HomeMy WebLinkAbout01- West Villard Street Development Annexation
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WEST VU\A RD STREET DEVELOPMENT
ANNEXA TION AGREEMENT
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THIS AGREEMENT is made and entered into this 31st day of Auqust
2001, by and between the CITY OF BOZEMAN, a municipal corporation and political subdivision
of the State of Montana, with offices at 411 East Main Street, Bozeman, Montana 59771-0640,
hereinafter refco"cd to as "City", and Donald E. and JoAnn L. Cape, 2020 Charlotte Street,
Bozeman, Montana 59715 hereinafter referrcd to as "Landowner".
WITNESSETH:
WHEREAS, the Landowner is owner in fee of a tract of certain real property, hereinafter
referred to as the "WEST VILLARD STREET DEVELOPMENT ANNEXATION", situated in
Gallatin County, Montana, and more particularly described as follows:
Parcel H, CDS 2056 and located in the NW!4 of the NE!4 of Section 11, T2S, R5E,
P.M.M., Gallatin County, Montana
WHEREAS, the Landowner has petitioned the City for annexation of the contiguous tract;
and
WHEREAS, the WEST VILLARD STREET DEVELOPMENT 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, Chapter 2, Part 43.
WHEREAS, all parties recognizc that thc annexation of the WEST VILLARD STREET
DEVELOPMENT ANNEXATION pursuant to Section 7~2-4301, et seq., M.C.A., will entitle the
said property to City services, including municipal water and sewer service, upon their availability;
and
WHEREAS, M.C.A. Section 7-2-4305 provides that a municipality and landowner can
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 eity boundaries; and
WHEREAS, the Landowner wishcs to convey to the City certain water rights or take some
cquivalent action to providc watcr and sewcr servicc to thc WEST VILLARD STREET
DEVELOPMENT ANNEXATION; and
WHEREAS, all parties recognize that the development of the WEST VILLARD STREET
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Snallay Vanoa-Gallatln Co MT MISC 84.00
DEVELOPMENT ANNEXATION will impact Durstoll Road, and will requIre addItIonal publIc
street improvements for tra1Tic circulation; and
WHEREAS, the Landowner finds that this Agreement will provide for the most
satisfactory and dependable water supply or service available to [umish water and provide traffic
circulation for dcvelopment near and within the WEST VILLARD STREET DEVELOPMENT
ANNEXATION; and
WHEREAS, the making and perfoffilance ofthis Agreement is desirable to promote the
development of the most adequate water supply and traffic ci rculation pattem 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 detemlined that it is in the best interests of the City and the
Landowner, and in fUliherance of the public health, safety and welfare of the community to enter
into and implement this Agreement.
IN CONSIDERA nON 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 WEST VILLARD STREET
DEVELOPMENT ANNEXATION with the City. The City, on April 9, 2001, adopted a
Resolution of Intent to Annex the WEST VILLARD STREET DEVELOPMENT ANNEXATION.
By execution of this Agreement, the City has manifested its intention to annex the WEST
VILLARD STREET DEVELOPMENT 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 Resolution of Annexation of the WEST VILLARD STREET
DEVELOPMENT ANNEXATION to the City. Further, upon the execution ofthis Agreement, the
Landowner shall do all things necessary and proper to aid and assist the City in calTying out the
terms, conditions and provisions of this Agreement and effectuate the annexation of the WEST
VILLARD STREET DEVELOPMENT ANNEXATION tract to the City.
WEST VILLARD STREET DEVELOPMENT ANNEXATION ACiREEMENT
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WEST VILLARD S"fREET DEVELOPMENT ANNEXATION AGREEMENT
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3.
Services Provided
Snallay Vanoa-Gallatln Co MT MISC
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The City will, upon annexation, make available only cxisting City services to the extent
currently available, including municipal water service, municipal sewer service, police protection,
and fire protection, to the WEST VILLARD STREET DEVELOPMENT ANNEXATION, as
provided in this Agreement.
