HomeMy WebLinkAbout99- Kack Annexation Agreement
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Sh.ll.y Va~o.-Gallatin Co MT MISC 60.00
2003792
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ANNEXA TION AGREEMENT
THIS AGREEMENT is made and entered into this :<0 day of })ecEiVI-Bt:,z , Ic.~cf1 by
and between the CITY OF BOZEMAN, a municipal corporation and political subdivision ofthe State
of Montana, with offices at 411 East Main Street, Bozeman, Montana 59771-0640, hereinafter referred
to as "City", and James W. Kack and Joanne B. Kack, 6531 Jackson Creek Road, Bozeman, MT
59715, hereinafter referred to as "Landowners".
WITNESSETH:
WHEREAS, Landowners are owners in fee of a tract of certain real property, hereinafter
referred to as the Kack Annexation Tract, and more particularly described as tollows:
A tract ofland being Tract C of Plat Book 135, Page 492 as recorded in records of the
Gallatin County Clerk and Recorders Office, located in the Southeast Quarter of the
Southeast Quarter of Section 31, Township 1 South, Range 6 East, P.M.M., Gallatin County,
Montana.
WHEREAS, the Landowners have petitioned the City for annexation ofthe contiguous tract; and
WHEREAS, the Kack 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 Kack Annexation Tract 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 landowners can agree to
the provision of services to the area to be annexed; and
WHEREAS, the City's present water distribution and sewer collection systems are insufficient to
enable it to supply reasonably adequate water and sewer service to the subject property; 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 Kack Annexation Tract; and
WHEREAS, all parties recognize that the development ofthe Kack Annexation Tract will impact
area streets, and may require additional public street improvements for traffic circulation; and
WHEREAS, the Landowners find 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 Kack Annexation Tract; 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
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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 traffic 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 ofthe public health, safety and welfare of the community to enter into
and implement this Agreement.
IN CONSIDERATION ofthe 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 ofthe Kack Annexation Tract with the City.
The City, on Octobcr 4, 1999, adopted a Resolution ofIntent to Annex thc Kack Annexation Tract.
By execution ofthis Agreement, the City has manifested its intention to annex the Kack Annexation
Tract pursuant to the terms and conditions of this Agreement. Subject to the provisions of Title 7,
Chapter 2, Part 43, the City shall, upon execution of this Agreement, adopt a Reso lution of Annexation
of the Kack 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 Kack Annexation
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 Kack 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, 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 oflines or construction 0 f necessary improvements at any
cost to the City for delivery of water to and within the Kack Annexation Tract. Nothing in this
Agreement shall obligate the City to pay for right-of-way acquisition, engineering, construction, and/or
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other costs for the delivery of municipal water service to or within the Kack 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. 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 oflines or construction of necessary improvements at any
cost to the City for collection of sewage at and within the Kack Annexation Tract. 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 Kack 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 Ri!!hts.
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 often (10) acres, this
policy shall be carried out prior to final plat approval of each development phasc.
Section 2, No.5, Commission Resolution 3137, Adopted August 19, ]996
The Kack Annexation Tract consists of approximately 1.447 acres. The Landowners
understand and agree that they must provide sufficient water rights. The City calculated the
average annual diversion requirement necessary to provide water to this annexation tract on the
basis ofthe zoning designation and/or City-approved development. The amount ofwatcr use per
year based upon the zoning designation of the Kack Annexation Tract is 4-acre feet. Cash-in-lieu
of water rights thereof is equal to $1,569.52.
7. Comprehensive Water and Sewer Desi!!n Report.
Prior to any further development of the property, the Landowners may be required to have
prepared by a Professional Engineer, at Landowners' 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
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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. Thc Landowners agree to
complete at Landowners' expense, the necessary system improvements to serve the full development.
8. Waiver of Ri!!ht-to-Protest Special Improvement Districts.
Landowners have executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts for improvements, including a) paving, curb/gutter, sidewalk, and storm drainage tacilities for
Bridger Drive; b) signalization and intersection improvements for the intersection of Griffin Drive and
Bridger Drive/Rouse Avenue; c) sewer and water main improvements across the rear or northern
boundary of the subject property to serve said property and properties to the east; d) participation in
a City-wide Parks Maintenance District. Said Waiver is attached hereto as Exhibit A, and is hereby
incorporated in and made a part of this Agreement.
