HomeMy WebLinkAbout04- Metcalf Annexation Agreement
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Shelley Vanoe-Gallatin Co MT MISC 66.00
METCALF ANNEXATION AGREEMENT
V
THIS AGREEMENT is made and entered into this L/ day of yj' ' , 20Jj, by
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and between the aTY OF BOZEMAN, a municipal corporation and political subdivision of the State of
Montana, with offices at 411 East Main Street, Bozeman, Montana 59771-1230, hereinafter referred to as
"City", and Gary Metcalf, 11181 Pine Butte Road, Bozeman, Montana 59718 hereinafter referred to
as "Landowner".
WITNESSETH:
WHEREAS, the Landowner is owner in fee of a tract of certain real propeny, hereinafter referred
to as the "METCALF ANNEXATION', situated in Gallatin C.ounty, Montana, ,lnd more particularly
described as follows:
A tract of land being Tract A, CO.s. 2389, as filed with the Gallatin QmntyOerk and
Recorder, located in the Ph, NE and SEI/4, NE'/4 and the Ph, NE and SE'/4, SE'/4 of
Section 4, Township 2 South, Range 5 East, P.M.M., Gallatin C..ounty, Montana,
Said tract contains 39.92 acres, more or less, and is subject to all existing easements of
record apparent or on the ground.
WHEREAS, the Landowner has petitioned the City for annexation of the contiguous tract; and
WHEREAS, the METCALF ANNEXATION 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, CJupter 2, Part 43.
WHEREAS, all parties recognize dut the annexation of the METCALF ANNEXATION
pursu,mt to Section 7-2-4301, et seq., M.CA., will entitle the said property to City services, including
municipal water and sewer service, upon their availability; and
WHEREAS, M.CA. Section 7-2-4305 provides that a mtmicipalityand landowner 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 Landowner wishes to convey to the City certain water rights or take some
equivalent action to provide water and sewer service to the METCALF ANNEXATION; and
WHEREAS, all parties recognize that the development of the METCALF ANNEXATION will
impact Durston Road, Cottonwood Road and Oak Street, and will require additional public street
improvements for traffic circulation; and
WHEREAS, all parties recognize that the development of the METCALF ANNEXATION will
impact sewer capacity, and will require additional public infrastmcture improvements for future
development of the property; and
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WHEREAS, the Landowner finds that this Agreement will provide for the most satisfactory and
dependable water supply or sezvice available to furnish water and provide traffic circulation for
development near and within the "METCALF ANNEXATION; and
WHEREAS, the making and performance of this Agreement is desirable to promote the
development of the most adequate water supply and traffic circulation pattern forthe Ctyas it now exists
and as it is reasonably expected to enlarge; and
WHEREAS, the securing of an <ldcquate water supply and traffic systenl by the City is necessary
and of mutual advantage to the parties hereto; and
WHEREAS, the panies have determined that it is in the best interests of the Cry 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 1vIE TCALF ANNEXATION with the
Cty. The Cty, on August 25, 2003, adopted a Resolution of Intent to Annex the METCALF
ANNEXATION. By execution of this Agreement, the City has manifested its intention to annex the
METCALF ANNEXATION tract pursuant to the terms and conditions of this Agreement. Subject to
the provisions of Title 7, Chapter 2, Part 43, the Cty shall, upon execution of this Agreement, adopt a
Resolution of Annexation of the METCALF ANNEXATION to the Gty. Further, upon the execution
of this Agreement, the Landowner shall do all things necessary and proper to aid and assist the Cty in
carrying out the terms, conditions and provisions of this Agreement and effectuate the annexation of the
ME TCALF ANNEXATION tract to the City.
3. Services Provided
The Cty will, upon annexation, make available only existing Cty services to the extent currently
available, including municipal water selvice, municipal sewer service, police protection, and fire
protection, to the METCALF ANNEXATION, as provided in this Agreement.
