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HomeMy WebLinkAbout95- Fellows/Willowbrook Annexation THIS AGREEMENT, lS made and entered into this 6th day of .. ~ filM 156 PACE3400 FELLOwsjWILLOWBROOK ANNEXATION AGREEMENT February , 19~, by and between THE CITY OF BOZEMAN, a municipal corporation of the State of Montana with offices at 411 East Main Street, Bozeman, Montana 59771-0640, hereinafter referred to as "City", and MARIE G. FELLOWS, 2308 West Durston Road, Bozeman, MT 59715, and WILLOWBROOK CONDOMINIUM, INC., 2421 Highland Boulevard, Bozeman, MT 5 9 7 15 , hereinafter referred to as "Landowners". WHEREAS, the Landowners own In fee simple certain real property described as follows: Tract B, C.O.S. 1817 (1.967 acres) and Tract 1, C.O.S. 1855 (17.215 acres), located in the NW~ NE~ of Section 11, Township 2 South, Range 5 East, M.P.M., Gallatin County, Montana. Subject to protective covenants and easements of record, if any. Said tract is more commonly located in the 2300 block of West Durston Road, Bozeman, Montana. WHEREAS, the Landowners have requested ,.,annexation of the contiguous tract; and WHEREAS, the Landowners recognlze that the annexation of the above-described property, hereinafter referred to as the "FellowsjWillowbrook Annexation Tract" will entitle the Landowners to City services, including municipal water and sewer service; 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 . FILM 156 PAGE3401 FELLOWS/WILLOWBROOK ANNEXATION AGREEMENT PAGE 2 OF 9 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 property; and WHEREAS, the City's present sewer service system lS insufficient to enable it to supply reasonable sewer collection servlce to additional customers outside the present city boundaries; and WHEREAS, all parties recognize that the development of the Fellows/Willowbrook Annexation Tract will eventually requlre connection to City water supply; and WHEREAS, the Landowners find that this Agreement will provide for the most satisfactory and dependable water supply or serVlce available to furnish water, provide for the most satisfactory and dependable sewer service available to furnish sewer collection service, and provide traffic circulation for development within the Fellows/Willowbrook Annexation Tract; and WHEREAS, the making and performance of this agreement lS desirable to promote the development of the most adequate water supply, sewer collection and traffic circulation pattern for the City as it now exists and as it is reasonably expected to enlarge; and WHEREAS, the Landowners understand and agree that no further development shall be approved for any of the Fellows/willowbrook Annexation Tract until water, sewer and street improvements are made resulting in adequate city transportation, which adequacy FELLOWS/WILLOWBROOK ANNEXATION AGREEMENT PAGE 3 OF 9 filM 156 PACE3402 shall be determined by the Director of Public Service or his designee and sanitation facilities to safely accommodate use of and travel to, from and within the parcel proposed for development; and WHEREAS, the securing of an adequate water supply, sewer collection, and traffic circulation system by the City is necessary and of mutual advantage to the parties hereto. WIT N E SSE T H: 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 City Commission will annex the Fellows/Willowbrook Annexation Tract in accordance with its decision on December 5, 1994. 3. Services Provided bv City. The City will, after annexation, make City services, including water and sewer, available to the Fellows/ willowbrook 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, as well as any other terms and conditions which apply to the Fellows/Willowbrook Annexation Tract or any hook~up, FELLOWS/WILLOWBROOK ANNEXATION AGREEMENT PAGE 4 OF 9 FILM 156 PACE3403 City's provision of this serVlce. The term does not contemplate the extension of lines or construction of necessary improvements for delivery of water to and within the connection, or development charges which may be established by the City. 5. Municipal Sewer Service Defined. The term "municipal sewer service" as lS used in this agreement shall be the service which is supplied by the City in accordance with Chapter 13.24, Bozeman Municipal Code, 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 for collection of sewage at and within the Fellows/willowbrook Annexation Tract or any hook-up, connection, or development charges which may be established by the City. 6. Water Riqhts. 