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HomeMy WebLinkAbout99- Derzay, Michael & Katy Annexation Agreement \.' , / 111111111111I111111111' ~~;~i7:?~p · "-"".--.-'-----. :-'. v' Sh.lley VanDe-Gall. ti n Co MT MIse 66 . 00 ! i'lAn::'D !f.J ~ 1.... 1 ~ ANNEXATION AGREEMENT j (/1' It. 0 f~~;J THIS AGREEMENT is made and entered into this ----L:.L day of . C '7'6r 1999, 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 59771-0640, hereinafter referred to as "City", and Michael & Katy Derzay, E. 5405 Baxter Lane, Bozeman, MT 59718, hereinafter referred to as "Landowners". WITNESSETH: WHEREAS, Landowners are owners in fee of a tract of certain real property, hereinafter referred to as the "Derzay Annexation Tract", and more particularly described as follows: Certificate of Survey No. 17, located in the SE ~ ofthe SW ~ of Section 35, Township I South, Range 5 East, PMM, Gallatin County, Montana. WHEREAS, the Landowners have petitioned the City for annexation of the contiguous tract; and WHEREAS, the Derzay 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 Derzay Annexation Tract pursuant to Seetion 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 landowners can agree to the provision of services to the area to be annexed; and WHEREAS, the City's present water supply is insufficient to enable it to supply reasonably adequate water service to additional customers outside the present city boundaries; and WHEREAS, the Landowners wish to convey to the City certain water rights or take some equivalent action to provide water and sewer service to the Oerzay A1mexation Tract; and DERZA Y ANNEXA TION AGREEMENT - 1 - \ ........:::.:.. . . " " , "' '"'" " "" " 2003794 Pag.: 2 of 11 12/23/1999 02:09P Sh.ll.y Vance-Gallatin Co MT MISC 66.00 ."'- WHEREAS, all parties recognize that the development of the Derzay Annexation Tract will impact area streets, and may require additional public street improvements for traffic circulation; and WHEREAS, the Landowners fmd 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 Derzay Annexation Tract; and WHEREAS, the making and perfonnance of this Agreement is desirable to promote the development of the most adequate water supply, wastewater collection and traffie 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 traf:fic 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 Landowners, 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 Landowners filed an application for annexation of the Derzay Annexation Tract with the City. The City, on July 6, 1999, adopted a Resolution of Intent to Annex the Oerzay Annexation Tract. By execution of this Agreement, the City has manifested its intention to annex the Derzay Annexation Tract pursuant to the terms and conditions ofthis 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 Derzay Annexation Tract to the City. Further, upon the execution of this Agreement, the Landowners 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 Derzay Annexation Tract to the City. DERZA Y ANNEXA T/ON AGREEMENT - 2 ~ , i 11111111 1111I111 1111 112003794 Pill/II: 3 0' 11 12/23/1999 02:09P Sh.ll.y Vanc.-Gallatin Co MT MISC 66.1210 3. Services Provided. The City will, upon annexation, make available only existing City services to the extent currently available, including municipal water service, municipal sewer service, police protection, and fire protection, to the Derzay Annexation Tract, as provided in this Agreement. Landowners acknowledge and accept the fact that the level of :fire service is reduced due to lack of fire hydrants in the area. Upon further development of the property, an approved pressurized water supply (fire hydrants) meeting the flow requirements of the 1994 UFC Appendix Ill-A shall be provided to the subject property. Due to the distance of the existing fire hydrants from the property, the construction of new commercial buildings may require the installation of additional fire hydrants. Until such a time as water is provided, the Landowners hereby agree to hold the City harmless for any and all claims and liability for damages and injuries arising out of the reduced level offire service in the area. 4. Municival 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 Derzay 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 water to or within the Derzay 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. Municioal 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 Derzay Annexation Tract. Nothing in this Agreement shall obligate the City DERZA Y ANNr..xA TION AGREEMENT - 3 - , 11111 III 111111 " " II " 2003794 Page: 4 of 11 12/23/1999 02:09P . Shell.y Vance-Gallatin Co MT MISC 66.00 . to pay for right-of-way acquisition, engineering, construction, and other costs f()r the collection of sewage services to or within the Derzay 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 Ri2hts. 