9. Public Street and Utilitv Easements.
Landowners understand and agree that utility easements, a minimum of thirty (30) feet in width,
will be necessary for the installation and maintenance ofwater and sewcr utility services to the annexed
parcel. The Landowners shall provide a 30 foot wide City standard sewer and water pipeline easement
across the rear or northern boundary of the property. The Landowners shall create any such other
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 the subject
property.
10. Stormwater Master Plan.
Landowners understand and agree that a Stormwater Master Plan for the Kack 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 Enginecr 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 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 facilities maintenance plan.
11. Future Development.
Landowners understand and agree that all future development on the Kack Annexation Tract shall
be served by City Water and Sewer as provided for in the City's facility master planning documents.
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Landowners understand and agree that municipal services arc not currently available to the area
proposed for annexation and that there is no right, either granted or implied by the City, for the
Landowncrs to develop any of the Kack Annexation Tract until it is verified by the City that neccssary
municipal services, including but not limited to police and fire protection, are available to all or a
portion of the Kack Annexation Tract.
Upon future development ofthe Kack Annexation Tract, the City Water/Sewer Department will
review plans for development of the proposed water infrastructure when they are provided and make
any recommendations required to supply water to any proposed development on the Kack Annexation
Tract.
Prior to the issuance of building permits for any new construction on the property or on the
property directly north and owned by the same, an approved pressurized water supply (fire hydrants)
meeting the flow requirements of the 1994 UFC Appendix III-A shall be provided to the subject
property. The water system shall be installed, tested and approved by the city prior to the issuance any
building permits.
12. Im1lact Fees.
The Landowners hereby acknowledge that annexation and development of their property will
impact the City's existing street, water, and sewer infrastructure, and fire service requirements.
There are no existing structures 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 Landowners and 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, 3.24.060.A, 3.24.070.A, or 3.24.080.A, respectively. If
impact fees imposed pursuant to Chapter 3.24 ofthe Bozeman Municipal Code are subsequently
voided or declared invalid by a court of competent jurisdiction, Landowners agree to pay City, at
that time, the amount calculated for all such fees based upon the rates established at the date ofthis
agreement. Landowners further understand and agree that any improvements, either on- or off-site,
necessary to provide connection ofKack Annexation Tract to municipal services which are 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 City to Landowners of
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Shell.y Vance-Gallatin Co MT MISC 60.00
such default, City may at their option:
A) Declare thc 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 smn, including the entry of any judgment. Tn 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 subsequent
default.
D) It is agreed that it shall be no defcnse to the enforcement 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,
therefore, notwithstanding any judgment either limiting impact fee payments under
annexation agreements to specified amounts, or prohibiting any such payment, landowner
will pay such amount as specified above.
13. Additional Terms of Waivers.
The parties recognize that these documents shall be executed and returned to the Bozeman
Planning and Community Development Department within one year of preliminary approval ofthe
annexation request by the Bozeman City Commission. The parties also recognize that these
documents shall be filed and recorded with the Gallatin County Clerk and Recorder prior to the sale
or transfer of ownership of any land within the Kack Annexation Tract. The parties further agree
that the City may file these documents at any time.
14. Governinl! Law and Venue.
This Agreement shall be construed under and governed by the laws ofthe state of Montana. In
the event of litigation concerning this Agreement, venue is in thc Eighteenth Judicial District Court,
Gallatin County, State of Montana.
15. Attorneys Fees.
In the event it becomes necessary for either party to this Agreement to rctain an attorney to
cnforce 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 ofin-house counsel including
City Attorney.
16. 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.
17. Invalid Provision.
The invalidity or inability to enforce any provision of this Agreement shall not affect the other
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Shelley Vanoe-Gallatin Co MT MISC 60.00
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provisions hereof, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
18. Modifications or Alterations.
No modification or amendment of this Agreement shall be valid unless evidenced in writing and
signed by the parties hereto.
19. No Asshmment.
It is expressly agreed that the Landowners shall not assign this Agreement in whole or in part
without prior written consent ofthe City.
20. Successors.
This Agreement shall be binding upon, insure to the benefit of and be enforceable by the parties
hereto and their respective heirs, successors and assigns.
