction\0050D.rtf Page 7 of 9 EXHIBIT D MDG Impact Fee Appeal Page 60 245 I I D.The Contract Documents may only be amended,modified,or supplemented • as provided in paragraph 3.04 of the General Conditions. ARTICLE 10 -MISCELLANEOUS I 10.01 Terms I A.Terms used in this Agreement which are defined in Article 1 of the General Conditions will have the meanings indicated in the General Conditions.i 10.02 Assignment of Contract iA.No assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party Bsoughttobebound;and,specifically,but without limitation,moneys that may come due | and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by|jaw),and unless specifically Kstatedtothecontraryinanywrittenconsenttoanassfi|ment,no assignment will | release or discharge the assignor from any duty or respprlll|ility under the Contract Documents.I * 10.03 Successors and Assigns ! . . „'-V%:"111 EA.OWNER and CONTRACTOR ^e||h/|)irirjs itself,its partners,successors,|assigns,and legal representatives/to thejjgtnl^party hereto,its partners,successors, assigns,and legal representative^|i|| rl||ect to all covenants,agreements,and m obligations contained in the Contracrfiolttments.I 10.04 Severability A &lL>jw A.Any provision W"p|r?of the Contract Documents held to be void or unenforceable under any La|v:i^Regulation shall be deemed stricken,and all remaining provisions shall continue ttjiSe valid and binding upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention ofthe stricken provision. 10.05 Other Provisions A.The CONTRACTOR agrees to remedy all defects appearing in the work or developing in the materials furnished and the workmanship performed under this Agreement during the warranty period after the date of final acceptance ofthe work by H:\3638\002-01\DOCS\Construction\00500.rtf Page 8 of 9 I i I I I I EXHIBIT D MDG Impact Fee Appeal Page 61 246 r the OWNER and further agrees to indemnify and save the OWNER harmless from any costs encountered in remedying such defects. IN WITNESS WHEREOF,OWNER and CONTRACTOR have signed 4 copies of thisAgreement,r^counterpart(s)has been delivered to OWNER,two toCONTRACTOR, *£"!.£™^|ER"A"P°rti0nS 0f the Contract Documents have been signed oridentifiedbyOWNERandCONTRACTORorbyENGINEERontheirbehalf. This Agreement will be effective on the date shown on page 1 (which is the Effective Dateofthe Agreement). OWNER: Mitchell Development Group.L.L.C. [CORPORATE SEAL] Attest Address for giving notices: Mitchell Development Group.L.L.C.' Phone:HOL -?£>/-</<J,4Q Facsimile:MflUitJt Dl2,\)r?CC\L3T Facsimile:582-9843 Montana Contractors'Registration No. CONTRACTOR: Sime Construction \s [CORPORATE SEAL] Attest: A$rJress for giving notices: 7720A Shedhom PMB 140 Bozeman.MT 59718 Phone:582-9841 END OF SECTION 00500 H:\3638\002-01\DOCS\Construction\0O500.rtf Page 9 of 9 EXHIBIT D MDG Impact Fee Appeal Page 62 247 /PERFORMANCE BOND ference to Contractor,Surety,Owner or other party shall be considered plural where applicable.Anysingular re CONTRACTOR (Name and Address): Sime Construction,Inc. 7720A Shedhorn PMB 140 Bozeman,MT 59718 OWNER (Name and Address): Mitchell Development Group,LLC p. O. Box738 Great Falls,MT 59403 CONTRACT Date:February 7 2005 SS'^Slcation):Fowler Avenue ft West Garfield Street Infrastructure Improvements Schedules ., II,III &IV SURETY (Name and Address ofPrincipal Place ofBusiness) Fidelity and Deposit Company ofMaryland 1400 American Lane,Tower1,19th Floor Schaumburg. lL 60196-1056 BOND Bond Number:PRF8707050 Date (Not earlier than Contract Date):February 7 2005 Amount:$2,033,068.78 Modifications tothisBond Form:None •?:••• Surety and Conn-actor,intending to be legally bound hereby,Sub|ee.to the terrnl printed on the reverse side hereof,do each^this Performance Bond to be duly executed on its behalf:by it^honzeicfficer,agent or representee. CONTRACTOR AS PRINCIPAL SURETY- Company:Sime Construction,Inc. (Seal)Signature:Name and Title:y^^^,f-jfyf (Space is provided below for signatures of|dditional \parties,ifrequired.) CONTRACTOR AS PRINCIPAL Company:Sime Construction,Inc. Fidelity and Deposit Company of Maryland Sure^sName)and Corporate Seal By:______Signature and Title Peter N.McGee (Attach Power of Attorney) Signature and Title Donna K.Tucek,SCM SURETY Signature: Name and Title: (Seal)Surety's Name and Corporate Seal By:.. Signature and Title (Attach Power ofAttorney) Attest: Signature and Title (Seal) (Seal) ^Sp^SSintefforts of Surety Association of America,Enters Joint Contract Documents Committee,the Associated General Contractors ofAmerica,and the American Institute of Architects. EXHIBIT D MDG Impact Fee Appeal Page 63 248 ADDENDTTMNO.ONE fij CONSTRUCION IMPROVEMENTS FOR FOWLER AVENUE AND WEST GARFIELD STREFTINFRASTRUCTUREIMPRO^MENTS t-^;T December 30 2004BIDOPENINGDATE-January 6,2005 TO:ALL PLANHOLDERS A-!Plans ^"%if 1..Plan Sheet R-2;Rev%r^|,^ ^eG^<*S^tI^ tensions ^pondli&i be revised to 42x14x1.5 ,2.PlanSheeli||3;^ilddition A24"RCP oversow culvert will be added at Station 15+01 wit*fw,*a Invert up=4856.14 Invert down=4853.71 Slope =3.24% Length = 75 LF Modification EXHIBIT D MDG Impact Fee Appeal Page 64 249 The 24" steel casing at Station 25+89 is to be installed as follows Invert out =4849.38 Invert in =4850.03 Length =65 LF Slope =1.00% 3.Plan Sheet R-4;Addition A 59"x 36".ARCP overflow culvert will be added at Station 32+34 with flared end sections both ends. Theculvert will parallel the 59"x36"ARCP to be installed at Station 32+28. Invert up =4857.61 Invert down =4856.98 Slope =0.74% Length = 85 LF 4.Plan Sheet R-5;Modification The Garfield Street Pond #2 Volume shall be revised to be 1370 cf The dimensions ofthe pond shall be revised to 57x16x1.5.The outlet pipe shallbe 15"PVC. At approximate Station 48+50 provide a thickened edge radius approachto theMSUfarm road for traffic support andtoprevent damageto the street pavement. 5.Plan Sheet R-6;Addition The Garfield Street Pond #3 and correspondingoutlet structureshall be added as shown on the,attached exhibit. 6.-Plan Sheet SB-3;Modifications Pond #1 Fowler Street Outlet Structure:Modifyorificediameterto be 2.32". Pond #2 Fowler Street Outlet Structure:Modify orifice diameterto be 2.06". Pond #3 Fowler Street Outlet Structure:Modify orifice diameter to be 2.06". Pond #1 Garfield Street Outlet Structure:Modify orificediameterto be 1.64". Pond #2 Garfield Street Outlet Structure:Modify orifice diameter to be 1.77". EXHIBIT D MDG Impact Fee Appeal Page 65 250 m- *t«'V 7.Plan Sheet W-3;Modification Install an 8"cross at Station 15+39 incrMH nfc»Ta -n ....water stub to south with end cfp ^"SSJS ^ "LF °f 8" Replace the S"cross at Station 25+63 with an 8r 1nv«„in»the 8"north and south stubs with io»sS a°*abo replace 8.Plan Sheet S-l;Addition Instalhgknitary sewer stub at StatjonLFanda^slopeofl.O%QuJr ^ jSjjftg1^ 9.Plan Sheet T-2;Addition /V^-*/ Install stop signs on the north and south for the farm road crossing atapproximateStation26+00.\.crossmS at Install astop sign at the intersection ofGarfield <Hmt ™*vJ t t^•located at approximate-Station 43+00 ?ReSearCh ^^ 10.Traffic Control Plans;Addition v ,^%' Traffic Control plans (two sheets)for',FowJg-Avenue and Garfield Street. 11.Storm Water Erosion Control Plan Storm Water Erosion ControJPlanfor Fowler Avenue and Garfield Street. B-Project Manual 1.Bid Sheet > tZESSZS1 Bid Sh6et t0 ***^«*****-J-Wed with EXHIBIT D MDG Impact Fee Appeal Page 66 251 Issued byMorrison-Maierle,Inc. Q*££*yGregJ. Station, P.E. Project Manager Bidder aclaiowledgesthe receipt of Addendum No. One(1) Received:3^(Date) (By) /*/ (Titles^ H:\3638\002-01\DOCS\ADDENDUM NO ONE.doc EXHIBIT D MDG Impact Fee Appeal Page 67 252 . FOWLER AVENUE AND WEST GARFIELD STREET INFRASTRUCTURE IMPROVEMENTS REVISED BID SHFFT 7 The Bid for the following items in Schedules l-IV shall be a unit cost bid for all construction work described in the Contract Documents,unless shown otherwise Thebidpriceshallincludealltemporaryorpermanentequipment,materials,supplies and labor necessary to construct the item in accordance with the Contract Documents.' SCHEDULE I STREET STORM SEWER AND SITE GRADING RELATED ITEMS I ITEM:.: 1 NO.DESCRIPTION ESTIMATED I QUANTITY I UNIT UNIT PRICE AMOUNT | 101 Clearing and Grubbing/Topsoil Removaland Stockpile 11,600 CY $1.25 S14,500.00 102 Street Excavation/Embankment (Site Grading) 29,700 CY S2.25 $66,825.00 103 Pit Run Gravel 44,900 CY S8.25 S370,425.00 104 1-1/2 Inch (1-1/2")Minus Crushed Base Course 12,600 CY $14.50 $182,700.00 105 HotPlant Mix Asphalt Surface Course .7,700 TON $32.50 $250,250.00 106 Concrete Curb and Gutter 7,800 LF $9.00 $70,200.00 106A Median Curb _a—a"'750 LF $12.00 $9,000.00 107 FowlerAvenue Pon.d#l,1 LS $2,000.00 $2,000.00 108 Fowler Avenue Pond #2 1 LS $2,000.00 $2,000.00 109 Fowler Avenue Pond rfL,/1 LS $2,000.00 $2,000.00 110 Precast Diversion Structure Fowler Ave STA 8+25 1 LS $9,988.10 $9,988.10 111 Garfield Street Pond #1 1 LS $2,000.00 $2,000.00 112 Garfield Street Pond #2 1 LS S2.O00.O0 $2,000.00 113 Garfield Street Pond #3 1 LS $2,000.00 $2,000.00 114 12"PVC Storm Drain Pipe 340 LF S30.00 $10,200.00 115 15"RCP Storm Drain Pipe 480 LS $35.00 $16,800.00 116 24"RCP Storm Drain Pipe 260 LF $40.00 $10,400.00 117 18" x 28-1/2"ARCP Storm Drain Pipe - 24" Equiv. 66 LF $60.00 $3,960.00 H:\3638\002-ENG\docs\specs\bidform-contract.rtf Page 5 of 14 EXHIBIT D MDG Impact Fee Appeal Page 68 253 MTEM ' NO.DESCRIPTION •'•'.ESTIMATED QUANTITY UNIT iiNrr PRICE AMOUNT 118 22-1/2"x 36-1/4"ARCP Storm Drain Pipe - 30"Equiv.180 LF $60.00 $10,800.00 119 36"RCP Storm Drain Pipe 90 LF-$90.00 $8,100.00 120 30"RCP Storm Drain Pipe 85 LF $62.50 $5,312.50 121 31" x 51" ARCP Storm Drain Pipe - 42" Equiv. 90 LF $157.00 $14,130.00 122 36"x 58-1/2"ARCP Storm Drain Pipe - 48" Equiv. 810 LF $150.00 $121,500.00 123 54" x 88" ARCP Storm Drain Pipe - 72" Equiv. 130 LF $362.00 $47,060.00 124 Storm SewerManhole 1 EA $2,000.00 $2,000.00 125 Storm Sewer Inlet 8 EA $1,750.00 $14,000.00 126 Connect to Exist 48"RCP Siphon Including Removal of Existing Diversion Structure 1 •LS. in*.P|g52.53 $13,052.53 127 Precast SD Vault 8'x 6'2 &$9,021.00 $18,042.00 128 Precast SD Vault 8'x 8'2 ~i*\«*j|§9,829.50 $19,659.00 129 Topsoil Placement 11,600/v '|cl¥$2.00 $23,200.00 130 Seeding ' 1 %:^Ls $5,000.00 $5,000.00 131 Tree Removal '1 \LS $5,000.00 $5,000.00 132 Signage - Stop, No Parking,Bike Lane,Street,Traffic 39 EA $350.00 $13,650.00 133 Utility Conduits -12 Inch HDPEr,1,265 LF $10.00 $12,650.00 134 Utility Conduits -18 Incfc HDPE :'1,265 LF $14.00 $17,710.00 135 IrrigationSystem Crossing-6" ^ PVCSchedule110 #-*220 LF $15.00 $3,300.00 136 Sanitary Sewer Casing Pipe"75 LF $150.00 $11,250.00 137 Pavement Markings - 4"White 11,750 LF $0.25 $2,937.50 138 Pavement Markings r4"Yellow - Solid 4,975 LF $0.25 $1,243.75 139 Pavement Markings- 4" White - Dashed 3,900 LF $0.12 $468.00 140 Pavement Markings - 4"Double Yellow Centeriine 3,540 LF $0.45 $1,593.00 141 Pavement Markings -24"White - Stop Bar 20 LF $18.00 $360.00 142 Pavement Markings - 24" - White and Yellow 800 LF $3.50 $2,800.00 H:\3638\002-ENG\docs\specs\bidform-contracLrtf Page 6 of 14 EXHIBIT D MDG Impact Fee Appeal Page 69 254 ITEM NO.DESCRIPTION ESTIMATED QUANTITY .UNIT UNIT PRICE AMOUNT 143 Pavement Markings - 8"White 1,000 LF $6.75 $6,750.00 144 Pavement Markings- Words and Symbols 375 SF $17.50 $6,562.50 145 Not Used 0 LS $0.00 $0.00. 146 Remove and Replace Fence to Easement Line 2,500 LF $2.50 • $6,250.00 147 Adjust Fire Hydrant 3 EA $1,000.00 $3,000.00 148 Adjust Valve Box 10 EA $250.00 $2,500.00 149 AdjustSanitary Sewer Manhole 3 EA $250.00 $750.00 150 Concrete Sidewalk 6,725 SF $3.i0 $20,847.50 151 ConcreteApproaches 290 SF J $7.00 $2,030.00 TOTAL UNIT PRICE BID -SCHEDULE 1 , « L , ..-* '$1,450,756.38[Schedule ITotalBid in Figures: 11 ,— SCHEDULE II / < SANITARY SEWER,RELATED ITEMS •<ITEM ..mo.DESCRIPTION ESTJMATED ^QUANTITY UNIT UNIT PRICE AMOUNT 201 8 Inch Sanitary Sewer ' '170 LF $50.00 $8,500.00 202 .21 Inch Sanitary Sewer -""x*1,720 LF $40.00 $68,800.00 203 60 Inch x5Foot SS^Manhole /10 EA $3,500.00 $35,000.00 204 Modify Existing Manho'fe „*' Connecting toExisting Iffgf 1 EA $5,000.00 $5,000.00 205 60 Inch SS Manhole - Additional Depth 92.3.VF $200.00 $18,460.00 206 Jack and Bore 36 Inch Casing 140 LF $827.91 $115,907.40 207 6.InchSanitary Sewer Sen/ice 1 EA $1,500.00 $1,500.00 TOTAL UNIT PRICE BID SCHEDULE 11 $253,167.40 Schedule II Total Bid in Figures: H:\3B38\002-ENG\docs\specs\bidforni-contracLrtf Page 7 of 14 EXHIBIT D MDG Impact Fee Appeal Page 70 255 SCHEDULE III WATER RELATED ITEMS ITEM ; vNO.:"DESCRIPTION ESTIMATED QUANTITY UNIT' .UNIT 'PRICE AMOUNT 301 8 Inch Water Main 5,550 LF $24.00 $133,200.00 302 6 Inch Water Main 160 LF $27.00 $4,320.00 303 10 Inch Water Main 65 EA $35.00 $2,275.00 304 Connection to Existing Main 2 EA $2,500.00 $5,000.00 305 8 Inch Valves 21 EA $1,000.00 $21,000.00 306 8 Inch Cross 4 EA $750.00 $3,000.00 307 8x10x8x10 1 EA \|&$1,250.00 $1,250.00 308 8 Inch Tee - All Sizes 19 EA }]1||J)P.00 $7,600.00 309 8 Inch Bend 4 EA 1 $250.00 $1,000.00 310 8 Inch End Cap 10 %Tea $250.00 $2,500.00 311 10 Inch End Cap >%'V EA $400^00 $800.00 312 2 Inch Water Service EA $1,500.00 $6,000.00 313 4 Inch Fire Service Line <'?4 EA $1,000.00 $4,000.00 314 Fire Hydrant Settings 11 EA $2,500.00 $27,500.00 315 Typical Blow Off s- '""-11 EA $1,200.00 $13,200.00 TOTAL UNIT PRICE BID -SCHEDULE III *< Schedule III Total Bid in Figures:''' $232,645.00 H:\3638\002-ENG\docs\sp6Cs\bidform-contracLrtf Page 8 of 14 EXHIBIT D MDG Impact Fee Appeal Page 71 256 SCHEDULE IV MISCELLANEOUS ITEMS ITEM NO.'DESCRIPTION ESTIMATED QUANTITY UNIT UNIT PRICE AMOUNT 401 Asphalt Trench Restoration 200 LF S50.00 $10,000.00 402 Underground Facility Crossings 5 EA $2,500.00 $12,500.00 403 ALTERNATE-Exploration/Extra Work with Mainline Crew and Equipment 20 HR $450.00 $9,000.00 404 ALTERNATE-Exploration/Extra Work with Small Crew and Equipment 20 HR S250.00 $5,000.00 405 Furnish,Erect and Maintain Traffic Control 1 LS $10,000.00 $10,000.00 \406 Furnish,Erect and Maintain Erosion Control (Silt Fence)1 LS $5,000.00 55,000.00 407 Mobilization/Demobilization 1 LS S25.000.00 $25,000.00 408 Taxes,Bonds and Insurance 1 LS $20,000.00 $20,000.00 ITOTAL UNIT PRICE BID -SCHEDULE IV L •$96,500.00IScheduleIVTotalBid in Figures: REVISED BID SHEET SUMMARY OF SCHEDULES SUMMARY OF SCHEDULES*; Total Schedule I J?,..$.. I "Total Schedule II $_ Total Schedule III $_ Total Schedule IV $ H:\3638\002-ENG\docs\specs\bidform-contracLrtf 1.450.756.38 253.167.40 232.645.00 96.500.00 Page 9 of 14 EXHIBIT D MDG Impact Fee Appeal Page 72 257 •.-. SjNTEZSe c^h~* yv\^wit ,ZPr*a. fyyi 2-Ce**$?* MoMmMFt L/A/&S I *-W .Si: '••:• w /-v-^7 <gt,S7A <$> 3 %3,osft* 376;9&7? gty^S*1*'** EXHIBIT D MDG Impact Fee Appeal Page 73 258 I Mitchell Deve P.O.Box 738 GreatFalls, MT 'fen MORRISON MAIERLE.inc An Employee-Owned Company opment Group,LLC JMVniPF ENGINEERSIMVUIUUSURVEYORS PLANNERS SCIENTISTS 1 ENGINEERING PLACE • P;0.BOX 6147•HELENA,MT •59604•406-442-3050 •FAX:406-442-7862 TIN 81-0217149 59403 invoice Date:12/1/2006 Date Written:12/18/2006 invoice # ;61959 Project#;3638.004 Mitchell -Huffine/Fowler Intersect For professional services rendered through:12/1/2006 - Professional engineering services provided to prepare construction planning &specifications for Huffine/Fowler intersection. Project Celin$;|$102,955.00 Ulman,James A Labor Expenses Total Cost Earned to Date 83,044.65 ^6,526*88 89,571.53 Invoiced Previously 58,363.30 3,011.70 61,375.00 Current Charges 24,681.35 3,515.18 28,196.53 Amounts AreDue andPayable Upon Receipt of Invoice Amounts30 Hnvs OvarriiiR Am RiihiftntTn A'SarvtRAP.harnA AtTho Mawmiim I anal.Bate AllnuuoW Ru 31.1-1/Y7 1IPA Grp: EXHIBIT D MDG Impact Fee Appeal Page 74 259 Morrison MAIERLE,inc. An Emplnyrr-OmriC»n>nmny November 13,2005 MMfl3638.004.01.050.0310 PAGE ONE (1) FOWLER AVENUE AND WEST GARFIELD INFRASTRUCTURE IMPROVEMENTS Bozeman,Montana FINAL PERIODIC COST ESTIMATE FOR PERIODENDINGOCTOBER 31.2005 OWNER"S NAME AND ADDRESS: MITCHELL DEVELOPMENTGROUP,LLC POBOX 738 GREAT FALLS.MT 59403 WORK TO START: March 13,2006 CONTRACTTIME:150 DAYS WORK STARTED: March 13.2006 CONTRACTORS NAME AND ADDRESS: SIME CONSTRUCTION 7720ASHEDHORN PMB 140 BOZEMAN.MT 59718 COMPLETION DUE: July13.2006 SCHEDULE 1 •ORIGINALPROPOSAL PERFORMEDTO DATE DESCRIPTION ESTIMATED QUANTITY UNIT UNIT PRICE AMOUNT QUANTITY AMOUNT % | 100 REMOVE SIDEWALK 246 SY S15.00 S3.690.00 246.0 $3,690.00 100% 101 REMOVE CURB &GUTTER 631 LF S6.00 S3.786.00 650.0 $3,900.00 103% | 102 EXCAVATION -UNCLASSIFIED 1.121 CY S17.50 S19.817.50 1,121.0 S19.617.50 100% 103 EMBANKMENT IN PLACE 391 CY 520.00 $7,820.00 391.0 S7.820.00 100% |104 TOPSOIL,SALVAGING &PLACING 400 CY S12.50 S5.0CO.O0 400.0 S5.000.00 100% :105 CRUSHED AGGREGATE COURSE 3,243 CY 522.50 S72.957.50 3.243.0 $72,967.50 100% 106 COVER MATERIALGRADE 4A 337 TN 565.00 S21.931.00 364.0 S23.660.00 108% 107 DUSTPALLIATIVE 39 TN S130.00 $5,083 00 39.1 S5.083.00 100% 108 PLANT MIX BIT SURF.GER.D.INCLUDES PG 64-28 1,750 TN S55 0C S96.250.00 1.285.0 $70,730.00 73% i 109 N/A SO.00 0.0 $0.00 0% \110 EMULSIFIED ASPHALT SS-1 203 GA .57.50 S1.522.50 234.2 $1,755.50 115% 111 EMULSIFIED ASPHALT CRS-2P 9 TN 543000 S3.784.00 0.0 $0.00 0% 112 RCP ARCH 44 INCH.CL3 ,;.6 LF 5500 0C $3,000.00 9.0 $4,500.00 150% 113 SIDEWALK.CONCRETE 4"1.353 SY 357 5C $77,797.50 999.0 $57,442.50 74% !114 TRAFFIC CONTROL(NO BID)0 WA S0.00 SO.OO 0.0 SO.OO 0% | 115 CURB -CONC 1.321 |LF 517.50 S23,117.50 1,809.0 S31,657.50 137% | 116 SEEDING AREA NO 2 1 AC S2.000.00 $1.500.00 r::s£6fT5-•S1.500.00 100% I117 MOBILIZATION 1 LS S25.000.00 S25.000.00 1.0 $25,000.00 100% 247 CURB MARKING-YELLOW EPOXY 6 GAL SO.OO 0.0 $0.00 0% FIBER OPTIC 1 LS S7.600.00 S7,600.00 1.0 $7,600.00 100% WATER MAIN EXTENSION i LS S6.500.00 $6,500.00I 1.0 $5,500.00 100% PAVEMENT MARKINGS 1 LS S34.630.00 $34,630.00 -V- ,1.0 :;•-'S34.630.00 100% SCHEDULE 1 SUB TOTAL S385.966.50 5383,054.50 99% PROJECT TOTALS 5385,966.50 $383,054.50 99% CONTRACTOR'S Certification:TheundersignedCONTRACTOR certifies that:(1)all previous progress payments received from OWNER onaccount ofwork done underthecontractreferred toabovehave beenapplied to dischargeinfull allobligationsofCONTRACTOR incurred inconnection with Work coveredbyprior Applications for Payment number 1through 1inclusive;(2)title toall Work,materials and equipment incorporated in saidWork orotherwise listed inorcoveredjlbythisApplicationforPaymentwillpasstoOWNERattimeofpaymentfreeandclearofallliens,claims,security interest and encombrances (except such as are{covered by Bond acceptable to OWNER indemnifying OWNER against any such lien.daim.security interests or encumbrance)(3)all Work covered by this Application for Payment isinaccordance with theContract Documents and notdefective asthatterm isdefined intheContract Documents:and(4)there are noclaims for extra work,delays,omitted items orofany natureagainst the OWNER orENGINEER netse!forth herein unless expressly stated otherwise inthis Application ofPayment. NAME OF CONTRACTOR:Sime Construction OWNER:Mitchell Development Group,LLC fiENGINEER:Morrison-Maierle,Inc. SIGNATURE SIGNATU SIGNATURE M^G^fc-DAT£:iv/?a/Qf4 E:/Z "fp ~M DATE:_M&4^_ EXHIBIT D MDG Impact Fee Appeal Page 75 260 FINAL PERIODIC COSTESTIMATE OWNER"S NAME AND ADDRESS: MITCHELL DEVELOPMENT GROUP.LLC PO BOX 738 GREAT FALLS.MT 59403 #198- #200: #2031 TOTAL $84,223.67 $83,17230 $185,991.93 $353,388.10 TOTAL AMOUNT EARNEDTO DATE LESS DEDUCTIONS (1) RETAINAGE- 5%$0.00 (2)LIQUIDATED DAMAGES 50.00 (3) OVERTIMEENGINEERING SO.OO TOTAL AMOUNT DEDlOG|ED $0.00 TOTAL AMOUNT4%UE^D.TO DATE LESS PREVIOUS PA^(ffls|p » AMOUNTDUECONTRACTOR THIS PAY ESTIMATE. (REMITTING fi^TAINAGE TODATE) •v s i PAGETWO (2) November 13,2006 $383,054.50 $383,054.50 $353,388.10 $29,666,401 EXHIBIT D MDG Impact Fee Appeal Page 76 261 CONTRACTOR'S CERTIFICATE AND RELEASE FROM:Sime Construction.Inc. (Name of Contractor) TO:.Mitchell Development Group,LLC PO Box 738 Great Falls,MT 59403 REFERENCE CONTRACT NUMBER entered into the 17th day ofApril, 2006 between the Mitchell Development Group,LLC,and Sime Construction,Inc., —'(NameofContractor) of Bozeman.MT for the purpose of_ (City)(State) Huffine Lane Intersection Improvements (Type of Operati|||y'":|| within the limits of the City of Bozeman.|| KNOW ALL MEN BY THESE PRESENT|:%••*:' The undersigned hereby cerliie&ibaihfe is due from and payable by the Mitchell Development Group,LLC,to ^^rjtlctorunder the Contract and duly approved Change Orders and modifidatiSfs Sfe balance of $29.666.40. JW$x*.2,The undereignedlJurther cplfties that in addition to the amount set forth inParagraphI,therl^rf qytltanding and unsettled the following items which he claims are just and l|e pwing by the Mitchell Development Group,LLC: (a) None (b) _ (c)__ (d) .(Itemize claims and amounts due.If none,so state) Contractor's Certificateand Release - Page 1 of 3 H:\3638\Q02-ENG\docs\Certificate and Release.doc 11/13/06 EXHIBIT D MDG Impact Fee Appeal Page 77 262 V: 3.The undersigned further certifies that allwork required underthis Contract including work required under Change Orders numbered:, , , and ,has been performed in accordance withthe terms thereof,and that there are no unpaid claims for materials,supplies or equipment and no claims of laborers or mechanics for unpaid wages arising out of the performance ofthis Contract,and that the wage rates paid by the Contractor and all Subcontractors were in conformity with the Contract provisions relating to said wage rates. 4.Except for the amounts stated under Paragraphs I and II hereof,the undersigned has received from the Mitchell Development Group,LLC,all sums of money payable to the undersigned underor pursuant to the above-mentioned Contract or any modification or change thereof. 5.That in consideration of the payment ofthe amount stated in Paragraph I hereofthe undersigned does hereby release the Mitchell Development Group,LLC,from any and allclaimsarising under or.fay virtue ofthis Contract,except the amount listed in Paragraph II hereof,provided,however,that if for any reason the Mitchell Development Group,LLC,does not pay in full th§s§jnount stated in Paragraph 1 hereof,said deduction shall be automatically incl|dlji;under Paragraph II as an amount which the Contractor has not releaseJ||uf:|i||/ill release the Mitchell Development Group,LLC,from any and all claims ol|njlhature whatsoever arising out ofsaid Contract or modification thereoj,aj||l will execute such further releasesorassurancesastheMitchellDeveIopmef]|^i|u|3,LLC,may request.Further,in consideration of the payment of th^^oifct:;slated in Paragraph I hereof,theundersignedagreestoholdtheMi|cli|jD|vifepment Group,LLC,harmless from any and all costs,liability or expej||e%any kind in any way arising out of thecontractreferencedherein,e^an^sContracts awarded pursuant thereto. IN WITNESS WHEREOF,the unciprs1|rief:has signed and sealed this instrument this 20 davof yl.^y^ph6 sl|,#Sime Construction.Inc. 'Iff (Contractor) (Signature) (Title) ., being first duly sworn on oath,deposes and says,first,that he is the Sr/^c/p /&b>[~~~of the Sime Construction.Inc. (Title)(Name of Company) Contractor's Certificate and Release —Page 2 of 3 H:\3638\0Q2-ENG\docs\Certificate and Release.doc 11/13/06 EXHIBIT D MDG Impact Fee Appeal Page 78 263 $w second,that he has read the foregoing certificate by him subscribed as (Title) of the Sime Construction,inc.. (Name of Company) Affiant further states that the matters and things stated therein are, to the best of his knowledge and belief,true. /(Sianature)(Signature) Subscribed and sworn to before me this <^£?,day of /)<£>&-20 £>lL . My commission expires lb /As&h^&cS-f ^0"A?--^:--\"~(Notary) %^\SEAL .^r| v^-.^V Contractor's Certificate and Release- Page 3 of3 H:\3638\002-ENG\docs\CertJficate and Release^Joc 11/t3/06. EXHIBIT D MDG Impact Fee Appeal Page 79 264 ^r AGREEMENT FORM THIS AGREEMENT is dated as of the 17th day ofApril in the year 2008 (effective date), by and betvveen Mitchell Development Group, P.O. Box 738,Great Fails, MT 59403 (Hereinafter called OWNER)and Sime Construction,inc.,7720A Shedhom Drive, PM8140,Bozeman,MT 59718.(hereinafter cailed CONTRACTOR). OWNER and CONTRACTOR,in consideration of the mutual covenants hereinafter set forth,agree as follows: ARTICLE 1 -WORK , % 1.01 CONTRACTORshall complete all Work as specified or indicated in the Contract Documents.The Work is generally described as follows: Huffine Lane Intersection Improvement mvOi. '''•:>.'!' ARTICLE 2 -THE PROJECT I 2.01 The Project -for which the Workunderthe Contract Documents may be the whole or only a part is generally described^as'tbllows: Construct Huffine Lane intersection Improvements asper attachedproposal dated September 7,2005 A ;-,4 ARTICLE 3 -ENGINEER I 3.01 The Project has been designed by; Morrison-Maierle,Inc. P.O.Box 1113 Bozeman,MT 59718 who is hereinafter called ENGINEER and who is to act as OWNER'S representative, assume all duties and responsibilities,and have the rights and authority assigned to ENGINEER inthe Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. Page 1 of 7 EXHIBIT D MDG Impact Fee Appeal Page 80 265 ARTICLE 4 -CONTRACT TIMES 4.01 Time of the Essence A.All time limits for milestones,if any,Substantial Completion,and completion . and readiness for final payment as stated in the Contract Documents are of the essence of the Contract.Substantial Completion is October 15,2006. In no event shall any contract work including but not limited to requirements of the state of Montane carry over beyond the preceeding date. ARTICLE 5 -CONTRACT PRICE 5.01 OWNER shall pay CONTRACTOR for completion c?||aJWork in accordance with the Contract Documents an amount in ojjrr||t funis equal to the sum of Three Hundred Seventy One Thousand Elqltt;Hundred Sixty Six and 50/TOQ dollars ($371,866.-50),based on the pr%sjg^)|l|atll in the Bid Form and subject to adjustment as provided In the Contract DSajfiasrfli. A.CONTRACTOR agrees %tJum|||ufff amount is)constitute full payment for the work and that these lump sumitrfii|ntW)represent atrue measure ofthe labor and materials required to perform thj*^|r^Including all allowances for overhead,profit, taxes,bonds,insurance,jnd.a|yothe1lcosts for each type and unit of work called for in these Contract Documents.