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 [mal plat approval of each development phase. Section 2, No.5, Commission Resolution 3137, Adopted August 19, 1996 The Derzay Allilexation Tract consists of approximately 2.00 acres. The Landowners understand and agree that they must provide sufficient water rights. The City calculated the average annual diversion requirement necessary to provide watcr 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 Derzay Annexation Tract is I-acre feet. Cash-in-lieu thereof is equal to $271.82. 7. Comprehensive Water and Sewer Desi2n Report. Prior to any further development ofthe property, the Landowners may be required to have prepared by a Professional Engineer, at Landowner's expense, a comprehensive design report evaluating existing capacity of sewer and water utilities in the area. 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 Landowners agree to complete at Landowner's expcnse, the necessary system improvements to serve the full devclopment. 8. Connection of existin2 dwellinl! units to City Water and Sewer. The Landowncrs understand and agrec that upon annexation and upon availability of service, all new dwellings constructed on the property shall connect to city water and sewer DERZAY ANNEXATION AGREEMENT - 4- 11111111 1111I111 1111 II 2003794 Pag.: S or 11 12/23/1999 02:09P Shelley Vanoe-Gallatln Co MT MISC 66.00 . service. At the time the existing single-family residence and shop located in the northwest corner of the property, connect to city sewer service, any existing scptic tanks shall be pumped and filled, or removcd and shall be verified by thc City Building Department. 9. Waiver of Ril!ht-to-Protest Special Imofovement Districts. Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement Districts for street improvements, including paving, curb/gutter, sidewalk, boulevard and storm drainage appurtenances to: a) Baxter Lane; b) Thomas Lane-future North 2ih Avenue; c) traffic signal and intersection improvements for the intersection of Baxter Lane and North 19th Avenue; d) a City-wide Parks Maintcnance District, which would provide a mechanism for the fair and equitablc assessment of maintenance costs for city parks; e) water main improvements for trunk water lines including Baxter Lane Water Lines and Davis Lane/Fowler Lane Water Lines; and f) a sewer main to serve thc property that will allow for gravity collection service to the property. Said Waiver is attached hereto as Exhibit A. 10. Public Street and Utility Easements. Landowner understands and agrees that utility easements, a minimum of thirty (30) feet in width, will be necessary for the installation and maintenance of water and sewer utility services to the annexed parcel. The Landowncr shall create such easements in location agreeable to the City during the appropriate development procedure, but in no event later than the tiling of any :final plat or site plan or issuance of a building permit on any of thc parcels. The Landowner understands and agrees that an additional 15' easement tor Baxter Lane shall be granted to add to the existing 30' easement currently in place. This easement will complete the required one half (45') of the 90' total easement required for future improvements to Baxter Lane. 11. Stormwater Master Plan. Landowners understand and agree that a Stormwater Master Plan for the Derzay 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 of any future development. The master plan must depict the maximum sized retention/detention basin locations and locate and provide easements for adequate DERZA Y ANNEXA TJON AGREEMENT - 5 - , II II I I II 1111I111 1111 112003794 Pag.: 6 of 11 1212311999 02;09P Shell.y Vance-Gallatln Co MT MISC 66.00 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 di.~charge structure details, basin sizing calculations, and a Stonllwater facilities maintenance plan. 12. Future Development. Landowners understand and agree that all future development on the Derzay Annexation Tract shall be served by City Water and Sewer as provided for in the City's facility master planning documents. Landowners understand and agree that municipal scrvices arc not currently available to much of the area proposed for annexation, and that thcre is no right, cither granted or implied by the City, for the Landowners to dcvelop any of the Dcrzay Annexation Tract until it is verified by the City that necessary municipal scrvices, including but not limited to policc and fire protection, arc available to all or a portion of the Derzay Anncxation Tract. The City Water/Sewer Department will allow a temporary connection of a scwer service line to the 24" sanitary sewer trunk line in Baxtcr by way of a fl.)l'ce main until a gravity main from the north is available. Upon plan approval, annexation, and following the application procedure, the City Water/Sewer Department will provide a stub to the edge of the easement. The City Water/Sewer Departmcnt will review plans i()r developmcnt of the proposed water infrastructure whcn they are provided and make any recommendations required to supply water to the Dcrzay A1mexation Tract. Prior to any further development on thc subject property, an approved pressurized water supply (fire hydrants) mceting the How rcquircments of the 1994 UFC Appendix 1Il- A shall be provided to the subject property. The water system shall be installed, tested and approved by thc city prior to the issuance any building permits. 