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HomeMy WebLinkAbout99- Sukut, Ervin & Agnes Annexation Agreement .' \ .........~', r/l ~ 204 P i\ ~ [138:3 ANNEXA TION AGREEMENT THIS AGREEMENT is made and entered into this 7th day of September, 1999, by and between the CITY OF BOZEMAN, a municipal corporation and political subdivl...ion of the State of Montana, with offices at 411 East Main Street, B07,(~man, Montana 59771-0640, hereinafter relerrcd to as "City", ,md Ervin and Agnes Sukut, 1367 Thomas Lane, Bozeman, MT 59718, hereinafter referred to as "Landowners", WITNESSETH: WHEREAS, Landowners are owners in fee of a tract of certain real property, hereinafter referred to as the "Sukut Annexation Tract", and more particularly described as f()llows: The remainder of Baxter Lane Subdivision NO.1 in the East 1/2 of the East 1/2 of the Southwest 1/4 of Section 35, Township 1 South, Range 5 East, PMM, Gallatin County, Montana. WHEREAS, the Landowners have petitioned the City fllr annexation of the contiguous tract; and WHEREAS, the Sukut Annexation Tract 1... not within the corporate limits of the City or other municipality but is contiguous to the City and may therefore be annexed to thc City in accordance with the provl...ions of this Agreement and M,CA Title 7, Chapter 2, Pmt 43, WHEREAS, all parties recognize that the annexation of the Sukut Annexation Tract pursuant 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 7-2A305 provides that a municipality and landowners can agree to the provision of services to the area to be annexed; mld WHEREAS, the City's present water supply is insufficient to enable it to supply reasonably adequate water servicc to additional customers outside the prescnt city boundaries; 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 Sukut Annexation Tract; and WHEREAS, all parties recognize that the development of the Sukut Annexation Tract will impact area streets, and may require additional public street improvements fllr trailic circulation; and WHEREAS, the Landowners find that this Agreement will provide for the most SUKUTANNt:XATION AGRt:E"'MF.NT - 1 - , . fllw 204 PA~Ft.384 satisfactory and dependable water supply or service available to furnish water and wastewater collection, and provide traffic circulation f()r development near and within the Sukut Annexation Tract; and WHEREAS, the making and performance of thi<; Agreement is dcsirable to promote the development of the most adequate water supply, wastewater collection and tra1lic circulation pattern for the City as it now exists and a<; it is reasonably expected to enlargc; and WHEREAS, the securing of an adequate water supply and traffic system by the City i<; 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 of the public health, saiCty and welfare of the conununity to enter into and implement this Agreement. IN CONSIDERATION of the mutual covenants and agreements herein contained, the parties hereto agree as l()llows: 1. Recitals. The above recitals arc true and correct. 2. Annexation. The Landowners filed an application l()r annexation of the Sukut Annexation Tract with the City. The City, on April 5, 1999, adopted a Resolution of Intent to Annex the Sukut AImexation Tract. By execution of thi<; Agreement, the City has manifested its intention to annex the Sukut Annexation Tract pursuant to the terms and conditions of thi<; Agreement. Subject to the provisions of Title 7, Chapter 2, Part 43, the City shall, upon cxecution of this Agreement, adopt a Resolution of Annexation of the Sukut Annexation Tract to the City. Further, upon the execution of this Agreement, the Landowners shall do all things nccessary and proper to aid and assist the City in carrying out the tenns, conditions and provisions of this Agreement and ellectuate the annexation of the Sukut Annexation Tract to the City. 3. Services Provided. The City will, upon annexation, make available only existing City services to the extent currently available, including municipal water service, municipal scwer service, police protection, and fire protection, to the Sukut Annexation Tract, a<; provided in this Agreement. Landowners acknowledge and accept the fact that the level of fire scrvice is reduced due to lack of fire hydrants in the arca. Upon further development of the property, an SUKUl'ANNEXATlON AGREFMENT - 2 - ------ ru.w 204 Pi~~rlJ8S approved pressurized water supply (fire hydrants) meeting the flow rcquiremcnts of the 1994 UFC Appendix III-A shall be provided to the subject property, No commercial use of the property will be allowed until the water system i.... installed, tested and approved by the City Of Bozeman, Until such a time as water is provided, the Landowners hereby agree to hold the City harmless for any and all claims and liability for damages and injuries arising out of the reduced level of fire service in the area. 4. Municipal Water Service Defined. The tenn "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, Blneman Municipal Code, or as may be amended, as well a... 