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REPORT TO: Honorable Mayor and City Commission
FROM: Andrew Epple, Planning Director
Chris Kukulski, City Manager
SUBJECT: Impact Fee Credit Request IFCR-0504
MEETING DATE: Monday, June 26, 2006
BACKGROUND: The City Commission previously approved a joint funding agreement for
construction of expansion of N. 19t' Ave. and Valley Center. This agreement included an
agreement to award impact fee credits under certain conditions. The required,conditions were
compliance with credit request procedures, receipt of an acceptable bid for the work, and
payment of the necessary private contributions. These conditions have now been met. The City
has received impact fee credit requests from one of the private participants, Fisher Development
Company.
The individual contribution amounts and credit amounts are the same. The amount is
$436,702.87 as shown on page 3 on the attached agreement.
UNRESOLVED ISSUES: None
RECOMMENDATION: The City Commission approve the requested impact fee credits as
previously agreed upon in the joint funding agreement.
FISCAL EFFECTS: Fiscal impacts are minor. The funding decision has already been made
and this action merely carries out that previously made decision.
ALTERNATIVES: As suggested by the City Commission.
Respectfully submitted,
Andrew Epple, Planning Director Chris Kukulski, City Manager
Attachments: impact fee credit request
Report compiled on June 23, 2006
CITY OF BOZEMAN
DEVELOPMENT IMPACT FEE CREDIT REgIJEST
Date Recieved
Day Month Year
X Streets Fire Water Wastewater
Applicant Fisher Development Co.
Street/P.O. Box 2101 Oregon Pike
City/State/Zip Lancaster, PA 17601
Owner Fisher Development Co.
Street/P.O. Box 2101 Oregon Pike
City/State/Zip Lancaster, PA 17601
Legal Desc.
Site Address Valley Center Road (See attached agreement)
Project Title Country Inn & Suites (See attached agreement)
Project Desc. Country Inn & Suites (See attached agreement)
Reason for Credit Request X Excess Capacity Required Improvements
Dedications X Project Unrelated Off-Site Improvements
Location of Credit Items
Description of the basis and facts which create a qualification for Credit 5w et
r
Prepared by: Arthur V. Wittich, Esq. '
Address 602 Ferguson Avenue, Suite 5, Bozeman, MT 59718
Arthur V. Wittich , being first duly sworn upon oath, states that all
information contained in this request is true, correct and complete to the best of my
knowledge and all attatched materials and documents are correct and complete.
Subscribed and sworn to before me this 20 day of k , 20 .
(I - L s
Notary Public for the State of
residing at
F My Commission Expires C
Reviewed ;by:
Department:
Value f Credits its lRoqu st d Value of Credits Approvou
vcs� +✓G, rc: 1« ��c.�uv.r eu
Comments
Date Credits Activated
APPROVED
APPROVED
*The City will retain 2%of the fees collected for Administrative Costs.
AGREEMENT REGARDING DEVELOPMENT
OF AND CONSTRUCTION ALONG
EAST VALLEY CENTER ROAD AND NORTH 1 9TH AVENUE
This Agreement (the "Agreement") is made by and between the City of
Bozeman, a municipal corporation (hereafter, the "City") and the following
property owners/developers, hereafter referred to individually as a "Developer'
and collectively as "Developers": Yellowstone Management/C'mon Inn; Fisher
Development/Country Inn and Suites; Arrowhead Development, LLC/Outback
Steakhouse; Gallatin Center, LP; SANDAN, LLC; Cape-France Enterprises, a
partnership; and Cattail Lake, LLC.
RECITALS
A. The City proposes to undertake certain local improvements (the
"Improvements") to benefit certain property located in the City. The
Improvements consist of roadway improvements to Valley Center Road and
North 19th Avenue, including widening of the road, installation of storm drainage
improvements and street lighting; installation of traffic signal improvements at the
intersection of North 19th Avenue and Valley Center Road; and installation of
traffic signal improvements at the intersection of North 19th Avenue and Cattail
Street (aka Deadman's Gulch).
