HomeMy WebLinkAbout00- Amerimont Inc. Annexation Agreement
AMERIMONT ANNEXATION AGREEMENT. Valley Center Drive
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ANNEXATION AGREEMENT
THIS AGREEMENT is made and entered into this 13th day of November ,2000, by and
between the CITY OF BOZEMAN, a municipal corporation and political subdivision of the State of
Montana, with offices at 411 East Main Street, Bozeman, Montana 5977 1 .0640, hereinafter referred
to as "City", and Amerimont, Inc., 112 South Broadway, P.O. Box 990, Manhattan, MT 59741,
hereinafter referred to as "Landowner".
WITNESSETH:
WHEREAS, the Landowner is owner in fee of a tract of certain real property, hereinafter
referred to as the Amerimont Annexation Tract, and more particularly described as follows:
A tract of land being Tract B.1 of Certificate of Survey No. 1827, situated in the Northeast
Quarter of Section 35, T. 1S, R.5E., P.M.M., Gallatin County, Montana.
WHEREAS, the Landowner has petitioned the City for annexation of the contiguous tract; and
WHEREAS, the Amerimont Annexation Tract is not within the corporate limits of the City or
other municipality but is contiguous to the City and may therefore be annexed to the City in
accordance with the provisions of this Agreement and M.C.A. Title 7, Chapter 2, Part 43.
WHEREAS, all parties recognize that the annexation of the Amerimont Annexation Tract
pursuant to Section 7.2.4301, et seq., M.C.A., will entitle the said property to City services, including
municipal water and sewer service, upon their availability; and
WHEREAS, M.C.A. Section 7-2-4305 provides that a municipality and a landowner can agree to
the provision of services to the area to be annexed; and
WHEREAS, the Landowner wishes to convey to the City certain water rights or take some
equivalent action to provide water and sewer service to the Amerimont Annexation Tract; and
WHEREAS, the Landowner has conveyed to the City certain easements to lay, construct, and
maintain water and sanitary sewer pipelines in, through, and across the above described tract; and
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WHEREAS, all parties recognize that the development of the Amerimont Annexation Tract will
impact area streets, and may require additional public street improvements for traffic circulation;
and
WHEREAS, the Landowner finds that this Agreement will provide for the most satisfactory and
dependable water supply or service available to furnish water and wastewater collection, and
provide traffic circulation for development near and within the Amerimont Annexation Tract; and
WHEREAS, the making and performance of this Agreement is desirable to promote the
development of the most adequate water supply, wastewater collection and traffic circulation
pattern for the City as it now exists and as it is reasonably expected to enlarge; and
WHEREAS, the securing of an adequate water supply and traffic system by the City is necessary
and of mutual advantage to the parties hereto; and
WHEREAS, the parties have determined that it is in the best interests of the City and the
Landowner, and in furtherance of the public health, safety and welfare of the community to enter
into and implement this Agreement.
IN CONSIDERATION of the mutual covenants and agreements herein contained, the parties
hereto agree as follows:
1. Recitals.
The above recitals are true and correct.
2. Annexation.
The Landowner filed an application for annexation of the Amerimont Annexation Tract with the
City. The City, on November 15, 1999, adopted a Resolution of Intent to Annex the Amerimont
Annexation Tract. By execution of this Agreement, the City has manifested its intention to annex
the Amerimont Annexation Tract pursuant to the terms and conditions of this Agreement. Subject
to the provisions of Title 7, Chapter 2, Part 43, the City shall, upon execution of this Agreement,
adopt a Resolution of Annexation of the Amerimont Annexation Tract to the City. Further, upon the
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execution of this Agreement, the Landowner shall do all things necessary and proper to aid and
assist the City in carrying out the terms, conditions and provisions of this Agreement and effectuate
the annexation of the Amerimont Annexation Tract to the City.
3. Services Provided.
The City will, upon annexation, make available municipal water service, municipal sewer service,
and all other existing City services to the extent currently available, including police protection and
fire protection, to the Amerimont Annexation Tract, as provided in this Agreement.
4. Municipal Water Service Defined.
The term "municipal water service" as is used in this Agreement shall be the service which is
supplied by the City in accordance with Chapter 13.12, Bozeman Municipal Code, or as may be
amended, as well as any other terms and conditions which apply to the City's provision of this
service. The term does not contemplate the extension of lines or construction of necessary
improvements at any cost to the City for delivery of water to and within the Amerimont Annexation
Tract. Nothing in this Agreement shall obligate the City to pay for right-of-way acquisition,
engineering, construction, and/or other costs for the delivery of municipal water service to or within
the Amerimont Annexation Tract to include, but not limited to, any impact fees, hook-up,
connection, or development charges which may be established by the City.