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 average annual diversion requirement necessary to provide the anticipated average annual consumption of water by residents and/or users of property when fully developed on the which would create additional water supply capacity. This filM 156 PACf34Q4 FELLOWS/WILLOWBROOK ANNEXATION AGREEMENT PAGE 5 OF 9 basis of the zoning designation(s). The fee may be used to acquire water rights or for improvements to the water system policy is subject to the following exceptions: a. For any annexation in excess of ten (10) acres, it shall be carried out prior to final plat approval, final site plan approval or the issuance of any building permit, whichever occurs first. Section 2, No.5, commission Resolution 2716 adopted October 3, 1988 The Fellows/Willowbrook Annexation Tract consists of approximately 19.182 acres. The Landowners understand and agree that sufficient water rights must be provided in accordance with the City's policy prior to acceptance of this Annexation Agreement. The Landowners shall supply such water rights or fee in lieu as calculated by the City in accordance with its policy at the time of calculation. The Landowners further understand that the City has calculated the average annual diversion requirement necessary to provide water for the annexation. 48.80 acre-feet has been calculated as the amount of water use based on the proposed development of the property. The cash- in-lieu of this amount equals $17,542.27 and shall be paid by the Landowners upon signing of this Agreement. I' " . FELLOWS/WILLOWBROOK ANNEXATION AGREEMENT PAGE 6 OF 9 FILM 156 PACfJ405 7. Waiver of Riqht to Protest Special Improvement Districts. The Landowners have executed a waiver of Right to Protest Creation of Special Improvement Districts which include the Fellows/Willowbrook Annexation Tract for street improvements to Durston Road and West Beall Street, including paving, curb/ gutter, sidewalk, and storm drainage, and for signalization at the intersection of Durston Road and North 19th Avenue. This Waiver is attached hereto as Exhibit A. 8. Dedication of Roadwav Easements The Landowners have agreed to dedicate an additional fifteen foot wide (15') strip along the north property lines for road and utility easement for Durston Road for future improvements to Durston Road. This fifteen foot wide (15') strip will be in addition to the existing thirty foot (30') easement that exists along this property for Durston Road. This dedication shall be filed as a written Public Street Easement with this Agreement. The Landowners have further agreed to dedicate a sixty foot (60') wide road and utility easement for West Beall Street from the east property boundary to its intersection with North 25th Avenue to the west. This easement has already been provided on C.O.S. No. 1855. FELLOWS/WILLOWBROOK ANNEXATION AGREEMENT PAGE 7 OF 9 filM 156 PACE3406 9. Additional Terms for Road Easements Waivers. All parties recognize that this document must be executed at the time this Annexation Agreement is executed, and shall be filed and of record with the Gallatin County Clerk and Recorder. The City shall file these documents once the Annexation is officially accepted. 10. utility Easements. The Landowners understand and agree that utility easements, thirty (30) feet in width, may be necessary for the installation and maintenance of water and sewer utility services to the annexed parcel. The Landowners shall create such easements in locations agreeable to the City at such time they are needed. 11. Governinq Law. This Agreement shall be construed according to the laws of the State of Montana. 12. Invalid Provision. The invalidity or unenforceability of 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. 13. Modifications or Alterations. No modification or amendment of this Agreement shall be valid unless evidenced by a writing signed by the parties hereto. I l CITY OF BOZEMAN ') " \.~ ~ w;::'"'""."'--"~'"-' . ,/ ~~~-~C--_. ;\:~;'-' , I ." 1 ~, J, " ,J',' l <t' !>-':XL ,,-C,. "- . ' ...'.::.', 'i j' J '\, <I FELLOWS/WILLOWBROOK ANNEXATION AGREEMENT PAGE 8 OF 9 filM 156 PACfJ407 14. 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. 15. Successors. Except as provided in paragraph 16, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective heirs, successors and asslgns. 16. 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. '-.----" "...".....;.~ ft:tTi'..~ ,,\ "j'"'' " "."' 'lIio.'" (~ P 1"1 .) ;" 1-\.. ~:~ ./dj~':) .......y~ '. ' ~':I ...... '. '"1,, ( .~ j o:rv.~"r ,y- \"J : ::c. \1'" ''''n'''' ;1 ,5. ,'~',,/,~": ,"~ :r7.. '" \~ ,C/ ~. ~'\ IJ Qt1~~)'. ~\ ....'~ ~.~\(,e'~nA,'~ OF MONTANA .~~.. r....,"',,#'....."','....';:' ij"* '''"" ".,,' "~,\". W,' U'-' ,." , ~ 'N,,,,,,..,,€'ount:!y of Gallatin Onthis \~-t!-\ dayof 6){('(",.......