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 delivery of water to and within the Sukut Annexation Tract. Nothing in this Agreement shall obligate the City to pay for light-of,way acquisition, engineering, construction, and/or other costs for the delivery of water to or within the Sukut Almexation 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" a... is used in this Agreement shall be the service which is supplied by the City in accordance with Chapter 13.24, B07.cman Municipal Code, or as may be amended, a... 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 Il1r collection of sewage at and within the Sukut 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 Sukut Annexation Tract to include, but not limited to, any impact fees, hookup, connection, or development charges which may be establi...hed by the City. 6. Water Ricltts. 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 thereol~ 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 f'Jr improvements to the water system which would create additional water supply capacity. Except, however, that fl1f any annexation in excess of ten (0) acres, this SUKUT ANNEXA nON AGR1!.Je.'M ENT - ~ - -----.-- FILM 204PMtt.386 policy shall he cmTied out prior to [mal plat approval of each development phase. Section 2, No, 5, Commission Resolution 3137, Adopted August 19, 1996 The Sukut Annexation Tract consists of approximately 2,36 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 of the zoning designation and/or City-approved development. The amount of water use per year based upon thc zoning designation of the Sukut Annexation Tract is 3-acre feet. Cash-in-lieu thereof is equal to $1,124.46, 7. Comprehensive Water and Sewer Oesilm Report. Prior to any further development of the property, the Landowners may he required to have prepared by a Professional Engineer, at Landowner's expense, a comprehensive design report evaluating eX1o;;ting capacity of sewer mId water utilities in the area, The report must include hydraulic evaluations of each utility fi.)f 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 and/or sewer capacity 10;; not available for full development, the report must identify necessary water system and scwcr system improvements required for full development. The Landowners agree to complete at Landowner's expeIlo;;e, the necessary system improvements to serve the full development. 8. Connection of existim! dwelline units to City Water and Sewer. The Landowners understand and agree that upon annexation and upon availability of service, all new dwellings constructed on the property shall connect to city water and sewer servicc, The exio;;ting singlc~family residence will not connect to city water or sewer service as it will eventually be removed. At the time the exi'iting single-family residence is removed, any existing septic tanks shall be pumped and filled, or removed and shall be verified by the City Building Departmcnt. 9. Waiver of Ril!ht.to-Protest SpeciallmDrovement Districts. Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement Districts for street improvements, including paving, curb/gutter, sidewalk, boulevard and storm drainage appurtenanccs to: a) Baxter Lane; b) Thomas Lane-future North 2ih Avenue; c) traffic signal and intersection improvements fl)f the intersection of Baxter Lane and North 191h Avenue; d) a City-wide Parks Maintenance District, which would provide a SUKU'f ANNEXATION AGREEMENT - 4 - , rlLW 204 ;~,q 13~7 I t~ '~. II: ~... mechanism for the fair and equitable assessment of maintenance costs for city park..