13. Impact Fees. Landowner(s) hereby acknowledge that annexation and development of their propcrty will impact the City's cxisting street, water, and sewer infrastructurc, and fire service requirements. Landowners shall pay to the City Fire and Street Impact Fees fl.)r the existing structures within the Tract prior to or at the time of Landowners' execution of thb Agreement. At the time the existing and/or new structures apply to the City's Water and Sewer facilities, the Landowners shall pay all Water and Sewer Impact Fecs DERZAY ANNEXATION AGREEMENT -6- , 11111111 1111I111 II 11112003794 P.ll.: 7 of 11 12/23/1999 02:09P Shell.y Vanoe-Gall.tin Co MT MISC 66.00 . I which are due. Thc Landowners and their successors shall pay all Fire, Street, Water and Scwcr 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, respectivcly. If impact fees imposcd pursuant to Chaptcr 3.24 of the Bozeman Municipal Code are subsequently voidcd or declared invalid by a court of competent jurisdiction, Landowner agrees to pay City at that time, the amount calculated for all such fees bascd upon the rates established at the date of this agreement. Landowncrs further understand and agree that any improvements, cither on~ or off-sitc, necessary to provide connection of the Derzay Annexation Tract to municipal services which are wholly attributable to the property are "project related improvements" as dcfined in Chapter 3.24, Bozeman Municipal Code, or as amended, and as such, are not eligible for impact fee credits. If Landowner shall 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 noticc by City to Landowner of such default, City may at their option: A. Declare the amounts owing t(H impact fees immediately due and payable and City shall have the right and privilege to take legal action against Landowner for the collection of sueh 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 subscquent default. D. It is agreed that it shall be no defense to the enfi)fcement 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, thcrd()re, notwithstanding any judgment either limiting impact fee payments under annexation agreemcnts to specified amounts, or prohibiting any such payment, landowner will pay such amount as specified above. 14. Additional Tenns of Waivers. The parties recognize that these documents shall be filed and on record with the Gallatin County Clerk and Recorder, prior to the sale of any land within the Derzay Annexation Tract. The parties further agree that the City may file these documents at any time. DERZAY ANNEXA TION AGRJi.E'MENT - 7 - > c 1111111I 1111I11I 1111 112003794 . Pa".: 8 or 11 ~ 12/23/1999 02:09P . Sh.ll.y Vanoe-Gall.tln Co MT MISC 66.00 15. Governini! Law and Venue. This Agreement shall be construed under and governed by thc laws of the state of Montana. In the event of litigation concerning this Agreemcnt, venue is in the Eighteenth Judicial District Court, Gallatin County, State of Montana. 16. Attornev's Fees. In the evcnt it becomes neccssary for either party to this Agrcement to retain an attorney to enforcc any of the tcrms or conditions of this Agreement, thcn thc prevailing party shall be entitled to reasonable attorney's fees and costs, to include thc salary and costs of in-housc counsel including City Attorney. 17. Waiver. No waivcr by either party of any breach of any term, covenant or agreement shall be dcemed a waiver of the same or any subsequent brcach of this same or any other term, covenant or agreement. No covenant, term or agrccmcnt shall be deemed waived by either party unless waived in writing. 18. Invalid Provision. The invalidity or inability to enforce any provision of this Agrccment shall not affect thc other provisions hereof~ and this Agreement shall be construed in all respects as if such invalid or unenforccable provi"ion were omitted. 19. Modifications or Alterations. No modification or amendment of this Agreement shall be valid unless evidenccd in writing and signed by thc parties hereto. 20. No Assienment. It is expressly agreed that the Landowner shall not assign this Agrcement in whole or in part without prior written consent of the City. 21. Successors. This Agreement shall bc binding upon, insure to the benefit of and be enforceable by the parties hercto and their respectivc heirs, suecessors and assigns. 