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HomeMy WebLinkAbout05-15-15 City of Bozeman Impact Fee Offer (LVW - Final)Page 1 of 8 CITY OF BOZEMAN IMPACT FEE OFFER AGREEMENT This City of Bozeman Impact Fee Offer Agreement (“Agreement”) is executed by and between The Lakes at Valley West, Bozeman, LLC, a Montana limited liability company (hereinafter “LVWB”), and the City of Bozeman, Montana (hereinafter “the City”). WHEREAS, the City has offered transportation system impact fees in exchange for constructing approximately 4,000 linear feet of Durston Road, from Cottonwood Road to the west City limits, to a minor arterial standard; approximately 1,350 linear feet of Laurel Parkway south from its intersection Durston Road to a collector standard; and a traffic signal at the Durston Road/Laurel Parkway intersection. WHEREAS, the impact fee program is governed by Sections 2.06.1600 through 2.06.1700, Bozeman Municipal Code, and all actions must comply with the standards and procedures of that text; and WHEREAS, the impact fee offer contemplated by this Agreement complies with the required criteria of the Bozeman Municipal Code; and WHEREAS, the approval of the impact fee offer is subject to the following four (4) requirements, as set forth in more detail in this Agreement: 1. The impact fees will be paid by check as a single amount for each of the three separate projects: Durston Road, Laurel Parkway, and the Durston Road/Cottonwood Road intersection. 2. An engineer’s estimate of project costs has been provided and results in a preliminary estimate of impact fee use of $1,488,185. A breakdown of the estimated impact fee use for each specific project is as follows: Durston Road: $944,195 Laurel Parkway: $304,390 Durston Road/Cottonwood Road Intersection: $239,600 A final determination of impact fee use will be determined upon completion and acceptance of the work. 3. The check will not be issued until the construction has been completed, the work accepted by the City, and the final costs including evidence of those costs provided to and accepted by the City for the specific project for which the impact fees are being requested. 4. The applicant shall agree in writing to the above listed conditions of approval as set forth in this Agreement; and Page 2 of 8 WHEREAS, the portions of Durston Road, Laurel Parkway, and the Durston Road/Cottonwood Road intersection described in this Agreement are currently included in the City’s Capital Improvement Plan for impact fees; and WHEREAS, the City and LVWB have reached an agreement to share the cost of design and construction of certain roadway improvements to portions of Durston Road, Laurel Parkway, and the Durston Road/Cottonwood Road intersection and desire to set forth the terms of their agreement in writing. NOW, THEREFORE, BE IT HEREBY KNOWN, in consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, LVWB and the City agree as follows: 1. Incorporation: The foregoing recitals of this Agreement are contractual and are hereby incorporated by reference. 2. The Project: The project contemplated by this Agreement (the “Project”) consists of roadway improvements to the portions of Durston Road, Laurel Parkway, and the Durston Road/Cottonwood Road intersection shown in the Construction Proposal attached as Exhibit 1. The Project limits for each specific project are also depicted on Exhibit 1. The improvements covered by this Agreement will consist of the following: Durston Road: a. installation of curb and gutter on the south side of Durston Road; b. widening the south side of Durston Road to match the existing section on the north side of Durston Road; c. construction of a 6’ wide sidewalk on the south side of Durston Road; d. installation of street lights on the south side of Durston Road; e. installation of signage and striping of roadway; f. construction of drainage improvements and installation of culvert extensions at existing culvert locations; and g. Relocating the existing ditch along Bronken Park. Laurel Parkway: h. installation of curb and gutter, including median; i. construction of the road surface; j. installation of 6’ sidewalks on both sides of the roadway; k. installation of streetlights; l. installation of signage and striping of roadway; and Page 3 of 8 Durston Road/Cottonwood Road Intersection: m. install a traffic signal as depicted on the attached exhibit entitled “Durston Road and Cottonwood Road Traffic Signal.” 3. Anticipated Project Cost: The anticipated total cost of the Project is $2,310,450.00. An itemization of anticipated Project costs is provided with the attached Exhibit 1. a. Allocation of Anticipated Project Costs: The City and LVWB have agreed to allocate the anticipated Project costs as follows: Durston Road Laurel Parkway Intersection Total Est. Developer Funding: $ 300,538 $ 343,530 $ 103,400 $ 747,468 Est. Impact Fee Funding: $ 944,195 $ 304,390 $ 239,600 $1,488,185 Est. Additional Funding: $ 74,797 $ 0 $ 0 $ 74,797 $1,319,530 $ 647,920 $ 343,000 $2,310,450 4. Additional Funding Sources: The parties are working cooperatively to determine the source(s) of the additional $74,797 the parties believe is necessary to complete the Project. These costs are primarily associated with the sidewalk fronting Durston Road along Bronken Park. Possible funding sources include the use of cash-in-lieu of park funds, open space and parks funds to fund sidewalks, or street maintenance assessment funds or a combination of these sources. Other sources may also be available. 