<;; e) water main improvements for trunk water lines including Baxter Lane Water Lines and Davis Lane/Fowler Lane Water Lines; and f) a sewer main to serve the property that will allow f()r gravity collection service to the propcrty, Said Waiver is attached hereto as Exhibit A 10. Public Street and Utilitv Easements. Landowner understands and agrees that utility casements, a minimum of thirty (30) feet in width, will be necessary f(x the installation and maintenance of water and sewer utility services to thc annexed parcel. The Landowner shall create such easements in location 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 parcel<;. The Landowner understands and agrees that an additional 5' easement for Thomas Lane shall be granted to add to the existing 20' easement currently in place. This easement will complete the required one half (55') of the 110' total easement required for future improvements to Thomas Lane/North 27tJ1 Avenue, An additional 15' easement, the remaining portion of the required one half (45') of the 90' total casement required for future improvements, shall be granted f()r Baxter Lane, t t. Stonnwater Master Plan. Landowners understand and agree that a Stormwater Master Plan f()r the Sukut Annexation Tract for a system designed to remove solids, oil<;, grease and other pollutants from the runoff from the public streets must be provided to and approved by the City Engincer at the time of any future development. The master plan must depict the maximum sized retention/detention basin locations and locate and provide easements f(,)r adequate drainage ways within the area to transport runoff to the Stormwater receiving charmel(s), The plan shall include site grading and elevation information, typical Stormwater detention/retention basin and discharge structure details, basin sizing calculations, and Stonnwater facilities maintenance plan. 12. Future Develooment. Landowners understand and agree that all future development on the Sukut Annexation Tract shall be served by City Water and Sewer as provided for in thc City's facility master planning documents, Landowners understand and agree that municipal services are not currently available to much of the area proposed l()r anncxation, and that there is no right, SUKUT ANNt,XATlON AGRHEMENT - 5 - . f1L III 204?AStt388 either granted or implied by the City, flJr the Landowners to develop any of the Sukut Annexation Tract until it is verified by the City that necessary municipal services, including but not limited to police and fire protection, are available to all or a portion of the Sukut Annexation Tract. Upon future development of the Sukut Annexation Tract, the City Water/Sewer Department will allow connection of a sewer service line to the main in Baxter until an outfall sewer nOlth at Thoma.'; Lane is provided, Upon annexation, and site plan approval f(Jf any proposed development and following the application procedure, the City Water/Sewcr Department will provide a stub to the edge of the casement. The City Water/Sewer Department will review plans for development of the proposed water infrastmcture whcn they are provided and makc any recommendations required to supply water any proposed development on the Sukut Annexation Tract. Prior to any commercial use of the property, an approved pressurized watcr supply (ftrc hydnmts) meeting the How requirements of the 1994 UFC Appendix III-A shall be provided to the subject propcrty, The water system shall be installed, tested and approved by the city prior to the issuance any building permits. 13. hnoact Fees. Landowner(s) hereby acknowledge that annexation and development of their property will impact the City's existing street, water, and sewer infrastructure, and fire scrvice requirements. Landowners shall pay to the City Fire and Street Impact Fees for the cxisting structures within the Tract prior to or at the time of Landowners' execution of this Agreement. At the time the existing and/or new stmctures apply to the City's Water and Sewer facilities, the Landowners shall pay all Watcr and Sewer Impact Fees which are due. The Landowners and their successors shall pay all Fire, Street, Water and Sewcr Impact Fees required by Chapter 3,24, Bozeman Municipal Code, or as amended, at the time of application for any permit li~ted in Section 3.24.050A, 3.24.060A, 3.24J>70A, or 3.24.080A, respectively. If 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, Landowner agrees to pay City at that time, the amount calculated for all such fees based upon the rates established at the date of this agreement. Landowners further understand and agree that any improvements, either on- or oft~site, necessary to provide SUKUT ANNEXA nON AGREEMENT - 6 - rl!" .. 