*fll$ B.Estimated unit p|tce j|uamities used for bidding purposes are not guaranteed, and determinations of i|tjual quantities and classifications are to be made by ENGINEER.r ARTICLE 6 -PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A.CONTRACTOR shall submit Applications for Payment and willbe submitted on the 25*of each month and will be processed by ENGINEER.Payment by the OWNER will bemadeto the CONTRACTOR bythe T0,h of the following month. ARTICLE 7 -INTEREST Page 2 of ? EXHIBIT D MDG Impact Fee Appeal Page 81 266 7.01 All moneys not paid when due shall bear interest at the maximum rate allowed by law at the place of the Project. ARTICLE 8 -CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce OWNER to enter into this Agreement,CONTRACTOR makes the following representations: A.CONTRACTOR has examined and carefully studied the Contract Documents (including all Addenda listed in Article 9)and the other related data identified in the Bidding Documents. B.CONTRACTOR has visited the Site and becoif|ej|$|iliar with and is satisfied as to the general,local,and site conditions that ml|jaff§ct cost,progress,and performance or furnishing of the Work. *"•&*l|y* C.CONTRACTOR is familiar with and is|sa%fied as to all federal,state,and local Laws and Regulations that ma^|at^cl|cjpll;progress,performance,and furnishing ofthe Work.<§*% ^ ^ D.CONTRACTOR has car||ujj|:si|d^all:(1)reports of explorations and tests of subsurfaoe conditions at or c%ti||pilf to the Site and all drawings of physical conditions in or relating to exlstpg %rflc:e or subsurface structures at or contiguous to the Site (except Undergpdyndl|§cil|tls)and (2}reports and drawings ofa Hazardous Environmental Conditjjh,if any^Hthe Site which has been identified.CONTRACTOR acknowledges that su;^|?/ipqrti and drawings are not Contract Documents and may not be complete for cSjTR^CTOR's purposes.CONTRACTOR acknowledges that OWNER and ENGINEER djinot assume responsibility for the accuracy or completeness of information and data sno.wn or indicated in the Contract Documents with respect to Underground Facilities at or contiguous to the site. E.CONTRACTOR has obtained and carefully studied (or assumes responsibility for having done so)all additional or supplementary examinations,investigations, explorations,tests,studies,and data concerning conditions (surface,subsurface,and Underground Facilities) at or contiguous to the Site which may affect cost,progress, performance,or furnishing of the Work or which relate to any aspect of the means, methods,techniques,sequences,and procedures of construction to be employed by CONTRACTOR, including applying the specific means,methods,techniques, sequences,and procedures of construction, ifany,expressly required by the Contract Documents to be employed by the CONTRACTOR,and safety precautions and programs incident thereto. Page 3 of 7 EXHIBIT D MDG Impact Fee Appeal Page 82 267 F.CONTRACTOR does not consider that any additional examinations, investigations,explorations,tests,studies,ordata are necessary for the performance and furnishing of the Work at the Contract Price,within the Contract Times,and in accordance with the other terms and conditions of the Contract Documents. G.CONTRACTOR is aware of the genera!nature of work to be performed by OWNER and ethers at the Site that relates to the Work as indicated in the Contract Documents. H.CONTRACTOR has correlated the information known to CONTRACTOR, information and observations obtained from visits to the Site,reports and drawings identified in the Contract Documents,and all additional:;examinations,investigations, explorations,tests,studies,and data with the Contract Documents. • •''HI::,W I.CONTRACTOR has given ENGINEER written nope of all conflicts,errors, ambiguities,or discrepancies that CONTRACTOR has discovered in the Contract Documents,and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR. J.The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. ARTICLE 9 -CONTRACT DOCUMENTS 9.01 Contents • A.The Contract Documents consist of the following: 1.This Agreement (pages 1 to 8,inclusive); 2.Performance Bond (pages 1 to 1,inclusive); 3.Payment Bond (pages 1 to 1,inclusive); 4%—Other-Bonds (pagoo to ,inclusive); 5.Specifications as listed inthe table of contents of the Project Manual; 6.Drawings consisting of a cover sheet and sheets numbered 1 through 17 inclusive,with each sheet bearing the following general title;Huffine Lane Page 4 of 1 EXHIBIT D MDG Impact Fee Appeal Page 83 268 Intersection Improvements Bozeman,MT;(Note: Drawings are not attached hereto). 8.Addenda (numbers 0 to 0 inclusive); 9.Exhibits to this Agreement (enumerated as follows): a.Notice to Proceed (pages 1 to 1,inclusive); b.CONTRACTOR'S Bid Form (pages 1 to 1,inclusive);(attached) €fc—Documentation-•auhmfaed-by-CQNTRACTOR prior to Notice of Award (pogoo to ,inoluGjvc}; A / d.^; 10.The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attache^hereto: a.Written Amendments;"k - b. Work Changelfejrectives; c.Change 0rdef!s)1||:*'" B.The.dooumei||s listed Jn^faragraph 9.01 .A are sttached to this Agreement (except as expressly nb%^t^Wise above). C. There are no Cooiract Documents other than those listed above in this Article 9,• '.'•••"••' ARTICLE 10 -MISCELLANEOUS 10.01 Assignment of Contract A. No essignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and,specifically,but without limitation,moneys that may come due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no Page 5 of 7 EXHIBIT D MDG Impact Fee Appeal Page 84 269 I assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03 Successors and Assigns A.OWNER and CONTRACTOR each binds itself,its partners,successors, assigns,and legal representatives to the other party hereto,its partners,successors, assigns,and legal representatives in respect to all covenants,agreements,and obligations contained In the Contract Documents. 10.04 Severability - i A.Any provision or part of the Contract Documents held to be void or unenforceable under any Lawor Regulation shall beseemedstricken,and all remaining provisions shall continue to be valid and binding ||pn OWNER and CONTRACTOR, who agree that the Contract Documents.^shalhfg formed to replace such stricken provision or part thereof with avalid and 4||$||ei|[|provision that comes as close as possible to expressing the intention of^e!i|ri||eff provision. m>..f 10.05 Other Provisions A.Any provision^plliigOj 4he Contract Documents held tc be void or unenforceable uniW Jhe L|W or Regulation shall be deemed stricken,and all remaining provisiJ||fsha|;'lontinue to be valid and binding upon OWNER and CONTRACTOR,wrlfla^fee that the Contract Documents shall be reformed to replace such strickefFprovision or part thereof with a valid and enforceable provision that comes as close as possible tc expressing-the intention of the stricken provision. IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed 3 copies of this Agreement.1copy hasbeen delivered to OWNER,1copy to CONTRACTOR,and 1 copy to ENGINEER.All portions of the Contract Documents have been signed or identified by OWNER and CONTRACTOR or by ENGINEER on their behalf. Page 6 of 7 EXHIBIT D MDG Impact Fee Appeal Page 85 270 This Agreement will be effective onthe dateshown on page 1 (which isthe Effective Date of the Agreement).[This Agreement shall not be effective unless and until concurred in by AGENCY'S designated representative.] OWNER By:7£A?<Y/.m ;J-oU £/ ORATE SEAL] Attest Address for giving notices: P.O.Box 738 Great Falls, MT 59403 CONTRACTOR: By:Knox Pi HS»BPORATESEAL] Attes|* AcfedWis":for giving notices: ?77|da Shedhorn Drive,PMB 140 Boleman,MT 59718 Phone:406.582.9841 Facsimile:406.582.9843 Montana Contractors' Registration No, 5354 . Page 7 of 7 EXHIBIT D MDG Impact Fee Appeal Page 86 271 • CONSTRUCTION EXCAVATION ANDROAD BUILDING MAILING ADDRESS 7720A SHEDHORN PMB I40 406-582-934I BOZEMAN,MT 597 J8 Mobile 580-1!OS Fax 582-9843 STREETADDRESS 190 Ramshorn Drive Bozeman,MT597I8 oroject name; description SCHEDULE 1 STREET IMPROVEMENT RELATED ITS 100 REMOVE SIDEWALK 101 REMOVE CURB & GUTTER 102 EXCAVATION -UNCLASSIFIED 103 EMBANKMENT IN PLACE 104 TOPSOIL,SALVAGING &PLACING 105 CRUSHED AGGREGATE COURSE 106 COVER MATERIAL GRADE 4A 107 DUST PALLIATIVE 108 PLANT MIX BIT SURF,GER.D,INCLUDES PG #2B 109 HIA 110 EMULSIFIED ASPHALT SS-1 111 EMULSIFIED ASPHALT CRS-2P 112 RCP ARCH 44 INCH,CL3 113 SIDEWALK,CONCRETE 4" 114 TRAFFIC CONTROL 115 CUR3-CONC 116 SEEDING AREA NO 2 117 MOBILIZATION ...;::, :;:;::::.m-y MS TOTAL BID,SCHEPULE 1 est, qty. unltj unit pricsf 246.00 SY 631.00 LF 1,121.00 CY :391,00 CY 400.Q0 CY 3,243.00 .CY 337.40 TN 30.10 TN 1,750.00 TN 203.00 GA a.80 TN 6.00 LF 1,353.00 SY NO BID 1,321.00 LF 0.75 AC 1.00 LS $15.00 55.00 $17.50 $20.00 '512.50 $22.50 $65.00 S130.00 $55.00 £7.50 $430.00 $500.00 $57.50 $17.50 $2,000.00 325,000,00 7-Sep-QB total price 53,690.00 53,786.00 $19,617.50 $7,820.00 55,000,00 $72,967.50 521,931.00 55,083.00 596,250.00 51,522.50 53,784.00 53,000.00 $77,797.50 523,117.50 51,500.00 $25,000.00 $371,566.50 THESE PRICES DO NOT INCLUDE RELOCATION OF EXISTING UTILIITES,STAKING,LAYOUT MATERIALS iufJ ESS?8,SURVEY,NG.PERMITS,LANDSCAPING RELATED ITEMS,OR TRAFFIC CONTROL OF ANY KINDTHISES,IMA,t IS GIVEN SUBJECT TO AMUTUALLY AGREEABLE CONTRACT AND PROJECT SCHEDULE AND*IS BASED UPON MORRISON MAIRELE,INC.'S PROJECT DOCUMENTS DATED JULY ?005 EROSION CONTROL PERMIT IS THE RESPONSIBILITY OF OTHERS "____.<^_ZJL& aims Construction,Inc. KnoxW. Pilati VfiA Date: 5~ EXHIBIT D MDG Impact Fee Appeal Page 87 272 MORRISON MAIF.RLE.irc. December 14,2006 MM*363B.OW.01.050.0310 PAGE ONE (1) HUFFINE LANE &FOWLER AVE INTERSECTION IMPROVEMENTS Bozeman,Montana FINAL PERIODIC COST ESTIMATE-REVISED 12/14/06 FOR PERIOD ENDING Novemoer 11,2006 OWNER"S NAME AND ADDRESS: MITCHELL DEVELOPMENT GROUP, LLC PO BOX738 GREAT FALLS. MT 59403 WORKTO START: March 13.2006 DESCRIPTION 200 FOUNDATION-CONCRETE 201 CONDUIT-PLASTIC 1-1/2" 202 CONDUIT-PLASTIC 2" 203 CONDUIT-PLASTIC 2-1/2" 204 CONDUIT-PLASTIC3' 205 | PULL30X-C0NCRETETYPE 1 206 PULL BOX-CONCRETETYPE 2 207 203 209 210 £11 2-2 £11 214 215 216 2.7 21B 219 220 221 PULL BOX-CONCRETETYPE 3 CABLE COPPER 7AWG14-600V CA3LECCDFER 12AWG14-60QV CA3LE COPPER 16AWG14-600V (CABLE COPPER 6 PAIR AWG19 COMM CONDUCTOR-COPPERAWG6-600V CONDUCTOR-COPPERAWG8-60CJ. CONDUOTOR-CCPPER-AWGWBOfv STANDARD-STLTYRE .10-A-500-4! ICONTROLLER-CAB PEDESTAL TV=E P LUMINAIREASSEMBLY-250WS V ILUMINAIREA3SEMBLY-400W.S.V.- ; SERVASSEM3LY-20 AMP SERVASSEMBLY -60AMP PHOTO ELECTRICCONTROL 222 ISJG-TRAF 3 COL-1 WAY12-12-12 222 ISIG-TRAF5COL-1 WAY12-12-12-"•'. 224 JSIG-PEDESTRIAN TYPE 2 225 ICCNTLR/TRAF-ACTUATTYPE B-A 225 SIG STANDARDTYPE 1-100 CONTRACTTIME:150DAYS WORK STARTED: March 13.2005 SCHEDULE 2 CONTRACTOR'S NAMEAND ADDRESS: MONTANA LINES, INC. 2B00 UPPER RIVER ROAD GREAT FALLS,MT5940G COMPLETION DUE: Seotemoar30.2006 ORIGINAL PROPOSAL a PERFORMED TO DATE ESTIMATED QUANTITY 3.056 1.744 2.422 1.12C 8.107 2.156 UN""UNITPRICE CY| S905.00 LF S7.75 LF S10.00 LF S14.20 LF S15.00 S300.00 EA S350.00 EA 5470.00 LF LF LF LF LF SO 90 LF .50.75! LF...-n4r EA!S2.1CO.C0 EA SS9C.O0 S353 CO S36S.00 • EAt 51.605.00 EA|S1.700.0C EA S12C00 S9O0 DC EA S-.290 00 EAf S755.U0 EA S25.320.0C EA $625 00 AMOUNT!QUANTITY SI9.367 00 S23.777.00 4.050.0 S17.440.00 S10.834.60 S1.320.00 105.0 S2.400.00 12.0 S2.800.00 .S470:00i :5662.55 S354.50J:...261.C Sr,831.50|V:-791.0 S3,259.70:.,;::2.528.0 AMOUNT Si7.236.63! S31.387.50 S4.840.00 S9.428.80 S1.575.00] S3.600.I S2.450.00 S4700C S919i S391.50; Sl.463.3I 5•.003.00 S3.4l2.8Ql 3.025.0 I S2.722.50 S3 080.25r 3.324.0 S2.4S3.0CJi S970.20f '.:2.381.0.•51.071i45i '.S12.5D0.00lr-r.~5.0.,•sio.'ooo.oo, 51,7.80.1 1.0 S8900 720.00 S720.0 ••S1:<60.00 saji&Oas*^ST:825:0 Sl.605.00| 1.0 Sl.605.0 S-..760.00 Sl.760.00 S240.00>2.0 S240.0C Su.400.00 160 S14.400.00 00i2.870.00j 3.0 S3.870 S9.060.00 12.0 S9.060.0qj S25.320.00j 1.00 S25.320.00l SI.87500{S1.875.00 89% 132% 150% •139% eo'j! 100% 100% 100% 100% CONTRACTOR'S Certification:Tneundersigned CONTRACTOR certifies Ihat: (1)allprevious progress paymentsreceived from OWNER on accouni olwork doneunaermecontractreferred10anovehave beenaoobofl lofliscnaroe inlull all obligations ofCONTRACTOR incurred inconnecnon with Worv.covered byprior Applicaiions forPayment number i inrourjh Imciuwe;{2;Irtle ioan Wort;,materialsana ecuipmeniincorporaiedinsaid Wontorotherwise listed in or covered Dythis Aoplicaiionlor Payment willoass id OWNER al lime o! payment tree ano dearol allkens, claims,securityinierest and encomDrances (except sucn as are covered Dy Bono acceptacle toOWNER indemnifying OWNER againstanysucnlien,claim,secuntyinterestsorenpurrfcranee)(3)allWork coveredDy mis ApplicationforPaymeniisinaccordancewithmeContractDocumentsanonoiDefectiveasthaitermisdeJio»e-«r!iic oUlilidirDopuments;and(4)mere arenoclaims for extrawork,delays,dmitted items or of any nature against the OWNER or ENGINEER nel^pt-Wfinnerein unless expr&ssjystated oinerwise intnis/Applica/on of Payment NAME OF CONTRACTOR:Montana Lines,Inc. OWNER: Mitchell DevelopmentGroup.LLC ENGINEER Morrison-Maierle,Inc. 4 /2'^7-pG -'•••-"••---'V-'J^U.<T^^DATE:f Zjj '-f/fJ^ EXHIBIT D MDG Impact Fee Appeal Page 88 273 " • • FINALESTIMATE-REVISED 12/14/06 OWNER'S NAMEAND ADDRESS: MITCHELL DEVELOPMENT GROUP, LLC PO BOX738 GREAT FALLS, MT 59403 PAGE TWO (2) December 14,2006 SCHEDULE 2 fcont.) ORIGINAL PROPOSAL p I DESCRIPTION ESTIMATED QUANTITY UNI"UNITPRICE AMOUNT i QUANTITY AMOUNT227JsiGSTANDARDTYPE1-120 1 EA S625.00 S625.0C 10 S625.0of lOO'K 228|SIGSTANDARD TYPE2-A-900-0 2 EA S1G.750.00 S21.500.0C i 2.0 S21.5C0.OO 100",229 JSIG STANDARD TYPE 2-A-900-7 1 EA S10.000.00 S10.000.00! i.o 510,000.0DO 100VI230|SIG STANDARD TYPE 2-A-900-9 1 EA 511.850.00 S11.850.00! ,.o S11.850.O0j 100%231 |SIG STANDARD TYPE 3-A-900-0 i EA 512,500.00 S12.500.00 1.0 S12.500.OO?100%232 |DETECTOR/LOOP 37 EA S750.00 S27.750.00; 39.0 S29.250.OCjl 105% 2331DETECTOR/LOOP SHLD CABLE 3.500 LF |S1.00 S3.50000 4,194.0 $4.194.00!120% 234|PUSHBUTTON/PEDESTRIAN 6 EA |S255.00 SI.590.00 6.0 S1.590.OO)100% 225 PUSH 3UTTON-RETROFIT |EA S200.00 S200.00 1.0 S200.00f|100V. 236 IEMER PRE-EMPTION DETCABLE 263 LF S1.30 5341.9C!3590 S518.701 152% 237 SIGNS-ALUMSHEETINCR (I)20 SF S23.5Q S670.00 20.0 S670.0 i 100% 233|SIGNS-ALUM REFLECTIVE SHEET(1)2 SF S24.00 S45.60 1.9 S45.5o|l 100%239 jSIGNS-ALUM REFLECTIVE SHEET (III)122 SF S26.50 S3.222.40 107.1 S2.83B.1.|88% 240 (RESET SIGNS 2 EA S75.00 .S150.00 4.0 S300.OCf 200% 241 |REMOVE SIGNS 14 EA S20.00 S230.00 15.0 S300.0C 107% I242 |POST-TL'3ULAR STEEL (SQUARE ?ERrOP^TED)':r.'-..fi-'--:$*&l3&fi L3S >;£SB.-55:::•:-;,:.-.'S6.13i:21 :7-'.5-,1.4...S-§\-S4'.372.3Cil.••-•::,•••ttl%j243 |POLES-TREATED TIMBER CLASS 4 14 LF |S45.00 S630.00 14.0 S630.0C 100% 244 |SQT3LR SLIPBASE 3KWY3"5 EA j S345.00 31.725 00 40 S1.3B0.OC 80% 245|DEL!NEATOR-FLEX!3LE SURFACEMOUNT WH 2 EA |S53.00 S5OS0D 2 0 S106.0CJ;100% 246|DELINEATOR-FLEXI3LE SURFACE MOUNT YLW • 5 EA 553.00 S2E5 00 •o S53.0CJI 20% I247 |CUR5 MARKING-YELLOW EPOXY 781 GAL so ool CO S0.0CI 0% '248 |wORDS.'SY:.'2CLS-'.VHITE E=OXY 22 GAL|$0,001 CO $0.0O>0% 249 STRIPING-WHITE EPOXY 1 GAL SO 00 00 SO.OO 0% 250 STRIPING-YELLOW EPOXY 22 GAL SOOC CO SO.OO 0'. 2&i|R5S=c^SSO=M.'4L-^::EAI JT-CO-CM)soco 0*j 2oe |ADw«jo-I-VAl-Vc—&e^X&<**EA i SC-COj CW;so-adj o% j253 iTRAFFICCONTROLXv-'v'"',>;.-::'•"-•:••'•.•:>':':•"••:••'•-•::-:•;''~.M CC0 •UMT---sy.aQ.•-,513.500:00 -32,625,0 v.v529,362.95 •-,..•,.:•,.•.;-,:218% I254 |MOBILIZATION •t -5 !$16,130,00 S19.'30.00 1.000 S19.130.00 100% SCHEDULE:SUE TOTAL S29S.9S7.41 S306.942.03 \ CHANGE ORDERITEMS ORDINAL PP.O=OSAL =ERFORMED TO DATE DESCRIFTlOr.'DUANTITY :umt).UNIT PRICE AMOUNT !QUANTITY |AMOUNT I % 300 WORDS &SYMBOLS-PLASTIC 443 |-r | S17.45 S7.730.35 195.1 S3.405 19i 44% 201 REMOVE WORDS/SYMBOLS PLASTC ' 66 \Sr |S14.50 S986.00 sooo(!o% !302|STRIPING-WH PLASTIC 4 IN 147 L? |S3.15 S463.05 141.0 $444.15J|96% 303 STRIPING-WH PLASTIC 8 IN 1.277 Lc |S6.30 SB,045.10 1.403.0 S8.B3B.90f;110% 304 S7RPING-WH PLASTIC 24 IN 225 1 .-| S16.20 S3.807.00 175.2 S2.838.24|l 75% : 305.STRPING-YEL PLASTIC 4 IN 503 |L=|S3.20 SI.609.60 1,075.0 | S3.440.00 214% i306 (REMOVE PLASTIC STRIPING 4 IN ECjiV -•'50r LF |S2.00 |S1.018.00 357.0 S714.00 70% 307 |REMOVE RUMBLE STRIP 1B"546 LF |S6.75 S3.6B5.50 550.0 S2,712.5C(i 101% 303|SERV ASSEMBLY-20AMP 1 i EA | .Si.505.00 |Si.605.00 1.0 S1.805.00j 100%| ' 309|MODIFY SERVASSEMBLY-S-2 | EA S1.B25.00 $1,525.00 1.0 S1.B25.00 100% 1 I I I (ADDITIONALITEMS I I I IREMOVE SSALVAGE (POLE»9)LS |.S1.062.50 |S1.002.50l:1.0 51.062.5t 100% |WORK CHANGE DIRECTIVE NO.1-EPOXY STOPBAR 1 LS |S825.00 |SB25.0o|1.0 SB25.00 100% ISPECIAL USESIGN-24X1E E I EA I 531.ei S159.05|5.0 S159.0E 100% |SPECIAL USE SIGN-42X18 | 6 |EA |$46.97 S281.62|6.0 S2B1.82p 100% |MOElLIZATION--ADD'L-(For-Tnermoplas!icOperalions):;.•=';.:•-V ^ r-;.LSi|-<'S9.30Q;OOV:-:-..^S9.'300.00 .T^I.O.^r ;:---'*S9,30o;od|'•'•••-•'assc-WOK |INTERIM STRPING N/A 1 |TEMPORARY PAINT | 1 LS|S292.00 S292.00 1.0 S292.0DJ'100% POLES-TREATED TIMBER CLASS 90 .Lr S35.00 S3,150.00 70.0 S2,450.0q! 78% !U-CHANNEL SIGN P05T INSTALLED EA S38C.21 S385.21 1.0 S38G.2l|!100% ADDTIONALMOBILIZATIONS-(CONSTRUCTION SEQUENCING]LS S10.00D.00 510.000.00 1.0 sio.ooo.odj 100% additionaljrafhic.gontrql:;(Closedx£g:of:%.'. FOWLER AVE)(per Crjarige:Order#3A,-1i/03/06Mtcriell.Dev7. Letter..and MT Lines verbal approval)..--:'':^''^-.l--:!''-^:: SCHEDULE 3 SUBTOTAL -•':'---4q!:;"-..-.DAY !^S253:bdY1 -;312i436.2q S6B,6S7.38 g^EfrjW '-SJ2.4i6irj.'.ioo\. S64,015.75 | PROJECT TOTALS S3B8,664.79 S370.958.79 101°, EXHIBIT D MDG Impact Fee Appeal Page 89 274 FINAL ESTIMATE-REVISED 12/14/06 OWNER'S NAME ANDADDRESS: MITCHELLDEVELOPMENTGROUP.LLC PO BOX 738 GREAT FALLS.MT 59403 Prev.Ptnts 5/4 $48,005.46 6/26 SS5.002.74 8/17 S35,B50.B9 9/22 S1S3.577.13 11/3 S10.300.00 10/1E $28,228.49 TOTALPAIDTODATE S328.064.71 PAGETHREE (3) December 14,2006 TOTAL AMOUNTEARNED TO DATE ,S370.958.79 LESSDEDUCTIONS (1)RETAINAGE-5%S18.547.94 (2) LIQUIDATED DAMAGES $0.00 (3)OVERTIME ENGINEERING 50.00 S370.95B.79 TOTALAMOUNTDEDUCTED 513.547.94 TOTAL RETAINAGE RETURNED S18.547.94 TOTALAMOUNT REQUESTEDTODATE™ LESSPREVIOUS PAYMENTS $328,964.71 AMOUNTDUECONTRACTORTHIS PAYESTIMATE—$41,994,081 *to, EXHIBIT D MDG Impact Fee Appeal Page 90 275 1 FROM CONTRACTOR'S CERTIFICATE AND RELEASE MONTANA LINES.INC. (Name of Contractor) TO:vlitchel!Development Group,LLC hO Box738 3reat Falls, MT 59403 REFEF:ENCE CONTRACT NUMBER _entered into the 15th dayofSeptember, between theMitchell Development Group,LLC and Montana Lines,i™. (Name ofContractor) of Gredt Falls.MT 2005 (City)(State)forthe purpose of Huffine Lane Intersection Improvements Schedule#2 ' \'• (Type ofOperation) within tike limits of the City of Bozeman,MT."<\ KNOW ALL MEN BYTHESE PRESENTS:&< The undersigned hereby cerfilgs that there is due from and payable by the Hnsert Owners Name]to the Contrj|c%ifejerthe Contract and duly approved Chanoe Orders and modifications Jg|baliice of $41.994.08 The undersigned%|ler,cgh]fies that in addition to the amount set forth in Faragraph I,there l|e outstanding and unsettled the following items which h« r.aims are just and duipdwing by the Mitchell Development Group,LLC; (i)None ' 0>) (d) H:V3638\004 12/14/06 (Itemize claims and amounts due.If none,so state) Contractor's Certificate and Release -Page 1of3 01\DOCSVConstruction\Pay EstimatesWT UNES\Certificate and Release2.doc EXHIBIT D MDG Impact Fee Appeal Page 91 276 ^undersigned further certifies that all work required underthis Contract includingworkrequiredunderChangeOrdersnumbered:_J_2 3A and hasbeenperformedinaccordancewiththetermsthereof,ar^dlhatlhiTe are noTnpaidclaimsformaterialssuppliesorequipmentandnoclaimsoflaborersormechanicsforunpaidwagesarisingoutoftheperformanceofthisContract,and that the waoeratespaidbytheContractorandallSubcontractorswereininfo^^SContractprovisionsrelatingtosaidwagerates. Except for the amounts stated under Paragraphs Iand II hereof,the undersignednasreceivedfromthe[Insert Owner's Name]all sums of money payable to th° jndersigned under or pursuant to the above-mentioned Contract or any modification or change thereof. That in consideration of the payment of the amount stated in Paragraph Ihereof the ijndersigned does hereby release the [Insert Owner's Name]from any and all claims Rising under or by virtue of this Contract,except the amount listed in Paragraph IIhereof,provided,however,that if for anyreason the Mitchell Development Group LLC does not pay in full the amount stated in Paragraph Ihereof,said deduction shall be automatically included under ParagrapClfas an amount which the Contractor has not released but will release the Millfeiliilevelopment Group LLC Irom any and all claims of any nature whatsoever Ifcrli out of said Contract or jjnodification thereof,and will execute such fi&fcher retfases or assurances as the nsert Owner's Name]may request.Furtrfelfeonsideration of the payment of the cimount -stated in Paragraph Ihereofcth|t|d||igned agrees to hold the [InsertOwner's Name]harmless from an^an|picd|^,liability or expense of any kind in Jiny way arising out ofthecontract refer%cfd herein,or any subcontracts awarded pursuant thereto.'": •^: IN WITNESS WHEREOF,the unde|s|||eiPhas signed and sealed this instrument this day of <*Lav*%&h*£rlit llt£~l>£><C j ru^L^Ce fsays,Tinst,that he is the!uP (Title) Montana Lines.Inc. <^j£1§nature) (Title) .,being first duly sworn on oath,deposes and of the Montana Lines.Inc. (Nameof Company) Contractor's Certificate and Release - Page2 of3 01\DOCS\Construction\Ray EstimatesWT LINES\Certificateand Release2.docH:\3638\004 12/14/06 EXHIBIT D MDG Impact Fee Appeal Page 92 277 second of the that he has read the foregoing certificate,by him subscribed as ___U____ (Title) Montana Lines.Inc. (Name of Company) Affian*»*^matterS and thJn9S.Stated therein are't0 the bes*-^s Subsc T (Signature) ibed and sworn to before me this lX .day of ^/L^20 <££ My commission expires j/Vj^£^s_4f 'A(Notary) Contractor's Certificate and Release -Page 3.of3 .01\OOCS\Construdion\Pay EstimatesWIT LINES\Certlficate and Release2.docH:\3638\00li 12/14/06 EXHIBIT D MDG Impact Fee Appeal Page 93 278 Wt j 'Notice of Award /->*-u iA(l «7^v c/s-r-o^ Project Huffine Lane Intersection Improvements Owner.Mitchell Development Group.,U i-C Contract Huffine Lane Intersection Improvements Bidder MontanaUnes,Inc. Bi(lie.'!s Address:(send Certified Mail.Return Receipt Requested)2800UpperRiverRoad ' Great Fails. MT 59045 Dated August 3.2QQS Owner's Contract No.: Engineer'sProject No.: 3638.004.040.0310 -Y-=?x=^^^ (Indicate total Work,alternates orsections or.Work awarded.): "" nae!^is Three HundrRri NinR Thn,,sand Fn,,r^dTwftntv nn*""*""* (Insert appropriate data if Unit Prices are used.Change language for Cost-Plus coI|^/|P' _copies of each of the proposed Contract Documents (exceptfp^s)accolpany this Notice of Award. ___sets of the Drawings will be delivered separately or6ttienM8^|p3^|anable to you immediately. of Av^mUSt C°mP,y WltH ^foll0Wln9 conditions Precede|t w^i|erliLys of the date you receive this Notice t.Deliver to the Owner [4]fully executed c||ntp|ari|^trS:Contract Documents. 2.Denver with the executed Contract Dpc|raerl||the Contract security [Bonds]as specified in theInstructionstoBidders(Article 20)^anc$i|Gerieral Conditions (Paragraph 2.01 and 5.01)fandSupplementaryConditions(Paragra'|3h/SC-2.M).] 3.Other conditions precedent «JS»fccS*sys^^wfth the above ""**"•^m retum ,o you mm ~d Mitchell Devetepment Group / /C Owner. -*"^ '.~L~~r , By: Copy to Engineer u,«^Notice of Award - Page 1of 1 H:\3638\004\DOCS\construction\Notice ofAward.docB/3/05 EXHIBIT D MDG Impact Fee Appeal Page 94 279 SECTION 00500 AGREEMENT FORM and Montana I|nm.^BlnpmPnt Grou^''c (hereinafter called OWNER) CONTRACTOR).' !(hereinafter called ;S^aS;^1^"-^ration of themutua,covenants hereinafter set ARTICLE 1-WORK ;1.01 CONTRACTOR shall complete all Work as specified or indicated in th*r™*™*S™*The Work is general|y described jn ^.So^to bS1 descrfbed indetailintheContractDocumentsandthetechnicalconstructiondrawingsThewokcoveredunderthisContractincludestheHuffineLaneIntersecto5Implements ARTICLE 2 -THE PROJECT 201 The Project for which the Work under the Contract 'Documents may be the whole Infrastructure Improvements. ARTICLE 3-ENGINEER 3.01 The Project has been designed by; Morrison-Maierle,Inc. 901 Technology Blvd. Bozeman,Montana59718'r- yhp is hereinafter called ENGINEER and who is to act as OWNER'S representative 88^and have the rights and *W «5fflSSfn'^COnnection ™th *«completion^the vVorK inaccordancewiththe Contract Documents Article 4-contract times ♦.01 Time oftheEssence ttt638\004\DOCSVSPECS\00500_MTUneS;doc Pagel of 10 ! I EXHIBIT D MDG Impact Fee Appeal Page 95 280 ^ ARTICLE 5 -CONTRACT PRICE 5.01 OWNER shall pay CONTRACTOR for completion ofthe Work in accordance with the Contract Documents an amount in current funds equal to thesum ofThree Hundred MO©Thousand Four Hundred Twenty One Dollars and 15/100 dollars ($309.421.15).based on the prices stipulated in the Bid Form and subject to adjustment as provided in the Contract Documents. A.As provided in paragraph 11.01 of the General Conditions,CONTRACTOR agrees that lump sum arnount(s)constitute full payment for the work and that these lump sum amount(s)represent a true measure of the labor and materials required to perform the work,including all allowances for overhead,profit,taxes,bonds,insurance, and all other costs for each type and unit of work called for in these Contract Documents. B.As provided in paragraph 11.03 ofthe General Conditions,estimated unit price quantities used for bidding purposes are not guaranteed,ajiij|jeterminations of actual quantities and classifications are to be made by ENGINE4iJllirov'ded in paragraph 9.08 of the General Conditions.Unit prices have been1|prr^jted as provided in paragraph 11.03 of the General Conditions.|,fr 1||/ IP J||.••' ARTICLE 6-PAYMENT PROCEDURES .%%l 6.01 Submittal and Processing ofPayments^1|1|;? A.CONTRACTOR shall subn1||y||pli%6ns for Payment in accordance withArticle14oftheGeneralConditions...1|^rJil|ations for Payment will'be processed by ENGINEER as provided in the Gen|raS||;onditions or other portions of the Contract Documents./:%":^l||y ''' 6.02 Progress•Payments;RJeMina^' A.OWNER shall make progress payments on account ofthe Contract Price on the basis of CONTRACTOR'S Applications for Payment once each month during performance of the Work as provided in paragraphs 6.02.A.1 and 6.02.A.2 below.All such payments will be measured by the schedule of values established in paragraph 2.07.A of the General Conditions or in the case of Unit Price Work based on the number of units completed or, in the event there is no schedule of values, as provided in the General Conditions: 1. Priorto Substantial Completion,progress payments will be made in an amount equal to the percentage indicated below but, in each case,less the aggregate of payments previously made and less such amounts as ENGINEER H:\3638\004\DOCS\SPECS\00500_MTUnes.doc Page 3 of 10 EXHIBIT D MDG Impact Fee Appeal Page 96 281 may determine or OWNER may withhold,in accordance with paragraph 14.02 of the General Conditions: a. The OWNER shall retain 5%of the amount of each payment until final completion and acceptance of all work covered by the Contract Documents.At any time,however,after the Work has been 50%completed, as determined by ENGINEER,and if the character and progress ofthe Work have been satisfactory to OWNER and ENGINEER,OWNER,on recommendation of ENGINEER,may determinethat as long as the character and progress of the Work remain satisfactory to them, there will be no retainage on account of Work subsequently completed,in which case the remaining progress payments prior to Substantial Completion will be in an amount equal to 100% of the Work completed less the aggregate of payments previously made.Reduction of retainage is at sole discretion of OWNER.OWNER isnot obligated to reduce retainage. b.Retainage will be 5%of materials ajyj equipment not incorporated in the Work (but delivered,suitably ^||lo|ld and accompanied by documentation satisfactory to OWNER as prl||iiii|in paragraph 14.02 of the General Conditions).1||:p 2.Upon Substantial Completion,8j|!