HomeMy WebLinkAbout02- Syme/Darvis Annexation Agreement
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~ Shelley VanQe-Gallatln CQ MT MISC 60.00
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ANNEXA TION AGREEMENT
THIS AGREEMENT is made and entered into this Jro fL day of",Pe.Clhl-< hPL ,2002, 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, hcrcinafter referred
to as "City", and James W. Bentley, P.O. Box 10806, Bozeman, Montana 59719, hereinafter rcferred
to as "Landowner".
WITNESSETH:
WHEREAS, the Landowner is owner in fee of a tract of certain real property, hereinafter
referred to as the SYME/DARVIS ANNEXATION, situated in Gallatin County, Montana, and more
particularly described as follows:
A tract ofland being shown as the W Y2, E 1'2, SE 14, SW ~ of Section 35, Tl S, R5E, PMM,
Gallatin County, Montana, said tract being 8.2 acres along with and subject to any existing
easements.
WHEREAS, the Landowner has petitioned the City for annexation of the contiguous tract; and
WHEREAS, the SYM E/DARVIS 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, Chaptcr 2, Part 43.
WHEREAS, all parties recognize that the annexation ofthe SYME/DARVIS ANNEXATION
pursuant to Section 7-2-4301, et seq., M.C.A., will entitle the said property to City services, including
municipal watcr and sewer service, upon their availability; and
WHEREAS, M.C.A. Section 7-2-4305 provides that a municipality and 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 scwcr service to the SYME/DARVIS ANNEXATION; and
WHEREAS, all parties recognize that the development ofthe SYME/DARVIS ANNEXA TION
will impact Baxter Lane and Thomas OrivelNorth 2ih Avenuc, and will require additional public
street improvements for traffic circulation; and
WHEREAS, the Landowner finds that this Agreement will provide for the most satisfactory and
dependable water supply or service available to furnish water and provide traffic circulation for
development near and within the SYME/DARVIS ANNEXATION; and
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WHEREAS, the making and pertonnance or th1S Agreemcnt 1S dcslrahlc to promote the
development of the most adequate water supply 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 and traffic system by the City is necessary
and of mutual advantage to the parties hereto; and
WHEREAS, the p arti es have d eternlined that it i si n the best interests 0 f t he City and the
Landowner, and in furtherance of the public health, safety and welfare of the community to enter into
and implement this Agreement.
IN CONSIDERA nON of the mutual covcnants and agreements herein contained, the parties
hereto agree as follows:
I. Recitals.
The above recitals are true and correct.
2. Annexation.
The Landowner filed an application for annexation ofthe SYME/DARVIS ANNEXATION with
the City. The City, on June 25,2001, adopted a Resolution ofIntent to Annex the SYME/OARVIS
ANNEXATION. By execution of this Agreement, the City has manifested its intention to annex the
SYME/DARVIS ANNEXATION tract pursuant to the ternlS and conditions of this 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 SYME/DARVIS ANNEXATION to the City.
Further, upon the execution ofthis Agreemcnt, the Landowner shall do all things necessary and proper
to aid and assist the City in carrying out the terms, conditions and provisions ofthis Agreement and
effectuate the annexation of the SYME/DARVIS ANNEXATION 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 sewer service, police protection, and fire
protection, to the SYME/OARVIS ANNEXATION, as provided in this Agreement.
4. Municipal Water Service Defined.
The ternl "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 he
amended, as well as any other terms and conditions which apply to the City's provision of this service.
The tenn does not contemplate the extension of lines or constmction of necessary improvements at
any cost to the City for delivery o[water to and within the SYME/DARVIS ANNEXA T10N. Nothing
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Shallay VanQe-Gallatln CQ MT MISC 60.00
in this Agreement shall obligate the City to pay for right-of-way acquisition, engincering, construction,
and other costs for the delivery of water to orwithin the SYME/DARVIS ANNEXATION 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 thc scrvice which is
supplied by the City in accordance with Chapter 13.24, Bozeman Municipal Codc, or as may be
amended, as well as any other terms and conditions which apply to the City's provision oCthis service.
The tenn 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 SYME/OARVIS ANNEXATION.
Nothing in this Agreement shall obligate thc City to pay for right-of-way acquisition, engineering,
constmction, and other costs for the collection of sewage services to or within the SYME/DAR VIS
ANNEXATION to incJ ude, but not Ii m ited to, any impact fees, hookup, connection, or development
charges which may be established by the City.