B. The City has adopted Resolutions of Intent to create the following
special improvement districts for Improvements: Special Improvement District
Nos. 675, 676, 677, and 678 (collectively, the "SIDs"). SID No. 676 is referred to
hereafter as the "Valley Center Road SID;" SID No. 677 is referred to hereafter
as the "Valley Center 19th Signalization SID;" and the remaining two SIDs are
referred to as the "North 19th SIDs." The improvements to be constructed
utilizing the SIDs are the "SID Improvements."
C. The Developers are or will be in the process of seeking approval for
developments which presently cannot proceed until the Improvements are
underway or completed. Developments which, as of the date of this Agreement,
have been approved and are in the process of obtaining final site plan
approval/construction permits are the following-
1. Yellowstone Management/C'mon Inn, a major site plan with
Certificate of Appropriateness #Z-02243, approved February
10, 2003.
2. Fisher Development/Country Inn and Suites, a major site
plan with Certificate of Appropriateness #Z-02244, approved
February 10, 2003
3. Arrowhead Development, LLC/Outback Steakhouse, CUP
Agreement Regarding Development,etc.(11/2/04)
Page 1
with Certificate of Appropriateness #Z-03298, approved
Ma-61 IVI 11,11 1, 2004.
(These three developments are referred to hereafter as the "Valley Center Road
Developments," or "Developments.")
D. Conditions upon the approvals for the Valley Center Road
Developments described above, and conditions which would otherwise affect
development contemplated by the other Developers, affect the ability of the
Developers to obtain building permits before contracts are awarded for the
Improvements; the ability to construct Developments concurrently with the
construction of the Improvements; and the ability to obtain certificates of
occupancy to permit the operation of completed Developments while the
Improvements are under construction (the 'Improvements-related Conditions").
E. The City, in its discretion, has the power to pay the whole or any
part of the cost of the Improvements out of any funds in its hands available for
that purpose or to include the whole or any part of such costs within the amount
of the assessment to be paid by the benefited property in the district.
F. Developers wish to make cash contributions to pay a portion of the
cost of the Improvements in the manner and in the amounts set forth in this
Agreement, to facilitate the creation of the SIDs and the undertaking of the
Improvements, and meet the Improvements-related Conditions to permit the
commencement, construction, and occupancy of the Developments for which
final site plan approvals and building permits have been or will be obtained, all in
accordance with the terms and conditions of this Agreement.
G. The City has agreed to provide the Developers an Impact Fee
Credit as defined in Chapter 3.24 of the City of Bozeman Municipal Code. All
parties to this agreement recognize that Cause No. DV-99-71 may affect the
monetary value of any future impact fees or credits. If the final determination of
Cause No. DV-99-71 is that Impact Fees or Impact Fee Credits cannot be
charged or credited by the City, then no Impact Fee Credits will be issued to the
Developers under this agreement. If the final determination of Cause No. DV-99-
71 is that the City can charge Impact Fees in accordance with Chapter 3.24 or
other applicable ordinance of the City of Bozeman Municipal Code, then the City
shall offer the Developers Impact Fee Credits based on a dollar--per-dollar credit.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties to this Agreement hereby agree as
follows:
1. DEVELOPERS' CONTRIBUTIONS. Developers agree to make the
following contributions set forth in subparagraphs A, B and C (the
"Contributions") to the City for use in paying for a portion of the cost of the SID
Improvements in the following amounts and manners:
Agreement Regarding Development,etc. (11/2104)
Page 2
A. Contributions toward Valley Center Road SID:
Yellowstone Management/C'mon Inn $1318,392.50
Fisher Development/Country Inn and Suites $436,702.87
Arrowhead Development, LLC/Outback Steakhouse $2-00,558.77
SANDAN, LLC $50,000.00
Cape-France Enterprises $100,000.00
Cattail Lake, LLC $50,000.00
Total $1,1155,654.14
B. Contributions toward the Valley Center Signalization SID:
Gallatin Center, LP $100,000.00
C. Contributions toward the North 1 9th SIDs:
Gallatin Center, LP $400,000.00
The total of the Developers' Contributions is $1,655,654.14.