4. Municipal Water Service Defined
The term "municipal watcr 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 tenns and conditions which apply to the City's provision of this
scrvice. The telm does not contemplate the extension of lines or construction of necessary
improvcments at any cost to the City for delivery of water to and within the WEST VILLARD
STREET DEVELOPMENT ANNEXATION. Nothing in this Agreement shall obligate the City to
pay for right-of-way acquisition, engineering, construction, and other costs for the delivcry of
water to or within the WEST VILLARD STREET DEVELOPMENT ANNEXATION to include,
but not limited to, any impact fees, hook-up, connection, or devclopment 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 thc City in accordance with Chapter 13.24, Bozeman Municipal Code, or as may be
amended, as well as any other temlS and conditions which apply to the City's provision ofthis
service. The term does not contemplate the extension oflines or construction of necessary
improvements at any cost to thc City for collection of sewage at and within the WEST VILLARD
STREET DEVELOPMENT 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 WEST VILLARD STREET DEVELOPMENT ANNEXATION
to include, but not limited to, any impact fecs, hookup, connection, or development charges which
may be established by the City.
6. Water Riehts
The parties acknowledgc the following City policy:
Prior to annexation of proper~y. it shall be the poli(y of the City of Bozeman to
acquire usable water rights, or an appropriate fee in lieu thereof equal to the
anticipated average annual consumption o.fwater hy residents and/or users of the
property when fidly developed. Thefee may be used to acquire water rights or for
WEST VILLARD STRI':ET DEVELOPMENT ANNEXATlON AGREEMENT
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Snellay Vanoa-Gallatln Co MT MISC 84.00
improvements to the water ~J!stem which would create additional water suppZv
capacity. Except, however, that for any annexation in excess of ten (10) acres, this
policy shall be carried out prior to final plat approval of each development phase.
Section 2, No.5, Commission Resolution 3137, Adopted August 19, 1996
The WEST VILLARD STREET DEVELOPMENT ANNEXATION consists of
approximately 1.869 acres.
The Landowner understands and agrees that they must provide sufficient water fights in
accordancc with the City's policy according to the following schedule:
WEST VILLARD STREET DEVELOPMENT ANNEXATION,
consisting of a total of 1.869 acres, shalll'rovide water rights or
cash-in-lieu ill the amount (~f $2,547.97 to the City of Bozeman, at
the time the Annexation Agreemcllt is submitted.
The Landowner shall providc sufficient cash~in-lieu as calculated by the City in accordance
with its policy at the 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 madc.
7. Comprehensive Water and Sewer Desi2n Report
Prior to future development of the propcrty, thc 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
adcquate capacity to serve the full developmcnt of the land. If adequate water 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. 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 municipal services are not currcntly available to
much of the area proposed for annexation, and that there is no right, either granted or implied by
the City, for the Landowner to devclop any of the WEST VILLARD STREET DEVELOPMENT
ANNEXA nON until it is verified by the City that necessary municipal services, including but not
limited to police and fire protection, arc available to all or a portion of the WEST VILLARD
STREET DEVELOPMENT ANNEXATION. Thc Landowncr is hercby on notice of the
WEST VILLARD STREET DEVELOPMENT ANNEXATION AGREEMENT
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following requirement upon development of the WEST VIlLARD STREET DEVELOPMENT
ANNEXATION:
a) The property is located with ill the Main Mall (Dawn) trunk sewer
payback area. The base assessmellt is $0.01 per squarefoot, therefore
based on a total area of 1.869 acres (81,414 squarefeet) a payback
amount of approximately $815 is required upon connection to City sewer.
b) Development of th is parcel will require the 8 inch water main in Villard
Street be extended and connected to the 8 inch main in North 25th
Avenue.
c) Development of this parcel will also require connection to and extension
of the 8-illch sanitary sewer in Villard Street to the east alignment of the
proposed anllexation.
d) The property is located within a County Rural Improvement ami
Maintenance Districtfor Western Drlve. This property will
continue to be respomible for payments to the Rural
Improvements District after annexation.
e) Street improvements illcluding paving, curb ami gutter, sidewalk and
storm drainage facilities will be required on West Villard Street, adjacent
to the subject parcel, at the time of future development.