/i|jR shall pay an amount sufficient to increase total payments to CONT^PJ^^Xc^7%of the Work completed,less such amounts as ENGINEER ^hlfclilenliine in accordance with paragraph 14.02.B.5 of the General Conditions %ffess 100%of ENGINEER'S estimate ofthevalueofWorktobecorj|ple|eoS|rfefrected as shown on the tentative list of items to be completed or %|%tli!attached to the certificate of Substantial Completion.$:'1§|1|l B.CONTRACT^§haitliimit applications for payment on the 20th day of each month.The OWNER ^|aftmafee progress payments on or before the 10th day of the month following the COrl|pA|lTOR's application for payment. H:\3638\004\DOCS\SPECS\00500JVITUnes.doc Page 4 of 10 I EXHIBIT D MDG Impact Fee Appeal Page 97 282 6.03 Final Payment A.Upon final completion and acceptance of the Work in accordance with paragraph 14.07 of the General Conditions,OWNER shall pay the remainder of the Contract Price as recommended by ENGINEER as provided in said paragraph 14.07. ARTICLE 7 -INTEREST 7.01 All moneys not paid when due as provided in Article 14 ofthe General Conditions shall bearinterest atthe maximum rate allowed by law atthe place ofthe Project. ARTICLE 8 -CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce OWNER to enter into this Agreement,CONTRACTOR makes the following representations: A.CONTRACTOR has examined and carefully studied the Contract Documents (including all Addenda listed in Article 9) and the other related data identified in the Bidding Documents."•-$ B.CONTRACTOR has visited the Site and becqme familiar with and is satisfied as to the general,local,and site conditions that may affect cost,progress,and performance or furnishing ofthe Work.'*'*''\ - C.CONTRACTOR is familiar with afi£l isf'satisfied as to all federal,state,and local Laws and Regulations that may Iffebt cost,progress,performance,and furnishing ofthe Work.m\<;* D.CONTRACTOR hafvbaillii!|i|Studied all:(1)reports of explorations and tests of subsurface conditions••-*%.pjk cpnjiguous to the Site and all drawings of physical conditions in or relating to ellitin^lsurface or subsurface structures at or contiguous to the Site (except Undergrc1|pcf Facilities)which have been identified in the Supplementary Conditions as provided in paragraph 4.02 of the General Conditions and (2)reports and drawings of a Hazardous Environmental Condition, if any, at the Site which has been identified in the Supplementary Conditions as provided in paragraph 4.06 of the General Conditions.CONTRACTOR acknowledges that such reports and drawings are not Contract Documents and may not be complete for CONTRACTOR'S purposes.CONTRACTOR acknowledges that OWNER and ENGINEER do not assume responsibility for the accuracy or completeness of information and data shown or indicated in the Contract Documents with respect to Underground Facilities at or contiguous to the site. H:\3638\004\DOCS\SPECS\00500_MTUnes.doc Page 5 of 10 EXHIBIT D MDG Impact Fee Appeal Page 98 283 E.CONTRACTOR has obtained and carefully studied (or assumes responsibility for having done so)all additional or supplementary examinations,investigations, explorations,tests,studies,and data concerning conditions (surface,subsurface,and Underground Facilities)at or contiguous to the Site which may affect cost,progress, performance,or furnishing of the Work or which relate to any aspect of the means,' methods,techniques,sequences,and procedures of construction to be employed by CONTRACTOR,including applying the specific means,methods,techniques, sequences,and procedures of construction,if any,expressly required by the Contract Documents to be employed by the CONTRACTOR,and safety precautions and programs incident thereto. F.CONTRACTOR does not consider that any additional examinations,j investigations,explorations,tests,studies,ordata are necessary for the performance I and furnishing of the Work at the Contract Price,within the Contract Times,and in accordance with the other terms and conditions of the Contract Documents.j G.CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at the Site that relates to the Work as indicated in the Contract I Documents.;-;;\ H.CONTRACTOR has correlated the information known to CONTRACTOR,I information and observations obtained frorrl!ivis%to the Site,reports and drawings ' identified in the Contract Documents,ajd alf%d3||t)nal examinations,investigations,explorations,tests,studies,and data wj}n!-||IS|p1i|fact Documents.J mM.% %"'I.CONTRACTOR has given EffGllEER written notice of all conflicts,errors,ambiguities,or discrepancies that CONTRACTOR has discovered in the Contract j Documents,and the written resolution thereof by ENGINEER is acceptable to • CONTRACTOR. J. The Contract Documents are generally sufficient to indicate and convey understanding ofallterms and-conditions forperformance and furnishing ofthe Work. ARTICLE 9-CONTF£ACT;DOCUMENTS ' 9.01 Contents I A.The Contract Documents consist ofthe following: 1. This Agreement (pages 1 to TO,inclusive); 2.Performance Bond (pages 1to 2,inclusive);| H:\3638\004\DOCS\SPECS\00500_MTUnes.doc Page 6 of 10 i i EXHIBIT D MDG Impact Fee Appeal Page 99 284 T 3.Payment Bond (pages 1to 2,inclusive); 4. Other Bonds (pages to , inclusive); a.:(pages to_, inclusive); b. .\(pages to , inclusive); c.(pages to _, inclusive); 5.General Conditions (pages 1 to44,inclusive); 6.Supplementary Conditions (pages1to 12,igcjusive); 7.Specifications as listed in the table of cdhl||fe||the Project Manual; 8.Drawings consisting of a cov:§r j|heet IN sheets numberedj_1_ E15 .inclusive,with eacf,sffeet bearing the following general title:Huffine Lane Intersection jnliro^iirients:(Note:Drawings are not. attached hereto).^'%!*%^ A -It-f 9. Addenda (numbers,|__>,,tb ,inclusive); TO.Exhibits to this Agree1|irllfenumerated as follows): a.Notjge tp ProSleil (page 1,inclusive); b.CON^AploR's Bid Form (pages 1to 12,inclusive); c.Documentation submitted by CONTRACTOR prior to Notice of Award (pages 1to2,inclusive); d. 11.The following which may be delivered or issued on or after the Effective Date ofthe Agreement and are not attached hereto: a.Written Amendments; b.Work Change Directives; H:\3638\004\DOCS\SPECS\005O0_MTUnes.doc Page 7 of 10 EXHIBIT D MDG Impact Fee Appeal Page 100 285 c Change Order(s). i I B The documents listed in paragraph 9.01.A are attached to this Aqreement(except as expressly noted otherwise above).agreement • C There are no Contract Documents other than those listed above in this Article I 9. D The Contract Documents may only be amended,modified,or supplemented Iasprovidedinparagraph3.04 of the General Conditions.^ppiementea ARTICLE10 -MISCELLANEOUS 10.01 Terms m i n Jt-TS',?lS US8^'"thlS A9reement which are defined in Article 1 of the GeneralConditionswillhavethemeaningsindicatedintheGeneralConditions~'" i %l ., r-(A\^uasusj9"ment bV a Party hereto of any rights under or interests in theContractwillbebindingonanotherpartyheretowithoutthewrittenconsentoftheparty sought to be bound;and,specifically,but without limitation,moneys that may come due I and ™neys that are due may not be assigned without such consent (except to the B S J fCt °f this restriction may ^limited by law),and unless specificallystatedtothecontraryinanywrittenconsenttoanassignment,no assignment will I Doa °tr scharge the assi9nor from any duty or responsibility under the Contract "Documents. .10.03 Successors and Ahigm i assinn,0^,NEFf and CONTRACTOR each binds itself,its partners,successors,|assinn!'and„,®9al representatives to the other party hereto,its partners,successors,oblirTtL3 egal representatives in respect to all covenants,agreements,and•yations contained in the Contract Documents. 10-04 Severability UnenforrQln,y pr°vision or Part of the Contract Documents held to be void orprov'sionfok Hn6e[any Law or Regulation shall be deemed stricken,and all remaining Wh°aqreo £C°e to be valid and bindin9 uP°n OWNER and CONTRACTOR |that the Contract Documents shall be reformed to replace such stricken °4^OCS\SPECS\00500_MTLines.doc R Page 8 of 10 1 i EXHIBIT D MDG Impact Fee Appeal Page 101 286 provision or part thereof with a valid and enforceable provision that comes as close as possible toexpressing the intention ofthe stricken provision. 10.05 Other Provisions A.The CONTRACTOR agrees to remedy all defects appearing inthe workor developing in the materials furnished and the workmanship performed under this Agreement during the warranty period after the date of final acceptance of the work by the OWNER,and further agrees to indemnify andsave the OWNER harmless from any costs encountered in remedying such defects. IN WITNESS WHEREOF,OWNER and CONTRACTOR have signed 4 copies ofthis Agreement.One counterpart(s)has been delivered to OWNER,two to CONTRACTOR, and one to ENGINEER.Ail portions ofthe Contract Documents have been signed or identified by OWNER and CONTRACTOR or by ENGINEER on their behalf. This Agreement will be effective on the date shown on page 1 (which is the Effective Date ofthe Agreement)..; ', OWNER: Mitchell Development Group.L.L.C. Attest Address forgiving notices:A %. Mitchell Development Group.L.L.C. PO Box 738 Great Falls.MT 59403 Phone:ftwA 7£A W 6 Q •Fansimilft^^S 7fa /- ^ 4 *I H:\3538\004\DOCS\SPECS\00500_MTUnes.doc CONTRACTOR: MontanaLines.Inc. [CORPORATE SEAL] ftttoct -_oA**-\>./nnlwl Address for giving notices: 2800 Upper River Road Great Falls.MT 59405 Phone:(406)727-1316 Facsimile:(406)727-0354 Page 9 of 10 EXHIBIT D MDG Impact Fee Appeal Page 102 287 PERFORMANCE BOND Anysingularreference to Contractor,Surety,Owner,or otherparty shallbe considered pluralwhere applicable. fRACTOR (NameandAddress): Montana Lines, Inc. 2800Upper RiverRoad GreatFalls,MT 59405 ER(Name and Address): Mitchell DevelopmentGroup, LLC PO Box 738 Great Falls,MT 59403 FRACT SURETY (Name and Address ofPrincipal Place ofBusiness): TRAVELERS CASUALTY AND SURETY OCMPANY OF AMERICA CNE TOWER SQUARE HARTFORD,CT 06183 COUNTERSIGNED; FLYNN INSURANCE /UXNCr MARK S.NICHOLLS jiint:($309,421.15 )THREE HUNDRED NINE THOUSAND FOUR HUNDRED TWENTY ONE AND 15/100 DOLLARS :ription (Name and Location):Huffine Lane Intersection Improvements BOZEMAN,M3JIANA dNumben 104569691 "%: :(Not earher than Contract Date):{'" r >unt:($309,421.15)THREE HUNDRED NINE THUSAND FOUR HUNDRED TWENIY ONE AND 15/100 DOLLARS lifications to this Bond Form:NONE / yand Contractor,intending to be legally bound hereby,subject to the tenns.printed:pn the reverse side hereof,do each cause mis tmance Bond to beduly executed onits behalf,byits authorized ofScer?agent;orrepresentative. ^TRACTOR AS PRINCIPAL Company:_0NIANA LINES,INC. Signature: Name and '&, '/' ice is provided below for signatures of additional ies,ifrequired.) NTRACTOR AS PRINCIPAL Company: Signature: Name and Title: (Seal) SURETY^"', TfeWFT FKS CASUALTY AND SURETY Surety's Nameand Coi By:. . . Signature and &flV JCHN D.LEAF/ATICSW-IN-FACr (AttachPower ofattorney) Attest Signature SURETY Surety'sName and Corporate Seal By: SignatureandTitle (Attach Power ofAttorney) >ANY OF AMERICA (Seal) BOND CLERICAL (Seal) Attest SignatureandTitle: *CNo.0610(2002 Edition)'»%prepared through the joint efforts ofthe Surety Association ofAmerica,EngineersJoint Contract Documents Committee,the Associated General 'actors oTAmerica,andthe American Institute ofArchitects. Performance Bond -00610 - Page 1 of 2 EXHIBIT D MDG Impact Fee Appeal Page 103 288 ~1 PAYMENT BOND Anysingular reference to Contractor,Surety,Owner,orother partyshall beconsidered plural where applicable. CONTRACTOR (Name and Address): Montana Lines, Inc. 2800 UpperRiverRoad GreatFalls, MT 59405 OWNER (Name and Address): MitchellDevelopment Group, LLC PO Box 738 Great Falls, MT 59403 SURETY (Name and Address ofPrincipal Placeof Business): TRAVELERS CASUALTY AND SURETY OCMPANY OF AMERICA CNETCWER SQUARE HARIFCRD,CT 06183 COUNTERSIGNED: FLYNN INSURANC&AGENCjr y '"* MARK S.NICHOLLS ^ CONTRACT iAmount*$309,421.15)IHREE HUNDRED NINE THOUSAND FOUR HUNDRED TWENIY ONE AND 15/100 DOLLARS Description (Name and Location):Huffine Lane Intersection Improvements BOZEMAN,MMANA BOND ,BondNumber:104569691 •Date (Notearlier than Contract Date): iAmount:($309,421.15)THREE HUNDRED NINE TrOJSAND FOUR Modifications tomis Bond Form:nqn_ HUNDRED TWENIY QE AHD 15/100 DOLLARS Surety and Contractor,intending to be legally bound hereby,subject to the.terms printed on the reverse side hereof,do each cause thisPaymentBondtobedulyexecutedoriitsbehalfbyitsauthorizedxfecer,agent,of representative. CONTRACTOR AS PRINCIPAL Company:M3CTANA LINES,INC- Signature: Name and/tttle:jam M.LEVESAY, (Space is provided below for signatures'of additional parties,ifrequired.) CONTRACTORAS PRINCIPAL Company: Signature: Name andTitle: (Seal) STjREtY /' TRAVELERS CASUALTY AND SURETY OCMPANY OF AMERICA (Seal) Surety's Nameand Corporate S? By:Signature and Ti^OT D.LEAF,A^lUKNbl-H^AUl (Attach Power ofA^piaey J0NY TAUB-SfflH,BCND SURETY Surety's Name and Corporate Seal By: Signature andTitle (Attach PowerofAttorney) Attest (Seal) Signature andTitle: EJCDCNo. C-615(2002 Edition). ____ _...CMl4at„ri GeneraljOriginallypreparedthroughthejointeffortsoftheSuretyAssociationofAmerica,Engineers Joint Contract Documents Comimttec,the Assorted Genera!IcoSractorS of America,the American Institute of Architects,the American Subcontractors Association,and the Assorted Specaity Contractors. I Payment Bond- 00615- Page1 of2 EXHIBIT D MDG Impact Fee Appeal Page 104 289 HUFFINE LANE INTERSECTION IMPROVEMENTS BID SHEET The Bid forthe following items in Schedules II shall be a unit cost bid forall construction work described in the Contract Documents,unless shown otherwise.The bid price shall include all temporary or permanent equipment,materials,supplies,andlabor necessary to construct the item in accordance with the Contract Documents. SCHEDULE!! SIGNALIZATION RELATED !TEMS [EM NO. MDTITEM NO.DESCRIPTION ESTIMATED QUANTITY UNIT UNIT PRICE TOTAL EST. PRICE )»616183000 FOUNDATION-CONCRETE 21.4':'I CY $905.00 $19,367.00 in 616343914 CONDUIT-PLASTIC 1 1/2 IN 3068 'IF $7.75 $23,777.00 .02 616343920 CONDUIT-PLASTIC 2 IN 1744 v LF $10.00 $17,440.00 ;o3 .616343924 CONDUIT -PLASTIC 2 Vz IN il 7$?LF $14.20 $10,834.60 :04 616343930 CONDUIT-PLASTIC 3 IN %^ 88 LF $15.00 $1,320.00 ,05 616783001 PULL BOX-CONCRETE TYPE1 "%8 EA $300.00 $2,400.00 06 616783002 PULL BOX-CONCRETE TYPE 2 '*8 EA $350.00 $2,800.00 07 616783003 PULL BOX-CONCRETE TYPE3 1 EA $470.00 $470.00 08 617033414 CABLE-COgfER 7AWG14-600V 631 LF $1.05 $662.55 .09 617033614 CABLE-COP||R"lfiVG14-600V'243 LF $1.50 $364.50 !10 617033814 CABLE-COPPifri 6AWG14-600V 990 LF $1.85 $1,831.50 <- in 617086919 CABLE COPPER 6 PAIR AWG 19 COM 2422 LF $1.35 $3,269.70 •12 617123106 CONDUCTOR-COPPER AWG6- 600V 1120 LF $0.90 $1,008.00 !13 617123108 CONDUCTOR-COPPER AWG8-600V 4107 LF $0.75 $3,080.25 jl4 617123110 CONDUCTOR-COPPER AWG10-600V 2156 LF $0.45 $970.20 jrts 617183054 STANDARD-STL TYPE 10-A-500-4 6 EA $2,100.00 $12,600.00 he 617233030 CONTROLLER-CAB PEDESTAL TYPEP 2 EA $890.00 $1,780.00 \— M7 617303225 LUMINAIRE ASSEMBLY- 250WS.V. 2 EA $360.00 $720.00 H:\3638\004\DOCS\SPECSA0300 bidform_revjraf.doc Page 5 of 12 EXHIBIT D MDG Impact Fee Appeal Page 105 290 ITEM NO. MDT ITEM NO. 218 617303240 DESCRIPTION LUMINAIRE ASSEMBLY- 400 W S.V. 219 220 221 222 223 224 225 226 227 228 229 230 617333120 617333160 617363010 617503130 617523127 617553020 617603081 617673100 617673120 617693100 617695907 617713099 SERV ASSEMB-20 AMP SERV ASSEMB-60 AMP PHOTO ELECTRIC CONTROL SIG-TRAF 3 COL-1 WAY 12-12-12 SIG-TRAF 5 COL-1 W 12-12-12-12 SIG-PEDESTRIAN TYPE2 CONTLR/TRAF-ACTUAT TYPE 8-A SIG STANDARDTYPE 1-100 SIG STANDARD TYPE 1-120 SIG STANDARDTYPE 2-A-900-0 SIG STANDARD TYPE 2-A-900-7 SIG STANDARD TYPE 2-A-900-9 231 617713100 SIG STANDARD TYPE 3-A-90CH), 232 233 234 235 236 237 238 239 240 241 242 243 617763101 617763601 617903250 617903270 617903502 619010051 619010075 619010085 619010200 619010230 619010340 619010480 DETECTOR/LOOP DETECTOR/LOOP J|lP CABLE PUSH BUTTON/PEfEltplfN PUSH BUjfQN-RlliOFIT EMER PRBiJMPilQN PET CABLE SIGNS-ALUBJHEET INCR (\) SIGNS-ALUM REFL SHEET ffl SIGNS-ALUM REFL SHEET (111) RESET SIGNS REMOVE SIGNS POSTS-TUBULAR STEEL-SQ- PERF POLES-TREATED TIMBER-BARN 4 IN H:\3638\004\DOCS\SPECS\0300 bldform_rev_traf.doc Page 6 of12 ESTIMATED QUANTITY iff 1 EXHIBIT D MDG Impact Fee Appeal Page 106 291 rTEM NO. MDT ITEM NO.DESCRIPTION ESTIMATED QUANTITY UNIT UNIT PRICE TOTAL EST. PRICE 144 619010770 SQ TUBULAR SLIP BASE BKWY-3 IN 5 EA $345.00 $1,725.00 >45 619011179 DELINEATOR-FLEX SURF WH 2 EA $53.00 $106.00 >46 619011180 DELINEATOR-FLEX SURF YLW 5 EA $53.00 $265.00 >47 618030160 REMOVE PAVEMENT MARKINGS 780.6 LF $2.90 $2,263.74 m 620013000F STRIPING-WHITE PAINT(INTERIM- FALL)22 GAL $22.00 $2,860.00 !49 620014000F STRIPING-YELLOW PAINT(INTERIM-FALL)1 GAL $130.00 $130.00 !50 620013000S STRIPING-WHITE PAINT(INTERIM- SPRING)22 GAL $130.00 $2,860.00 51 620014000S STRIPING-YELLOW PAINT(INTERIM-SPRING)1 ;,GAL $130.00 $130.00 52 617605120 R&R EXISTING CONTLR/TRAF-* ACTUAT TYPE 8-A 1 *EA $1,180.00 $1,180.00 53 619214000 POLES-TREATED TIMBER CLASS 4 ,;i4 *""LF $45.00 $630.00 53 608030080 TRAFFIC CONTROL ' \ ~t <;/i 5,600 UNIT S $0.90 $13,500.00 54 109200000 MOBILIZATION £1 LS $19,130.00 $19,130.00 OTAL UNIT PRICE BID -SCHEDULE II ichedule II Total Bid in Figures:$3u9.421.15 H:\3638\004\DOCS\SPECS\0300 bidform_rev_traf.doc Page 7 of 12 EXHIBIT D MDG Impact Fee Appeal Page 107 292 Change Order No. Date of Issuance:June 16.2006 Effective Date:June 16.2006 Project: US 191-BOZEMAN Owner:MITCHELL DEVELOPMENT GROUP,LLC Owner's Contract No.: Contract MEMORANDUM OF UNDERSTANDING (MDT)08/25/04 DateofContract:September 15.2005 Contractor;Montana Lines,Inc. Engineer's ProjectNo.:3638.004.01.0310 The Contract Documents are modified as follows upon execution ofthis Change Order:' S^ £™f,™nS:JList documents supporting change):See attached:HUFFINE LANE &FDWI FP ftWF IMTFPSPmnM IMPPnu-MgMTO /-M4AMOC -.pnepjM CHANGE IN CONTRACT PRICE: Original Contract Price: $309.421.15 CHAN^Ei=^:i§»ITRACT TIMES: Original Contract Times:D§$Yqr|fhg days EI Calendar days Substantial.corrt||etion (daysp^date):75 days Ready for final pljbent (days ordate):.75 davs [fncrease)[Decrease]from previously approved Change [lnc^B}|i|pre|y from previously approved Change Orders OrdersNo.to No.:1#:H :%lb No.• ContractPriceprior tothisChange Order: $_>. [Increase}[Decrease]ofthisChange Order: $42.384.50 Contract Price incorporating thisChange Order: $351.805.65 RECOMMENDED: f^ry'^Owner (Authorized Signature) f~•/-7 •of. Engineer (Authorized Signature) Date:Q^fl<*/oK^ Approved byFunding Agency (ifapplicable): ACCEPTED: Date: S||stai||l completion (days):_ ||||Rea:||yfor final payment (days): Contract Times prior to this Change Order: Substantial completion (days ordate):75davs Readyfor final payment(days ordate):75davs rj_c_ea__[Decrease]ofthisChange Order Substantialcompletion (days ordate):45 davs Ready for final payment(days ordate):60davs Contract Times with allapprovedChangeOrders: Substantial completion (days ordate):120davs Readyfor final payment (days ordate):135davs ACCEPTED: Date:, Date:. Contractor (Authorized Signature) Change Order-Page 1of 2 H:\3638\004.01\DOCS\Construction\Pay Estimates\Change OrderOLdoc 6716/06 EXHIBIT D MDG Impact Fee Appeal Page 108 293 fl (Morrison _L±lMAIERLE,iKa Juris 16.2006 MM#3638.004.01.050.0310 HUFFINE LANE &FOWLER AVE INTERSECTION IMPROVEMENTS Bozeman,Montana CHANGE ORDER #1 PAGEONE(1) OWNER"S NAME ANO ADDRESS: MITCHELL DEVELOPMENTGROUP. LLC PO BOX738 GREAT FALLS, MT 59403 WORK TO START: March 13.2006 CONTRACTTIME:150 DAYS WORK STARTED: March 13.2006 CHANGE ORDER ITEMS CONTRACTOR-S NAMEAND ADDRESS: MONTANA LINES. INC. 2800UPPER RIVER ROAD GREAT FALLS. MT 59406 COMPLETION DUE: July 31.2006 EXHIBIT D MDG Impact Fee Appeal Page 109 294 Change Order Instructions A GENERAL INFORMATION £n\ac?^han*9 <****change,that affectincorporatedintoa's^nTc^^^^^««».Directive must be unnecessary disputed 9 S t0 reduCe the admin'strative burden may lead to IJdSrffi*haVe b6en "Sted i0 ,he A9reement'«>effecl °f a Change Order thereon shouid be MftES^^Chan9SS "0t »***a«*-»'"NContact Price or Contract B.COMPLETING THE CHANGE ORDER FORM ££^JftR^p2S.p^T?f**should make distribution of ™ If achange only applies to price or to times,cross ou|tie part of the tabulation that does not apply. u Change Order - Page 2 of 2H:\3638\004.01\DOGS\Construction\Pay Es«mates\Ohange OrderOLdoc 6/16/06 EXHIBIT D MDG Impact Fee Appeal Page 110 295 Change Order No.3A Date of Issuance:December 5,2006 Effective Date:December 5.2006 Project: US 191-BOZEMAN Owner.MITCHELL DEVELOPMENT GROUP.LLC Owner's Contract No.: Contract MEMORANDUM OFUNDERSTANDING(MDT)08/25/04 Date of Contract:September 15,2005 Contractor:Montana Lines. Inc.Engineer's Project No.:3638.004.01.0310 The Contract Documents are modified as follows upon executionofthis Change Order: Description:Additional mobilizations due to construction sequencingbeyondContractor's control.AdditionaltrafficcontrolduetotimingofFinalPlatfilingandsubsequenttransferofright-of-way. Attachments:(List documents supporting change) Montana Lines, Inc.letter dated October 9,2006 and Mitchell Development,LLCletterdated November 3.2006 Table"HUFFINE LANE&FOWLER AVE INTERSECTION IMPROVEMENTS,Change Order#3A" CHANGE IN CONTRACT PRICE: Original Contract Price: $309.421.15 $42.384.50 Contract Price priorto this Change Order $351.805.65 {Increase][Decrease)of this Change Order: $22:436.80 Contract Price incorporatingthis Change Order. $374.242.45 RECOMMENDED: By:. JMMfcNUtU: Engineer (AuthorizedSignatui Date:/t/OtfdC* Approved by FundingAgency (ifapplicable): Date CHANGE')**CONTRACT TIMES: Original Contract psaes: Q Working days Q Calendar days Substanral'qprnip^tion (days or date):_. Ready for itn'i|pay1|erit (days or date):• Uncrease][Decrease]from previously approved Change rjf^creaI||[Dlirease]from previously approved Change Orders Orders No.1 toNo.2 :Noil %.I-toNo.: 'Su%tanfal completion (days):. Headyfor final payment(days):. ContractTimes prior to this Change Order Substantialcompletion (days ordate): Readyforfinal payment (days ordate): [Increase][Decrease]of this Change Order: Substantialcompletion (days ordate): Readyforfinal payment (days ordate): Contract Timeswith allapproved Change Orders: Substantial completion(days ordate):__ Readyfor final payment (days ordate): Owner(Authorized Signature) =/Z-J.7-ot> Date: Change Order- Page 1 of 2 H:\3638\004.01\DOCS\Construction\Pay Estimates\MT LINES\Change Order03A(MT Lines).doc 12/5/06 EXHIBIT D MDG Impact Fee Appeal Page 111 296 Change Order Instructions A.GENERAL INFORMATION This document was developed to provide a uniform format for handling contract changes that affect Contract Price or Contract Times.Changes that have been initiated by a Work Change Directive must be incorporated into a subsequent Change Order if they affect Price or Times. Changes that affect Contract Price or Contract Times should be promptly covered by a Change Order. The practice of accumulating Change Orders to reduce the administrative burden may lead to unnecessary disputes. If Milestones have been listed in the Agreement,any effect of a Change Order thereon should be addressed. For supplemental instructions and minor changes not involving a change inthe Contract Price or Contract Times,a FieldOrder should be used. B.COMPLETING THE CHANGE ORDER FORM jf;1§ Engineer normally initiates the.form,including a description of the1ij||iar||es involved and attachments based upon documents and proposals submitted by Contractor,or reqiisil'from Owner,or both. Once Engineer has completed and signed the form,all "Sigiii||hould be sent to Owner or Contractor forapproval,depending on whether the Change Orders atn3%>rrJ|||o the Contractor or the formalization ofanegotiatedagreementforapreviouslyperforml|k?ii^l||5Ar!er approval by one contracting party,allcopiesshouldbesenttotheotherpartyfora|prd||j.Ijgngineer should make distribution of executed copies after approval by both parties.;:%1|.f If a change only applies to price orto times,'Cross ou&the part ofthe tabulation that does not apply. Change Order - Page 2 of 2 H:\3638\004.01\DOCS\Construction\Pay EstimatesWIT LINESXChange Order03A(MT_Lines).doc 12/5/06 EXHIBIT D MDG Impact Fee Appeal Page 112 297 £(Morrison • JMAIERLE,ikc Am/•yfa/ifOmifrfCwyj1 DecemberS. 2006 MMS3638.0O4.01.050.0310 PAGE ONE (1) HUFFINE LANE&FOWLER AVE INTERSECTION IMPROVEMENTS Bozeman,Montana CHANGE ORDER #3A OWNER"S NAME AND ADDRESS: MITCHELL DEVELOPMENTGROUP.LLC POBOX738 GREAT FALLS. MT S9403 WORK TOSTART: March 13.2006 '•?..' CONTRACTTIME:150DAYS WORK STARTED: March 13.2006 CHANGE ORDER ITEMS CONTRACTORS NAME AND ADDRESS: MONTANAUNES.INC. 2800 UPPER RIVER ROAD GREAT FALLS. MT59406 COMPLETION DUE: October31.2006 EXHIBIT D MDG Impact Fee Appeal Page 113 298 Mitchell Development Group,LLC Value of Dedicated Land 1 Fowler Avenue Land Dedication Width of Dedication (feet)100.00 Length of Dedication (feet)1,265.00 Fowler Dedicated Square Footage 126,500.00 Value Per Square Foot $8.00 Value of Fowler Dedication $1,012,000.00 2 Garfield Street Land Dedication Width of Dedication (feet)32.50 Length of Dedication (feet)2,427.00 Garfield Dedicated Square Footage j- Value Per Square Foot \ \ % i "7^877.50 $8.00 Value of Garfield Dedication . V ^ ^$631,020.00 Total Value of Dedications ^ ,$1,643,020.00 ..