HomeMy WebLinkAbout04- Loterbauer Annexation Agreement
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LOTERBAUER ANNEXATION
ANNEXATION AGREEMENT
THIS AGREEMENT made and entered into this 24th. day of Auqust , 2004, by and
between the CITY OF BOZEMAN, a municipal corporation and political subdivision of the Statc of Montana
with offices at 411 East Main Street, Bozeman, Montana 59771-0640, hereinaftcr referred to as "City", and
EDW ARD L. AND LE ETT A L. LOTERBAlJER, 3324 West Babcock Street, Bozeman, Montana 59718,
hereinafter referred to as "Landowner".
WHEREAS, Landowner is owner in fee of a tract of certain real property, hereinafter referrcd to as the
UJTERBAUER ANNEXA nON tract situatcd in Gallatin County. Montana, and more particularly describcd as
follows:
A tract of land being Tract I of the Van Horn Subdivision lying in the Southwest One-Quarter
of Section 11, Township 2 South, Range 5 East, Principal Meridian Montana, Gallatin County,
State of Montana and being 0.275:t acres more or less along with and subject to any and all existing
casements.
WHEREAS, the Landowner has petitioned the City for annexation of said tract of land; and
WHEREAS, the LOTERlJAUER ANNEXA nON is not within the corporate limits of the City or other
municipality 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 LOTERBAUER ANNEXA. TlON 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 landowner can agrce to the
provisions of services to the area to be anncxed; and
WHEREAS, the City's present water supply and sewer collection system is insufficient to cnable it to
supply reasonably adequate water and sewer service to additional customers outside the prcsent city boundaries;
and
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WHEREAS, all parties recognize that the dcvelopment of the LOTERBA.UER ANNEXATION will
impact area streets, and that future improvcments may require additional public street improvements for traffic
circulation; 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 LOTERBAUER ANNEXATION; and
WHEREAS, the Landowner finds that this Agreement will provide for the most satisfactory and
dependable water supply and sewcr supply or service available to furnish water and wastewatcr collection, and
provide traffic circulation for development near and within the !JOTERBAUER ANNEXA. TION; 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, wastewater collection, and traffic systems by
the City is necessary and of mutual advantage to the parties hereto.
WHEREAS, the parties have dctermined that it is in the best interests of the City and Landowner, and
in furtherance of the public health, safety and welfare of the community to enter into and implcment this
Agreement.
WIT N ESE T H:
IN CONSJDERA nON of the mutual covenants and agreements hcrein 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 LOTERIJAUER ANNEXATION with the
City on June 7, 2002. The City, on Scptember 3, 2002, adopted a Resolution of Intent to Annex the
LOTERBA.UER ANNEXATION. By execution of this Agreement, the City has manifested its intention to
annex the LOTERBAUER ANNEXA110N tract pursuant to the terms and conditions of this Agreement.
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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 LOTERBAUER ANNEXATION to the City. Further, upon the
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 Agrcement and effectuate the annexation of
the LOTERBAUER A.NNEXATlON tract to the City.
3. Services Provided
The City will, upon annexation, make available only existing City services to the extent currently
availablc, including municipal water service, municipal sewer service, police protection, and fire protection, to
the LOTERIJAUER ANNEXA. nON. as provided in this Agreement.
4. Municipal Water Service Defined
The term "municipal water scrvice" as is used in this agreement shall be thc service which is supplied by
the City in accordance with Chaptcr 13. 12, Bozeman Municipal Code, or as may be amendcd, as well as any
other terms and conditions which apply to the City's provision of this service. The term docs 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 LOTERBAUER ANEXATlON. Nothing in this Agreement shall obligate the City to pay for
right-of-way acquisition, engineering, construction, and other costs for the delivery of water to or within the
LOTERBAUER ANNEXA. nON to includc, but not limited to, any impact fees, hook-up. connection, or
development charges which have bcen or may be established by the City.