22. Covenants to Run with the Land. The partics intend that the terms of thi" Agreement shall bc covcnants running with the land and shall not expire at their deaths or upon transtCr of ownership of the property. DERZA y ANNEXAIlON AGRF.P.Mt.NT - g - '. ..' , IIIIIIIIIIIIIIIIIIIII~ ~~,~~?:?~p . Shelley Vano.-Gal1atln Co MT MISC 66.00 , IN WITNESS WHEREOF, the parties hercto havc caused this Agreement to he exccutcd the day and year first abovc written. / ~ ({[1 () tlJi?f/ Katy Den y STATE OF MONTANA) :ss County of Gallatin ) On the J:l day of ~, 1999, beforc me, a Notal'y Puhlic for the Statc of Montana, personally appeared Michael and Katy Derzay, known to me to he the persOll'" whosc names are subscribed to the above instrumcnt and acknowledged to me that they executcd the Sanle. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first written alxwe. , ~ . '. " ,'.... - u..J..Le - '~, '," for thc Statc of Montana ., . .., '" ~ """ I -, I , t. t,,' " -,. .-..,..- 7 - I - '200 :L- CITY OF BOZEMANCITY OF BOZEMAN ~ .--' - . ,_..........~-,. .-.- - .... .--. -' ::::...- ',.~~'~.~-~~-~,,',".,._~.~~'-~~,~- By: Clark Johnson, City Manager (lJ: oi.~ - Clerk of the City Commission STATE OF MONTANA :ss County of Gallatin On the ,~ day of l'PCI!NlIn e....v- , 1999, hefore me, a Notary Public for the State of Montana, pcrsonally appeared CLARK JOHNSON AND ROBIN L. SULLIVAN, known to me to he the City Manager and Clerk of the City Commission respectively, of the City of Bozeman, whosc names are suhscribed to thc within instrument and acknowledged to me that they exccutcd the same t(.1r and on behalf of said City. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day and yeal' first writtcn above. Not. b ic for the State of Montana " ""'11.. ResIding. at Bozcman, Montana " / .. >. \..... DA "':;"'P. My Commission Expires: 10(/ f; ?oo{ ~" \. 'J4..... 'A__ It , .......'..~. "._'ti7: ~ /-::~:"~~~ 1 AR!4><~i~ " . ~ ... t'-. 0_ ::SEAL} ~ t \~ .~.~. _ /,l . ,!\ "'" .. ..... ",;,: '4... ........ (\~.. it' t:'~ \-!~.;.' . DERZAY ANNEXA110N AGREEMeNT - 9- --------- ----- --------- --- . , 11111111 1111I111 1IIIIIr2003794 P,g.: 10 of 11 " ~ ' 12/23/1999 02:09P . Sh.ll.y VanDe-Gallatin Co MT MISC 66.00 I EXHIBIT "A" WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL IMPROVEMENT DISTRICTS DERZA Y ANNEXATION TRACT The undersigned owners of the real property situated in the County of Gallatin, State of Montana, and more particularly described as follows: Certificate of Survey No. 17 located in the SE ~ of the SW ~ of Section 35, Township 1 South, Range 5 East, PMM Gallatin County, Montana. IN CONSIDERATION of receiving approval for annexation of the subject property from the City of Bozeman, along with accompanying rights and privilcges and for other and valuable consideration, the receipt of which is hereby acknowledged, and in recognition of the impacts on traffic, parks, 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 paving, curb, gutter, sidewalk, and drainage improvements to: a) Baxter Lane; b) Thomas Lane-future North 2ih Avenue; c) traffic signal and intersection improvements for the intersection of Baxter Lane and North 19th A venue; d) a City-wide Parks Maintenance District, which would provide a mechanism for the fair and equitable assessment of maintenance costs for city parks; e) water main improvements for trunk water lines including Baxter Lane Water Lines and Davis Lane/Fowler Lane Water Lines; and f) a sewer main to serve the property that will allow for gravity collection service to the property, or to make any written protest against the size or area or creation of the district 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 fmancing 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 and shall not expire with the dissolution of the limited partnership, provided however this waiver shall apply to the lands herein described. DERZA Y ANNEXATION AGREEMENT - 10- '. 11111111 1111I111 IIIII~ 2003794 PAlle: 11 of 11 ....' 12/23/1999 02:09P .. . Shelley VAno.-GallAtln Co MT MISC 66.00 ~ The terms, covenants and provisions of the Waiver shall extend to, and be binding upon the successors-in-interest and assigns ofthc parties hereto. DATED this /7 day of 0(/;------/ .1999. < 11'4~ By: Michael 'f1 Cf/:;j MP /i "rILlI By: Ka Derzay STATE OF MONTANA) :ss County of Gallatin ) On this ,CJ day of ('JJ. . 1999, before me, a Notary Public for the State of Montana, personally appeared Michael and Katy Derzay, known to me to be the persons whose names are subscribed to the above instrument and acknowledged to me that they executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as oftQ~\da,.8IIIlil,xear fIrst above written. , , " Q. LV..... 'I" '. ,,< .......' ,,1 ,- . -:,.. .., All". ""'t t. . -:, .' 0'\ "4" r'" .\:/ ~ ,,' ,,( .... (' ; C . ~""<t ~....; ....t......c,~ r ~ S EA.L }" 140t Public for the State of Montana \ .: Residing: I1...MA-n_h 'yyJ 0 ...... . ~,/ Commission Expi~es: v - I - J. cw OL- I.... ..1It,...jIfo.....OOI7'" I . ~) ~ ~ .... .1":. " , i DERZA Y ANNEXA TJON AGREEMENT - II - .