6. Water Rie:hts.
The parties acknowledge the following City policy:
Prior to annexation of propcrty, 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 of ten (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, 1990
The Landowner shall provide sufficient water rights or cash-in-lieu as calculated by the City
in accordance with its policy at time of calculation. The Landowner further understands that the
City will calculate 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 for the
property at the time such calculation is made.
The Landowner agrees to provide sufficient water rights or cash-in-lieu of water rights prior to
filing of any Final Subdivision Plat, Final Site Plan approval, or the issuance of any building
permit, whichever occurs first.
7. Comprehensive Water and Sewer Desil!D Report
Prior to future dcvclopment of the property, the Landowner shall have prepared by a Professional
Engineer, at Landowner's expense, a comprehensive design report evaluating existing capacity of
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sewer and water utilities. The report must include hydraulic evaluations of each utility for both
existing and post-devclopment demands, and the report findings must demonstrate adequate capacity
to scrve the full development of the land. If adequate water and/or sewer capacity is not available for
full development, the report must identify neccssary water system and sewer system improvements
required for full development. The Landowner agrees to complete at Landowner's expense, the
neccssary system improvements to serve the full development.
8. Future Development
l"andowner understands and agrees that municipal services are not currently available to much of
the area proposed for annexation, and that there is not right, either granted or implicd by the City, for
the Landowncr to develop any ofthc SYME/DARVIS ANNEXATION until it is verified bythc City
that necessary municipal services, including but not limited to police and fire protection, are available
to all or a portion ofthe SYME/DARVIS ANNEXATION.
Upon future development ofthe SYME/DARVIS ANN EXA TION 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
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9. Impact 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 is an existing pole barn on the subject property. At the time new or existing 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 any successors shall pay all Fire, Street, Water and
Sewer Impact Fees requircd 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, respectivcly. Ifimpact fees currently imposed pursuant to Chapter 3.24 of the
Bozeman Municipal Code are subsequently voided or declared invalid by a COUlt of competent
jurisdiction, the Landowners agree to pay the City fees or assessments established by the City for
impact on City services in accordance with a new or revised Chapter 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 permit, which actuates
or would have actuated impact fees pursuant to the current Chapter 3.24 of the Bozeman
Municipal Code, the Landowner further agrecs to pay at that time, the amount calculated for such
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fees based upon the rates cstablished at the date of this agreement.
If the Court above declares Chapter 3.24 ofthe Bozeman Municipal Code invalid, and if
landowner would have becn entitled to a refund under the court's decision but werc it not for the
sole fact of the landowner paying impact fees because of this agreement, then all such fees paid
prior to the court's decision shall be held in escrow until a revised Chapter of the Code is cnactcd
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 City or landowner on the same percentage as the money
rei cased to either party bears to the total sum held in escrow.
Landowner further understands and agrees that any improvements, either on- or oft-site,
necessary to provide connection ofSYME/DARVIS ANNEXATION 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 the Landowncrs dcfault on this condition at the time such is to be perfonned, and should
default not be remedied or corrected within thirty (30) days after written notice by City to the
Landowner of such default, City may at their option:
A) Deelare the amounts owing for impact fees immediately due and payahle 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 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 suhsequent
default.
D) It is agreed that it shall be no defense to the enforccment 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 undcr
annexation agreements to specified amounts, or prohibiting any such payment, landowner
will pay such amount as specified above.
10. Stormwater Master Plan
Landowner understands and agrees that a Stormwater Master Plan for the SYME/DDARVIS
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 City Engineer at the time of
any 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 runoffto the stormwater receiving channel(s). The plan shall include sitc grading and
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elevation information, typical stormwater detention/retention basin and discharge structure details,
basin sizing calculations, and stornlwater maintcnance plan.
11. Traffic Analysis Report
Landowner shall provide a detailed Traffic Analysis Report(s) at the time of future
development of any portion of the annexed property.
12. Waiver of Rieht-to-Protest Special Improvement Districts
The Landowner has executed a Waiver of Right-to-protest Creation of Special Improvement
District for street improvements, including paving, curb/gutter, sidewalk, boulevard and stonn
drainage appurtenances to a) Baxter Lane and Thomas Drive/North 21" Avenue; water main
improvements for trunk water lines including the following: a) Baxter Lane water lines and b)
Davis Lane/Fowler Lane water lines; and sewer mains to serve the property as follows: a) any
sewer line that will allow for gravity collection service to the property. Said Waiver is attached
hereto as Exhibit A.
13. Utility Easements
Landowner understands and agrees that utility easements, a minimum of 30 feet in width, will be
necessary for the installation and maintenance ofwater 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.