5. Municipal Sewer Service Defined
The term "municipal scwer service" as is uscd in this Agreement shall be thc 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 thc City's provision of this service. The term does not contemplate
the extension of lines or construction of nccessary improvements at any cost to the City for collcction of sewagc
at and within the LOTERBAUER ANNEXATION. Nothing in this Agreement shall obligate the City to pay for
right-of-way acquisition, enginecring, construction, and other costs for the collection of sewage services to or
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within the LOTERBA UER ANNEXA.110N to include, but not limited to, any impact fees, hookup, connection,
or development charges which may be cstablished by the City.
6. Water Ril!llts
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 licu thereof, equal to the anticipated avcrage annual consumption of
water by residents and/or users of thc property when fully developed. The fec 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 Landowner understands and agrees that they must provide sufficient water rights in accordance
with the City's policy according to the following schedulc:
LOUTERBAUER ANNEXA110N, consisting of a total of O.275:t acres, prior to final site
plan approval, or filing of any final subdivision plat, whichever occurs .first that will create
additional mbdivision lots and/or development proposals.
Should the Landowncr create additional subdivision lots with further subdivision of said property, or
should the Landowner develop said property under the provisions of the City of Bozeman Zoning Ordinance,
the Landowner shall provide sufficient water rights or cash-in-lieu as calculated by the City in accordance with
its policy at the time of calculation. The Landowner and fUlther understands that the City will calculate thc
avcrage annual divcrsion requiremcnt necessary to provide water to this annexation tract on the basis of the
zoning designation and/or City-approved developmcnt for the property at the time such calculation is made.
7. Comllrehensive Water and Water Desil!n Report
Prior to future development of the property, the Landowner may be requircd to have prepared by a
Professional Engineer, at Landowner's expcnse, a comprehensive design report evaluating existing capacity of
sewer and water utilities in the area. The report must inelude hydraulic evaluations of each uti Ijty for both
existing and post-development demands, and the report findings must demonstrate adequate capacity to servc
the full development of the land. If adequate infrastructure capacity is not available for full development, the
report must identify nccessary system improvements requircd for full development. The Landowner agrees to
complete at Landowner's expense, the necessary system improvements to serve the full development.
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8. Future Devclollment Limitations
Landowncr understands and agrees that substantial limitations for growth exist in the wastewater
collection system for this property, which will necd to be addresscd in conjunction with developmcnt of the
parccl. The future developer will be responsible for installing any facilities rcquired to provide full municipal
services to thc property in accordance with the City's Infrastructure Master Plans and all city policies and
guidelines that may be in effect at the time of development. Thus, Landowner understands and agrecs that there
is no right, cither granted or implied by the City, for the Landowncr to develop any of the LOTERBA.UER
A.NNEXATION until it is vcrified by the City that necessary municipal serviccs, including but not limited to
police and fire protection, and sewer and water capacity, are available to all or a portion of the LOTERBAUER
ANNEXATION.
9. Stormwater Master Plan
Landowner understands and agrces that a Stormwater Master Plan for the LOTERBA.UER
ANNEXA TION for a system dcsigned to remove solids, oils, grease, and other pollutants from thc runoff from
the public streets may be required to be provided to and approved by the City Enginccr at the timc of any future
development. The master plan, if required, must depict the maximum sized retention/detention basin location
and locate and provide easements for adequate drainage ways within the area to transport runoff to the
storrnwater 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
maintenance plan.
10. Waiver of Rieht-to-Protcst Slledal In1l>fovemcl1t Districts
Landowncr has executed a Waiver of RighHo-Protest Creation of Special Improvement Districts for
maintenance of any parks within the annexed area and/or of a City-wide Park Maintenance District, and Waivers
of Right-to-Protest Creation of Special Improvement Districts, which would provide a mechanisln for the fair
and equitable assessment of maintenance costs for such parks, is attached hereto as Exhibit "A"", and is hereby
incorporated in and made a part of this Agrecment.