5. Municipal Sewer Service Defined.
The term "municipal sewer service" as is used in this Agreement shall be the service which is
supplied by the City in accordance with Chapter 13.24, Bozeman Municipal Code, or as may be
amended, as well as any other terms and conditions which apply to the City's provision of this
service. The term does not contemplate the extension of lines or construction of necessary
improvements at any cost to the City for collection of sewage at and within the Amerimont
Annexation Tract. Nothing in this Agreement shall obligate the City to pay for right-of-way
acquisition, engineering, construction, and other costs for the collection of sewage services to or
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within the Amerimont Annexation Tract to include, but not limited to, any impact fees, hookup,
connection, or development charges which may be established by the City.
6. Water Riahts.
The parties acknowledge the following City policy:
Prior to annexation of property, it shall be the policy of the City of Bozeman to
acquire usable water rights, or an appropriate fee in lieu thereof, equal to the
anticipated average annual consumption of water by residents and/or users of the
property when fully developed. The fee may be used to acquire water rights or for
improvements to the water system which would create additional water supply
capacity. Except, however, that for any annexation in excess of ten (10) acres, this
policy shall be carried out prior to final plat approval of each development phase.
Section 2, No.5, Commission Resolution 3137, Adopted August 19, 1996
The Amerimont Annexation Tract consists of approximately 4.24 acres. The Landowner
understands and agrees that it must provide sufficient water rights. The City calculated the
average annual diversion requirement necessary to provide water to this annexation tract on the
basis of the zoning designation and/or City-approved development. The amount of water use
per year based upon the zoning designation of the Amerimont Annexation Tract is 13-acre feet.
Cash-in-lieu of water rights thereof is equal to $4,599.02.
7. Comprehensive Water and Sewer Design Report.
It is acknowledged that the subject property is included within Special Improvement District No.
665, which was created for purpose of construction and installation of the Northwest waterline to
service benefitted properties within said district. A design report for construction of said waterline
was prepared by Gaston Engineering acting for the City. The Amerimont Annexation Tract is within
said district and a limited capacity of water is currently available. It is further acknowledged that
a limited capacity of sanitary sewer service is currently available to the Amerimont Annexation tract.
However, prior to any further development of the subject property, depending upon the scale of
the development, the Landowner may be required to have prepared by a Professional Engineer, at
the Landowner's expense, a comprehensive design report evaluating existing capacity of sewer and
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water utilities in the area which is impacted by such further development. The report must include
hydraulic evaluations of each utility for both existing and post-development demands, and the
report findings must demonstrate adequate capacity to serve the full development of the land. If
adequate water and/or sewer capacity is not available for full development, the report must identify
necessary water system and sewer system improvements required for full development. The
Landowner agrees to complete at the Landowner's expense, the necessary system improvements
to serve the full development.
8. Waiver of Right-to-Protest SDeciallmDrovement Districts.
The Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts for: a) street improvements for Valley Center Drive, including paving, curb/gutter, sidewalk,
storm drainage facilities, and any associated traffic signals; and b) a City-wide Parks Maintenance
District. Said Waiver is attached hereto as Exhibit A, and is hereby incorporated in and made a part
of this Agreement.
9. Public Street and Utilitv Easements.
The Landowner understands and agrees that utility easements, a minimum of thirty (30) feet in
width, are necessary for the installation and maintenance of water and sewer utility services to the
annexed parcel. The Landowner has provided 30 foot wide City standard sewer and water pipeline
easements across the western and eastern boundaries of the property. The Landowner shall create
any such other easements in locations agreeable to the City during the appropriate development
procedure, but in no event later than the filing of any final plat or site plan or issuance of a building
permit on the subject property.
10. Stormwater Master Plan.
The Landowner understands and agrees that a Stormwater Master Plan for the Amerimont
Annexation Tract for a system designed to remove solids, oils, grease and other pollutants from the
runoff from the public streets must be provided to and approved by the City Engineer at the time
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of any future development. The master plan must depict the maximum sized retention/detention
basin locations and locate and provide easements for adequate drainage ways within the area to
transport runoff to the Stormwater receiving channel{s). The plan shall include site grading and
elevation information, typical Stormwater detention/retention basin and discharge structure details,
basin sizing calculations, and Stormwater facilities maintenance plan.