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 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 pennit listed in Section 3.24.050A, 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
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Snallay Vanoa-Gallatin Co MT MISC 84.00
subsequently voided or declared invalid by a court of competent jurisdiction, 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 dccision 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 fccs 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 bascd upon the rates established at the date of
this agreement.
If the Court above declares Chapter 3.24 of the Bozeman Municipal Code invalid, and if
landowner would havc been entitled to a refund under the court's decision but were it not for the
sole fact ofthc landowner paying impact fees because of this agreement, then all such impact fces
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 codc is enacted, then all such fees held in escrow shall be released
to the city and the balance, if any, retumed 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 moncy
released to either pmiy bears to the total sum held in escrow.
Landowners further understand and agree that any improvements, either on~ or off-site,
necessary to provide connection of WEST VILLARD STREET DEVELOPMENT
ANNEXA TION to municipal scrvices which are wholly attributable to the property arc "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 perfonned, and should
dcfault not be remedied or corrected within thirty (30) days after written notice by City to
Landowners of such default, City may at their option:
A) Declare the amounts owing for impact fees immcdiately due and payable
and City 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 City may, at its option, enforce payment of such
amount by levying an assessment on the premises.
WEST VILLARD STREET DEVELOPMENT ANNEXATION AGREEMENT
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B) Elcct 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 defense to the enforcement of this provision by
the City that impact fees imposed pursuant to Chaptcr 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
judgmcnt either limiting impact fee payments under annexation agreemcnts
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 Stonnwater Master Plan for the WEST
VILLARD STREET DEVELOPMENT ANNEXATION for a system designed to remove solids,
oils, grease, and other pollutants from the runoff irom 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 sizcd retention/detention basin location and locate and provide easements for
adequate drainage ways within the area to transport runoff to the stonnwater receiving channel(s).
The plan shall include site grading and elevation information, typical stormwater
dctention/retention basin and discharge structure details, basin sizing calculations, and storm water
maintenancc 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 propcrty.
12. Waiver of Rieht-to-Protest Special Improvement Districts
loandowner has executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts for street improvements, including paving, curb/gutter, sidewalk, boulevard and stann
drainage appurtenances to: Durston Road; alld have further executed a Waiver of Right-to-
Protest Creation of Special Parks Maintellance Districts. Said Waivers arc attached hercto as
Exhibits A and B.
WEST VILLARD STRrlET DEVELOPMENT ANNEXATION A(lREEMFNT
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13. Ri2:ht-of-Way/Easement for Future Roadways
Landowner has dedicated, by written easement, thc following land to the City of Bozeman
for right-of-way purposes, which reprcsent Landowncr's proportionate share of the nccessary
right-of-way. Said easements will be filed with the Gallatin County Clerk and Recorder at the
time this Annexation Agreement is filed.
a) Future extension of West Villard 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 pcrmit on any of the parcels.
15. Additional Terms of Waivers
The parties recognize that these documents shall be filed and of record with the Gallatin
County Clerk and Recorder prior to the sale of any land within the WEST VILLARD STREET
DEVELOPMENT ANNEXATION. The parties further agree that the City may file these
documents at any time.
16. Governin2: Law and Venue
This Agreement shall be construed undcr and govemed 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.
17. Attorney's Fees
In the event it becomes necessary for eithcr party to this Agreement to retain an attorney to
enforce any of the tenns 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 cither party of any breach of any term, covenant or agreement shall be
deemed a waiver of the same or any subsequent brcach of this same or any other tenn, covenant or
agreement. No covenant, term or agreement shall be deemed waived by either party unless waived
in writing.
WEST VILLARD STREET DEVELOPMENT ANNEXA'I"lClN AGREEMENT
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19.
Invalid Provision
Snallay Vanoa-Gallatln Co MT MISC
84.00
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 Assienment
It is expressly agrced that the Landowner shall not assign this Agreement in whole or in
part without prior written consent of the City.