4. Municipal Water Service Defined
The term "mlmicipal water service" as is used in this Agreement shall be the sezvice which is
supplied by the Cityin accordance with C.napter 13.12, Bozeman Municipal Code, or as maybe amended,
as well as any other terms and conditions which apply to the Cty's provision of this service. The term
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Shelley Vanoe-Gallatin Co MT MIse 66.00
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 :ME TCALF ANNEXATION. 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 :METCALF ANNEXATION to include, but not limited to, any
impact fees, hook-up, connection, or development charges which may be established by the City. The
applicant understands and agrees that prior to development the applicant will be responsible for installing
any facilities required to provide full municipal services to the property in accordance with the City of
Bozeman's infrastructure master plans and all city policies that may be in effect at the time of
development.
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 :METCAlF ANNEXATION. 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 within the :METCALF ANNEXATION to include, but not limited
to, any impact fees, hookup, connection, or development charges which may be established by the City.
The applicant understands that substantial limitations for growth exist in the sewer collection system for
this property, which will need to be addressed in conjunction with development of the parcel. Prior to
development of the subject annexation, the applicant's engineer will be required to prepare a
comprehensive design report evaluating the existing capacity of both the water and sewer utilities, The
report must include hydraulic evaluations of each utility for both existing and post development demands.
The report findings must demonstrate that adequate capacity is available to serve full development of the
annexation area. If adequate water and/ or sewer capacity is not ,tvailablc for the full development, the
report must identify the water and sewer system in1provements required to provide the necessary capacity.
Any improvements necessary to serve the full development must be in place prior to further
development of the site.
6. Water Rights
The parties acknowledge the following City policy
Prior to annexation if property, it shallk the paiLy if the City if Bazerrun to ctquire usable Wlter
ngJts, or an appropriate fee in lieu theraf, equal to the antiLipated a7Eraw annual consumption if Wlter
by residents and/or users if the pmperty Wxn fully dL>r.eloped The fee rrny Ix used to acquire WlU-r niJt<;
or for imprmL11L>nts to the Wlter s)Sttm 1.Rhich 'l.R.fJUI.d aeate additional Wlta supply captUity. Ex apt,
hcmeu:r, that for any annexation in excess if ten (10) tUm, thi<; paiLy shalllx canied out prior to final
plat approml if each dezdopm?nt phase
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Section 2, No.5, Commission Resolution 3137, Adopted August 19, 1996
The METCALF ANNEXATION consists of ,:tpproximately 39.92 acres.
The Landowner understands and agrees that they must provide sufficient water rights in
accordance with the Otis policy according to the following schedule:
METCALF ANNEXATION, consisting of a total of 39.92 acres,
shall provide water rights orcash-in-lieu prior to final plat, finals ite
plan or building pennit approval or whiche'lXr occurs first.
The Landowner shall provide sufficient cash- in-lieu as calculated by the aty in accordance
with its policy at the time of calculation. The Landowner further understands that the atywill calculate
the average annual diversion requirement necessary to provide water to this annexation tract on the basis
of the zoning designation andlor aty-approved development for the property at the time such
calculation is made.
7. Comprehensive Water anctSewer Design R~grt
Prior to future development of the propeny, the Landowner shall have prepared by a Professional
Engineer, at Landowner's expense, a comprehensive design report evaluating existing capacity of sewer
and water utilities. The report must include hydraulic evaluations of each utility for both existing and
post-development demands, and the report findings must demonstrate adequate capacityto serve the full
development of the land. If adequate water andlor 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 Landowner's expense, the necessary system
improvements to serve the full development.
8. Future Development
Landowner understands and agrees that adequate municipal services and facilities are not currently
available to much of the area proposed for annexation, and that there is no right, either granted or implied
by the aty, for the Landowner to develop any of the :ME TCALF ANNEXATION until it is verified by
the aty that necessary municipal services and facilities, including but not limited to police and fire
protection, road improvements and sewer, are available to all or a portion of the ME TCALF
ANNEXATION. The Landowner understands and agrees that future development of the :ME TCALF
ANNEXATION may be restricted as defined in paragraph number 5, "Municipal Sewer Service
Defined" and further defined by the following:
a. Prior to any development of the subject annexation, a stormwater drainage and grading plan shall
be provided to and approved by the aty Engineer. TIle plan must demonstrate that adequate
treatment of nmoff from the public streets ,1ncl all future lots will be achieved by providing spot
elevations, t1owdirection arro\V5, detention ,md/ or retention basin details (including basin sizing
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Shelley Vanoe-Gallatln Co MT MISC 66.00
calculations and basin typical sections), outlet structure derails, and culvert capaCltycalculations.