Developers expressly acknowledge and agree that the Developers'
Contributions are not intended to and will not satisfy any requirement to pay
Impact Fees pursuant to Chapter 3.24, Bozeman Municipal Code, and further
agree that Developers shall pay all Fire, Street, Water and Sewer Impact Fees
required by Chapter 3.24, Bozeman Municipal Code, or as amended, at the time
of application for any permit listed in Section 3.24.050A, 3.24.060A, 3.24.070A,
or 3.24.080A, Bozeman Municipal Code, respectively. The City acknowledges
and agrees that any Street Impact Fee Credits received for Developers'
Contributions, as provided in Paragraph 3 below, may be applied toward street
impact fees required for the Valley Center Road Developments, as described in
Recital C above.
2. PAYMENT CONTRIBUTIONS. The Developers Contributions, as
set forth in the preceding Paragraph I of this Agreement, shall be payable to the
City as follows:
Within 7 days after the City gives Developers an Acknowledgement of
Acceptable Bid (as described in the paragraph 4. C. below), the Developers shall
deposit their Contributions in escrow account pursuant to escrow instructions to
be set up and drafted as agreed by the parties. Their Contributions shall be paid
to the City upon its award of a contract or contracts for all of the SID
Improvements, for construction of the SID Improvements accordingly, and to
reduce the principal amount of bonds to be issued.
Agreement Regarding Development, etc.(11/2/04)
Page 3
3. CREDIT FOR CONTRIBUTION; RELEASE.
A. For each dollar paid by a Developer as part of the
Developers' Contributions set forth in Paragraph 1, that Developer shall receive,
upon application and approval by the City Commission through the procedures
established in Chapter 3.24, Bozeman Municipal Code, or as amended, a Street
Impact Fee Credit which can be used to pay and satisfy any Street Impact Fee
payable in conjunction with any project the Developer might develop within the
City of Bozeman for which a Street Impact Fee is due. Developers recognize
that such credits are awarded subject to the limitations established in Chapter
3.24, Bozeman Municipal Code, or as amended. The City agrees to award such
credits immediately upon a Developer's request after the Acknowledgement of
Acceptable Bid is given and the Developer's Contribution has been deposited to
the City's satisafaction. The City agrees to issue reasonable documentation
sufficient to report the issuance of this credit. This Agreement shall not restrict
the ability of the Developers to transfer some or all of their awarded credits to
third parties.
B. Upon receipt of any Street Impact Fee Credit issued
pursuant to this Agreement, each Developer relinquishes and waives any claim
or right that Developer may otherwise have to claim or be entitled to a credit,
refund, or cash payment for all Street Impact Fee credits received pursuant to
this Agreement, regardless of the outcome of any pending litigation that involves
the validity of, or the amounts charged for, Street Impact Fees.
4. SID FORMATION; EXCESSIVE BID; ACKNOWLEDGEMENT OF
ACCEPTABLE BIDS.
A. The City will undertake all actions necessary for the
finalization of, funding of, bidding upon, and awarding of construction contracts
for the SID Improvements as quickly as reasonably possible. The City also
agrees to apply the Contributions paid by the Developers as described in
Paragraph 1 of this Agreement to pay a portion of the cost of the SID
Improvements and reduce the principal amount of the bonds to be issued as set
forth in that paragraph. It is mutually understood that the SID Improvements
specified in this Agreement will not be completed unless the Developers fully
perform their obligation as set forth in the preceding Paragraphs 1 and 2 of this
Agreement, therefore the City shall not be under any obligation to finalize or fund
the SIDs or award construction contracts for the SID Improvements if the
Developers fail to provide the Contributions as set forth in Paragraphs 1 and 2 of
this Agreement.
B. It is mutually understood and agreed that public process
requirements for creating the SIDs, advertising for the sale of and the sale of
bonds, and advertising for bids for and the award of construction contracts will be
satisfied. It is further understood and agreed by the parties that bids will be let
Agreement Regarding Development, etc. (11/2104)
Page 4
and awarded in the manner recommended by the City, the state of Montana, and
the Ciity's consulting engineers.