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Landowner agrees that in the event an S.I.D. is not utilizcd for the completion of these improvements,
the developer agrees to participate in an alternative financing method for the completion of said improvements
on a fair share, proportionate basis as determined by square footage of property, taxable valuation of the
property, traffic contribution from thc development or a combination thereof.
11. Fowler Avenue Ri2ht-of-Way
Landowner agrees that in the event said land is sold, deed of land title is transferred, or upon further
development, the applicant shall provide a public street and utility easement or dedication for one half (50 feet
from the center! ine) of the future right-of-way for Fowler A venue.
12. Utility Easements
The Landowner understands and agrees that utility easements, a minimum of thirty (30) feet in width,
may be necessary for the installation and maintenance of watcr and sewer utility services to the annexed parcel.
The Landowner shall create such easements in locations agreeable to the City during the appropriate
development procedures, but in no event later than the filing of any final plat or site plan review or issuance of a
building permit on thc parcel(s).
13. Impact Fees
Landowner and Landowner/Developer hereby acknowledge that annexation and dcvelopment of their
property will impact the City's existing street, water and sewer infrastructure, and fire service requirements.
There is one (1) existing principle structure 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
Landowner and Landowncr/Developer and thcir successors shall pay all Fire, Street, Water and Sewcr Impact
Fces required by chapter 3.24, Bozeman Municipal Code, or as amended, at the time of application for any
permit listed in Scction 3.24.0S0A, 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, Landowner agrees to pay the City fees or asscssments
established by the City for impact on City scrvices in accordance with a new or reviscd Chapter of thc Bozeman
Municipal Code lawfully enacted as a result of such court decision after the date of the court decision. If, prior
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to enactment of such revised Chapter, the Landowner, applies for any permit, which actuatcs or would have
actuated impact fees pursuant to the current Chapter 3.24 of thc Bozeman Municipal Code, the Landowner
furthcr agrees to pay at that time, the amount calculatcd for all such fees based upon thc rates established at the
date of this agreement.
If the Court above declares Chapter 3.24 of the Bozeman Municipal Codc invalid, and if Landowner
would have been cntitled to a rcfund under the court's decision but wcrc it not for the sole fact of the Landowner
paying impact fees bccause of this agreement, then all such impact fees paid prior to the court's decision shall be
held in cscrow 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 held in escrow shall be released to the city and
the balance, if any, returned to the Landowner and/or Landowner/Developer. All accumulated interest on the
sum held in escrow shall be relcased to thc City or Landowner on the same percentage as the money rcleased to
either party bears to thc total sum held in escrow.
Landowner further undcrstands and agrees that any improvements, either on-site or ofT-site, neccssary to
provide connection of Annexation Tracts to municipal services which are wholly attributable to thc property are
"project relatcd improvements" as defined in Chapter 3.24, Bozeman Municipal Code, or as amended, and as
such, are not eligible for impact fee credits.
If Landowner defaults on this condition at the time such is to be pcrformed, and should default not be
remedied or corrected within thirty (30) days after written notice by City to the Landowner and
Landowner/Developer of such dcfault, City may at their option:
A) Declare the amounts owing for impact fees immcdiately due and payable and City shall
havc 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,
enforcc 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 dcfault shall not be construed as a waiver of any subsequent
default.
D) It is agreed that it shall be no defcnse to the cnforcement of this provision by City that
impact fees imposed pursuant to Chapter 3.24 of the Bozeman Municipal Codc are
subsequently voided or declarcd 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 speci fied amounts, or prohibiting any such payment,
landowner will pay such amount as specified above.
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15. Additional Terms of Waivers
The parties recognize that these documents shall be filed and of record with the Gallatin County Clerk
and Recorder prior to the sale of any land with the LOTERBAUER A.NNEXATlON. The parties further agree
that the City may file these documents at any time.
16. Governinl! Law and Venue
This agreement shall be construed under and governed by the laws of the state of Montana. In the event
of litigation, venue is in the Eighteenth Judicial District Court, in and for County of Gallatin, State of Montana.