11. Future Develooment.
The Landowner understands and agrees that all future development on the Amerimont
Annexation Tract shall be served by City Water and Sewer as provided for in the City's facility
master planning documents.
Prior to the issuance of building permits for any new construction on the property, an approved
pressurized water supply (fire hydrants) meeting the flow requirements of the 1994 UFC Appendix
III-A shall be provided to the subject property. The water system shall be installed, tested and
approved by the city prior to the issuance any building permits.
12. Imoact Fees.
The Landowners hereby acknowledge that annexation and development of their property will
impact the City's existing street, water and sewer infrastructure, and fire service requirements.
There are no existing structures on the property. At the time new structures apply to the City's
Water and Sewer facilities, the Landowners shall pay all Water and Sewer Impact Fees which are
due. The Landowners and their successors 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, respectively. If the
impact fees currently imposed pursuant to Chapter 3.24 of the Bozeman Municipal Code are
subsequently voided or declared invalid by a court of competent jurisdiction, Landowners agree
to pay the City fees or assessments established by the City for impact on City services in
accordance with a new or revised Chapter of the Bozeman Municipal Code lawfully enacted as a
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result of such court decision after the date of the court decision. If, prior to enactment of such
revised Chapter, the Landowner applies for any permit which actuates or would have actuated
impact fees pursuant to the current Chapter 3.24 of the Bozeman Municipal Code, the Landowner
further agrees to pay at that time, the amount calculated for all such fees based upon the rates
established at the date of this agreement.
If the Court above declares Chapter 3.24 of the Bozeman Municipal Code invalid, and if
landowner would have been entitled to a refund under the court's decision but were it not for the
sole fact of the landowner paying impact fees because of this agreement, then all such impact fees
paid prior to the court's decision shall be held by City until a revised Chapter of the Code is enacted
after the Court's decision.
At the time the revised code is enacted, then all such fees held by City shall be released to the
City and the balance, if any, returned to the landowner. All accumulated interest on the sum held
by City shall be released to the City or landowner on the same percentage as the money released
to either party bears to the total sum held by City.
Landowners further understand and agree that any improvements, either on- or off-site,
necessary to provide connection of Amerimont Annexation Tract to municipal services which are
wholly attributable to the property are "project related improvements" as defined in Chapter 3.24,
Bozeman Municipal Code, or as amended, and as such, are not eligible for impact fee credits.
If Landowners default on this condition at the time such is to be performed, and should default
not be remedied or corrected within thirty (30) days after written notice by City to Landowners of
such default, City may at their option:
A) Declare the amounts owing for impact fees immediately due and payable and City
shall have the right and privilege to take legal action against Landowners for the
collection of such sum, including the entry of any judgment. In addition, the City
may, at its option, enforce payment of such amount by levying an assessment on
the premises.
B) Elect any other remedy available to City under the laws of the State of Montana.
C) Any waiver by City of any default shall not be construed as a waiver of any
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subsequent default.
D) It is agreed that it shall be no defense to the enforcement of this provision by City
that impact fees imposed pursuant to Chapter 3.24 of the Bozeman Municipal Code
are subsequently voided or declared invalid by a court of competent jurisdiction.
It is the express intention of the parties not to be bound by such a declaration or
judgment and, therefore, notwithstanding any judgment either limiting impact fee
payments under annexation agreements to specified amounts, or prohibiting any
such payment, landowner will pay such amount as specified above.
13. Additional Terms of Waivers.
The parties recognize that these documents shall be executed and returned to the Bozeman
Planning and Community Development Department within one year of preliminary approval of the
annexation request by the Bozeman City Commission. The parties also recognize that these
documents shall be filed and recorded with the Gallatin County Clerk and Recorder prior to the sale
or transfer of ownership of any land within the Amerimont Annexation Tract. The parties further
agree that the City may file these documents at any time.
14. Governing Law and Venue.
This Agreement shall be construed under and governed by the laws of the state of Montana.
In the event of litigation concerning this Agreement. venue is in the Eighteenth Judicial District
Court, Gallatin County, State of Montana.
15. Attorneys Fees.
In the event it becomes necessary for either party to this Agreement to retain an attorney to
enforce any of the terms or conditions of this Agreement, then the prevailing party shall be entitled
to reasonable attorney's fees and costs, to include the salary and costs of in-house counsel
including the City Attorney's ottice.