C. It is understood the actual construction costs for the S I D
Improvements have been estimated. If all otherwise acceptable bids for the SID
Improvements exceed $3,770,954.00 (which is 110% of the estimated
construction costs of$3,428,140.00), the parties agree that this Agreement will
become effective only upon reconfirmation of its terms, either as existing or may
be modified by agreement of the parties.
D. If at least one Acceptable Bid, as determined by the City in
conjunction with its consulting engineers, does not exceed $3,770,954.00, the
City shall immediately notify the Developers in writing of that fact (an
"Acknowledgment of Acceptable Bid").
5. SATISFACTION AND SUPPLEMENTATION OF DEVELOPMENT
CONDITIONS. When an Acknowledgement of Acceptable Bid is issued, the
Improvement-related Conditions as described in Recital D above otherwise
applicable to any Developer or included in any City approval shall be deemed
satisfied or supplemented with respect to any project of a Developer within the
area of the SIDs as follows:
A. At any time after receipt of an Acknowledgment of
Acceptance Bid, any Developer of a project within an SID area may, when all
other requirements for the issuance of a building permit have been met, obtain a
building permit and commence construction of their projects concurrent with SID
Improvements construction, subject to and in accordance with the terms of this
Agreement and applicable approvals:
B. At the time a Developer completes a project to the point
where it would be entitled under applicable laws and regulations to the issuance
of a certificate of occupancy except for the fact that SID Improvements have not
been completed, the City agrees to issue a temporary certificate of occupancy to
permit the operation of the project for the period in which SID Improvements are
being completed and, thereafter, to issue a final certificate of occupancy for the
development in accordance with applicable laws and regulations, subject to and
in accordance with the terms of this Agreement.
6. CONDITIONS FOR BUILDING PERMIT AND TEMPORARY
CERTIFICATE OF OCCUPANCY. No building permit may be issued to a
Developer for a project within the SID area before the SID Improvements are
completed unless and until that Developer has provided the City with proof of a
.liability insurance policy with respect to its project which names the City as an
additional insured, and provides coverage for not less than the following
amounts: $1,000,000.00 per occurrence and $2,000,000.00 aggregate. The
policy must provide in writing that it cannot be canceled without at least 45 days
prior notice being given to the City. The Developer must maintain this insurance
Agreement Regarding Development, etc-(11/2/04)
Page 5
through completion of its project and the issuance of a permanent certificate of
occupancy for it_ Developer must furnish evidence, satisfactory to the City, of
such policy and the effective dates of it. Developers shall furnish evidence,
satisfactory to the City, of all such policies and the effective dates thereof.
7. INDEMNITY. Until a final certificate of occupancy is issued for a
project constructed concurrently with the SID Improvements, each Developer
agrees to indemnify and hold harmless the City, its employees, agents and
assigns, from and against any and all liabilities, losses, claims, causes of action,
judgments, and damages (other than a responsibility to indemnify and hold
harmless the City with respect to any claim based upon the negligence of the
City) resulting from or arising out of the issuance of a building permit and
permission granted by this Agreement to engage in construction of that
Developer's project concurrent with SID Improvements construction and occupy
the completed project pursuant to the issuance of a temporary occupancy permit.
8. ASSUMPTION OF RISK. Each Developer hereby acknowledges,
recognizes, and assumes the increased risk of loss that it or customers of its
project may suffer because certain public services may not exist at the site of the
project while SID Improvements construction is underway, and because access
to and from the site of each project may be compromised during the period the
SID Improvements are not completed.
9. COOPERATION DURING AND INCREASED COSTS OF
CONCURRENT CONSTRUCTION. The City agrees to cooperate with the
Developers reasonably to direct and accomplish construction of the SID
Improvements concurrently with the construction of projects to be constructed in
accordance with this Agreement. The City and each Developer acknowledge
and agree that the safety of the motoring and pedestrian public is of paramount
concern in coordinating the completion of the SID Improvements and concurrent
construction or operation of projects. The City acknowledges that the concurrent
construction of projects by Developers will involve risk and expense by the
Developers building them and that such projects cannot be temporarily stopped
or delayed except when necessary to protect the safety of the public or to
complete aspects of the SID improvements which require the temporary delays
of concurrent construction. Developers acknowledge and agree that the City,
through its contractors, may temporarily deny access to or from construction sites
where projects are being developed or may undertake extraordinary traffic
management procedures to accommodate the construction and operation of a
project being developed by a Developer. To the extent such extraordinary costs
are incurred by the City's contractor as described in this paragraph, each
Developer whose project necessitates the extraordinary costs agrees to pay the
City or reimburse the contractor for such costs. The parties agree that
extraordinary traffic control expenses and the progress of construction shall be
addressed using the following parameters:
Agreement Regarding Development, etc. (11/2/04)
Page 6
A. No Developers shall be required to construct a temporary frontage
road or similar item as part of any extraordinary traffic control measures. No
Developer shall be required to purchase or furnish routine traffic control
equipment except as necessary for traffic control associated with its project.