204 (~Sf 1389 connection of the Sukut 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 cJigible for impact fee credits. If Landowner shall default on this condition at the time sllch is to be performed, and should default not be remedied or corrected within thirty (30) days after written notice by City to Landowner of sllch 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 Landowner for the collection of such sum, including the entry of any judgment. In addition, the City may, at its option, enforce payment of such amount by levying an assessment on the prem1.<;;es, 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 1.<;; agreed that it shall be no defense to the enl()rcement of this prov1.<;;ion 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 lx)und by such a declaration or judgment and, there1(xe, notwithstanding any judgment either limiting impact fee payments under armexation agreements to specified amounts, or prohibiting any such payment, landowner will pay such amount as specified above. 14. Additional Tenus of Waivers. The parties recognize that these documents shall be iiled and on record with the Gallatin County Clerk and Recorder, prior to the sale of any land within the Sukut Annexation Tract. The parties further agree that the City may file these documents at any time, 15. Governin1! Law and Venue. This Agreement shall be constmed 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 Court, Gallatin County, State of Montana. Hi. Attornev's Fees. In the event it becomes necessary for either party to this Agreement to retain an attorney to enforce any of the tenus or conditions of this Agreement, then the prevailing party shall be entitled to reasonable attorney's tees and costs, to includc the salary and costs of in- house counsel including City Attorney. 17. Waiver. No waiver by either party of any breach of any term, covenant or agreement shall be SUKUT ANNEXA TION AGREEMI,'NT - 7 - , F!lW 204fMf1390 deemed a waiver of the same or any subsequent breach of this same or any other term, covenant or agreement. No covenant, tenn or agreement shall he deemed waived by either party unless waived in writing, 18. Invalid Provision. The invalidity or inability to en1i)fce any provision of this Agreement shall not a1lect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted, 19. Modifications or Alterations. No modification or amendment of this Agreement shall be valid unless evidenced in writing and signed by the parties hereto, 20. No Assienment. It i.~ expressly agreed that the Landowner shall not assign this Agreement in whole or in part without prior written consent of the City. 21. Successors. Thi~ Agreement shall be binding upon, insure to the hene1it of and be en1ixceable by the parties hereto and their respective heirs, successors and assigns. 22. Covenants to Run with the Land. Thc 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 hcreto have caused this Agreement to he executed the day and year first above written. ....--'-'\ / Z:::-C,t.;I __-~;',t;;~ );4,t-' / ,(. [/ q--J~.,S] ..' ~i-r-- ._~._~ Ervin Sukut Agies Sukut STATE OF MONTANA) :ss County of Gallatin ) On the f.-.1t%ay of (J,( Lr--i- , 1999, hef()re me, a Notary Public ti)r the State of Montana, personally appearved Erv:(J and Agnes Sukut, known to me to be the persons whose names arc subscribed to the above instrument and acknowledged to me that they executed thc same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first written above. ...... ( {/~_~~_ r:. 7 /7./-u.'~~L-' Notary Public for the State of Montana SUKUT ANNEXA110N AGREEMENT - 8 - , ; - ':; i ./ r! J . ' fl!.~ 204 (,.nt.391 ,I')~ *- 'II . , - ',,\'" / . ....:\ 1-"' ".i ~ ..., '" 'II III ",..... .'.. ~.. ~ 'II -i-- "'::,,' ~"" ~ ii, ~'Ir ' 1t L/Y! 'dt. -. .~- .- Residing: ,,t. tillJt.A/L L i-~ ,C " /~,:p- COnun1<;sion Expires: tf'~L'3:CA () d- .', . 'r a. r- : " '" " . -- - '. :t.:' ,()~- C ,,'.1'1\ ,'0,;" "I '...". "" ""~.,.