HomeMy WebLinkAbout02- Kirk Annexation Agreement
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J KIRK ANNEXATION AGREEMENT
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TillS AGREEMENT made and entered into this I :!::>
/ day of ,
2002, by and between the CITY OF BOZEMAN, a municipal cOllJoration and political
subdivision of the State of Montana with offices at 411 East Main Strect, Bozeman, Montana
5977]-1230, hereinafter referred to as "City" and Rogcr Kirk, P.O. Box 1136, Bozeman,
Montana 59771, hereinafter referrcd to as "Landowner."
WITNESSETH:
WHEREAS, Landowner, is owner in fcc of a tract of certain real property, hereinafter
referred to as the "KIRK ANNEXATION" tract situated in Gallatin County, Montana, and more
particularly described as follows:
Lots 2A, 3A, and 4, Block I, Walker Property Subdivision, Gallatin County, Montana.
WHEREAS, the Landowncr has petitioned the City for annexation of said tract of land;
and
WHEREAS, the KIRK ANNEXATION is not within thc corporate limits of the City or
othcr municipality and may thcrcfore be annexed to the City in accordancc with thc provisions of
this Agreement and M.C.A. Title 7, Chapter 2, Part 46.
WHEREAS, all parties rccognize that the annexation of the KIRK ANNEXATION
pursuant to Section 7-2-4601, ct seq., M.C.A. will entitle the said property to City services,
including municipal water and sewer servicc, upon their availability; and
WHEREAS, M.C.A. Section 7-2-46 provides that a municipality and landowner can
agrce to the provisions of services to the area to be annexed; and
WHEREAS, the City's prcsent water supply and sewer collection system is insuilicient
to enablcit to supply reasonably adequatc water and scwer service to additional customers
outside the present city boundaries; and
WHEREAS, all parties recognize that the development of thc KIRK ANNEXATION
will impact area strcets, and that future improvements may rcquirc additional public strcct
inlprovements for traffic circulation; and
WHEREAS, the Landowner wishes to convcy to the City certain water rights or take
some equivalent action to provide watcr and sewer service to the KIRK ANNEXATION; and
WHEREAS, the Landowner finds that this Agreement will provide for thc most
satisfactory and dependable watcr supply and sewer supply or service available to furnish water
KIRK Annexation Agreement I
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and wastewater collection, and provide traffic circulation for dcvclopmcnt ncar and within the
KIRK ANNEXATION; and
WHEREAS, the making and performance of this Agreement is desirable to promote the
development of the most adequate water supply, wastewater collection and traHic circulation
pattern for the City as it now exists and as it is reasonably expected to enlarge; and
WHEREAS, thc securing of an adequate water supply, wastewater collection, and traffic
systems by the City is necessary and of mutual advantage to thc parties hereto.
WHEREAS, thc parties have deternlined that it is in the best interests of the City and the
Landowner, and in furtherance orthe public health, safety and welfare ofthe community to eliter
into and implement this Agreement.
WIT N ESE T H:
IN CONSIDERATION of the mutual covenants and agreements herein contained, the
parties hereto agree as follows:
1. Recitals
The above recitals are tmc and correct.
2. Annexation
The Landowncr filed an application for annexation of the KIRK ANNEXATION with thc
City. The City, on April 22, 2002, acknowledged the Petition for Annexation for the KIRK
ANNEXA nON. By acknowledgement of this petition, the City has manifested its intention to
annex the KIRK ANNEXATION tract pursuant to the tenns and conditions of this Agrccment.
Subject to the provisions of Title 7, Chapter 2, Part 46, the City shall, upon execution of this
Agreement, adopt a Resolution of Annexation of the KIRK ANNEXATION to the City. Further,
upon the execution of this Agreement, the Landowner, shall do all things ncccssary and propcr to
aid and assist the City in carrying out the terms, conditions and provisions ofthis Agreement and
effectuate the anncxation of the KIRK ANNEXATION tract to the City.
3. Services Provided
Thc City will, upon annexation, makc available only cxisting City scrvices to the extent
currcntly available, including municipal water service, municipal sewer serVIce, police
protection, and fire protection, to the KIRK ANNEXATION, as provided in this Agreement.