#4 +>H, EXHIBIT D MDG Impact Fee Appeal Page 114 299 GARYW.BJELLAND JOSHUAI.CAMPBELL LONT.HOLDEN JOSEPHD.HOUSTON DANIELT.JONES JONJ.KUDRNA BRIONC.LINDSETH SUEANN LOVE GEORGEN.McCABE ROBERTB.PFENNIGS BRIANL.TAYLOR PATRICKR.WATT WARRENC.WENZ JARDINE,STEPHENSON,BLEWETT &WEAVER,P.C. ATTORNEYSATLAW 300CENTRALAVENUE SEVENTH FLOOR,U.S. BANKBUILDING P.O.BOX2269 GREATFALLS,MONTANA S9403-2269 TEL:(406)727-5000 FAX:(406)727-5419 E-Mail:lindseth@jardinelaw.com November 25,2009 RETIRED: JAMESE.AIKEN DONALDJ.HAMILTON JACKL.LEWIS ARTHUR G.MATTEUCCI K.DALESCHWANKE JOHND.STEPHENSON Bob Murray City ofBozeman P.O.Box 1230 Bozeman,MT 59771-1230 Chris Saunders City ofBozeman 20 East Olive Street P.O.Box 1230 Bozeman,MT 59771 Re: Mitchell Development Group, LLC / The Bozeman Gateway Impact Fee Credit Request Gentlemen: First, I would like to thank you for taking the time to meet with Mr. Mitchell and me next Tuesday, December 1, at 10:30.The purpose of this letter is to provide an update on the current status of our previous discussions regarding Mitchell Development Group,LLC's ("MDG")request for impact fee credits prior to our meeting next week. During our last meeting,we discussed the areas in which the City ofBozeman ("City") and MDG were in agreement and the areas in which the City and MDG have not yet reachedan agreement.I will first set out the areas on which I believe the City and MDG are in agreement and I will then identify the areas which I believe require additional discussion. When we last met, Mr. Murray provided John Davison of MDG and I with descriptions of the items which the City of Bozeman ("City") agrees are eligible for impactfee credits. I believethat MDGandthe Cityare currently in agreementthat the following items are eligible for impact fee credits: 1.Fowler Installation:MDG is entitled to impact fee credits for Twenty- Five percent (25%)of the costs associated with the installation of Fowler Avenue. Morrison Maierle specifically identified the costs MDG incurred to install Fowler Avenue and has summarized those costs in the spreadsheet attached to this letter as Exhibit A.According to Morrison Maierle,MDG has invested a total of $289,435.75 to install Fowler EXHIBIT E MDG Impact Fee Appeal Page 115 300 Letter to City ofBozeman November 25,2009 Page 2 of4 Avenue. Currently, the City's position is that only Twenty-Five Percent (25%)of those costs are eligible for impact fee credits. Thus, the total MDG and the City currently agree is eligible for impact fee credits is $72,358.94 ($289,435.75 x 25% = $72,358.94). As is further described below, MDG feels that percentage should be much higher 2.Sanitary Sewer Line:MDG is entitledto impact fee credits for ninety two percent (92%)of the costs associated with the installation of the 21 inch sanitarysewer line. MorrisonMaierle also specifically identified the costs MDG incurred to install the 21 inch sanitary sewer line and has summarized those costs in the spreadsheet attached hereto as Exhibit A. According to Morrison Maierle,the costs MDG incurred to install said sewer line totaled $257,997.40.However,$13,850.00 ofthose costs were associated with 8 inch lines that MDG connected to the 21 inch line and are more specifically attributable to MDG's Gateway Development. MDG recognizes thatthe $13,850.00 associated with the 8 inchlinesmay not be eligible for reimbursement,therefore the total of the 21 inch reimbursable costs is $244,147.40.MDG and the City agree that Ninety- Two percent (92%)ofthe costs associated withthe 21 inchsewerlineare eligible for impact fee credits.Thus,the total impact fee credits MDG should receive for the sewer line installation is $224,615.61 ($244,147.40 x 92%=$224,615.61). 3.Fowler and Huffine Intersection:MDG is entitled to impact fee credits for all of the costs associated with the signalization and associated modifications of the intersection between Huffine street and Fowler Avenue.Morrison Maierle specifically identified the costsMDG incurred to install the improvements to the intersection of Fowlerand Huffine and has summarized those costs in the spreadsheetattached hereto as Exhibit B.According to Morrison Maierle,the costs MDG incurredto improve the intersection of Fowler and Huffine totaled $384,579.39.MDG and the City agree that the total of said improvements is eligible for impact fee credits.As further described below,MDG continues to contend that costs relatedto improvements MDG madeto other intersections are also reimbursable. Thus, as of our last meeting,I believethat MDG and the City are in agreement that MDG is entitledto impactfee creditsinthe followingamounts: 1.Fowler Installation $72,358.94 2.Sanitary Sewer Lines $224,615.61 3.Fowler and Huffine Intersection $384.579.40 Totals $681.553.95 EXHIBIT E MDG Impact Fee Appeal Page 116 301 Letter to City ofBozeman November 25,2009 Page 3 of4 Furthermore,MDG contends it is entitled to additional reimbursement for certain costs described above as well as other costs not specifically addressed above on which MDG and the City have not yet reached a mutually agreeable resolution.MDG is seeking additional reimbursement for the following items: 1.Fowler Installation:The City's 20/20 plan specifically identified Fowler Avenue as a five lane minor arterial.MDG installed Fowler Avenue as a five lane minor arterial in compliance with the City's 20/20 plan which dramatically exceeds the capacity reasonably required by MDG's Gateway Development. Thus, MDG believes it is entitled to a much higher reimbursement percentage for the costs associated with the installation ofFowler Avenue. 2.Additional Intersections:MDG believes it is entitled to reimbursement for costs associated with improvements it has made to the following intersections: a)Huffine Lane and College; b)Huffine Lane and Harmon Stream; and c)Garfield and South 19th. MDG incurred costs to upgradeand improveeach ofthe above described intersections. The cost of those improvements MDG made to the intersections along HuffineLane (items a and b above) was $459,005.42. The costs MDG incurred as a result ofthe improvements made to Garfield and South 19th are additional sums which MDG will provide under separate cover.The improvements and alterations that MDG made to each of the above intersections eliminated dangerous conditions existing priorto MDG's workand represented major improvements to the City's street system.In addition,manyof these improvements were not located within the bounds of the Gateway Development. MDG believes and continues to contend that all or at least a significant portion of the improvements MDG made to the intersections described above are eligible for impact fee credits or reimbursement ofanother type. 3.Garfield Street Improvements:MDG believes it is entitled to reimbursement for all or a significantportion of the costs it incurred to install and improve portions of Garfield Street. MDG also invested approximately $1,951,560.16 in the installation and improvement of Garfield Street. The improvements MDG made to Garfield Street represented major improvementsto the City's street system and the traffic flow patterns in the area. The improvements MDG made to Garfield are not within the bounds of the Gateway Development and provide traffic capacity that exceeds the needs ofthe Gateway Development. EXHIBIT E MDG Impact Fee Appeal Page 117 302 Letter to City ofBozeman November 25,2009 Page 4 of4 4.Dedicated Land:MDG believes it is also entitled to compensation or reimbursement for the value ofthe land dedicated to the City for purposes of the construction of Fowler Avenue as well as the procurement of the dedications and easements necessary for the extension of Garfield Street from Fowler Avenue all of the way to South 19th.The City accepted the dedication of each of the above described land. As MDG previously described in its application for impact fee credits as well as various other correspondence,MDG believes that it is entitled to impact fee credits equal to thefair market value ofthe land referred to above at the timeof dedication. Unless MDG and the City arrive at a mutually agreeable estimate of the fair market value of the land referred to above,then the Bozeman Municipal Code provides that the fair market value may be established by a private appraiser. Once again,thankyoufor taking thetimeto meetwithus nextweekandweare looking forward to working toward a mutually agreeable resolution totheseissues. Very truly yours, JARDINE,STEPHENSON,BLEWETT &WEAVER,P.C. /s/Brion C.Lindseth By Enclosures cc:Theodore Mitchell Brion C.Lindseth EXHIBIT E MDG Impact Fee Appeal Page 118 303 a Morrison MAIERLE,inc. An Employee-OwnedCompany FOWLER AVENUE COSTS Bozeman,Montana FOWLER AVENUE ROAD COSTS July 17,2007 MM#3638.009.040.0310 PAGE ONE (1) J INSTALLED DESCRIPTION UNIT UNIT PRICE I QUANTITY AMOUNT 101 Clearing and Grubbing/Topsoil Removal and Stockpile CY $1.25 3,411.0 $4,263.75 102 Street Excavation/Embankment (Site Grading)CY $2.25 6,535.0 $14,703.75 103 Pit Run Gravel CY S8.25 *j$-••10,923.0 $90,114.75 104 1-1/2 Inch (1-1/2") Minus Crushed Base Course CY $14.50 ^2,522.0..$36,569.00 105 Hot Plant MixAsphalt Surface Course TON $32.90 k45;o6o.o $66,950.00 106 Concrete Curb and Gutter LF %1 S9-00 W.470.0 $22,230.00 106A Median Curb UPS >$12.00 ¥2,302.0 $27,624.00 106B Median Cap SF '\$6^00 1,385.0 $8,310.00 137 Pavement Markings - 4"White LE-.,$0.25'"'11,750.0 $2,937.50 139 Pavement Markings - 4" White -Dashed '/LF'•A so;,i2 3,900.0 $468.00 141 Pavement Markings -24"White -Stop Bar P . "•LF •$18.00 20.0 $360.00 142 Pavement Markings -24"-White %k yLFr 0?$3.50 455.0 $1,592.50 143 Pavement Markings - 8"White <"\/';.'W!\.-LF'$6.75 1,000.0 $6,750.00 144 Pavement Markings -Words and Symbols ^H.^k,%$17.50 375.0 $6,562.50 FOWLER ROAD TOTAL \ \W $289,435.75 J r-2T"SEWE:r costs INSTALLED descTBJkon ^r UNIT UNIT PRICE QUANTITY AMOUNT 201 8 Inch Sanitary Sewer Stubs to Gateway LF $50.00 277.0 $13,850.00 202 21 Inch Sanitary Sewer LF $40.00 1,749.0 $69,960.00 203 60 Inch x 5 Foot SS Manhole EA $3,500.00 10.0 $35,000.00 204 Modify ExistingManhole Connecting to ExistingSS EA $5,000.00 1.0 $5,000.00 205 60 Inch SS Manhole -Additional Depth VF $200.00 91.4 $18,280.00 206 Jack and Bore 36 Inch Casing LF $827.91 140.0 $115,907.40 21 "SEWER SUBTOTAL $257,997.40 201 8 Inch Sanitary Sewer Stubs to Gateway LF $50.00 -277.0 ($13,850.00) 21"SEWER TOTAL $244,147.40 EXHIBIT E MDG Impact Fee Appeal Page 119 304 fl-iMORRlSONfflLJMAIERLE,iNa MMS383S.004A1.050.03tO HUFFINE LANE &FOWLER AVE INTERSECTION IMPROVEMENTS Bozeman,Montana HUFFINE AVEJFOWLER ST. (TRAFFIC ELECTRICAL ANDROADWAY CONSTRUCTION PORTION) PAGE ONE (1) ^m^im^^^s^J^A^^^s-^m^^^s^m !3J2&-33SE£SSsSt •ESTIMATED! I1QUANTITY UNIT UniTPrice;feirAMOUNT'?^i-t^^SMir FOUNDATION-CONCRETE 14.6 CY $905.00 $13,213.00 CONDUIT-PLASTIC1-1/2*1.017 LF $7.75 $7,881.75 CONDUIT-PLASTICT 311 LF $10.00 $3,110.00 CONDUIT-PLASTIC2-1/2"579 LF $14.20 $8,221.80 CONDUIT-PLASTIC3*88 LF $15.00 $1,320.00 PULL BOX-CONCRETETYPE 1 2 EA $300.00 $600.00 PULL BOX-CONCRETETYPE2 5 EA $350.00 $1,750.00 PULL BOX-CONCRETETYPE3 1 EA $470.00 $470.00 CABLECOPPER7AWG14-600V 579 LF $1.05 $607.95 CABLECOPPER16AWG14-600V 990 LF $1.85 $1,831.50 CABLECOPPER6 PAIR AWG19COMM 258 LF $1.35 $348.30 CONDUCTOR-COPPERAWG6-600V 247 LF $0.90 $222.30 CONDUCTOR-COPPERAW68-600V 873 LF $0.75 $654.75 CONDUCTOR-COPPERAWG10-6C0V 640 LF $0.45 $288.00 CONTROLLER-CAB PEDESTALTYPE P 1 EA $890.00 LUMINAIREASSEMBLY-400WS.V.2 EA jA55.007%^^$730.00 SERVASSEMBLY-60 AMP 1 EA'dKj.760.0J#«5fflL $1,760.00 PHOTOELECTRICCONTROL 1 EA ll $120.00 SIG-TRAF 3 COL-1 WAY 12-12-12 15 EA rafflw.^af$13,500.00 SIG-PEDESTRIANTYPE 2 8 ^EA $7553&fc &T $6,040.00 CONTLR/TRAF-ACTUATTYPE8-A 1^$25,320.00^?$25,320.00 SIG STANDARDTYPE1-120 ♦2 ?**$625.00 $1,250.00 SIG STANDARDTYPE2-A-900-0 %.kS10.750.00 $10,750.00 SIG STANDARDTYPE2-A-900-7 1^J^fefifcboo.oo $10,000.00 SIG STANDARD TYPE 3-A-900-9 ^^AAic^fet $11,850.00 $11,850.00 SIG STANDARD TYPE 3-A-900-0 .^fejJff ^%,I*$12,500.00 $12,500.00 DETECTOR/LOOP •^B .30 •EA $750.00 $22,500.00 DETECTOR/LOOP SHLDCABLE ^.^^t.i9^y LF $1.00 $4,194.00 PUSHBUTTON/PEDESTRIAN _a_.^ta.EA $265.00 $1,060.00 EMER PRE-EMPTION DETCABLE ^^^^%tL.^.199 LF $1.30 $518.70 REMOVE RUMBLE STRIP 18"^t^W ^hl V 550 LF $6.75 $3,712.50 TEMPORARY PAINT jl TiL ^^1 LS $292.00 $292.00 SIGN&ALUMSHEETINCR(I)B ^%jv.10 SF $33.50 $335.00 SIGNS-ALUM REFLSHEETJIII)^Jj||Nj^75.5 SF $26.50 $2,000.75 RESETSIGNS J*^hKL.2 EA $75.00 $150.00 REMOVE SIGNS J^T U 2 EA $20.00 $40.00 POSTS-TUBULAR 199.6 LB $8.55 $1,708.58 POLES-TREATED F 30.0 LF $35.00 $1,050.00 SQTUBULARSUF>bJB8Rwy-2wu^1 EA $345.00 $345.00 WORDS &SYMBOLS-PLflBC ^183 SF $17.45 $3,200.33STRIPING-WH PLASTIC 4IN^rf^485 LF $3.15 $1,527.75 STRIPING-WH PLASTIC 8 IN "*"593 LF $6.30 $3,735.27 STRIPING-WH PLASTIC 24 IN 83 LF $16.20 $1,342.98 STRIPING-YEL PLASTIC4 IN 194 LF $3.20 $622.08 TRAFFIC ELECTRICALPROPORTIONOF MOBILIZATION 0.49 LS $28,430.00 $14,068.07 TRAFFIC CONTROL ELECTRICALPORTION OF MOBILIZATION 0.49 LS $41,799.15 $20,683.56 REMOVESIDEWALK 64 SY $15.00 $960.00 REMOVECURB&GUTTER 115 LF $6.00 $690.00 EXCAVATION •UNCLASSIFIED 452 CY $17.50 $7,910.00 EMBANKMENTIN PLACE 203 CY $20.00 $4,060.00 TOPSOIL.SALVAGING& PLACING 51 CY $12.50 $637.50 CRUSHED AGGREGATECOURSE 1,079 CY $22.50 $24,277.50 COVER MATERIAL GRADE 4A 61 TN $65.00 $3,965.00 DUSTPALLIATIVE 13.8 TN $130.00 $1,794.00 PLANT MIXBIT SURF,GER.D.INCLUDES PG 64-28 524 TN $55.00 $28,820.00 EMULSIFIED ASPHALTSS-1 49 GA $7.50 $367.50 RCPARCH44INCH.CL3 6 LF $500.00 $3,000.00 SIDEWALK.CONCRETE4*384 SY $57.50 $22,080.00 TRAFFIC CONTROL(NO BID)0 NA $0.00 $0.00 CURB-CONC 845 LF $17.50 $14,787.50 SEEDING AREANO2 0.25 AC $2,000.00 $500.00 FIBER OPTIC RELOCATION(AT&T)1 LS $7,600.00 $7,600.00 PAVEMENTMARKINGS 1 LS $34,630.00 $34,630.00 ROADWAYCONSTRUCTIONPRORATION OF MOBILIZATION 0.41 LS $25,000.00 $10,186.47 TOTALTRAFFIC IELECTRICALAlND ROADWAYCONTRACT $334,579.39 luotcheu.developmentewow>.u.c 4PROPERTY OCVELOPMENT MMKWOIUlSMCtFmtfS(xm&hmU<ElB• FoMwmnooclionmitapeawiwnlcomB-IX17 EXHIBIT E MDG Impact Fee Appeal Page 120 305 EXHIBIT FMDG Impact Fee Appeal Page 121 306 EXHIBIT FMDG Impact Fee Appeal Page 122 307 EXHIBIT FMDG Impact Fee Appeal Page 123 308 EXHIBIT FMDG Impact Fee Appeal Page 124 309 community planning zonin g subdivision review annexatio n historic preservation neighborhood planning urban design GIS CITY OF BOZEMAN DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 Bozeman, Montana 59771-1230 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net MEMORANDUM TO: TIM MCHARG, DEBBIE ARKELL, JASON SCHRAUGER, BOB RISK FROM: CHRIS SAUNDERS RE: MITCHELL IMPACT FEE APPEAL DATE: SEPTEMBER 1, 2010 An appeal of an administrative determination regarding impact fees has been received. The appeal and associated material is being transmitted to the Impact Fee Review Committee established in Sections 3.24.040.C and 3.24.110.I, BMC. The appeal application and supporting material is attached. The appeal will be considered by the Committee on September 1, 2010, 1:30 pm, in the Yellowstone Room of City Hall. The appeal is from an administrative decision relating to the timeliness of and qualification for an impact fee credit request. The Impact Fee Coordinator has determined that the credit is disqualified from consideration by several criteria established in Chapter 3.24, Impact Fees, Bozeman Municipal Code. A copy of the denial letter is contained in the Appellant’s materials, Exhibit F. A copy of Chapter 3.24 is provided as Attachment 7. A description of the appeal process in contained in Subsection 3.24.110.I. The Impact Fee Review Committee will make a determination. If the Appellant is not satisfied with the decision of the Committee they may make a further appeal to the City Commission. Impact fees are governed by Sections 7-6-1601 through 7-6-1604, MCA. See Attachment 1 for the text of the statute. The purpose of impact fees is to provide necessary infrastructure in support of safe development. Impact fees are not a maintenance tool. The statute limits the use of impact fees to the expansion of capacity in capital improvements. Section 7-6-1601 defines a capital improvement as: (1) (a) "Capital improvements" means improvements, land, and equipment with a useful life of 10 years or more that increase or improve the service capacity of a public facility. (b) The term does not include consumable supplies. Points of agreement with Appellant. A. As described in the appellant’s materials, the credit request which is the subject of the appeal was begun several years ago. The applicant and staff have discussed the matter from time to time. Staff notified the applicant in October 2006 in a personal meeting that requested credit items did not meet the required standards. See attached working memo, Attachment 2. B. After on-going intermittent discussions, the applicant was formally noticed of a determination that the ordinance requirements for credit approval had not been met on June 16, 2010, see the attached MDG Impact Fee Appeal Page 125 310 Page 2 letter as Appellant’s Exhibit F. The letter describes those criteria necessary for approval of an impact fee credit which were not satisfied and builds upon the original working memo. C. A memorandum of understanding for was completed in the fall of 2004 between the City, Mitchell Development, and MDT. The MOU is attached as Appellant’s Exhibit B. Page 2, final paragraph of the page and page 3 final paragraph of the page does say the City will take certain actions. D. As shown on the original denial letter, Appellant Exhibit F, page 2, the City does recognize that the traffic signal at Fowler and Main Street and the oversizing of the Fowler trunk sewer are capacity expanding projects and therefore could be credit eligible if otherwise compliant with ordinance requirements. E. There was a requirement for the Parkway Plaza Subdivision to pay a partial share for design of a signal for the intersection of Fowler Avenue and Main Street. See Attachment 3. Points of disagreement related to statements in the appeal. 1. The amount required of Parkway Plaza Subdivision in 1996 was $9,000. The amount cited by the appellant of $75,050 was an amount for an improvements agreement which was 150% of the cost of deferred work. The improvements agreement did include the $9,000 for design of a traffic signal, but also included a number of other items related to the subdivision but not the intersection. This is shown in subdivision file numbers P-9405 and P-9637. A copy of a letter describing this has been included as Attachment 3. 2. The appellant notes on page 5 of the appeal a change in the ordinance focusing on wording from ‘shall’ to ‘may’. The section cited discusses when credits for work done must be considered. However, the segment of code cited in the appellant’s materials does not include the entire section which also generally describes the factors which may disqualify work from an impact fee credit. Under either version of the ordinance the same limitations to a credit request exist. These are: 1. Projects or land dedications not listed on the impact fee capital improvements program; or 2. Land dedications for, or acquisition or construction of, project-related improvements as defined in Section 3.24.040(G) or Section 3.24.040; or 3. Any voluntary land or easement dedications not accepted by the City; or 4. Any voluntary acquisition or construction of improvements not approved in writing by the City prior to commencement of the acquisition or construction. Therefore, the difference between the two versions is not material in determining whether CIP listing is a disqualifier. Please see Attachment 4 for a copy of the two sections. Paragraph A is the portion referenced by the Appellant. There are other qualifying criteria established in subsequent paragraphs. 3. Staff agrees with the importance of the concept of proportionality. However, the impact fee program is a legislative enactment, not a condition of approval or other project specific action. As such, there is greater latitude provided for how the City establishes its program. As noted in the denial letter, see Appellant Exhibit F, the requirements of state law have been considered for proportionality. There is also specific authority for the City to establish procedures and standards for awards of credit. These are enacted through Section 3.24.100 of the municipal code. Further, an impact fee is defined in Section 7-6-1601, MCA as: “(5) (a) "Impact fee" means any charge imposed upon development by a governmental entity as part of the development approval process to fund the additional service capacity required by MDG Impact Fee Appeal Page 126 311 Page 3 the development from which it is collected. An impact fee may include a fee for the administration of the impact fee not to exceed 5% of the total impact fee collected. (b) The term does not include: (i) a charge or fee to pay for administration, plan review, or inspection costs associated with a permit required for development; (ii) a connection charge; (iii) any other fee authorized by law, including but not limited to user fees, special improvement district assessments, fees authorized under Title 7 for county, municipal, and consolidated government sewer and water districts and systems, and costs of ongoing maintenance; or (iv) onsite or offsite improvements necessary for new development to meet the safety, level of service, and other minimum development standards that have been adopted by the governmental entity.” (underline added) Consistent with the state authorizing language the City excludes things which meet 5 b iv from consideration as a credit. These are defined as project related improvements in Section 3.24.040, BMC. 4. The capital improvements program (CIP) is an essential component of an impact fee program. It provides for transparency of fund allocation and use, reasonable balancing of incomes and expenditures for the program to ensure financial accountability, and it provides a means for the public (including developers) to propose and comment on projects for impact fee funding. Since not all the money in an impact fee program is received at once it is necessary to have a means to rationally use the funds. The City updates its CIP annually through a public process with multiple opportunities for public participation. The City has amended its CIP on more than one occasion to support a specific project in response to changing development needs and the request by a developer. There must, by state law, be a part of the City’s budget which allocates funds to capacity expanding projects. The City uses the CIP for this purpose. As the City Commission is the only entity authorized to commit funds, the CIP is adopted by the City Commission and may only be amended by them. The statute requirement is: “7-6-1602 (2) (k) have a component of the budget of the governmental entity that: (i) schedules construction of public facility capital improvements to serve projected growth; (ii) projects costs of the capital improvements; (iii) allocates collected impact fees for construction of the capital improvements; and (iv) covers at least a 5-year period and is reviewed and updated at least every 2 years.” The CIP is a document with a purpose and character distinct from other City documents, not merely a summation. It is reviewed and adopted by the Commission as a specific action. Most of the projects listed originate within long range facility planning studies. Listing within the CIP is a deliberate action. The CIP brings together and harmonizes multiple funding sources and is not limited solely to use of impact fees. 5. Project related improvements are defined in Section 3.24.040.M, see Attachment 4, section 2. A project related improvement is not limited to the surveyed boundaries of a subdivision. Work adjacent to, leading to, or otherwise outside the surveyed boundaries may also meet the definition of project related improvement. As noted in item 3 above, the statutory definition of an impact fee specifically allows for the offsite improvements to be excluded from consideration as an impact fee under certain conditions. Improvements necessary for a development to meet minimum level of service standards are excluded from considerations. MDG Impact Fee Appeal Page 127 312 Page 4 6. The memorandum of understanding states beginning at the end of page 2 that the City will “... cooperate with and reasonably assist the Developer in obtaining contributions or reimbursements from such benefited property owners for costs incurred by the Developer...” The MOU does not say that the City will waive or ignore legal or procedural requirements nor that the City would have primary responsibility. Condition 1 of the Findings of Fact for the Bozeman Gateway subdivision restates this position when the City Commission adopted a requirement which reads: “1. The applicant must comply with all provisions of the Bozeman Municipal Code, which are applicable to this project. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or state law.” The City made its regulations, including the impact fee requirements and standards for impact fee credits, available through multiple venues. 7. Failing to qualify for impact fee credits does not exclude possibilities for other options for reimbursement. 8. The restriction on review of a subdivision under the regulations in place is contained in the Subdivision and Platting Act. It has limited, if any, applicability to regulations other than the subdivision regulations. Responses to specific credit request comments. The basis of the appeal is the denial letter attached as Appellant Exhibit F. Following are some additional comments specific to issues raised in the appeal. 1. Fowler/Main Signal The City has consistently found signalization of intersections of arterial streets to be 100% impact fee eligible. This is due to the fact that arterial intersections serve large areas and a single project will seldom generate more than a few percentage points of the total users of the intersection. No funds have been spent on items not on the CIP, although as noted above, the CIP has been amended at developer request with City Commission consent. Had the project been listed on the CIP as a funded project the City would have covered the costs of the signal installation. As noted under item 4 above the City considers the CIP not only practical but a necessary part of a lawful impact fee program. The City uses its CIP to satisfy portions of the documentation requirements of 7-6-1602, MCA. The flaw for the Fowler traffic signal is one of procedure, not character. 2. Fowler Trunk Sewer Although a basic sewer line is necessary and therefore a project related improvement, the size of the ultimately installed pipe is more than incidentally larger than what the Bozeman Gateway project would require. The flaw for the Fowler trunk sewer is one of procedure, not character. 3. Fowler Avenue As shown on Appellant’s Exhibit A, Fowler Avenue passes entirely through the Bozeman Gateway development. The street is therefore internal to the development and meets that part of the project related test. The street section includes acceleration and deceleration lanes. Fowler Avenue provides the only street access to the portion of the development located to the west of Fowler Avenue. Reference to the growth policy is not the same as listing on the CIP. MDG Impact Fee Appeal Page 128 313 Page 5 As the City relies on a primarily gridded street system. Therefore, few streets are limited to connection only within a development. The impact fee study for transportation specifically excludes from calculation for costs the first two lanes of any street. Since these lanes are not included in the fees charged they are likewise excluded from consideration for credits. 