B. A goal of the parties is to avoid and limit any delay, or temporary
stoppage of project construction, and to require it only when necessary as
described herein.
C. A goal of the parties is to avoid incurring any extraordinary traffic
control costs with respect to any project under construction or open for business.
D. The City and/or its contractors agree to confer and coordinate with
Developers as much in advance as reasonably possible before temporarily
denying access to projects under construction or incurring any extraordinary
traffic control costs.
E. With respect to any such extraordinary costs entitled to
reimbursement, the contractor shall present an itemized statement of all such
costs to the City, which in turn will present the costs to the responsible
Developer(s), and such statement shall be paid to the City by the Developer(s)
within thirty (30) days of its receipt. Where the construction or operation of two or
more projects requires extraordinary traffic management expenses as described
in this Agreement, the Developers involved shall share those costs equally.
F. Developers may, in a writing giving notification to the City,
designate a project manager to represent Developers in coordinating with the
City about the matters described in this Paragraph 9.
10. NO ADMISSION OR WAIVER IN LITIGATED MATTERS. At the
time this Agreement is executed, there are two (2) actions pending involving the
City and Developers who are parties to this Agreement: Bomont, LLC, v. City of
Bozeman, DV-03-151, and Fisher Development Company v. City of Bozeman,
DV-03-150, both in the Montana Eighteenth Judicial Court, Gallatin County,
Montana (the "Actions"). Nothing in this Agreement shall affect, prejudice, or
waive any right, claim, or defense of any party to the Actions, and the entry into
this Agreement by any party to the Actions shall not constitute an admission of
liability by any party, nor shall it be used in the Actions for any purpose other than
for a calculation, or to argue mitigation of, damages, if any.
11. MISCELLANEOUS.
A. . Modification by Writing Oril . No alterations, modifications,
or additions to this Agreement shall be binding unless reduced to writing and
signed by the parties to be charged herewith. No covenant, term, or addition to
this Agreement shall be deemed waived by the parties unless such waiver shall
be reduced to writing and signed by the parties.
Agreement Regarding Development,etc. (11/2/04)
Page 7
B. Counterparts. it is agreed and understood by and between
the parties hereto that this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original document, but all of
which together shall constitute one and the same instrument.
C. Binding Effect. It is agreed and understood by and between
the parties hereto that all of the terms, covenants, and conditions herein set forth,
reserved, and contained on the part of the parties to be kept and performed shall
be binding upon, inure to the benefit of, and be enforceable by the agents,
assigns, successors, and representatives of the parties hereto.
D. Facsimile Signatures. Facsimile signatures on this
Agreement are acceptable and shall be treated in all respects as originals.
E. Third Party Beneficiary. Nothing in this Agreement is
intended to create any third party beneficiary rights in any person or entity.
Agreement Regarding Development,etc.(11/2/04)
Page 8
Dated as of this day of 21004.