4. Municipal Water Service Defined
KJRJ( Annexation Agreement 2
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Shelley Vanoe-Gallatin Co MT MISC 66,00
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The ternl "municipal water service" as is used in this agreement shall be the scrvice
which is supplied by thc City in accordance with Chapter 13.12, Bozcman Municipal Code, or as
may be amended, as well as any other tcrms and conditions which apply to the City's provision
of this service. The tenn docs not contemplate the extension of lines or construction of
necessary improvcments at any cost to thc City for delivery of water to and within the KIRK
ANNEXA TION. Nothing in this Agreement shall obligate the City to pay for right-of-way
acquisition, engineering, construction, and other costs for thc delivery of water to or within the
KIRK ANNEXATION to include, but not limited to, any impact fees, hook-up, connection, or
developmcnt charges which have bccn or may be established by the City.
5. Municipal Sewer Service Defined
The tenn "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 wcll as any other ternlS and conditions which apply to the City's provision
of this service. Thc term does not contcmp1atc the extension of lines or construction of
necessary improvements at any cost to the City for collection of sewage at and within the KIRK
ANNEXA TION. Nothing in this Agrccment shall obligate the City to pay for right-or-way
acquisition, engineering, construction, and other costs for the collection of sewage services to or
within the KIRK ANNEXATION to include, but not limited to, any impact fees, hookup,
connection, or development charges which may bc cstablished by the City.
6. Water Ril!hts
The parties acknowledge the following City policy:
Prior to annexation of property, it shall be the policy of the City of Bozcman to
acquire usable watcr rights, or an appropriate fee in licu thereof, cqual to the
anticipated average annual consumption of water by residents and/or uscrs of thc
property when fully devc10ped. The fee may be used to acquire water rights or for
improvements to the watcr system which would create additional water supply
capacity. Except, howevcr, that for any annexation in excess or ten (10) acres,
this policy shall be carried out prior to final plat approval of each devclopment
phasc.
- Section 2, No.5, Commission Resolution 3137, Adopted August 19, 1996
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Thc Landowner has paid cash in-lieu of water rights in the amount of $ .J.1 \ 7 .
7. Comprehensive Water and Water Desil:.m Report
Prior to ruture development of the propcrty, the Landowner may be required to have
prcpared by a Profcssional Engineer, at Landowncr's expense, a comprehensive design report
evaluating cxisting capacity of scwcr and water utilities in the arca. Thc report must include
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Sh.ll.y Vanc.-Gall.tin Co MT MIse 66,00
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 infrastructure capacity is not available for full development, the report must identify
nccessary system improvements required for full development. The Landowncr agrees to
complete at Landowner's expense, the necessary system improvements to serve the full
development.
8. Future Development Limitations
The Landowner ullderstands that all future development on this property is subject to site
plan review. Landowncr further understands and agrees that substantial limitations for growth
may exist for this propcrty duc to floodplains. This will need to bc addresscd in conjunction with
devclopment of the parcels. The future developer will be responsible for installing any faeilitics
required to provide full municipal serviccs to the property in accordance with the City's
Infrastructurc Master Plans and all city policies and guidelines that may be in effect at thc time
of dcvelopmcnt. Thus, Landowner understands and agrees that there is no right, either grantcd or
implied by the City,for the Landowner to develop any of the KIRK ANNEXATION until it is
verified by the City that necessary municipal services, including but not limited to police and fire
protection, and sewer and watcr capacity, arc available to all or a portion of the KIRK
ANNEXA nON.
9. Stormwatcr Master Plan
Landowner understands and agrees that a Stormwater Master Plan for the KIRK
ANNEXA TION for a system designed to remove solids, oils, grease, and other pollutants from
the runoff from the public streets may be required to be provided to and approved by thc City
Engineer at the time of any future development. The master plan, if required, must dcpict the
maximum sized retention/detention basin location 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 infornlation, typical stornlwater detention/retention
basin and discharge structure details, basin sizing calculations, and stomlwater maintcnance plan.
10. Traffic Analvsis Report
Landowner understands and agrees that a detailed Traffic Analysis Report(s) may be
required to be submitted at thc time of futurc development of any portion of the annexed
property.
KIRK Annexation Agreement 4
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Shelley Vanoe-Gallatin Co MT MISC 86,00
11. Waiver of Ri2ht-to-Protest Special Improvement Districts
Landowner has exccutcd a Waiver of Right-to-Protest Creation of Special Improvement
Districts for maintenance of any parks within the anncxed area and/or of a City-wide Park
Maintenance District, which would provide a mechanism for the fair and equitable assessment of
maintenance costs for such parks. Said Waiver is attached hereto as Exhibit "A" and is hereby
incorporated in and made a part of this Agreement.
Landowner agrees that in the event an S.l.D. is not utilized for the completion of these
improvements, the developer agrees to participate in an aItemative financing method for the
completion of said improvements on a fair share, proportionate basis as detennined by square
footagc of property, taxable valuation of the property, traffic contribution from the development
or a combination thereof.