The plan must also locate and provide easements for adequate drainage ways within the
annexation area to transport treated runoff to the stormwater receiving channel.
b. A detailed Traffic Impact Analysis Report may be required prior to future development of the
subject annexation.
c. The applicant is advised that substantial limitations for growth exist in the sewer collection system
for this property, which will need to be addressed in conjunction with development of the parcel.
Prior to development of the subject annexation, the applicant's engineer will be required to
prepare a comprehensive design report evaluating the existing capacity of both the water and
sewer utilities. The report must include hydraulic evaluations of each utility for both existing and
post development demands. The report findings must demonstrate that adequate capacity is
available to serve full development of the annexation area. If adequate water and/ or sewer
capacity is not available for the full development, the report must identify the water and sewer
system improvements required to provide the necessary capacity. Any improvements necessary
to sezve the full development must be in place prior to further development of the site.
9. Impact Fees
The Landowners hereby acknowledge that annexation and development of their property will
impact the Gty's existing street, water and sewer infrastructure, and fire sezvice requirements. There are
no existing structures on the property. At the time new structures apply to the Gty's Water and Sewer
facilities, the Landowners shall pay all Water and Sewer Imp<lCt Fees which are due. The Landowners and
their successors shall pay all Fire, Street, Water and Sewer Impact Fees required bychapter _).24, Bozeman
Municipal Code, or as amended, at the time of application for any permit listed in Section 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 bya court of
competent jurisdiction, Landowners agree to pay the Gtyfees or assessments established by the atyfor
impact on aty sezvices in accordance with a new or revised Cl1apter of the Bozeman Municipal Code
lawfully 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 pennit 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 Olapter 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
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Shelley Vanoe-Gallatin Co MT MISC 66.00
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 in escrow 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 in escrow shall be released to the
city and the balance, if any, returned to the landowner. All accumulated interest on the sum held in
escrow shall be released to the Gty or landowner on the same percentage as the money released to either
party bears to the total sum held in escrow.
Landowners further understand and ,lgree that any improvements, either on- or off-site, necessary
to provide connection of METCALf< ANNEXKnON to municipal services which art' 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 Gty to Landowners of such
default, Gty may at their option:
A) Declare the amounts owing for impact fees immediately due and payable and Gty
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 Gty
may, at its option, enforce payment of such amount by levying an assessment on
the premises.
B) Elect any other remedy available to City underthe lavvs of the State of Montana.
C) Any waiver by Gty of any default shall not be construed as a waiver of any
subsequent default.
D) It is agreed that it shall be no defense to the enforcement of this provision by the Gty
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 bysuch a declaration or judgment
and, therefore, notwithstanding any judgment either limiting impact fee payments
under annexation agreements to specified ,lmounts, or prohibiting any such payment,
landowner will pay such amount as specified above.
10. Stonllwater Master Plan
Landowner understands and agrees that a SlOrmwater Master Plan for the METCALF
ANNEXATION 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 Gty Engineer at the time of any
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future development. The master plan 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
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 maintenance plan.
11. Traffic Analysis Report
Landowner may be required to provide a deuiled Traffic Analysis Report(s) at the time of future
development of any portion of the annexed property.
12. Waiver of Right-to-Protest Special Improvement Districts
Landowner has executed a Waiver of Right- to- Protest Creation of Special Improvement Districts
for
a. Street improvements to Durston Road, Cottonwood Road, and Oak Street; including paving, curb
and gutter, sidewalk, and storm drainage improvements.
b. Signalization of the intersection of Durston Road and Cottonwood Road.
c. Signalization of the intersection of Oak Street and Cottonwood Road.
d. Trunk sewer main improvements and a regional lift station.
Said Waivers are attached hereto as Exhibits A.
13. Right-of- Way/Easement for FutulJ:.Roadways
Landowner has dedicated, by Public Street and Utility Easement, the following land to the City of
Bozeman for right-of-way purposes, which represent Landowner's proportionate share of the necessary
right-of-way. Said Public Street and Utility Easement will be filed with the Gallatin County Clerk and
Recorder at the time this Annexation Agreement is filed.
a. North half (additional 20 ft) of Durston Road.
b. West half (60-feet) of Cottonwood Road.
e. South half (60-feet) of Oak Street.