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16. Waiver.
No waiver by either party of any breach of any term, covenant or agreement shall be deemed
a waiver of the same or any subsequent breach of this same or any other term, covenant or
agreement. No covenant, term or agreement shall be deemed waived by either party unless waived
in writing.
17. Invalid Provision.
The invalidity or inability to enforce any provision of this Agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
18. Modifications or Alterations.
No modification or amendment of this Agreement shall be valid unless evidenced in writing and
signed by the parties hereto.
19. No AssiQnment.
It is expressly agreed that the Landowners shall not assign this Agreement in whole or in part
without prior written consent of the City.
20. Successors.
This Agreement shall be binding upon, insure to the benefit of and be enforceable by the parties
hereto and their respective heirs, successors and assigns.
21. Covenants to Run with the Land.
The parties intend that the terms of this Agreement shall be covenants running with the land
and shall not expire at their deaths or upon transfer of ownership of the property.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day
and year first above written.
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LANDOWNER
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STATE OF MONTANA
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County of Gallatin
On this J.ll. day of()cktJJ.Jl.. ,~, Thomas H. Langel, whose identity I verified on the
basis of , personally appeared, sworn to me, a Notary Public for
the State of Montana, to be the President of Amerimont, Inc., subscribed before me, and
acknowledged to me that he executed the within instrument for and on behalf of Amerimont Inc.
IN WITNESS WHEREOF, I have hereunto set my hand and set my seal the day and year first
ov written.
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Clerk of the City Commission
CITY OF BOZEMAN
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By: Clark Johnson, City Manager
STATE OF MONTANA
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County of Gallatin )
On theL day of/'fJ1-N-n-du ,JLa; before me, a Notary Public for the State of Montana,
personally appeared CLARK JOHNSON AND ROBIN L. SULLIVAN, known to me to be the City
Manager and Clerk of the City Commission respectively, of the City of Bozeman, whose names are
subscribed to the within instrument and acknowledged to me that they executed the same for and
on behalf of said City.
_ "It-.! Wr~ BSS WHEREOF, I have hereunto set my hand and affixed my seal on the day and year
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EXHIBIT A
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
AMERIMONT ANNEXATION TRACT
The undersigned owner of the real property situated in the County of Gallatin, State of Montana,
and more particularly described as follows:
A tract of land being Tract B-1 of Certificate of Survey No. 1827, situated in the
Northeast Quarter of Section 35, T.1S, R.5E, P.M.M., Gallatin County, Montana.
IN CONSIDERATION of receiving approval for annexation of the subject property from the City
of Bozeman, along with accompanying rights and privileges and for other and valuable
consideration, the receipt of which is hereby acknowledged, and in recognition of the impacts on
traffic, and the need for municipal water and sewer services that will be a result of the development
of the above-described property, the owners have waived and do hereby waive for themselves,
their successors and assigns, the right to protest the creation of one or more special improvement
districts for: a) street improvements to Valley Center Road, including paving, curb/gutter, sidewalk,
storm drainage facilities, and improvements to any associated traffic signals; and b) a City-wide
Parks Maintenance District, or to make any written protest against the size or area or creation of the
district to be assessed in response to a duly passed resolution of intention to create one or more
special improvement districts which would include the above-described property.
In the event Special Improvement Districts are not utilized for the completion of these projects,
we agree to participate in an alternate financing method for completion of said improvements on
a fair share, proportionate basis as determined by square footage of the property, linear front
footage of the property, taxable valuation of the property, or a combination thereof.
This waiver shall be a covenant running with the land.
The terms, covenants and provisions of the Waiver shall extend to, and be binding upon the
successors-in-interest and assigns of the parties hereto.
DATED this J.3. day of ()'Jr;IJlJt ' ~.c)
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Amerimont, Inc.
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sf A Y(OF MONTANA
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County of Gallatin )
On this -'.?L day ofO~'u.h.. ' .da;LOThomas H. Langel, whose identity I verified on the
basis of , personally appeared, sworn to me, a Notary Public for
the State of Montana, to be the President of Amerimont, Inc., subscribed before me, and
acknowledged to me that he executed the within instrument for and on behalf of Amerimont Inc.
WITNESS WHEREOF, I have hereunto set my hand and set my seal the day and year first
above ritten.
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