12. Utility Easements
The Landowner understands and agrees that utility easements, a minimum of thirty (30)
feet in width, may be necessary for thc installation and maintenance of water and sewer utility
services to the mmexed parcel. The Landowner shall create such easements in locations
agrecablc to the City during the appropriate development procedures, but in no event later than
the filing of any final plat or sitc plan review or issuance of a building permit on the parcel(s).
13. Impact Fees
The Landowner hercby acknowledges that annexation and development of his property
will impact the City's existing street, water and sewer infrastructure, and fire service
requirements. There are existing structures on the property including two condominiums. Upon
annexation the landowners shall pay all Fire and Street impact fees which are due for all existing
structures. At the time new and existing stmctures apply to the City's Water and Sewer
facilities, the Landowners shall pay all Water and Sewer Impact Fees which are due. The
Landowners mId 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 fces 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 Chaptcr of the Bozeman Municipal Code lawfully
KTRK Annexation Agreement 5
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Sh.ll.y Vanc.-Gallalln Co MT MISC 66,00
enacted as a 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 pe1111it which actuates or
would have actuatcd impact fees pursuant to the current Chapter 3.24 of the Bozcman Municipal
Code, the Landowncr further agrees to pay at that time, the amount calculated for all such fees
based upon the rates established at the date of this agrccmcnt.
If the Court abovc dcclares Chapter 3.24 of the Bozeman Municipal Code invalid, and if
landowner would have been entitlcd to a rcfund under the court's decision but were it not for the
sole fact of the landowner paying impact fccs because of this agreement, then all such impact
fees paid prior to the court's decision shall be held in escrow until a revised Chapter of the Code
is enacted after the Court's decision.
At the time the rcvised code is enacted, then all such fees hcld in cscrow shall be released
to the city and the balancc, if any, retumed to the landowner. All accumulatcd intcrest on the
sum held in escrow shall bc released to the City or landowner on the same percentage as the
money released to cither party bears to the total sum hcldin cscrow.
Landowners further understand and agree that any improvements, either on or off-site,
nccessary to provide connection of Annexation Tracts to municipal services which arc wholly
attributable to the property arc "project related improvements" as defined in Chapter 3.24,
Bozeman Municipal Codc, or as amended, and as such, are not cligible for impact fee credits.
If Landowners default on this condition at the time such is to be perfonned, and should
default not be remedicd or corrected within thiliy (30) days after written notice by City to
L.andowners 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
judgmcnt. In addition, the City may, at its option, cnforcc payment of
such amount by levying an asscssmcnt on the prcmises.
B) Elect any other remedy available to City undcr the laws of the State of
Montana.
C) Any waiver by City of any default shall not be construcd as a waiver of
any subscquent default.
D) It is agrecd that it shall be no defense to the enforcement of this provision
by City that impact fees imposed pursuant to Chapter 3.24 ofthe Bozeman
Municipal Code are subsequently voided or declared invalid by a court of
competent jurisdiction. It is thc exprcss intention of tne 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 paymcnt,
landowner will pay such amount as specified above,
KIRK Annexatioll Agreement 6
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14. Additional Terms of Waivers Shelley Vanoe-Gallatin Co MT MISC 66,00
The parties recognize that thcse documents shall be filed and of record with the Gallatin
County Clerk and Recorder prior to the sale of any land with the KIRK ANNEXATION. The
parties further agrcc that the City may file these documents at any timc.
15. Governine Law and Venue
This agreement shall be construed under and governed by the laws of the state of
Montana. In thc event of litigation, venue is in thc Eighteenth Judicial District Court, in and for
County of Gallatin, State of Montana.
16. Attornev's Fees
In thc 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, thcn the prevailing party shall be
entitled to reasonable attorney's fees and costs, to include the salary and costs of in-house
counsel including City Attorney.
17. Waiver
No waiver by cither party of any brcach of any term, covenant or agreement shall be
dcemed a waiver of the samc or any subsequent breach of this same or any other term, covenant
or agreement. No covenant, term or agreement shall be deemed waivcd by either party unless
waived in writing.
18. Invalid Provision
The invalidity or unenforceability of any provision of this agreement shall not affect the
other provisions hercof, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
19. Modifications or Alterations
No modifications or amendmcnt of this Agreement shall be valid unless evidenced by a
writing signcd by the parties hereto.
20. No Assienment
It is expressly agreed that the Landowner shall not assign this Agreemcnt in whole or in
part without prior written consent ofthe City.
21. Successors
This Agreement shall be binding upon, inure to the benefit of and be enforceable by the
parties hereto and their respcctive heirs, successors and assigns.