21. 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 bc executed the
day and year first above written.
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James W. Kack--
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ST ATE OF f'D..r? r--.:L~
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County of J::io..LL~)
On the ~ day of /...L...r.. ,LJ...J.J James W. Kack, whose identity I verified on the basis of
. , personally appeared and subscribed the foregoing document before me,
-aNdtary~~~ for the State of rrJ.. . IN WITNESS WHEREOF, I have hereunto set
":my hartd8.ll,d '~lXed my seal the day and year first written above.
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Residing at: Ll(~ ~
Commission Expir: ..J,.:l f..j f\nO
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Joanne B. Kack
ST ATE OF ~,J Q "'--.A-)
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County of H tk 0 t ~ .J . ~ ,)
On th~ day of ~ j-.iJ....J Joanne B. Kack, whose identity I verified on the basis of
. ...J .,{ i.. I " ' personally appeared and subscribed the foregoing docmnent before me,
a N~)~~?"P_uplic t&~'the State ofrl\.....f . . ~N WITNESS WHEREOF, I have hereunto set
my l,land QJnj;~xe4:h1Y seal the day and year fIrst wntten above.
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CITY OF BOZEMAN
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By: Clark Johnson, City Manager
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C erk of the CIty Cornnusslon
STATE OF MONTANA
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County of Gallatin
On the lo.f.-b" day of I1rp.tN\.Ioe.-v- ,~, before me, a Notary Public for the State of
Montana, personally appeared CLARK JOHNSON AND ROBIN L. SULLIVAN, known to me to be
the City Manager and Clerk of the City Commission respectively, 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 hereunto set my hand and affixed my seal on the day and year
fIrst written above.
~~
Notarfpublic for the State of Montana
Residing at Bozeman, Montana
My Commission Expires: loj;J" /7f'Jr>1
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EXHIBIT A
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
KACK ANNEXATION TRACT
The undersigned owners ofthe real propcrty situated in the County of Gallatin, State of Montana,
and more particularly described as follows:
A tract ofland being Tract C of Plat Book 135, Page 492 as recorded in records of
the Gallatin County Clerk and Recorders Office, located in the Southeast Quarter of
the Southcast Quarter of Section 31, Township I South, Range 6 East, P.M.M.,
Gallatin County, Montana.
IN CONSIDERATION ofreceiving approval for annexation ofthe subject property from the City
of Bozeman, along with accompanying rights and privileges and for other and valuable consideration,
the receipt ofwhich is hereby acknowledged, and in recognition of the impacts on traffic, 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: a) paving,
curb/gutter, sidewalk, and storm drainage facilities for Bridger Drive; b) signalization and intersection
improvements for the intersection of Griffin Drive and Bridger Drive/Rouse Avenue; c) sewer and
water main improvements across the rear or northern property boundary to serve the subject property
and properties to the east, and d) participation in a City-wide Parks Maintenance District, or to make
any written protest against the size or area or creation ofthe district 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.
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, providcd 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 ofthe parties hereto.
DATED this dlO day of VECE:M (3.e~
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James W. Kack"
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STATE OF ffi(' J- t a... ~_
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County of 1i n. a Q /'\. ./. .. :... . )
On the..l.Ll day of }.. d I (' , 15....!lJ James W. Kack, whose identity I verified on the basis of
, personally appeared and subscribed the foregoing document before me,
a Notary Public for the State of fY\J. . IN WITNESS WHEREOF, I have hereunto set
my hand and affixed my seal the day and year fIrst written above.
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Notmy PubliC' r the State of f'1\..--J
Residing at: I? (~ ~o......I'-..--
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Joanne B. Kack
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STATE OF~,..j ~)
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County of 1:1 f1. 0 a 0.. f. ~ ")
On the~ day of 1. I t r I ~ Joanne B. Kack, whose identity I verified on the basis of
, personally appeared and subscribed the foregoing document before me,
a Notary Public for the State of fY\..J . . IN WITNESS WHEREOF, I have hcreunto set
my hand and affIxeJimy seal the day and year first written above.
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Notary Public for the State of fK.::I
Residing at: 110::4 ~
Commission Expir~: .,.l. .J...J' ~.) 0 (} C