~-F ,19~beforeme, a Notary Public for the State of Montana, personally appeared Marie G. Fellows, known to me to be the person who executed the above Annexation Agreement and acknowledged to me that she executed the same. f- " . FELLOWS/WILLOWBROOK ANNEXATION AGREEMENT PAGE 9 OF 9 fILM 156 PAGf3408 LANDOWNERS /j :,-~.~!A t~~' ~/~'~. J/;/r: Marie G. :ss IN WITNESS WHEREOF, I have hereunto set my hand and affixed by Notarial Seal the day and year first above written. K..;.~ C~t,uil Notary pub-Kc for State of Montana Residing at C,AI\"J,~ <-"-'"I-;, Commission Expires: ~- I..:>' 'l f MONTANA . .~f Gallatin "!this I ?14-. day of Q" C.e_I-.-I.,,~J , 19 (~'-I before me, '." ~~ Public for the State of Montana, p~rsonally appeared Ken 'r, known to me to be the presldent of willowbrook .1'. . . '~lnlum, Inc., the corporatlon that executed the above "6xation Agreement and acknowledged to me that he executed the same for and on behalf of said corporation. :ss IN WITNESS WHEREOF, I have hereunto set my hand and affixed by Notarial Seal the day and year first above written. 'I. /-1 / ^e,l, '...j\\?L~ Notary Publi~ for State o~! Montana Residing at (?/11'IIL, '(A~v ~J.; Commission Expires: t' i. J 1? EXHIBIT "A" FELLOWS/WILLOWBROOK ANNEXATION AGREEMENT WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL IMPROVEMENT DISTRICTS WHICH WOULD INCLUDE PROPERTY KNOWN AS THE FELLOWS/WILLOWBROOK ANNEXATION fILM 156fACE34Q9 , , We, the undersigned owners of the real property situated in the County of Gallatin, State of Montana, and more particularly described as follows: Tract B, C.O.S. 1817 (1.967 acres) and Tract 1, C.O.S. 1855 (17.215 acres), located in the NW~ NE~ of Section 11, Township 2 South, Range 5 East, MPM, Gallatin County, Montana, along with and subject to any existing easements. IN CONSIDERATION of receiving Annexation of the subject property to the City of Bozeman, along with accompanying rights and privileges and for other and valuable consideration, the receipt of which lS hereby acknowledged, in recognition of the traffic that will be generated by the development of the above-described property, have waived and do hereby waive for ourselves, our heirs, personal representatives, successors and assigns, the right to protest the creation of one ore more special improvements districts for the following: a. Street improvements to Durston Road, including paving, curb/gutter, sidewalk, and storm drainage. b. Street improvements to West Beall Street, including paving, curb/gutter, sidewalk and storm drainage. c. Signalization at the intersection of Durston Road and North 19th Avenue. Costs of the SID improvements are limited to the proportionate share of the cost of one-half of a City Standard Street for the Durston Road and West Beall Street improvements, and to the proportionate share of the signalization improvements. EXHIBIT "A" FELLOWS/WILLOWBROOK ANNEXATION AGREEMENT PAGE 2 OF 3 fll M 156 FAn 3410 " . .' 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. We further waive our right to make any written protest against the proposed work or against the extent or creation of the districts 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. This walver shall be a covenant running with the land and shall not explre. We warrant that we are lawfully seized and possessed of the real property described above and that we have a lawful right to convey the property or any part of it. DATED THIS J 3 U day of (1 c (' /.-. 4s.-..- , 19 C) '-( EXHIBIT "A" FELLOWS/WILLOWBROOK ANNEXATION AGREEMENT PAG~ 3 OF 3 FILM 156 P^C[J411 " . #' .,.,,:? ~,"'''H......'' ""."..~~~.~. MONTANA to\~"""~~ \ : ss " ~'f8, ',~"~Gallatin ~~"~,,'<1Jk,( ".~~,"" .,!bl1~~ ;;'/~~eO~tate OP~~~ta~;;' person~li~ ~~pe~;~~r;a~~~ 'i{.."!1:-", known to me to be the person who executed the above eIQ~f~rtAgreement and acknowledged to me that she executed the . :~':'N,tf 1 IN WITNESS WHEREOF, I have hereunto set my hand and affixed by Notarial Seal the day and year first above written. ~~, C-'l~ Notary Public for State f Montana Residing at . G,,eJ/1 r{J;'/l Cc.'J//!--'" Commission Explres :-?-~<{'- 'i,{> ., /:~~~~ /,~'r.-;;\r~~"~F MONTANA ;: 4:,: 'Q'TA1l',...( ; : s s '. ~~ ,~,:!,' '" j~ of Gallatin 1ft'" ,~' '"..~ ' ' t'h n "':"":'::,,'(iI<:~:~n: this 'j day of \)iPm>...);>-~-/' , 19~ before me, "'~~,':,a;l~!i~ry Public for the State of Montana, personally appeared Ken oFJ>>~'Jl!ir, known to me to be the President of Willowbrook ,..~tCJhdominium, Inc. , the corporation that executed the above Annexation Agreement and acknowledged to me that he executed the same for and on behalf of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed by Notarial Seal the day and year first above written. Ji;)<> ~ OE: [Ue Notary Public for Sta e of Montana Residing at (p,-1}lal.(\ Cc<.;",~ Commission Expires: g-ls.9i