KIRK Annexation Agreement 7
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22. Covenants to Run with the Land Shelley Vanoa-Gallatin Co MT MIse 66,00
The parties intend that thc tCfms of this Agreement shall be covenants running with the
land and shall not expire at their deaths or upon transfer of ownership ofthe property.
The undersigned Landowncr affirms that they have authority to enter into this Agreement
on bchalf of their corporation, and to bind the corporation to this Agreement
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
cxccutcd the day and year first abovc writtcn.
LANDOWNER
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Rogcr I'k
STATE OF me:- rd-OJ,,)."-.
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County of Jig, 0 I ~
On this ~ day of OJ:,__ ,2002, , before
me, the undersigned, a Notary Public for the State of Montana, personally appeared Roger Kirk,
known to be the person whose name is subscribed to the within instrument and acknowledged to
mc that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the
day and year fi.rst above written.
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Owner Sherwood Developers, LLC
STATE OF ~ t--L~-c.-
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On this IS day of 0 cJ , 2002, before me, the undersigned, a
Notary Public for the State of Montana, personally appeared Roger Kirk, known to me to be the
prcsidcnt of Sherwood Developers, LLC, the corporation that executcd the within instrumcnt,
and acknowledged to me that he exccuted thc same for and on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and a11ixed my Notarial Seal the
day and year first abovc written.
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Sh.ll.y Vanc.-Gallatin Co MT MISC 66,00 '
CITY OF BOZEMAN
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ST ATE OF MONT ANA )
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COUNTY OF GALLATIN )
On this M~- day of --7/~t IJ-L ' 2002, before me, a Notary Public
for thc state of Montana, personally appeared Clark V. Johnson and Robin Sullivan, known to
mc to the persons described in and who executed the foregoing instnlment as City Managcr and
Clerk of the City Commission respectively, of the City of Bozeman, whose names arc subscribed
to the within instrument and acknowledged to me that they executcd the samc for and on bchalf
of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
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Shelley VanQe-Gallatln C MT 11/26/2002 0B:33A
EXHIBIT" A " o MISC 66,00
WAIVER OF RIGHT-TO-PROTEST
CREA TION OF SPECIAL IMPROVEMENT DISTRICT
FOR A CITY-WIDE PARK MAINTENANCE DISTRICT
KIRK ANNEXATION
The undersign cd owner of the real propcrty situated in the County of Gallatin, State of
Montana, and more particularly described as follows:
Lots 2A, 3A, and 4, Block 1, Walker Property Subdivision, 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, thc receipt of which is hereby acknowledged, and in recognition of thc
impact to City parks which will be caused by the development of the above-described property,
the owner has waived and do hcreby waive for itself, its successors and assigns, the right to
protest thc creation of one or more special improvemcnt districts for maintenance of any parAs
within the annexetl area and/or of a City-wide Park Maintenance District, which would
providc a mechanism for thc fair and equitable asscssmcnt of maintenance costs for City parks,
or to make any written protest against the size or area or creation of the district be assessed in
response to a duly passcd resolution of intention to create one or more special improvcmcnt
districts which would include the above-described property.
This waiver shall be a covenant running with the land and shall not expire with the
dissolution of the corporation, provided however this waiver shall apply to the lands herein
described.
The terms, covcnants and provisions of the Waiver shall extend to, and bc binding upon
the succcssors-in-interest and assigns of the parties hereto.
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DATED this ~ day of ,2002.
KIRK Annexation Agreemeltt fO
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STATE OF
County of b:.tf(';:{ :ss
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On this ~jS day of__ o c -J ,2002, -~.~"" , before
me, thc undersigned, a Notary Public for the State of Montana, personally appeared Roger Kirk,
known to be the person whose mune is subscribed to the within instrument and acknowledged to
me that he executed the same.
IN WITNESS WHEREOF, I have hcrcunto set my hand and afftxcd my Notarial Seal the
day and year first above written.
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Roger Kirk
President Sherwood Developers, LLC
STATE OF 'fY'..-J . )
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County of~JJ ~
On this _L~ day of.. O~J. , 2002, beforc me, the undersigned, a
Notary Puhlic for the State of Montana, personally appeared Roger Kirk, known to me to be the
president of Sherwood Developers, LLC, the corporation that executed the within instrument,
and acknowledgcd to me that hc executed the same for and on behalf of said corporation.
IN WITNESS WHEREOF, I havc hereunto set my hand and affixed my Notarial Seal the
day and year first abovc written.
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KTRK Annexation Agreement 11