Yellowstone Management, Inc./ Gallatin Center, LP
C'mon Inn
By: By:
Its Its
Fisher Development Co,/ SAN/DAN, LLC
Country Inn and Suites
By: By:
Its Its
Arrowhead Development, LLC/ Cattail Lake, LLC
Outback Steakhouse
By: By:
Its Its
Cape-France Enterprises, City of Bozeman, Montana,
a Partnership a Municipal Corporation
By: By:
Its Its i ."n"LW
Agreement Regarding Development, etc. (11/2/04)
Page 9
F... -
Nov 02 2004 31: 50PM GABW LAW FIRM 40G5820022 P. k2
Dated,as of this day of , 2004_
Yellowstone Management, Inc.1 Gallatin Center, LP
C'mon Inn
By; By:
Its Its
Fisher Development Co,1 SANIDAN, LLC
Country Inn and Suites
By: By:
Its Its
Arrowhead Development, LLG/ Cattail Lake, LLC
Outback Steakhou
l)
By: By:
s -_'- Its
Cape-France Enterprises, City of Bozeman, Montana,
a Partnership a Municipal Corporation
By: By: - -
Its Its
Dated as of this day of , 2004.
Yellowstone Management, Inc./ Gallatin Center, LP
C'mon Inn
Its
Fisher Development Co,/ SAN/DAN, LLC
Country Inn and Suites
By: By:
Its Its
Arrowhead Development, LLC/ Cattail Lake, LLC
Outback Steakhouse
By: By:
Its Its
Cape-France Enterprises, City of Bozeman, Montana,
a Partnership a Municipal Corporation
By: By:
Its Its
Nov 04 04 04: 00p Sandi Hamil-ton 1+U t-3 Z)0 C C3-7__1
Dated as of this 2004.
5 / u
Yellowstone Managernent, Inc./ Gallatin Center, LP
C'mon Inn
By: By:
Its Its
Fisher Development CoJ SAN/DAN, LLC
Country Inn and Suites
By: By:
Its Its
Arrowhead Development, LLCI Cattail Lake, LLC
Outback Steakhouse
By: By:
Its Its
Cape-France Enterprises, City of Bozeman, Montana,
a Partnership a Municipal Corporation
By: By:
Its Its
NOV-13-22000THU) 1 C:43 ROCKY MOON I AIN 11MULHLANU5 tMA)4UU ZD010 0040 �t�)o
Dated as of this day of avr f.r r ,
2004,
Yellowstone Management, Inc.1 Gallatin Center, LEA
C'mon Inn
By; By:
Its Its
Fisher Development Coj SA.NIDAN, LLC
Country Inn and Suites
By; By:
Its Its
Arrowhead Development, LLC/ Cattail Lake, LLC
Outback Steakhouse -7
By: By: Z�Z —
Its Its
Gape-France Enterprises, City of Bozeman, Montana,
a Partnership a Municipal Corporation
By: BY:
Its Its
f 4- OOA
LJatedasolLhis_L_dayof 2
Yellowstone Management, Inc./ Gallatin Center, LP
C'mon Inn
By: y:
Its
Fisher Development Co,/ SANIDAN, LLC
Country Inn and Suites
By: By:
Its Its
Arrowhead Development, LLC/ Cattail Lake, LLC
Outback Steakhouse
By: By:
Its Its
Cape-France Enterprises, City of Bozeman, Montana,
a Partnership a Municipal Corporation
By: By:
Its Its
Agreement Regarding Development, etc.(11/2104)
Page 9
Dec 15 04 12: Q1p Donald L. gape z�-r. risc -t_0-t -
Dated as of this day of , 2004•
Yellowstone Management, Inc_/ Gallatin Center, LP
C'mon Inn
By_ By:
Its Its
Fisher Development Co,/ SANIDAN, LLC
Country Inn and Suites
By: By:
Its Its
Arrowhead Development, LLC/ Cattail Lake, LLC
Outback Steakhouse
By BY:
Its Its
Cape-France Enterprises, City of Bozeman, Montana,
a Partnership a Municipal Corporation
By: i, y.
Its; -i Its
Dated as of this day of , 2004.
Yellowstone Management, Inc./ Gallatin Center, LP
C'mon Inn
By: By:
Its Its
Fisher Development Co,/ SAN/DAN, LLC
Country Inn and Suites
r
B '" .t f tf 4 f r J By:
y'
_ Its %'�itrb 2 / Its
Arrowhead Development, LLC/ Cattail Lake, LLC
Outback Steakhouse
By: By:
Its Its
Cape-France Enterprises, City of Bozeman, Montana,
a Partnership a Municipal Corporation
By: By:
Its Its