4. Benefit to others is not necessarily equivalent to expanding capacity in the City’s major street network. Section 3.24.050.E requires that impact fee funds be used only expand capacity. This is consistent with the statutory definition of ‘capital improvement.’ Appellant’s Exhibit A shows the intersections of Huffine Lane/Main Street and College and Huffine Lane and Harmon Stream Boulevard. The intersection of Huffine and Harmon Stream was created by the addition of Harmon Stream which proceeds through the middle of the development. The required improvements were solely related to the creation of a new street to provide access to the Bozeman Gateway development. The changes at Huffine Lane and Harmon Stream Blvd do not add capacity to the major street network. Unless capacity is increased the use of impact fee funds is not allowed. Similarly, the changes at Garfield and S. 19th do not add capacity. The improvement may be useful in ensuring that minimum level of service standards are met. Classification for Garfield Street was as a local street at the time of the improvements. Local streets are excluded from impact fee funding. 5. Benefit to others is not necessarily equivalent to expanding capacity in the City’s major street network. Section 3.24.050.E requires that impact fee funds be used only expand capacity. Local streets are not eligible for impact fee funding. Appellant’s Exhibit A shows the location of Garfield Street which connects the Bozeman Gateway development to the major street network. Garfield Street is constructed as a two lane configuration. Unless capacity is increased in qualifying streets the use of impact fee funds is not allowed. Classification for Garfield Street was as a local street at the time of the improvements. Local streets are excluded from impact fee funding. The City’s transportation system for which impact fees are collected and expended is defined in Section 3.24.040.N as: “ ‘Transportation system’ means capacity-adding improvements to collectors or arterial roads of three lanes or more, which are included on the 2001 Greater Bozeman Transportation Plan Update or the City’s impact fee capital improvement program, and which will benefit new development as required by law and this chapter. The transportation system includes only those bicycle and pedestrian facilities built in conjunction with and included in a capacity-adding transportation facility improvement otherwise eligible for impact fee funding pursuant to the terms of this chapter. The “transportation system” does not include project-related improvements.” 6. The MSU Foundation annexation included the dedication of street easements for Fowler Avenue and Garfield Street through the entire length of what became the Bozeman Gateway development. See Attachment 5 for map of the annexation. The alignment for Fowler Avenue did relocate to the east as generally depicted on the Appellant’s Exhibit A. The developer thereby avoided the expenses and regulatory delays of piping the watercourse which lay within the original easement. The development was able to use the watercourse area as open space to meet performance requirements for the planned unit development. The change was therefore a relocation of open space within the project. MDG Impact Fee Appeal Page 129 314 Page 6 The Appellant did make application for an impact fee credit for Fowler Avenue prior to the recording of the final plat, nor was Fowler Avenue on the CIP. See Attachment 6. The land dedication was part and parcel of the overall dedication of Fowler Avenue improvements, not a free standing dedication of land. There are timing requirements applicable to the construction beyond that of simply filing the paperwork. As shown in the two sections of ordinance below the test is two-fold; First, filing prior to initiation of construction of improvements and Second, filing before acceptance of the dedication. In this case the second portion was met but not the first and therefore the credit application was not timely. Section 3.24.100.B. “In order to obtain a credit against development impact fees otherwise due, an applicant must submit a written offer to dedicate to the City specific parcels of qualifying land or easements, or to acquire or construct specific improvements to the major street system or the City fire protection, water, or wastewater systems in accordance with all applicable State or City design and construction standards, and must specifically request a credit against such development impact fees. Such written request must be made on a form provided by the City, must contain a statement under oath of the facts that qualify the applicant to receive a credit, must be accompanied by documents evidencing those facts, and must be filed not later than the initiation of construction of improvements or the acceptance by the City of land dedications, or the applicant's claim for the credit shall be waived. The granting of credit shall be approved by the City Commission.” (emphasis added) 3.24.040.L "Initiation of construction" means the date of the preconstruction meeting with the City Engineer or his/her designee, or the date of the first visible change in the physical condition of the improved site caused by the first person furnishing services or materials to effect construction of the improvement, whichever occurs first. MDG Impact Fee Appeal Page 130 315 MDG Impact Fee Appeal Page 131 316 MDG Impact Fee Appeal Page 132 317 MDG Impact Fee Appeal Page 133 318 MDG Impact Fee Appeal Page 134 319 MDG Impact Fee Appeal Page 135 320 MDG Impact Fee Appeal Page 136 321 MDG Impact Fee Appeal Page 137 322 planning • zoning • subdivision review • annexation • historic preservation • housing • grant administration • neighborhood DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPME Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net Bozeman Montana 59771-1230 October 9, 2006. Review notes regarding a letter from Mitchell Development seeking impact fee credits. Requested Item Name Project Related Capacity Expanding CIP Listed CIP Funded Timely Request Credit Qualifying Land for Garfield St Yes No No No No No Land for Fowler Ave Yes Yes No No No No Garfield Construction Yes No No No No No Fowler Construction Yes Yes No No No No College/Main reconstruction Yes? Yes? No No No No Fowler/Main Signal Yes Yes No No No No Fowler Trunk Sewer Partially Yes No No No No Definitions 3.24.040, BMC – Impact Fee Capital Improvement Program, Improvement, Initiation of Construction, Project Related Improvement 7-6-1601, MCA – Impact Fee (excludes requirements needed to meet standards, on or off-site[5iv]) Review Criteria – Must meet all criteria to be eligible for credit consideration. 7-6-1603 (4), MCA – Credits permitted if (a) – Documented need (b) – Property is appropriate (c) – Procedures established to determine worth (Bozeman established in 3.24.100, BMC) (d) – Procedures established to establish credits (Bozeman established in 3.24.100, BMC) City carries out 7-6-1603(4) through Section 3.24.100.A, BMC – Credits allowed to be considered if: (1) Project is listed on the impact fee CIP (2) Project is not a project related improvement as defined in 3.24.040.K, BMC (3) Voluntary and accepted by City of Bozeman (Not Applicable in this case) (4) Approved in writing by City in timely manner 3.24.040.H, BMC – Improvements must expand capacity 3.24.100.B, BMC Request on City form, with adequate documentation, timely submittal before initiation of construction MDG Impact Fee Appeal Page 139 324 Conditions of Approval Page 2 MDG Impact Fee Appeal Page 140 325 MDG Impact Fee Appeal Page 141 326 MDG Impact Fee Appeal Page 142 327 Section 1 – Ordinance wording in effect in 2001. 3.24.100 Credits Against Development Impact Fees A. After the effective date of this chapter, all mandatory or voluntary land or easement dedications for street, fire protection, water, or wastewater improvements, and all mandatory or voluntary acquisition or construction of improvements to the major street system or the city fire protection, water, or wastewater systems by an applicant in connection with a proposed development shall result in a pro rata credit against the development impact fee for the same type of service or facility otherwise due for such development, except that no such credit shall be awarded for: 1. Projects or land dedications not listed on the impact fee capital improvements program; or 2. Land dedications for, or acquisition or construction of, project-related improvements as defined in Section 3.24.040(G) or Section 3.24.040; or 3. Any voluntary land or easement dedications not accepted by the City; or 4. Any voluntary acquisition or construction of improvements not approved in writing by the City prior to commencement of the acquisition or construction. B. In order to obtain a credit against development impact fees otherwise due, an applicant must submit a written offer to dedicate to the City specific parcels of qualifying land or easements, or to acquire or construct specific improvements to the major street system or the City fire protection, water, or wastewater systems in accordance with all applicable State or City design and construction standards, and must specifically request a credit against such development impact fees. Such written request must be made on a form provided by the City, must contain a statement under oath of the facts that qualify the applicant to receive a credit, must be accompanied by documents evidencing those facts, and must be filed not later than the initiation of construction of improvements or the acceptance by the City of land dedications, or the applicant's claim for the credit shall be waived. The granting of credit shall be approved by the City Commission. C. The credit due to an applicant shall be calculated and documented as follows: 1. Credit for qualifying land or easement dedications shall, at the applicant's option, be valued at: a. One hundred percent of the most recent assessed value for such land as shown in the records of the City Assessor; or b. That fair market value established by a private appraiser acceptable to the City in an appraisal paid for by the applicant. 2. In order to receive credit for qualifying acquisition or construction of street, fire protection, water, or wastewater improvements, the applicant shall submit complete engineering drawings, specifications, and construction cost estimates to the City. The City shall determine the amount of credit due based on the information submitted, or, if it MDG Impact Fee Appeal Page 143 328 determines that such information is inaccurate or unreliable, then on alternative engineering or construction costs acceptable to the City. D. Approved credits shall become effective at the following times: 1. Approved credit for land or easement dedications shall become effective when the land has been conveyed to the City in a form acceptable to the City, and at no cost to the City, and has been accepted by the City Commission. When such conditions have been met, the City shall note that fact in the credit record maintained by the City Finance Department. Upon request of the credit holder, the City shall send the credit holder a letter stating the credit balance available to him (or her). 2. Approved credits for the acquisition or construction of street, fire protection, water, or wastewater improvements shall generally become effective when: a. All required construction has been completed and has been accepted by the City; and b. A suitable maintenance and warranty bond has been received and approved by the City; and c. All design, construction, inspection, testing, bonding, and acceptance procedures have been completed in compliance with all applicable City and State procedures. However, approved credits for the construction of improvements may become effective at an earlier date if the applicant posts security in the form of a performance bond, irrevocable letter of credit, or escrow agreement, and the amount and terms of such security are accepted by the City. At a minimum, such security must be in the amount of the approved credit or an amount determined to be adequate to allow the City to construct the improvements for which the credit was given, whichever is higher. When such conditions have been met, the City shall note that fact in the credit record maintained by the City Finance Department. Upon request of the credit holder, the City shall also send the credit holder a letter stating the credit balance available to him (or her). E. Approved credits may be used to reduce the amount of development impact fees due from any proposed development for the same type of service or facility for which the applicant dedicated land or acquired or constructed improvements until the amount of the credit is exhausted. Each time a request to use credit from a mandatory or voluntary dedication, acquisition, or construction is presented to the City, the City shall reduce the amount of the development impact fee of the same type otherwise due from the applicant and shall note in the city records the amount of credit remaining, if any. In the case of a mandatory dedication, acquisition, or construction, any credit in excess of the amount of the development impact fee otherwise due under this chapter shall be deemed excess credit that is remaining and available for use by the applicant. In the case of a voluntary dedication, acquisition, or construction, any credit in excess of the amount of the development MDG Impact Fee Appeal Page 144 329 impact fee of the same type and applicable to the project, as shown in Tables 3.24.050, 3.24.060, 3.24.070, or 3.24.080, shall be deemed excess credit that is remaining and available for use by the applicant. Upon request of the credit holder, the City shall also send the credit holder a letter stating the amount of credit remaining to him (or her). F. Approved credit shall only be used to reduce the amount of development impact fees of the same type otherwise due under this chapter and shall not be paid to the applicant in cash or in credit against any development impact fees for a different type of facility or service or against any other monies due from the applicant to the City, except as described in Subsection G of this section. G. If the amount of approved credit for a mandatory dedication, acquisition, or construction exceeds the amount of the development impact fees of the same type otherwise due under this chapter, the applicant may request in writing that the City provide for reimbursement of any excess credit to the applicant in cash. Such written request must be filed not later than the initiation of construction of improvements, or the acceptance by the City of land dedications, or the applicant's claim shall be waived. Upon receipt of such a written request, the City may, at its discretion: 1. Arrange for the reimbursement of such excess credit from the impact fee fund for the same type of service or facility from development impact fees paid by others; 2 . Arrange for the reimbursement of such excess credit through the issuance of a promissory note payable in not more than ten years and bearing interest equal to the interest rate paid by the City for its long-term debt; or 3. Reject the request for cash and provide credit. Such excess credit shall be valued at one hundred percent of actual developer costs for the excess improvements, or at the actual appraised value of such excess improvements, at the City's option. H. Credit may be transferred from one holder to another by any written instrument clearly identifying the credit issued under Subsection C of this section that is to be transferred, provided that such instrument is signed by both the transferror and transferee, and that the document is delivered to the City for registration of the change in ownership. I. In the event that land is annexed into the city from Gallatin County after the effective date of this chapter, and that road or fire impact fees have been previously paid to the County at the time of subdivision or minor subdivision of such land, an applicant proposing a development on the land may request in writing a credit against the street impact fee equal to the amount of any road impact fee paid to the County for the same land and may also request a credit against the fire protection impact fee equal to the amount of any fire protection impact fee paid to the County for the same land. Such written request must be filed not later than the time when an applicant applies for the first permit of a type listed in Sections 3.24.050(A)(1) or 3.24.060(A)(1) that creates an obligation to pay the type of development impact MDG Impact Fee Appeal Page 145 330 fee against which the credit is requested, or the applicant's claim shall be waived. (Ord. 1471 § 8, 1998; Ord. 1418 § 8, 1996; Ord. 1414 § 1 (part), 1996) Section 2 – Ordinance wording in effect currently 3.24.100 Credits Against Development Impact Fees A. After the effective date of this chapter, mandatory or voluntary land or easement dedications for transportation, fire protection, water, or wastewater improvements, and mandatory or voluntary acquisition or construction of capital improvements to the transportation system or the city fire protection, water, or wastewater systems by an applicant in connection with a proposed development may result in a pro rata credit against the development impact fee for the same type of service or facility otherwise due for such development, except that no such credit shall be awarded for:1. Projects or land dedications not listed on the impact fee capital improvements program; or 2. Land dedications for, or acquisition or construction of, project-related improvements as defined in Section 3.24.040(G) or Section 3.24.040; or 3. Any voluntary land or easement dedications not accepted by the City; or 4. Any voluntary acquisition or construction of improvements not approved in writing by the City prior to commencement of the acquisition or construction. B. In order to obtain a credit against development impact fees otherwise due, an applicant must submit a written offer to dedicate to the City specific parcels of qualifying land or easements, or to acquire or construct specific improvements to the transportation system or the City fire protection, water, or wastewater systems in accordance with all applicable State or City design and construction standards, and must specifically request a credit against such development impact fees. Such written request must be made on a form provided by the City, must contain a statement under oath of the facts that qualify the applicant to receive a credit, must be accompanied by documents evidencing those facts, and must be approved not later than the initiation of construction of improvements or the acceptance by the City of land dedications, or the applicant's claim for the credit shall be waived. The granting of credit shall be approved by the City Commission. The City shall approve a credit only after showing that the need for the dedication or construction is clearly documented pursuant to section 7-6-1602 of the Montana Code Annotated, and that any land dedication proposed for credit is determined to be appropriate for the proposed use. 1. Upon receipt of a complete application for impact fee credit the Impact Fee Coordinator shall coordinate review of the application for compliance with the requirements of this chapter and other relevant requirements. Upon completion of the review the Impact Fee Coordinator shall either: forward the application to the City Manager, or when required to the City Commission, for approval or; if the application is insufficient or otherwise does not conform to the City’s requirements shall communicate in writing to the applicant the reason the credit request failed. If the application satisfies the requirements and is MDG Impact Fee Appeal Page 146 331 approved the credit may be provided in any of the allowed forms as described in Subsection G. a. Factors for Consideration (1) When credit is sought for an improvement listed in the second through fifth years of the CIP after the current fiscal year there shall be a rebuttable presumption that any credit shall be awarded as a credit balance and not as cash. (2) The final decision to approve a credit request in excess of $1,000,000 from a single impact fee fund shall be made by the City Commission. (3) In the event that the City Manager believes that a credit request may result in a significant effect on policy decisions the credit request may be referred to the City Commission for final action regardless of the dollar amount. (4) In the event that the City considers that award of a credit may negatively impact its ability to construct improvements listed sooner in time on the CIP they may decline to award a credit at that time without removing the item from the CIP. 2. Appeals relating to staff decisions on credit requests may be appealed to the City Commission per Subsection 3.24.110.I C. The credit due to an applicant shall be calculated and documented as follows: 1. Credit for qualifying land or easement dedications shall, at the applicant's option, be valued at: a. One hundred percent of the most recent assessed value for such land as shown in the records of the City Assessor; or b. That fair market value established by a private appraiser acceptable to the City in an appraisal paid for by the applicant. 2. In order to receive credit for qualifying acquisition or construction of transportation, fire protection, water, or wastewater improvements, the applicant shall submit complete engineering drawings, specifications, and construction cost estimates to the City. The City shall determine the amount of credit due based on the information submitted, or, if it determines that such information is inaccurate or unreliable, then on alternative engineering or construction costs acceptable to the City. D. Approved credits shall become effective at the following times: 1. Approved credit for land or easement dedications shall become effective when the land has been conveyed to the City in a form acceptable to the City, and at no cost to the City, and has been accepted by the City Commission. When such conditions have been met, the City shall note that fact in the credit record maintained by the City Finance Department. Upon request of the credit holder, the City shall send the credit holder a letter stating the credit balance available to him (or her). MDG Impact Fee Appeal Page 147 332 2. Approved credits for the acquisition or construction of transportation, fire protection, water, or wastewater improvements shall generally become effective when: a. All required construction has been completed and has been accepted by the City; and b. A suitable maintenance and warranty bond has been received and approved by the City; and c. All design, construction, inspection, testing, bonding, and acceptance procedures have been completed in compliance with all applicable City and State procedures. However, approved credits for the construction of improvements may become effective at an earlier date if the applicant posts security in the form of a performance bond, irrevocable letter of credit, or escrow agreement, and the amount and terms of such security are accepted by the City. At a minimum, such security must be in the amount of the approved credit or an amount determined to be adequate to allow the City to construct the improvements for which the credit was given, whichever is higher. When such conditions have been met, the City shall note that fact in the credit record maintained by the City Finance Department. Upon request of the credit holder, the City shall also send the credit holder a letter stating the credit balance available to him (or her). E. Approved credits may be used to reduce the amount of development impact fees due from any proposed development for the same type of service or facility for which the applicant dedicated land or acquired or constructed improvements until the amount of the credit is exhausted. Each time a request to use credit from a mandatory or voluntary dedication, acquisition, or construction is presented to the City, the City shall reduce the amount of the development impact fee of the same type otherwise due from the applicant and shall note in the city records the amount of credit remaining, if any. In the case of a mandatory dedication, acquisition, or construction, any credit in excess of the amount of the development impact fee otherwise due under this chapter shall be deemed excess credit that is remaining and available for use by the applicant. In the case of a voluntary dedication, acquisition, or construction, any credit in excess of the amount of the development impact fee of the same type and applicable to the project, as shown in Tables 3.24.050, 3.24.060, 3.24.070, or 3.24.080, shall be deemed excess credit that is remaining and available for use by the applicant. Upon request of the credit holder, the City shall also send the credit holder a letter stating the amount of credit remaining to him (or her). F. Approved credit shall only be used to reduce the amount of development impact fees of the same type otherwise due under this chapter and shall not be paid to the applicant in cash or in credit against any development impact fees for a different type of facility or service or against any other monies due from the applicant to the City, except as described in Subsection G of this section. G. If the amount of approved credit for a mandatory dedication, acquisition, or construction exceeds the amount of the development impact fees of the same type MDG Impact Fee Appeal Page 148 333 Page 7 of 7 Attachment 4 otherwise due under this chapter, the applicant may request in writing that the City provide for reimbursement of any excess credit to the applicant in cash. Such written request must be approved not later than the initiation of construction of improvements, or the acceptance by the City of land dedications, or the applicant's claim shall be waived. Upon receipt of such a written request, the City may, at its discretion: 1. Arrange for the reimbursement of such excess credit from the impact fee fund for the same type of service or facility from development impact fees paid by others; 2 . Arrange for the reimbursement of such excess credit through the issuance of a promissory note payable in not more than ten years and bearing interest equal to the interest rate paid by the City for its long-term debt; or 3. Reject the request for cash and provide credit. Such excess credit shall be valued at one hundred percent of actual developer costs for the excess improvements, or at the actual appraised value of such excess improvements, at the City's option. H. Credit may be transferred from one holder to another by any written instrument clearly identifying the credit issued