17. Attornev's 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 City Attorney.
18. 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.
19. 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 unenforceablc
provision were omitted.
20. Modifications or Alterations
No modifications or amendment of this Agreement shall be valid unless evidenced by a writing signed
by the parties hereto.
21. No Assil!lunent
It is expressly agreed that the Landowncr <llld/or Landowncr/Developer shall not assign this Agreement
in whole or in part without prior written consent of the City.
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22. Successors
This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto
and their respective heirs, successors and assigns.
23. 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.
The undersigned Landowner and Landowner/Developer affirms that they have authority to enter into
this Agreement on behalf of their corporation, and to bind the corporation to this Agreement
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and
year first above written.
LANDOWNER
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By: EDWARD L. LOTERBAUER
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By: LE ETTA L. LOTERBAUER
STATE OF MONT ANA )
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COUNTY OF GALLA TIN )
On this G) l(-t;(L day of VI. t-- "t , 2004, before me, a Notary Public for the State or
Montana, personally appeared Edward L Loterbauer and LeEtta L. Loterbauer, known to me to be the persons
that executed the foregoing Annexation Agreement, and acknowledged to me that they executed the same.
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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CITY OF BOZEMAN
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By: CHRIS A. KUKULSKI, City Manager
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Clerk of the City Commission
ST ATE OF MONTANA )
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COUNTY OF GALLA TIN )
00 thi,JfJf'Aay o~VoLV ___, 2004, bcfo,c me, a Nota,y Public for the "ate of
Montana, personally appea '~d 'nd I;in Sullivan, known to me to the persons described in and who
executed the foregoing ins&{1d'it:'f;t, S __lt~J~er and Clerk of the City Commission rcspectively, 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.
IN WITNESS WHEREOF, I have hcreunto set my hand and affixed my official seal the day and year first
above written.
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EXHIBIT "A"
WAIVER OF RIGHT-TO-PROTEST
CREA TION OF SPECIAL IMPROVEMENT DISTRICT
FOR A CITY-WIDE PARK MAINTENANCE DISTRICT
The undersigned owner or the real property situated in the County of Gallatin, State or Montana, and
more particularly described as follows:
A tract of land being Tract 1 of the Van Horn Subdivision lying in the Southwest One-Quarter of
Section II. Township 2 South, Range 5 East, Principal Meridian Montana, Gallatin County, State or
Montana. being O.275:!: acres lnore or less along with and subject to any and all existing casemcnts.
IN CONSIDERATION of receiving approval for annexation of the subject property from the City of
Bozelnan, along with accompanying rights and privileges and for other and valuable consideration, the receipt
of which is hereby acknowledged, and in recognition of the impact to City parks which will be caused by the
devclopment of the above-described property, the owner has waived and do hereby waivc for itself, its
successors and assigns, the right to protest the creation of one or more special improvcment districts for
maintenance of any parks within the annexed area and/or of a City-wide Park Maintenance District, which
would provide a mechanism for the fair and equitablc assessment of maintenance costs for City parks, or to
make any writtcn protest against thc size or area or crcation 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.
This waiver shall be a covenant running with the land and shall not expire with the dissolution of the
corporation, providcd however this waiver shall apply to the lands hcrcin described.
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.
DA TED this ;Ji/!day of ~JJ ,2004.
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LANDOWNER
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By: EDWARD L. LO ERBAUER ~
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By: LE ETTA L. LOTERBAUER
STATE OF MONTANA )
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COUNTY OF GALLATIN )
On this ,-? </~ day of AlA f $.J , 2004, before me, a Notary Public for the State of
Montana. personally appeared Edward L' oterbauer and LeEtta L. Lotcrbauer, known to me to be the pcrsons
that executed the foregoing Annexation Agreement, and acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I havc hereunto set my hand and affixed my official seal the day and year first
above writtcn.
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I Lotcrbauer Annexation Agreement 12