14. Utility Easements
Landowner understands and agrees that utility easements, a minimum of 30 feet in width, will be
necessary for the installation and maintenance of water and sewer utility services to the annexed parcel.
The Landowner shall create such 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 any of the parcels.
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15. Additional T enns of Waivers
The parties recognize that these documents shall be filed and of record with the Gallatin County
derk and Recorder prior to the sale of any land within the METCALF ANNEXATION. The parties
further agree that the City may file these documents at any time.
16. 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 Coun,
Gallatin County, State of Montana.
17. Attorney'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 unenforceable
provision were omitted.
20. Modifications or Alterations
No modification or amendment of this Agreement shall be valid unless evidenced by a writing
signed by the parties hereto.
21. No Assignment
It is expressly agreed that the Landowner shall not assign this Agreement in whole or in pan
without prior written consent of the City. The City acknowledges that the landowner may assign this
agreement and shall not unreasonably withhold consent to assignement.
22. Successors
This Agreement shall be binding upon, inure to the benefit of and be enforceable by the panies
hereto and their respective heirs, successors and assigns.
IMETCALF ANNI.:XATION ACilZEEMENT 8 I
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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 Landowners affirms that they have authority to enter into this Agreement on
behalf of their partnership, and to bind the partnership 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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STATE OF MONTANA)
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County of Gallatin )
On this Lj..!/1 day of yJ I ~vuJt , 20 0 f, before me, the undersigned, a
Notary Public for the State of Montana, personally appeared G,try Metcalf, known to be the person
whose name is subscribed to the within instrument and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day
and year first above written. ~~cI!.x:tc./-u-t:6-
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STATE .OF 1tO~lt~A)
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On the ~ day of I+{i Yl' { , 20 IJ it , before me, a Notary Public for the State. of
Montana, personally appeared RO BREY AND R6BfNL. SULLIVAN, known to me to be the Actmg
Gty Manager and Oerk of the Gty Commission respectively, of the Gty 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 Qty.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed myseal on the day and year
first writte-rta~6v~"
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IMETCALF ANNEXATION AGREEMENT 9 I
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Shelley Vanoe-Gallatln Co MT MISe 66.00
EXHIBIT A
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICfS
METCALF ANNEXATION
The undersigned owners 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 A, CO.5. 2389, as filed with the Gallatin County derk and
Recorder, located in the EYz, NE and SEIA, NElA and the EYz, NE and SEIA, SElA of
Section 4, Township 2 South, Range 5 East, P.M.M., Gallatin County, Montana,
Said tract contains 39.92 acres, more or less, and is subject to all existing easements or
apparent on the ground.
IN CONSIDERATION of receiving approval for annex,ltion of the subject property [rom the
Otyof Bozeman, along with accompanying rights and privueges and for other and valuable consideration,
the receipt of which is hereby acknowledged, and in recognition of the impact to Durston Road,
Cottonwood Road and Oak Street as well as the potential impacts to the sewer and water
infrastructure that will provide service to the property, which will be caused by the development of the
above-described property, the o-wner has waived and do hereby waive for itself, its successors and assigns,
the right to protest the creation of one or more special improvement districts for paving, cum, gutter,
sidewalk, and drainage improvements to Durston Road, Cottonwood Road and Oak Street; for
signalization of the intersection of Durston Road and Cottonwood Road and signalization of the
intersection of Oak Street and Cottonwood Road; and any trunk sewer main improvements and
for the installation of a regional lift station to service the property or to make any written protest
against the size or area or creation of the district be assessed in response to ,1 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 nmning 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.
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 ~dayof I'J-tr-L ,20~.
IMETCALF ANNEXATION AGREEMENT 10 I
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STATE OF MONTANA) (/ ..' ,/ / r
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County of Gallatin )
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On this 4/ day of yJ(Jv'Ut1!\ , 200 J , before me, the undersigned, a
Notary Public for the State of Montana, personally appeared Gary Metcalf, known to be the person
whose name is subscribed to the within instmment and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affLxed my No~arial Seal the day
and year first above written. U,j)JVJ--f IX' ~-
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[METCALF ANNEXATION AGREEMENT II I