under Subsection C of this section that is to be transferred, provided that such instrument is signed by both the transferror and transferee, and that the document is delivered to the City for registration of the change in ownership. I. In the event that land is annexed into the city from Gallatin County after the effective date of this chapter, and that road or fire impact fees have been previously paid to the County, an applicant proposing a development on the land may request in writing a credit against the transportation impact fee equal to the amount of any road impact fee paid to the County for the same land and may also request a credit against the fire protection impact fee equal to the amount of any fire protection impact fee paid to the County for the same land. Such written request must be filed not later than the time when an applicant applies for the first permit of a type listed in Sections 3.24.050(A)(1) or 3.24.060(A)(1) that creates an obligation to pay the type of development impact fee against which the credit is requested, or the applicant's claim shall be waived. MDG Impact Fee Appeal Page 149 334 MDG Impact Fee Appeal Page 150 335 MDG Impact Fee Appeal Page 151336 MDG Impact Fee Appeal Page 152337 MDG Impact Fee Appeal Page 153338 MDG Impact Fee Appeal Page 154339 MDG Impact Fee Appeal Page 155340 MDG Impact Fee Appeal Page 156341 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 1 Chapter 3.24 IMPACT FEES Sections: 3.24.010 Legislative Findings 3.24.020 Authority and Applicability 3.24.030 Intent 3.24.040 Definitions 3.24.050 Transportation Impact Fees 3.24.060 Fire Protection Impact Fees 3.24.070 Water Impact Fees 3.24.080 Wastewater Impact Fees 3.24.090 Refunds of Development Impact Fees Paid 3.24.100 Credits Against Development Impact Fees 3.24.110 Miscellaneous Provisions 3.24.010 Legislative Findings The City Commission of the City of Bozeman, Montana finds that: A. The protection of the health, safety, and general welfare of the citizens of the city requires that the street, fire protection, water, and wastewater systems of the city be expanded and improved to accommodate continuing growth within the city and within those areas directly served by its Fire Department and within those areas connected to its water and wastewater systems. B. New residential and nonresidential development imposes increased and excessive demands upon existing city facilities. C. New development often overburdens existing public facilities, and the tax revenues generated from new development often do not generate sufficient funds to provide public facilities to serve the new development. D. New development is expected to continue and will place ever-increasing demands on the city to provide public facilities to serve new development. E. The creation of an equitable development impact fee system would enable the City to impose a proportionate share of the costs of required improvements to the city's transportation, fire protection, water, and wastewater systems on those developments that create the need for them. F. All types of development that are not explicitly exempted from the provisions of this chapter will generate demand for city's transportation, fire protection, water, and wastewater services or facilities that will require improvements to city facilities and equipment. G. The city's transportation impact fee study, dated October 31, 2007, prepared by Tindale-Oliver & Associates and as updated, and the fire/EMS impact fee study dated July 2008 and as updated, prepared by HDR Engineering, and water and wastewater impact fee studies dated July 2007, prepared by HDR Engineering, set forth reasonable methodologies and analyses for determining the impacts of various types of MDG Impact Fee Appeal Page 157 342 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 2 development on the city's street, fire protection, water and wastewater systems and for determining the cost of acquiring land and the cost of acquiring or constructing facilities and equipment necessary to meet the demands for such services created by new development. H. The City establishes as city standards the assumptions and service standards referenced in the impact fee studies and other duly adopted documents as part of its current plans for the transportation system and for the city's fire protection, water, and wastewater systems. I. The documentation required by 7-6-1602, MCA is collectively contained in the City’s facility plans, impact fee studies, development regulations, financial records, capital improvements program, design and specification manual, and other city documents J. The development impact fees described in this chapter are reasonably related to the service demands and needs of new development and are based on the above-cited impact fee studies and documentation and do not exceed the costs of acquiring additional land and the costs of acquiring or constructing additional facilities or equipment required to serve the new developments that will pay the fees. K. All transportation improvements upon which the transportation impact fees are based and upon which transportation impact fee revenues will be spent, based on the limitations set forth in this chapter will benefit all new development in the city; and it is, therefore, appropriate to treat the entire city as a single service area for purposes of calculating, collecting, and spending the transportation impact fees, while recognizing differences in the demand for service based upon the identified factors set forth in the transportation impact fee study. L. All of the fire protection improvements listed in the fire impact fee study will benefit all new development that receives fire protection service directly from the City Fire Department; and it is, therefore, appropriate to treat the entire city and all properties served directly by the City Fire Department as a single service area for purposes of calculating, collecting, and spending the fire protection impact fees. M. All of the water system improvements listed in the water impact fee study will benefit all new development that connects to the city water system; and it is, therefore, appropriate to treat the entire city and all properties connected to the city water system as a single service area for purposes of calculating, collecting, and spending the water impact fees. N. All of the wastewater system improvements listed in the wastewater impact fee study will benefit all new development that connects to the city wastewater system; and it is, therefore, appropriate to treat the entire city and all properties connected to the city wastewater system as a single service area for purposes of calculating, collecting, and spending the wastewater impact fees. O. There is both a rational nexus and a rough proportionality between the development impacts created by each type of development covered by this chapter and the development impact fees that such development will be required to pay. P. The City’s facility planning, capital improvement program, development review, and bidding processes create a public process by which, on a specific and detailed basis, the capacity expanding components of construction can be identified and funded MDG Impact Fee Appeal Page 158 343 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 3 distinctly from those components which are not capacity expanding by providing for evaluation by the City and the Impact Fee Advisory Committee of future needs related to growth, identification of applicable funding sources, and monitoring of construction and payments. Q. This chapter creates a system by which development impact fees paid by new developments will be used to expand or improve the city transportation, fire protection, water, and wastewater systems in ways that benefit the development that paid each fee within a reasonable period of time after the fee is paid. R. This chapter creates a system under which development impact fees shall not be used to cure existing deficiencies in public facilities or to pay maintenance or operations costs associated with providing public facilities. 3.24.020 Authority and Applicability A. This chapter is enacted pursuant to the city's self-government powers, the authority granted to the City by the Montana State Constitution, Sections 7-6-1601 through 7-6- 1604, and Sections 7-1- 4123, 7-1-4124, 7-3-4313, 7-7-4404, 7-7-4424, 7-13-4304, and 69-7-101 of the Montana Code Annotated. B. The provisions of this chapter shall apply to all of the territory within the limits of the city. C. The provisions of this chapter related to the fire protection impact fees shall also apply to all properties located outside the city that are served directly by the City Fire Department. D. The provisions of this chapter related to water impact fees shall also apply to all properties located outside the city that are connected to the city water system. E. The provisions of this chapter related to wastewater impact fees shall also apply to all properties located outside the city that are connected to the city wastewater system. 3.24.030 Intent A. This chapter is adopted to help implement the comprehensive plan of the city, the city's 2001 transportation plan update prepared by Robert Peccia & Associates, and as updated, the September 2006 draft of the water facility plan prepared for the City by Allied Engineering and Robert Peccia and Associates, and as updated, and the May 2006 draft of the wastewater facility plan prepared for the City by HDR Engineering and Morrison-Maierlie, Inc., and as updated, the August 2006 draft of the Fire Protection Master Plan prepared for the City by Emergency Services Consulting, Inc, and as updated. B. The intent of this chapter is to ensure that new development bears a proportionate share of the cost of improvements to the city transportation, fire protection, water, and wastewater systems; to ensure that such proportionate share does not exceed the cost of the transportation, fire protection, water, and wastewater facilities and equipment required to serve such new developments; and to ensure that funds collected from new developments are actually used to construct improvements to the city transportation, fire protection, water, and wastewater systems that reasonably relate to the benefits accruing to such new developments. MDG Impact Fee Appeal Page 159 344 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 4 C. It is the further intent of this chapter that new development pay for its proportionate share of public facilities through the imposition of development impact fees that will be used to finance, defray, or reimburse all or a portion of the costs incurred by the City to construct improvements to the city transportation, fire protection, water, and wastewater systems that serve or benefit such new development. D. It is not the intent of this chapter to collect any money from any new development in excess of the actual amount necessary to offset new demands for transportation, fire protection, water, or wastewater improvements generated by that new development. E. It is not the intent of this chapter that any monies collected from any development impact fee and deposited in an impact fee fund ever be co-mingled with monies from a different impact fee fund or ever be used for a type of facility or equipment different from that for which the fee was paid. 3.24.040 Definitions A. “Central Business District” (CBD) means land uses established within the B-3, “Central Business District,” zoning district. B. "Development" means any construction or expansion of a building, structure, or use, any change in use of a building or structure, or any change in the use of land, which creates additional demand for public services. C. "Development impact fees" means the transportation impact fee, fire protection impact fee, water impact fee, and wastewater impact fee established by this chapter. D. "Development Impact Fees Review Committee" means the committee composed of the Impact Fee Coordinator, the Building Official, the Director of Public Service, the Fire Chief, and the Director of Planning and Community Development, or their designees appointed to serve in the member's place at a meeting. E. "Encumber" means to legally obligate by contract, or otherwise commit to use by appropriation or other official act of the City. F. "Impact Fee Capital Improvement Program" means the capital improvements program for the transportation system, the city fire protection system, and the city water and wastewater systems, which shall assign monies from each impact fee fund to specific projects and related expenses for improvements to the type of facilities or services for which the fees in that fund were paid, and shall not include improvements needed to correct existing deficiencies or operations or maintenance costs. G. “Impact Fee Coordinator” means the Director of the City’s Department of Planning and Community Development or the Director’s designee. H. "Impact fee funds" means the transportation impact fee fund, fire protection impact fee fund, water impact fee fund, and wastewater impact fee fund established by this chapter. I. "Impact fee studies" means the transportation impact fee study, dated October 31, 2007, prepared by Tindale-Oliver & Associates and as updated, and the fire impact fee study, dated October 1995 and as updated, prepared by James Duncan and Associates, and the water and wastewater impact fee studies dated May 2007, prepared by HDR Engineering. MDG Impact Fee Appeal Page 160 345 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 5 J. "Improvement" means planning, land acquisition, engineering design, construction inspection, on-site construction, off-site construction, equipment purchases, and financing costs associated with new or expanded facilities, buildings, and equipment that expand the capacity of a facility or service system and that have an average useful life of at least ten years. “Improvement” does not include maintenance, operations, or improvements that do not expand capacity. K. "Independent fee calculation study" means a study prepared by an applicant for a building permit or water or wastewater connection permit calculating the cost of expansions or improvements to the city's transportation, fire protection, water, or wastewater systems required to serve the applicant's proposed development; that is performed on an average cost (not marginal cost) methodology; uses the service units and unit construction costs stated in the impact fee studies; and is performed in compliance with any criteria for such studies established by this chapter or by the City. L. "Initiation of construction" means the date of the preconstruction meeting with the City Engineer or his/her designee, or the date of the first visible change in the physical condition of the improved site caused by the first person furnishing services or materials to effect construction of the improvement, whichever occurs first. M. "Project-related improvements" means site-related improvements including, without limitation, all access streets adjacent to the proposed development or leading only to the proposed development and not included on the transportation system; all streets and driveways within the development; all acceleration, deceleration, right, or left turn lanes leading to any streets and driveways within the development; all traffic control devices for streets and driveways within the development; all water lines or facilities adjacent to, leading to, or located within the development and serving only the development; all wastewater lines or facilities adjacent to, leading to, or located within and serving only the development; and all off-site improvements necessary for the safety and code compliance of a development. Credit for incidental improvements shall not be allowed. The presumption shall be made that the minimum improvement needed to serve a project shall be deemed to be a project improvement even if additional capacity is thereby created that may be potentially used by other developments presently or in the future. N. “Transportation system” means capacity-adding improvements to collectors or arterial roads of three lanes or more, which are included on the 2001 Greater Bozeman Transportation Plan Update or the City’s impact fee capital improvement program, and which will benefit new development as required by law and this chapter. The transportation system includes only those bicycle and pedestrian facilities built in conjunction with and included in a capacity-adding transportation facility improvement otherwise eligible for impact fee funding pursuant to the terms of this chapter. The “transportation system” does not include project-related improvements. O. “Trip Exchange District” means a defined geographic area that meets the following criteria, pursuant to the transportation fee study and an independent fee calculation study as provided in section 3.24.050(B)(3), BMC: 1. The use of shared and consolidated parking; 2. A high degree of pedestrian and bicycle access to and throughout the proposed development; MDG Impact Fee Appeal Page 161 346 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 6 3. The availability of public transit; 4. Extensive trip capture within the proposed development where trips to the proposed development result in visits to multiple businesses in the area via a mode other than automobile; The following additional physical development characteristics are associated with trip exchange district land uses: 1. The majority of buildings associated with the proposed development are multi-story buildings, often more than two stories; 2. Diverse business proprietorships within the development; 3. Primary use at the ground floor is commercial; 4. The majority of individual businesses within the development are less than 20,000 square feet; 5. Structures within the development are in near to each other and the public street (with small or no setbacks); 6. Having a high percentage building coverage on the lot and typically in excess of 0.5; and 7. The physical characteristics are shared among the entire business area, not just one or a few of the businesses. 8. The area should be at least 50% developed as measured by lot area utilized. 9. The area is the subject of a city enforceable common plan of development, such as an urban renewal plan. 3.24.050 Transportation Impact Fees A. Imposition of Transportation Impact Fees 1. On or after March 23, 1996, any person who seeks to obtain any of the following forms of development approval is required to pay a transportation impact fee in the amount specified in Table 3.24.050: a. A building permit; b. Any other permit that will result in the construction of improvements that will generate additional traffic; or c. Any extension of any such permit that was issued before the effective date of this chapter;; or d. Any delayed payment of impact fees as specified and approved by the City Commission in accordance with the BMC Title 17, Chapter 2 for Workforce Housing Lots. 2. Notwithstanding the above subsection, no impact fee shall be imposed earlier than the issuance of a building permit for developments requiring a building permit. MDG Impact Fee Appeal Page 162 347 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 7 3. No permits of the types described in Subsection A(1) of this section shall be issued until the transportation impact fee described in this chapter has been paid, unless the development for which the permit is sought is exempted by Subsection F of this section. B. Computation of Amount of Transportation Impact Fee 1. An applicant required by this chapter to pay a transportation impact fee may choose to have the amount of such fee determined pursuant to either Subsection (B)(2) or (B)(3) of this section. The amount of the fee calculated pursuant to either Subsection (B)(2) or (B)(3) shall be subject to the following adjustment: a. For the first expansion of an existing nonresidential building, the amount calculated shall not include the amount calculated for the expansion of up to thirty percent as compared with its size on February 22, 1996, or two thousand square feet, whichever is less. b. The transportation impact fees adopted are those shown in Table 3.24.050, BMC and as updated as provided for in this Chapter. 1. Beginning on February 16, 2008 the amount of the fee collected shall be sixty percent (60%) of the amount calculated. 2. Unless an applicant requests that the City determine the amount of such fee pursuant to Subsection (B)(3) of this section, the City shall determine the amount of the required transportation impact fee by reference to Table 3.24.050. The fee amounts set forth in such table include credits for expected future receipts of state and federal highway funds and expected future receipts of gas tax revenues, and all other non-impact fee sources of funding anticipated to be made by or as a result of new development to be applied to the transportation improvements required to serve new development. a. If the applicant's development is of a type not listed in Table 3.24.050, then the City shall use the fee applicable to the most nearly comparable type or land use in the table. In making a decision about which use is most nearly comparable, the City shall be guided by the most recent edition of "Trip Generation: An Information Report" prepared by the Institute of Transportation Engineers; or if such publication is no longer available, then by a similar publication. If the City determines that there is no comparable type of land use listed in the table, then a new fee shall be determined by: 1. Finding the most nearly comparable trip generation rate from the above publication; and 2. Applying the formula set forth in Subsection (B)(3)(d) of this section. b. If the applicant's development includes a mix of those uses listed in Table 3.24.050, then the fee shall be determined by adding up the MDG Impact Fee Appeal Page 163 348 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 8 fees that would be payable for each use if it were a freestanding use pursuant to Table 3.24.050. c. If the applicant is applying for an extension of a permit issued previously, then the fee shall be the net increase between the fee applicable at the time of the current permit application and any transportation impact fee previously paid pursuant to this chapter for the same structure. In the event that the fee applicable at the time of the current permit application is lower than the transportation impact fee previously paid pursuant to this chapter for the same structure, there shall be no refund of transportation impact fees previously paid. d. If the applicant is applying for a permit to allow a change of use or the expansion, redevelopment, or modification of an existing development, the fee shall be based on the net positive increase in the fee for the new use as compared to the previous use. However, no new fee shall be imposed unless an additional unit of service demand is created, in accordance with Table 3.24.50. If necessary to determine such net increase, the City shall be guided by the most recent edition of "Trip Generation: An Information Report" prepared by the Institute of Transportation Engineers; or if such publication is no longer available, then by a similar publication. In the event that the proposed change of use, expansion, redevelopment, or modification results in a net decrease in the fee for the new use or development as compared to the previous use or development, there shall be no refund of transportation impact fees previously paid. 3. An applicant may request that the City determine the amount of the required transportation impact fee by reference to an independent fee calculation study for the applicant's development prepared by qualified professional traffic engineers and/or economists at the applicant's cost and submitted to the City Engineer. Any such study must show the traffic engineering and economic methodologies and assumptions used, including, but not limited to, those forms of documentation listed in Subsections (B)(3)(a) and (B)(3)(b) of this section and must be acceptable to the City pursuant to Subsection (B)(3)(c) of this section. a. Traffic engineering studies must include documentation of trip generation rates, trip lengths, any percentage of trips from the site that represent net additions to current trips from the site, the percentage of trips that are new trips as opposed to pass-by or divert-link trips, and any other trip data for the proposed land use. b. Economic studies must include documentation of any special factors that the applicant believes will reduce the traffic volumes otherwise attributable to the proposed land use. c. The City shall consider all such documentation and any independent fee calculation study submitted by the applicant, but shall not be MDG Impact Fee Appeal Page 164 349 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 9 required to accept any such study or documentation that the City deems to be inaccurate or unreliable and may request that the applicant submit additional or different documentation for consideration. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or accepted with modifications by the City as the basis for calculating transportation impact fees. d. Upon acceptance, or acceptance with modifications, of an independent fee calculation study and documentation, the City shall use the following formulas to determine the transportation impact fee: Net Impact Fee = Total Impact Cost – Gas Tax Credit – Ad Valorem Credit Where: Total Impact Cost = ((Trip Rate × Assessable Trip Length × % New Trips) / 2) × (1 -Interstate Adj. Factor) × (Cost per Lane Mile / Avg. Capacity Added per Lane Mile) Total Gas Tax Credit = Present Value (Annual Gas Tax Credit), given 4.6% interest rate & 25-year facility life Annual Gas Tax Credit = (((Trip Rate × Total Trip Length × % New Trips) / 2) × Effective Days per Year × $/Gallon to Capital) / Fuel Efficiency And where: Trip Rate = the average daily trip generation rate, in vehicle-trips/day Assessable Trip Length = the actual average trip length for the category, in vehicle miles Total Trip Length = the assessable trip length plus an adjustment factor of half a mile is added to the trip length to account for the fact that gas taxes are collected for travel on all roads including local roads % New Trips = adjustment factor to account for trips that are already on the roadway Divide by 2 = The total daily miles of travel generated by a particular category (i.e., rate X length X % new trips) is divided by two to prevent the double-counting of travel generated among land use codes since every trip has an origin and a destination. Interstate Adjustment Factor = adjustment factor to account for the travel demand occurring on interstate highways (15.0%) Cost per Lane Mile = unit cost to construct one lane mile of roadway, in $/lane mile($3,678,522 per study and will be subject to inflationary adjustments) Average Capacity Added per Lane Mile = represents the average daily traffic on one travel lane at capacity for one lane mile of roadway, in vehicles/lane-mile/day (8,658 per study) Cost per Vehicle Mile of Capacity = unit cost to construct to provide a vehicle mile of capacity ($472.92 per study) MDG Impact Fee Appeal Page 165 350 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 10 Present Value = calculation of the present value of a uniform series of cash flows, gas tax payments in this case, given an interest rate, “i,” and a number of periods, “n;” for 4.6% interest and a 25-year facility life, the uniform series present worth factor is 14.6768 Effective Days per Year = 365 days $/Gallon to Capital = the amount of gas tax revenue per gallon of fuel that is used for capital improvements, in $/gallon ($0.102) Fuel Efficiency = average fuel efficiency of vehicles, in vehicle- miles/gallon (17.70) C. Payment of Transportation Impact Fee 1. An applicant for any of the permits or extensions listed in Subsection (A)(1) of this section shall pay the transportation impact fee required by this chapter to the City prior to the issuance of any such permit. 