14. 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 of the
annexation request by the Bozeman City Commission. The parties also recognizc that these
documents shall be filed and of record with the Gallatin County Clerk and Recorder prior to the
sale or transfer of ownership of any land within the SYME/DARVIS ANNEXATION. The parties
further agree that the City may filc these documents at any time.
15. Governine Law and Venue
This Agreement shall be construed under and governed by the laws of the state of Montana. In
the event oflitigation concerning this Agreement, venue is in the Eighteenth Judicial District
Court, Gallatin County, State of Montana.
16. Attorneys' Fees
In the event it becomes necessary for either party to this Agrccment to retain an attorney to
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Sh.llay VanQ.-Gallatln CQ MT MISC 60.00
enforce any of the terms or conditions ofthis Agreement, then the prevailing party shall be entitled
to reasonable attorneys' fecs and costs, to include the salary and costs of in-house counsel
including City Attorney.
17. Waiver
No waiver by either party of any breach of any tenn, covenant or agreement shall be dcemed a
waiver ofthe same or any subsequent breach of this samc or any other term, covenant or
agrecment. No covenant, term or agreement shall be deem cd waived by either party unless waived
in writing.
18. Invalid Provision
The invalidity or unenforceability of any provision of this Agreement shall not affect the other
provisions 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 by a writing
signed by the parties hereto.
20. No Assie:nment
It is expressly agreed that the Landowner shall not assign this Agreement in whole or in part
without prior written consent of the City.
21. Successors
This Agreement shall be binding upon, inure to the benefit of and be enforceable hy the
parties hereto and their respective heirs, successors and assigns.
22. 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 dcaths or upon transfer of ownership of the property.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the
day and year first above written.
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~ . ' :ss Shellay VanQe-Gallatln CQ MT MISC 60.00
County of -;oJ..La t"V" )
On this ~ day of DeCefJ'1 P<t"' r ,2002, {'Ill t / e , before
me, the undersigned, a Notary Public for the State of MOll tan a, personally a pcared James W.
Bentley, known to be the persons whose names are subscribed to the within instrument and
acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and a1Tixed my Notarial Seal the
day and year first above written.
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CITY OF BOZEMAN
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Clerk of the City (~ommission
STATE OF MONTANA)
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County of Gallatin )
On the L day of ~~ ,2ool before me, a Notary Public for tlie State of
Montana, personally appeared CLARK OHNSON AND ROBIN L. SULLlV AN, 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
[or and on behalf of said City.
IN WITNESS WHEREOF, I have hereunto set my hand d affixed my Notarial Seal on the day
an~, "ye~ first. ..w. ritten above. k
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EXHIBIT A
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
SYME/DARVIS ANNEXATION
The undersigned owner of the real property situated in thc City of Bozeman, County of
Gallatin, State of Montana, and more particularly described as follows:
Tract of Land being shown as W %, E %, SE ~, SW 14 of Section
35, TIS, 5RE, PMM, Gallatin County, Montana, or more
commonly known as being locatcd north of Baxter Lane and west
of Thomas Drive/ North 27th Avenue
IN CO N SID ERA TION of receiving approval for annexation of the subj ect property from the
City of Bozeman, 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
Baxter Lanc and Thomas Drivc/North 27th Avenue which will be caused by the development of
thc above-described property, the owner 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 street
improvements including paving, curb/guttcr, sidewalk, and stonn drainage facilities to Baxter Lane
and Thomas Drive/North 27th Avenue; water main improvements for trunk water lines including
the following: Baxter Lanc water lines and Davis Lane/Fowler Lane water lines; sewer mains
to serve the property as follows: any sewer main that will allow for gravity collection scrvice to
the property; or to make any written protest against the size or area or creation of the 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 arc not utilized for the completion of these
projects, we agrce to participate in an alternate financing method for completion of said
improvements on a fair share, proportionate basis as detern1ined by square footage ofthe property,
linear front footage of the property, taxable valuation of the property, or a combination thereof
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This waiver shall be a covenant running with the land and shall not expire.
The terms, covenants and provisions of the Waiver shall extend to, be binding upon the
successors-in-interest and assigns of the parties hereto.
DATED thisijitJ day of" ~ ,2002.
STATE OrJ/uf7-/0m )
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County of , '[),__ ) tflolk1 C $rurlt-
On this ~day Of",W
' 2002, U~, before
me, the undersigned, a Notary Public for thc State of Montana, personally appeared ames W.
Bentley, known to be the persons whose names are subscribed to the within instrument and
acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the
day and year first above written.
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