~....... I^,. /YIIU3\"-l. ,'- , I ; ~ ) I ! r ,I r ~, ~ ~: " \ CITY OF BOZEMAN \ j -- - --.. - -- ., By: Clark Johnson, City Manager (2.ST ~ oi~~ Clerk of the City Commission STATE OF MONTANA :ss County of Gallatin ;#7 On the 1- day of , 1999, bctl)re me, a Notary Public tllr 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 COnun1<;sion respectively, of the City of Bozeman, whose names arc subscribed to the within instrument and acknowledged to me that theY~f~t~ the same for and on behalf of said City, '" \. ~ _ WESS WHEREO , I have hereunto set my hand and aflixed my seal on the .' ~lWa~~r' , >t written above. '''IE 0 ':oJ' . .., \ i i~' , 'II ~ .. . a '" JIo :;to , ~ ~ ,~, · ~;: otary Public for the State of Montana . , ..' , ~" ,t" "., Residing at Bozeman, Montana ':...' . ~~ '(.> \ My Commission Expires: ~ -/";:--/j.. SUKUT ANNEXATION AGREEMENT - 9 - . . . , rn w 204 P~,~Ft392 I . EXHIBIT "A" WAIVER OF RIGHT TO PROTEST CREA TION OF SPECIAL IMPROVEMENT DISTRICTS SUKUT ANNEXATION TRACT The undersigned owners of the rcal property situated in the County of Gallatin, State of Montana, and more particularly described as follows: The remaindcr of Baxter Lane Subdivi'iion No. I in the East 1/2 of thc East 1/2 of the Southwest 1/4 of Section 35, Township 1 South, Range 5 East, PMM Gallatin County, Montana. IN CONSIDERATION of receiving approval for annexation of the subject property from the City of Bozeman, along with accompanying rights and privileges and for othcr and valuable consideration, the receipt of which is hereby acknowledged, and in rccognition of the impacts on traffic, parks, and the need for municipal water .lid sewcr scrvices that will be a result of the development of the above-described property, the owncrs have waived and do hereby waive for themselves, their succcssors and assigns, thc right to protest thc creation of onc or more special improvement di<;tricts for paving, curb, gutter, sidewalk, and drainagc improvcments to: a) Baxtcr Lanc; b) Thomas Lane-future North 27th Avenuc; c) traffic signal and interscction improvements for the intcrscction of Baxter Lane and North 19th Avenuc; d) a City~widc Parks Maintenance District, which would provide a mechanism for thc fair and equitable assessment of maintenancc costs for city parks; c) water main improvements t()r trunk water lines including Baxter Lane Water Lines and Davi<; Lane/Fowler Lane Water Lines; and t) a sewer main to serve thc propcrty that will allow for gravity collection service to the property, or to makc any writtcn protest against the size or area or creation of the di~trict be assessed in responsc 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 Spccial Improvement Di<;tricts are not utilized fix the completion of these projects, we agree to participate in an altcrnatc financing mcthod for completion of said improvcments on a fair sharc, proportionate basis as determined by square footagc of the property, linear front footage of the property, taxable valuation of the property, or a combination thereof. Thi<; waiver shall be a covenant running with the land and shall not expire with thc dissolution of the limited partnership, provided however thi<; waiver shall apply to the hmds hcrein described. SUKU1' ANNEXATION AGREl~MENT - 10- ., ,~ ~ " \ , . flL" 204r~nt393 The terms, covenants and provision..", of the Waiver shall extend to, and be binding upon the successors-in-intcrest and assigns of the patties hereto. DATEDthis i\s'dayof ~~,~\ ,1999. ~ " 6;:i,~u;:frLuT (t'C/ ST ATE OF MONTANA) :ss County of Gallatin ) /. On thisffi de- day of ~ f!ti.. ' 1999, before me, a Notary Public for the State of Montana, pcrsonally M'pear rvin and Agnes Sukut, known to me to be the persons whosc namcs are subscribed to the above instrument and acknowledged to me that they executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and alIIxed my oflicial seal as of the day and year first abovc written. {[I, ' , , '--' '7 ~7 \ \ \1// I J, /Li0-L-~~ ro. /' /2~UuV\.... '''''''\;t;;'J~YJJ\/'I"" Notary Public or the, State of Montana b; ......1,< "J,:','~,;:':~;;t~m~'::',:".."Q", '.iy "".. - -- . "" i~"J L' "It,,' .. Residing: : .&f/t. [I ~-"}IYtJS"" :.. ~ Commission Expires: {[ ~ .ALL 3: .;< ol{J '1 :: , : >":)~,i ;-.. : :: ! 0"--... ~ " p'" ,", , .. /' ': '~~,'. i'lj~10~ :' ::: v r... {';'...... .,. w.:"": "-v/'. . ',,\.J<. ,.... ">" Iii : ~ '3' <) \ ,\" f! =1 \ , \ I, f f: 1\ \ \. '/. l~mGXm ',I / ,__ pLATTED \/ 4 U 2;j 1 9 State O! Mont., Cowrty of GgHat;,": ~ f1!ed for mr.o~d __.__9C~2BER 2 ~_,__..__n' 19_.2..~,.. at _~~M.: a;lct i'~_:__:-;:'t;dCi m I'hn:'f~9~__ 01 --_.-....-J1::(S_C$LIftNEQlls..~2{llJ J_~Jl.1, dhELLe.1J. "VW.(La.Ifc___.___~ hel;On1'Lr. By -,J" It.LuLLL.D..t~QL1!~:::L~ l1aputy' FEE: $66.00 (CHG) ( 0 RT: CITY OF BOZEMAN \ SUKUTANNEXATlON AGREEMJ!Nf - 11 -