5. Variations in Project Costs: The Project costs may be less than or more than originally estimated, and the Project itemization attached with Exhibit 1 includes a contingency. If the actual Project costs are less than originally estimated, (a) the City will pay the amount of actual Project costs incurred which are eligible for impact fees and (b) LVWB will pay the amount of actual Project costs incurred which are not eligible for impact fees. If the actual Project costs exceed the original estimate, (i) the City will pay the amount of actual Project costs incurred which are eligible for impact fees, up to the amount allocated for the Project in the City’s Transportation Impact Fee Capital Improvements Plan, and (ii) LVWB will pay (A) the amount of actual Project costs incurred which are not eligible for impact fees plus (B) the amount of any actual Project costs incurred which are eligible for impact fees but solely to the extent, and in the amount that, such eligible Project costs exceed the amount allocated for the Project in the City’s Transportation Impact Fee Capital Improvements Plan. 6. Contracts for Design and Construction of Project: LVWB agrees to assume responsibility for retaining the engineer to complete the design of all portions of the Project undertaken by LVWB and for retaining a contractor to complete construction of Page 4 of 8 all portions of the Project undertaken by LVWB. LVWB will have sole authority and responsibility for selection and hiring of the engineer and contractor. As a condition to receiving reimbursement under this Agreement, LVWB will cause Project plans, including engineering drawings, conforming to Exhibit 1 and City roadway standards to be prepared and submitted to the City for approval. If such plans meet City requirements and are otherwise acceptable to the City, the City shall approve such plans in writing. Once approved by the City, such plans shall be referred to as the “Approved Plans.” 7. Project Funding and Reimbursement: The City will not be required to reimburse LVWB for the City’s portion of the Project costs until construction of a specific project has been completed, that specific project has been accepted by the City, and final costs (including evidence of those costs) is provided to the City. In furtherance of the foregoing, the City may inspect the specific project at reasonable times and the City agrees that construction of the project will be complete and the City will accept the Project upon receipt by the City of (a) certification by the project engineer retained by LVWB that the Project is substantially complete in accordance with the Approved Plans, and (b) a calculation of the final Project costs and evidence thereof reasonably satisfactory to the City. The City will pay LVWB, by single check, the City’s portion of each specific project costs, as set forth in Paragraphs 4 and 6 above, no later than thirty (30) days following satisfaction of the conditions set forth in (a) and (b) above. 8. Entire Agreement: This Agreement constitutes the entire and integrated agreement between the parties and supersedes all prior negotiations, representations, discussions or agreements, either written or oral. This Agreement may only be amended or modified by a written agreement signed by the City and LVWB. No waiver by any party hereto of any provision or breach of, or default under, this Agreement shall be deemed to have been made unless the same is in writing and signed and delivered by the party charged with making the waiver, and no waiver of any provision or breach of, or default under, this Agreement shall be deemed a waiver of any other provision or breach of, or default under, this Agreement. 9. Representations and Warranties: Each party represents and warrants to the other that: a. It is fully authorized and legally empowered to execute and perform this Agreement, and it has obtained all approvals and authorizations needed to execute and perform this Agreement. b. Execution of this Agreement does not violate any agreement, bylaw, statute or ordinance binding on or applicable to such party. c. The individual executing this Agreement on behalf of the party is duly authorized and empowered to execute this Agreement for the party, and Page 5 of 8 following execution and delivery by both parties this Agreement will be a legally binding obligation of the party, enforceable against the party in accordance with its terms. 10. Choice of Law and Venue: This Agreement shall be governed by, and interpreted under, Montana Law, without regard to conflict of law principles. Mandatory and exclusive jurisdiction for any dispute shall be in the Eighteenth Judicial District Court, Gallatin County, Montana. 11. Severability: Each provision of this Agreement shall be considered severable and if for any reason any provision which is not essential to the effectuation of the basic intent of this Agreement is determined to be invalid, such invalidity shall not impair the operation of or effect those provisions of this Agreement which are valid. [Signature page follows] Page 6 of 8 Dated this ____ day of _______________, 2015 THE LAKES AT VALLEY WEST, BOZEMAN, LLC By: JSKHGK Investments 1, L.L.C. Its: Manager _________________________________________ By: Dated this ____ day of _______________, 2015 CITY OF BOZEMAN _________________________________________ By: Chris Kukulski, City Manager Page 7 of 8 Exhibit 1 Construction Proposal (attached) Page 8 of 8 Exhibit 2 Anticipated Project Costs (attached)