2. All funds paid by an applicant pursuant to this chapter shall be identified as transportation impact fees and shall be promptly deposited in the transportation impact fee fund described in Subsection D of this section. D. Transportation Impact Fee Funds 1. A single transportation impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those transportation impact fees collected pursuant to this chapter and any interest which may accrue from time to time on such amounts. E. Use of Transportation Impact Fee Funds. The monies in the transportation impact fee fund shall be used only as follows: 1 To acquire land for and/or acquire or construct capacity-adding capital improvements to the transportation system reasonably related to the benefits accruing to new development subject to the terms of this chapter, in accordance with the requirements of Montana law; or 2 To pay debt service on such capital improvements to the transportation system; or 3 For purposes of refunds or credits, as described in Sections 3.24.090 or 3.24.100(G)); and 4. May not be used for a. operations or maintenance purposes; b to correct existing deficiencies; or c. for bicycle or pedestrian facilities not built in conjunction with and included in a capacity-adding transportation system facility, otherwise eligible for impact fee funding. F. Exemptions from Transportation Impact Fee MDG Impact Fee Appeal Page 166 351 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 11 1. The following types of development shall be exempted from payment of the transportation impact fee: a. Alterations, remodeling, rehabilitations, expansions of existing buildings, or other improvements to an existing structure where no additional vehicle trips will be produced over and above those produced by the existing use; b. Construction of accessory buildings or structures that will not produce additional vehicle trips over and above those produced by the primary building or land use; c. The replacement of a destroyed or partially destroyed building or structure with a new building or structure of the same size and use where no additional vehicle trips will be produced over and above those produced by the original building or structure; d. The installation or replacement of a mobile home on a lot or a mobile home site when a transportation impact fee for such lot or site has previously been paid pursuant to this chapter or where a mobile home legally existed on such site on or prior to the effective date of this chapter;e. Any other type of development for which the applicant can demonstrate that the proposed land use and development will produce no more vehicle trips from such site over and above the trips from such site prior to the proposed development, or for which the applicant can show that a transportation impact fee for such site has previously been paid in an amount that equals or exceeds the transportation impact fee that would be required by this chapter for such development. 2. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit or a type listed in Subsection (A)(1) of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 3. The City Manager or his designee shall determine the validity of any claim for exemption pursuant to the criteria set forth in Subsection (F)(1) of this section. TABLE 3.24.050 The following transportation impact fees apply to developments not located in the Central Business District or a designated Trip Exchange District. ITE LUC Land Use Unit Fee* RESIDENTIAL: 210 Single Family (Detached) Less than 1,500 sf and very low income(2) du $2,171 Less than 1,500 sf and low income (3) du $3,147 Less than 1,500 sf du $3,968 MDG Impact Fee Appeal Page 167 352 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 12 ITE LUC Land Use Unit Fee* 1,500 to 2,499 sf du $5,396 2,500 sf or larger du $6,082 220 Apartments du $3,339 230 Residential Condominium/ Townhouse du $2,946 240 Mobile Home Park du $1,593 LODGING: 310 Hotel room $3,063 320 Motel room $1,678 RECREATION: 430 Golf Course hole $12,295 411 City Park acre $546 444 Movie Theaters 1,000 sf $6,463 INSTITUTIONS: 610 Hospital 1,000 sf $6,023 620 Nursing Home bed $381 520 Elementary School student $315 530 High School student $477 540 University (7,500 or fewer students) (4) student $609 550 University (more than 7,500 students) (4) student $529 560 Church/ Synagogue 1,000 sf $2,428 565 Day Care 1,000 sf $7,433 OFFICE: 710 50,000 sf or less 1,000 sf $3,977 710 50,001-100,000 sf 1,000 sf $3,623 710 100,001-200,000 sf 1,000 sf $3,084 710 greater than 200,000 1,000 sf $2,460 720 Medical Office 1,000 sf $9,584 RETAIL: 820 under 50,000 sf 1,000 sf $9,378 820 50,000-99,000 sf 1,000 sf $9,587 820 100,000-199,000 sf 1,000 sf $9,331 820 200,000-299,000 sf 1,000 sf $8,567 820 greater than 300,000 sf 1,000 sf $8,144 812 Building Material/ Lumber 1,000 sf $21,209 813 Discount Super-Store 1,000 sf $26,996 817 Nursery/Garden Center 1,000 sf $18,903 851 Convenience Store 1,000 sf $44,607 931 Quality Restaurant 1,000 sf $22,036 934 Fast Food Rest w/ Drive-Thru 1,000 sf $61,225 841 New/Used Auto Sales 1,000 sf $12,033 890 Furniture Store 1,000 sf $1,684 912 Bank/ Savings Drive-in 1,000 sf $31,706 INDUSTRY: 110 General Light Industrial 1,000 sf $2,290 140 Manufacturing 1,000 sf $1,250 MDG Impact Fee Appeal Page 168 353 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 13 ITE LUC Land Use Unit Fee* 150 Warehouse 1,000 sf $1,627 151 Mini-Warehouse 1,000 sf $810 (1) Source: Transportation Impact Fee Study, Appendix F, Table F-1 (2) Defined as 50% of city median income based on 2007 Gallatin County Average Median Income (AMI) (3) Defined as 80% of city median income based on 2007 Gallatin County Average Median Income (AMI) (4) Impact fee to be assessed on structures with classroom facilities. All auxiliary structures such as administrative buildings and research centers are to be charged at the office land use rate. The following transportation impact fees apply to developments located in the Central Business District or within a designated Trip Exchange District. ITE LUC Land Use Unit Fee* RESIDENTIAL: 210 Single Family (Detached) Less than 1,500 sf and very low income(2) du $2,171 Less than 1,500 sf and low income(3) du $3,147 Less than 1,500 sf du $3,968 1,500 to 2,499 sf du $5,396 2,500 sf or larger du $6,082 220 Apartments du $3,339 230 Residential Condominium/ Townhouse du $2,946 240 Mobile Home Park du $1,593 LODGING: 310 Hotel room $2,835 320 Motel room $1,333 RECREATION: 430 Golf Course hole $4,333 411 City Park acre $182 444 Movie Theaters 1,000 sf $2,333 INSTITUTIONS: 610 Hospital 1,000 sf $6,023 620 Nursing Home bed $381 520 Elementary School student $315 530 High School student $477 540 University (7,500 or fewer students) (4) student $609 550 University (more than 7,500 students) (4) student $529 560 Church/Synagogue 1,000 sf $2,428 565 Day Care 1,000 sf $7,433 OFFICE: 710 50,000 sf or less 1,000 sf $3,187 710 50,001-100,000 sf 1,000 sf $2,911 710 100,001-200,000 sf 1,000 sf $2,475 MDG Impact Fee Appeal Page 169 354 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 14 ITE LUC Land Use Unit Fee* 710 greater than 200,000 sf 1,000 sf $1,974 720 Medical Office 1,000 sf $9,584 RETAIL: 820 under 50,000 sf 1,000 sf $5,284 820 50,000-99,000 sf 1,000 sf $5,452 820 100,000-199,000 sf 1,000 sf $5,182 820 200,000-299,000 sf 1,000 sf $5,115 820 greater than 300,000 sf 1,000 sf $4,999 812 Building Material/Lumber 1,000 sf $21,209 813 Discount Super-Store 1,000 sf $26,996 817 Nursery/Garden Center 1,000 sf $18,903 851 Convenience Store 1,000 sf $44,607 931 Quality Restaurant 1,000 sf $6,009 934 Fast Food Rest w/ Drive-Thru 1,000 sf $22,164 841 New/ Used Auto Sales 1,000 sf $12,033 890 Furniture Store 1,000 sf $1,684 912 Bank/ Savings Drive-in 1,000 sf $24,133 INDUSTRY: 110 General Light Industrial 1,000 sf $2,290 140 Manufacturing 1,000 sf $1,250 150 Warehouse 1,000 sf $1,627 151 Mini-Warehouse 1,000 sf $810 (1) Source: Transportation Impact Fee Study, Appendix F, Table F-2 (2) Defined as 50% of city median income based on 2007 Gallatin County Average Median Income (AMI) (3) Defined as 80% of city median income based on 2007 Gallatin County Average Median Income (AMI) (4) Impact fee to be assessed on structures with classroom facilities. All auxiliary structures such as administrative buildings and research centers are to be charged at the office land use rate. *Compiler's Note: The Transportation Impact Fees listed in this formula shall be adjusted annually as per 3.24.110.K. 3.24.060 Fire Protection Impact Fees A. Imposition of Fire Protection Impact Fees 1. On or after March 23, 1996, any person who seeks to obtain: a. A building permit; or b. Any other permit that will result in construction that will generate demand for fire protection services; or c. Any extension of any such permit that was issued before the effective date of this chapter, is required to pay a fire protection impact fee in the amount specified in this chapter; or MDG Impact Fee Appeal Page 170 355 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 15 d. Any delayed payment of impact fees as specified and approved by the City Commission in accordance with the BMC Title 17, Chapter 2 for Workforce Housing Lots. 2. No permits of the types described in Subsection (A)(1) of this section shall be issued until the fire protection impact fee described in this chapter has been paid, unless the development for which the permit is sought is exempted by Subsection F of this section. B. Computation of Amount of Fire Protection Impact Fee 1. An applicant required by this chapter to pay a fire protection impact fee may choose to have the amount of such fee determined pursuant to either Subsection (B)(2) or (B)(3) of this section. The amount of the fee calculated pursuant to either Subsection (B)(2) or (B)(3) of this section shall be subject to the following adjustment: a. For the first expansion of an existing nonresidential building, the amount calculated shall not include the amount calculated for the expansion of up to thirty percent as compared with its size on February 22, 1996, or two thousand square feet, whichever is less. 2. Unless an applicant requests that the City determine the amount of such fee pursuant to Subsection (B)(3) of this section, the City shall determine the amount of the required fire protection impact fee by reference to Table 3.24.060. a. If the type of development that a permit is applied for is not listed in Table 3.24.060, then the City shall use the fee applicable to the most nearly comparable type or land use in the table. b. If the type of development that a permit is applied for includes a mix of those uses listed in Table 3.24.060, then the fee shall be determined by adding up the fees that would be payable for each use if it were a freestanding use pursuant to Table 3.24.060. c. If the applicant is applying for an extension of a permit issued previously, then the fee shall be the net increase between the fee applicable at the time of the current permit application and any fire protection impact fee previously paid pursuant to this chapter for the same structure. In the event that the fee applicable at the time of the current permit application is lower than the fire protection impact fee previously paid pursuant to this chapter for the same structure, there shall be no refund of fire protection impact fees previously paid. d. If the applicant is applying for a permit to allow a change of use or for the expansion, redevelopment, or modification of an existing development, the fee shall be based on the net increase in the fee for the new use as compared to the previous use. In the event that the proposed change of use, expansion, redevelopment, or modification results in a net decrease in the fee for the new use or development MDG Impact Fee Appeal Page 171 356 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 16 as compared to the previous use or development, there shall be no refund of fire protection impact fees previously paid. 3. An applicant may request that the City determine the amount of the required fire protection impact fee by reference to an independent fee calculation study for the applicant's development prepared at the applicant's cost by qualified professional fire protection experts and/or economists and submitted to the City Fire Chief. Any such study shall be based on the same service standards and unit costs for fire protection used in the fire impact fee study prepared by HDR Engineering dated July 2008 and as updated, and must document the economic methodologies and assumptions used. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or accepted with modifications by the City as the basis for calculating fire protection impact fees. If such study is accepted or accepted with modifications as a more accurate measure of the demand for new fire protection facilities and equipment created by the applicant's proposed development than the applicable fee shown in Table 3.24.060, then the fire protection impact fee due under this chapter may be calculated according to such study. C. Payment of Fire Protection Impact Fees 1. An applicant required by this chapter to pay a fire protection impact fee shall pay such fee to the City prior to the issuance of any of the permits listed in Subsection (A)(1) of this section. 2. All funds paid by an applicant pursuant to this chapter shall be identified as fire protection impact fees and shall be promptly deposited in the fire protection impact fee fund described in Subsection D of this section. D. Fire Protection Impact Fee Funds 1. A single fire protection impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those fire protection impact fees collected pursuant to this chapter and any interest which may accrue from time to time on such amounts. E. Use of Fire Protection Impact Fee Funds. The monies in the fire protection impact fee fund shall be used only: 1 To acquire or construct fire protection improvements within the city; or 2 To pay debt service on any portion of any future general obligation bond issue or revenue bond issue used to finance the acquisition or construction of fire protection improvements within the city; or 3 As described in Sections 3.24.090 or 3.24.100(G). F. Exemptions from Fire Protection Impact Fee 1. The following types of development shall be exempted from payment of the fire protection impact fee: MDG Impact Fee Appeal Page 172 357 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 17 a. Reconstruction, expansion, or replacement of a previously existing residential unit that does not create any additional residential units. b. Construction of unoccupied accessory units related to a residential unit. c. Projects that the applicant can demonstrate will produce no greater demand for fire protection from such land than existed prior to issuance of such permit. d. Projects for which a fire protection impact fee has previously been paid in an amount that equals or exceeds the fire protection impact fee that would be required by this chapter. 2. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit of a type listed in Subsection (A)(1) of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 3. The City Manager or his designee shall determine the validity of any claim for exemption pursuant to the criteria set forth in Subsection (F)(1) of this section. Table 3.24.060 Type of Development Impact Fee* Detached residential per dwelling unit $780.20 Attached residential, per dwelling unit $655.92 Commercial/Industrial/Institutional per 1,000 gross sq. ft. of building space $178.84 *Compiler's Note: The Fire Protection Impact Fees listed in this formula shall be adjusted annually as per 3.24.110.K. 3.24.070 Water Impact Fees A. Imposition of Water Impact Fees 1. On or after March 23, 1996, any person who seeks to obtain a permit for connection to the city water system, or who is subject to subsection (B)(2)(b) and applies for a city permit to expand or add to the structure served by a previously approved water connection, or any extension of such a permit issued before the effective date of this chapter, is required to pay a water impact fee in the amount specified in this chapter; or 2. Any delayed payment of impact fees as specified and approved by the City Commission in accordance with the BMC Title 17, Chapter 2 for Workforce Housing Lots. 3. No permits for connection to the city water system shall be issued until the water impact fee described in this chapter has been paid, unless the MDG Impact Fee Appeal Page 173 358 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 18 development for which the permit is sought is exempted by Subsection F of this section. B. Computation of Amount of Water Impact Fee 1. The City shall determine the amount of the required water impact fee by reference to Table 3.24.070 unless the applicant chooses to submit an individualized calculation pursuant to subsection (B)(2)(a) or the City determines the application to be subject to subsection (B)(2)(b). If the applicant is applying for a replacement for a water connection permit issued previously, then the fee shall be the net positive difference between the fee applicable at the time of the current permit application and any water impact fee previously paid pursuant to this chapter for the same structure. In the event that the fee applicable at the time of the replacement permit application is lower than the water impact fee previously paid pursuant to this chapter for the same structure, there shall be no refund of water impact fees previously paid. 2. Individualized Calculations. a. An applicant may request that the City determine the amount of the required water impact fee by reference to an independent fee calculation study for the applicant's development prepared at the applicant's cost by a professional engineer and/or economist and submitted to the City Public Service Director. Any such study shall be based on the same service standards and unit costs used in the water impact fee study prepared by HDR Engineering dated May 2007, and as updated, and must document the economic methodologies and assumptions used. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or accepted with modifications by the City as the basis for calculating water impact fees. If such study is accepted, or accepted with modifications, as a more accurate measure of the demand for new water facilities created by the applicant's proposed development than the applicable fee shown in Table 3.24.070, then the water impact fee due under this chapter may be calculated according to such study. b. The City may identify a user as having extraordinary demands for water service which are not accurately represented by the average usage which was relied upon by the methodology which generated Table 3.24.070. In this circumstance the City shall prepare a customized calculation based upon the Large Meter calculation methodology in Exhibit 6 of the Water Impact Fee study. The impact fee paid for water meters larger than 3 inches as of the effective date of this ordinance may be adjusted based on actual usage. If usage is greater than 110% of anticipated volume during the 12 month period of time beginning 6 months after building occupancy is granted by the City, an additional impact fee may be charged, using the same techniques for calculating peak day and storage EDUs and multiplying by the peak day impact fee cost per EDU and the storage impact fee cost per EDU then in effect. The additional impact fee is the positive net between a previously calculated impact fee and the MDG Impact Fee Appeal Page 174 359 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 19 impact fee based upon the metered demand. C. Payment of Water Impact Fee 1. An applicant required by this chapter to pay a water impact fee shall pay such fee to the City prior to the issuance of a water connection permit. 2. All funds paid by an applicant pursuant to this chapter shall be identified as water impact fees and shall be promptly deposited in the water impact fee fund described in Subsection D of this section. D. Water Impact Fee Funds 1. A single water impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those water impact fees collected pursuant to this chapter and any interest which may accrue from time to time on such amounts. E. Use of Water Impact Fee Funds. The monies in the water impact fee fund shall be used only: 1. To acquire or construct improvements to the city water system; or 2. To pay debt service on any portion of any future general obligation bond issue or revenue bond issue used to finance improvements to the city water system; or 3. As described in Sections 3.24.090 or 3.24.100(G). F. Exemptions from Water Impact Fees 1. The following types of development shall be exempted from payment of the water impact fee: a. Alteration or expansion of an existing building that does not require an additional or larger water meter; b. Replacement of a building or structure of the same size that does not require an additional or larger water meter; c. The location of mobile home on a site for which a water impact fee was previously paid, and that does not require an additional or larger water meter. 2. The installation of fire lines for fire protection shall be exempted from payment of the water impact fee. 3. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit of a type listed in Subsection (A)(1) of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 4. The City Manager or his designee shall determine the validity of any claims for exemption pursuant to the criteria set forth in Subsections (F)(1) and (F)(2) of this section. MDG Impact Fee Appeal Page 175 360 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 20 Table 3.24.070 WATER IMPACT FEE SCHEDULE* SIZE OF WATER METER COST PER METER 3/4 inch $ 3,310 1 inch $ 8,275 1 ½ inch $ 16,550 2 inch $ 26,480 3 inch $ 52,960 Larger than 3 inch calculated *Compiler's Note: The Cost Per Meter Fees listed in this formula shall be adjusted annually as per 3.24.110.K. 3.24.080 Wastewater Impact Fees A. Imposition of Wastewater Impact Fees 1. On or after March 23, 1996, any person who seeks to obtain a permit for connection to the city wastewater system, or who is subject to subsection (B)(2)(b) and applies for a city permit to expand or add to the structure served by a previously approved water connection, or any extension of such a permit issued before the effective date of this chapter is required to pay a wastewater impact fee in the amount specified in this chapter; or 2. Any delayed payment of impact fees as specified and approved by the City Commission in accordance with the BMC Title 17, Chapter 2 for Workforce Housing Lots. 3. No permits for connection to the city water system shall be issued until the water impact fee described in this chapter has been paid, unless the development for which the permit is sought is exempted by Subsection F of this section. B. Computation of Amount of Wastewater Impact Fee 1. The City shall determine the amount of the required wastewater impact fee by reference to Table 3.24.080 070 unless the applicant chooses to submit an individualized calculation pursuant to subsection (B)(2)(a) or the City determines the application to be subject to subsection (B)(2)(b). If the applicant is applying for a replacement for a wastewater connection permit issued previously, then the fee shall be the net positive difference between the fee applicable at the time of the current permit application and any wastewater impact fee previously paid pursuant to this chapter for the same structure. In the event that the fee applicable at the time of the replacement permit application is lower than the wastewater impact fee previously paid pursuant to this chapter for the same structure, there shall be no refund of wastewater impact fees previously paid. 2. Individualized Calculations. MDG Impact Fee Appeal Page 176 361 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 21 a. An applicant may request that the City determine the amount of the required wastewater impact fee by reference to an independent fee calculation study for the applicant's development prepared at the applicant's cost by a professional engineer and/or economist and submitted to the City Public Service Director. Any such study shall be based on the same service standards and unit costs used in the wastewater impact fee study prepared by HDR Engineering dated May 2007, and as updated, and must document the economic methodologies and assumptions used. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or modified by the City as the basis for calculating wastewater impact fees. If such study is accepted or accepted with modifications as a more accurate measure of the demand for new wastewater facilities created by the applicant's proposed development than the applicable fee shown in Table 3.24.080, then the wastewater impact fees due under this chapter shall be calculated according to such study. b. The City may identify a user as having extraordinary demands for wastewater service which are not accurately represented by the average usage which was relied upon by the methodology which generated Table 3.24.080. In this circumstance the City shall prepare a customized calculation based upon the methodology in the Water Impact Fee study. When applicable an adjustment for high strength discharge will be applied. The impact fee paid for water meters larger than 3 inches as of the effective date of this ordinance may be adjusted based on actual usage. If usage is greater than 110% of anticipated volume during the 12 month period of time beginning 6 months after building occupancy is granted by the City, an additional impact fee may be charged, using the same techniques for calculating treatment and collection in EDUs and multiplying by the impact fee cost per EDU. The additional impact fee is the positive net between a previously calculated impact fee and the impact fee based upon the metered demand. C. Payment of Wastewater Impact Fee 1. An applicant required by this chapter to pay a wastewater impact fee shall pay such fee to the City prior to the issuance of a wastewater connection permit. 2. All funds paid by an applicant paid pursuant to this chapter shall be identified as wastewater impact fees and shall be promptly deposited in the wastewater impact fee fund described in Subsection D of this section. D. Wastewater Impact Fee Funds 1. A single wastewater impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those wastewater impact fees collected pursuant to this chapter and any interest which may accrue from time to time on such amounts. MDG Impact Fee Appeal Page 177 362 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 22 E. Use of Wastewater Impact Fee Funds. The monies in the wastewater impact fee fund shall be used only: 1. To acquire or construct improvements to the city wastewater system; or 2. To pay debt service on any portion of any future general obligation bond issue or revenue bond issue used to finance improvements to the city wastewater system; or 3. As described in Section 3.24.090 or Section 3.24.100(G). F. Exemptions from Wastewater Impact Fees 1. The following types of development shall be exempted from payment of the wastewater impact fee: a. Alteration or expansion of an existing building that does not require an additional or larger water meter; b. Replacement of a building or structure of the same size that does not require an additional or larger water meter; c. The location of mobile home on a site for which a wastewater impact fee was previously paid and that does not require an additional or larger water meter; 2. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit of a type listed in Subsection (A)(1) of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 3. The City Manager or his designee shall determine the validity of any claim for exemption pursuant to the criteria set forth in Subsection (F)(1) of this section. Table 3.24.080 WASTEWATER IMPACT FEE SCHEDULE SIZE OF WATER METER COST PER METER* 3/4 inch $ 2,955 1 inch $ 7,388 1 ½ inch $ 14,775 2 inch $ 23,640 3 inch $ 47,280 Larger than 3 inch calculated *Compiler's Note: The Cost Per Meter Fees listed in this formula shall be adjusted annually as per 3.24.110.K. 3.24.090 Refunds of Development Impact Fees Paid Refunds of development impact fees shall be made only in the following instances and in the following manner: MDG Impact Fee Appeal Page 178 363 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 23 A. Upon application to the Impact Fee Coordinator by the applicant, the City shall refund the development impact fee paid if capacity is available and service is denied. B. 1. Upon application to the Impact Fee Coordinator, the City shall refund the development impact fee paid and not expended or encumbered within ten years from the date the development impact fee was paid or spent in a manner not in accordance with this chapter or section 17-6-1602 of the Montana Code Annotated. Refunds shall be paid to the owner of the property at the time the refund is due. In determining whether development impact fees have been expended or encumbered, fees shall be considered encumbered on a first-in, first-out (FIFO) basis. 2. When the right to a refund exists due to a failure to expend or encumber development impact fees, the City shall publish written notice within thirty days after the expiration of the ten year period from the date development impact fee was paid. The published notice shall contain the heading "Notice of Entitlement to Development Impact Fee Refund." C. If an applicant has paid a development impact fee required by this chapter and has obtained any of the types of permits or extensions listed in Sections 3.24.050 (A)(1), 3.24.060 (A)(1), 3.24.070 (A)(1), or 3.24.080(A)(1), and the permit or extension for which the fee was paid later expires without the possibility of further extension, then the applicant who paid such fee shall be entitled to a refund of the fee paid, without interest. In order to be eligible to receive such refund, the applicant who paid such fee shall be required to submit an application for such refund within thirty days after the expiration of the permit or extension for which the fee was paid. D. A refund application shall be made to the Impact Fee Coordinator within one year from the date such refund becomes payable under Subsections A and B of this section, or within one year from the date of publication of the notice of entitlement of a refund under Subsection B of this section, whichever is later. Any refund not applied for within said time period shall be deemed waived. E. A refund application shall include information and documentation sufficient to permit the Impact Fee Coordinator to determine whether the refund claimed is proper and, if so, the amount of such refund. F. A refund shall include a pro rata share of interest actually earned on the unused or excess development impact fee paid. G. All refunds shall be paid within sixty days after the Impact Fee Coordinator determines that such refund is due. (Ord. 1418 § 7, 1996; Ord. 1414 § 1 (part), 1996) H. Any refund payable pursuant to Subsections A and B of this section, shall be made to the record owner of property as of the date the refund was due. 3.24.100 Credits Against Development Impact Fees A. After the effective date of this chapter, mandatory or voluntary land or easement dedications for transportation, fire protection, water, or wastewater improvements, and mandatory or voluntary acquisition or construction of capital improvements to the MDG Impact Fee Appeal Page 179 364 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 24 transportation system or the city fire protection, water, or wastewater systems by an applicant in connection with a proposed development may result in a pro rata credit against the development impact fee for the same type of service or facility otherwise due for such development, except that no such credit shall be awarded for: 1. Projects or land dedications not listed on the impact fee capital improvements program; or 2. Land dedications for, or acquisition or construction of, project-related improvements as defined in Section 3.24.040(G) or Section 3.24.040; or 3. Any voluntary land or easement dedications not accepted by the City; or 4. Any voluntary acquisition or construction of improvements not approved in writing by the City prior to commencement of the acquisition or construction. B. In order to obtain a credit against development impact fees otherwise due, an applicant must submit a written offer to dedicate to the City specific parcels of qualifying land or easements, or to acquire or construct specific improvements to the transportation system or the City fire protection, water, or wastewater systems in accordance with all applicable State or City design and construction standards, and must specifically request a credit against such development impact fees. Such written request must be made on a form provided by the City, must contain a statement under oath of the facts that qualify the applicant to receive a credit, must be accompanied by documents evidencing those facts, and must be approved not later than the initiation of construction of improvements or the acceptance by the City of land dedications, or the applicant's claim for the credit shall be waived. The granting of credit shall be approved by the City Commission. The City shall approve a credit only after showing that the need for the dedication or construction is clearly documented pursuant to section 7-6-1602 of the Montana Code Annotated, and that any land dedication proposed for credit is determined to be appropriate for the proposed use. 1. Upon receipt of a complete application for impact fee credit the Impact Fee Coordinator shall coordinate review of the application for compliance with the requirements of this chapter and other relevant requirements. Upon completion of the review the Impact Fee Coordinator shall either: forward the application to the City Manager, or when required to the City Commission, for approval or; if the application is insufficient or otherwise does not conform to the City’s requirements shall communicate in writing to the applicant the reason the credit request failed. If the application satisfies the requirements and is approved the credit may be provided in any of the allowed forms as described in Subsection G. a. Factors for Consideration (1) When credit is sought for an improvement listed in the second through fifth years of the CIP after the current fiscal year there shall be a rebuttable presumption that any credit shall be awarded as a credit balance and not as cash. (2) The final decision to approve a credit request in excess of $1,000,000 from a single impact fee fund shall be made by the City Commission. MDG Impact Fee Appeal Page 180 365 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 25 (3) In the event that the City Manager believes that a credit request may result in a significant effect on policy decisions the credit request may be referred to the City Commission for final action regardless of the dollar amount. (4) In the event that the City considers that award of a credit may negatively impact its ability to construct improvements listed sooner in time on the CIP they may decline to award a credit at that time without removing the item from the CIP. 2. Appeals relating to staff decisions on credit requests may be appealed to the City Commission per Subsection 3.24.110.I C. The credit due to an applicant shall be calculated and documented as follows: 1. Credit for qualifying land or easement dedications shall, at the applicant's option, be valued at: a. One hundred percent of the most recent assessed value for such land as shown in the records of the City Assessor; or b. That fair market value established by a private appraiser acceptable to the City in an appraisal paid for by the applicant. 2. In order to receive credit for qualifying acquisition or construction of transportation, fire protection, water, or wastewater improvements, the applicant shall submit complete engineering drawings, specifications, and construction cost estimates to the City. The City shall determine the amount of credit due based on the information submitted, or, if it determines that such information is inaccurate or unreliable, then on alternative engineering or construction costs acceptable to the City. D. Approved credits shall become effective at the following times: 1. Approved credit for land or easement dedications shall become effective when the land has been conveyed to the City in a form acceptable to the City, and at no cost to the City, and has been accepted by the City Commission. When such conditions have been met, the City shall note that fact in the credit record maintained by the City Finance Department. Upon request of the credit holder, the City shall send the credit holder a letter stating the credit balance available to him (or her). 2. Approved credits for the acquisition or construction of transportation, fire protection, water, or wastewater improvements shall generally become effective when: a. All required construction has been completed and has been accepted by the City; and b. A suitable maintenance and warranty bond has been received and approved by the City; and c. All design, construction, inspection, testing, bonding, and acceptance procedures have been completed in compliance with all applicable City and State procedures. MDG Impact Fee Appeal Page 181 366 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 26 However, approved credits for the construction of improvements may become effective at an earlier date if the applicant posts security in the form of a performance bond, irrevocable letter of credit, or escrow agreement, and the amount and terms of such security are accepted by the City. At a minimum, such security must be in the amount of the approved credit or an amount determined to be adequate to allow the City to construct the improvements for which the credit was given, whichever is higher. When such conditions have been met, the City shall note that fact in the credit record maintained by the City Finance Department. Upon request of the credit holder, the City shall also send the credit holder a letter stating the credit balance available to him (or her). E. Approved credits may be used to reduce the amount of development impact fees due from any proposed development for the same type of service or facility for which the applicant dedicated land or acquired or constructed improvements until the amount of the credit is exhausted. Each time a request to use credit from a mandatory or voluntary dedication, acquisition, or construction is presented to the City, the City shall reduce the amount of the development impact fee of the same type otherwise due from the applicant and shall note in the city records the amount of credit remaining, if any. In the case of a mandatory dedication, acquisition, or construction, any credit in excess of the amount of the development impact fee otherwise due under this chapter shall be deemed excess credit that is remaining and available for use by the applicant. In the case of a voluntary dedication, acquisition, or construction, any credit in excess of the amount of the development impact fee of the same type and applicable to the project, as shown in Tables 3.24.050, 3.24.060, 3.24.070, or 3.24.080, shall be deemed excess credit that is remaining and available for use by the applicant. Upon request of the credit holder, the City shall also send the credit holder a letter stating the amount of credit remaining to him (or her). F. Approved credit shall only be used to reduce the amount of development impact fees of the same type otherwise due under this chapter and shall not be paid to the applicant in cash or in credit against any development impact fees for a different type of facility or service or against any other monies due from the applicant to the City, except as described in Subsection G of this section. G. If the amount of approved credit for a mandatory dedication, acquisition, or construction exceeds the amount of the development impact fees of the same type otherwise due under this chapter, the applicant may request in writing that the City provide for reimbursement of any excess credit to the applicant in cash. Such written request must be approved not later than the initiation of construction of improvements, or the acceptance by the City of land dedications, or the applicant's claim shall be waived. Upon receipt of such a written request, the City may, at its discretion: 1. Arrange for the reimbursement of such excess credit from the impact fee fund for the same type of service or facility from development impact fees paid by others; 2 . Arrange for the reimbursement of such excess credit through the issuance of a promissory note payable in not more than ten years and bearing interest equal to the interest rate paid by the City for its long-term debt; or MDG Impact Fee Appeal Page 182 367 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 27 3. Reject the request for cash and provide credit. Such excess credit shall be valued at one hundred percent of actual developer costs for the excess improvements, or at the actual appraised value of such excess improvements, at the City's option. H. Credit may be transferred from one holder to another by any written instrument clearly identifying the credit issued under Subsection C of this section that is to be transferred, provided that such instrument is signed by both the transferror and transferee, and that the document is delivered to the City for registration of the change in ownership. I. In the event that land is annexed into the city from Gallatin County after the effective date of this chapter, and that road or fire impact fees have been previously paid to the County, an applicant proposing a development on the land may request in writing a credit against the transportation impact fee equal to the amount of any road impact fee paid to the County for the same land and may also request a credit against the fire protection impact fee equal to the amount of any fire protection impact fee paid to the County for the same land. Such written request must be filed not later than the time when an applicant applies for the first permit of a type listed in Sections 3.24.050(A)(1) or 3.24.060(A)(1) that creates an obligation to pay the type of development impact fee against which the credit is requested, or the applicant's claim shall be waived. 3.24.110 Miscellaneous Provisions A. Interest earned on monies in any impact fee fund shall be considered part of such fund and shall be subject to the same restrictions on use applicable to the impact fees deposited in such fund. B. No monies from any impact fee fund shall be spent for periodic or routine maintenance of any facility of any type or to cure deficiencies in public facilities existing on the effective date of this chapter. C. Nothing in this chapter shall restrict the City from requiring an applicant to construct reasonable project improvements required to serve the applicant's project, whether or not such improvements are of a type for which credit is available under Section 3.24.100. D. The City shall maintain accurate records of the development impact fees paid, including the name of the person paying such fees, the project for which the fees were paid, the date of payment of each fee, the amounts received in payment for each fee, and any other matters that the City deems appropriate or necessary to the accurate accounting of such fees, and such records shall be available for review by the public during city business hours. E. At least once during each fiscal year of the City, the City Administrative Services Director shall present to the City Commission a proposed impact fee capital improvements program for the transportation system, fire protection system, water system, and wastewater system, which identifies the capacity-adding capital improvements that will benefit new development subject to the terms of this chapter, exclusive of any improvements needed to correct existing deficiencies or for operation or maintenance purposes. Such capital improvements program shall assign monies from each impact fee fund to specific projects and related expenses for improvements MDG Impact Fee Appeal Page 183 368 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 28 to the type of facilities or services for which the fees in that fund were paid. Any monies, including any accrued interest, not assigned to specific projects within such capital improvements program and not expended pursuant to Sections 3.24.090 or 3.24.100(G) shall be retained in the same impact fee fund until the next fiscal year. The Impact Fee Capital Improvements Program shall be adopted by the City Commission as a supplemental document to the city budget. The Impact Fee Capital Improvements Program shall schedule the construction of capital improvements to serve projected growth and project capital improvement costs, expenditures and impact fee fund revenues for a five year period. The individual fee funds shall maintain a positive fiscal balance. The program may be amended by a majority vote of the City Commission. The City Manager shall adopt and revise, as needed, an administrative impact fee manual to carry out the purposes of this chapter. F. The City shall be entitled to retain not more than five percent of the development impact fees collected as payment for the expenses of collecting the fee and administering this chapter. G. If a development impact fee has been calculated and paid based on a mistake or misrepresentation, it shall be recalculated. Any amounts overpaid by an applicant shall be refunded by the City to the applicant within thirty days after the City's acceptance of the recalculated amount, with interest at the rate of five percent per annum since the date of such overpayment. Any amounts underpaid by the applicant shall be paid to the City within thirty days after the City's acceptance of the recalculated amount, with interest at the rate of five percent per annum since the date of such underpayment. In the event the underpayment is caused by an error attributed solely to the City, the applicant shall pay the recalculated amount without interest. In the case of an underpayment to the City, the City shall not issue any additional permits or approvals for the project for which the development impact fee was previously paid until such underpayment is corrected; and if amounts owed to the City are not paid within such thirty day period, the City may also repeal any permits issued in reliance on the previous payment of such development impact fee and refund such fee to the then current owner of the land. H. In order to promote affordable workforce housing of the City, the City Commission may waive impact fees for Workforce Housing Lots approved by the City Commission pursuant to the BMC Title 17, Chapter 2 by paying some or all of the impact fee from other funds of the city that are not restricted to other uses. In order to promote the economic development of the city and the provision of affordable housing in the city, the City Commission may agree to pay some or all of the development impact fees imposed on a proposed development by this chapter from other funds of the city that are not restricted to other uses. Any such decision to pay development impact fees on behalf of an applicant shall be at the discretion of the City Commission and shall be made pursuant to goals and objectives previously adopted by the City Commission to promote economic development and/or affordable housing. I. Any determination made by any official of the city charged with the administration of any part of this chapter may be appealed to the Development Impact Fees Review Committee by filing: 1. A written notice of appeal on a form provided by the City; MDG Impact Fee Appeal Page 184 369 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 29 2. A written explanation of why the appellant feels that a determination was in error; and 3. An appeal fee of five hundred dollars with the Impact Fee Coordinator within ten working days after the determination for which the appeal is being filed. The Development Impact Fees Review Committee shall meet to review the appeal within thirty working days of the date the written appeal was presented to the Impact Fee Coordinator. If the appellant is dissatisfied with the decision of the Development Impact Fees Review Committee, the appellant may appeal the decision to the City Commission by filing a written request with the City Clerk within ten working days of the Committee's decision. At the regular meeting following the filing of the appeal, the City Commission shall fix a time and place for hearing the appeal; and the City Clerk shall mail notice of the hearing to the appellant at the address given in the notice of appeal. The hearing shall be conducted at the time and place stated in such notice given by the City Commission. The determination of the City Commission shall be final. If the City Commission concludes that all or part of a determination made by an official of the city charged with the administration of any part of this chapter was in error, then the appeal fee described above shall be returned to the appellant. J. Updating of impact fee information. 1. The facility plans described in this chapter shall be reviewed by the City at least once every five years and if a revision of a facility plan to address changed conditions is deemed necessary, by the City, the plan shall be updated. 2. The development impact fees described in this chapter, fee studies, data and analysis relied upon and required by section 7-6-1602, MCA, and the administrative procedures and manual of this chapter shall be updated at least once every three fiscal years. 3. The impact fee capital improvement program shall be reviewed and updated as provided in section 3.24.110(E) above. 4. The purpose of the review and updating of impact fee related documentation is to ensure that: a The demand and cost assumptions underlying such fees are still valid; b. The resulting fees do not exceed the actual cost of constructing improvements that are of the type for which the fee was paid and that are required to serve new development; c. The monies collected or to be collected in each impact fee fund have been, and are expected to be, spent for improvements of the type for which such fees were paid; and d. That such improvements will benefit those developments for which the fees were paid. K. The development impact fees shown in Tables 3.24.050, 3.24.060, 3.24.070, and 3.24.080 shall be adjusted annually to reflect the effects of inflation on those costs for MDG Impact Fee Appeal Page 185 370 Most Recently Amended By Ord. 1746 Effective 9/6/2008 p. 30 improvements set forth in the impact fee studies. On January 1st of each year unless and until the fees in Tables 3.24.050, 3.24.060, 3.24.070, and/or 3.24.080 are revised or replaced, and then beginning in the subsequent calendar year, each fee amount set forth in each such table shall be adjusted by multiplying such amount by one (1) plus the value of the Construction Cost Index published in the first December edition of the current year. – Source: Engineering News Record. The right-of-way component of the transportation impact fee shall be adjusted by multiplying the value of the right-of-way component of the fee by one (1) plus the percentage value of the increase in taxable value from the preceding year. – Source: Montana Department of Revenue. Such adjustments in such fees shall become effective immediately upon calculation by the City and shall not require additional action by the City Commission to be effective. M. The section titles used in this chapter are for convenience only and shall not effect the interpretation of any portion of the text of this chapter. N. Any judicial action or proceeding to attack, review, set aside, or annul the reasonableness, legality, or validity of any development impact fee must be filed and service of process effected within ninety days following the date of imposition of the fee or the final determination of the City Commission, whichever is the later. 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