22. Successors
This Agreement shall be binding upon, inure to the benefit of and be enforccable by thc
parties hereto and their respective heirs, successors and assigns.
23. Covenants to Run with the Land
The partics intend that the tenns 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 partncrship to this Agreement.
IN WITNESS WHEREOF, the parties hcreto have caused this Agreement to be executed
the day and year first above written.
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,. Donald C. Cape
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ST ATE OF MONTANA )
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County of Gallatin )
On the'~\ day of _011 ~JL~-\- ..~
Montana, personally appeared onald E. and Joan
names are subscribed to the above instrument and a
o l,e~fore me, a Notary Public for the Statc of
. Ca. c, known to me to be the persons whose
nowledged to me that they executed the same.
WEST VILLARD STREET DEVELOPMENT ANNEXATION AGREEMENT
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the
day and year first written above.
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Clerk of the City Commission
By: Clark Johnson, City Manager
STATE OF MONTANA)
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County of Gallatin )
On the .2S""'-day of '1'12z.kd.. , 2002, 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.
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on thc day and
year first written above.
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WEST VILLARD STREET DEVELOPMENT ANNEXATION AGREEMENT
10
II
EXHIBIT A
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
WEST VILLARD STREET DEVELOPMENT ANNEXATION
The undersigned owners of the real property situated in the County of Gallatin, State of
Montana, and more particularly described as fl)llows:
Parcel B, COS 2056 and located in the NW~ of the NE!4 of Section 11, T2S, RSE,
P.M.M., 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 other and valuable
consideration, the receipt of which is hereby acknowledged, and in recognition of the impact to
Durstoll Road, which will be caused by the development of the above-describcd property, the
owner has waived and do hereby waive for itself: its successors and assigns, the right to protest the
crcation of one or more special improvement districts for paving, curb, gutter, sidewalk, and
drainage improvements to: Durstoll Road or to make any written protest against the size or area or
creation of the district he assessed in response to a duly passed resolution of intention to create one
or more special improvement districts which would include the above-described property.
This waiver shall he a covenant running with the land and shall not cxpire with the dissolution
ofthe limited partnership, provided however this waiver shall apply to the lands herein described.
The tenus, covenants and provisions of the Waiver shall extend to, and he binding upon the
succcssors~in-interest and assigns ofthe parties hereto.
DATED this ---L2- day of , \;r4~.< I<'.A--' ,2001.
LANDOWNER
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STATE OF MONTANA
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County of Gallatin )
On the Ll- day o( ~(_., ~!~ ,._ ,2001, before me, a Notary Public for the State of
Montana, personally appeared Donald E. and .10 Ann L. Cape, known to me to he the persons whose
names are subscribed to the above instrument and acknowledged to me that they executed the same.
WEST VILLARD STREET DEVELOPMINr ANNEXATION AGREEMENT
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IN WITNESS WHEREOF, I have hcreunto set my hand and affixed my Notarial Seal the
day and ycar first written above.
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WEST VILLARD STREET DEVELOPMENT ANNEXATION AGREEMENT
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EXHIBIT B
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL PARKS MAINTENANCE DISTRICTS
WEST VILLAIUl STREET DEVELOl>MENT ANNEXATION
The undersigned owners ofthc real property situated in the County of Gallatin, Statc of Montana,
and morc pmiicularly described as follows:
Parcel H, CDS 2056 and located in the NW!4 of the NR!4 of Section 11, T2S, RSE,
P.M.M., Gallatin County, Montana
IN CONSIDERATION of receiving approval for annexation ofthe subject property from the City
of Bozeman, along with accompanying rights and privileges and for other and valuable consideration,
the rcceipt of which is hereby acknowledged, and in rccognition of the impacts on the City's park
facilities and the need for thc maintenance of municipal park areas to scrve City residents, the owners
have waived and do hereby waive for themselves, their successors and assigns, the right to protest the
crcation of one or more special parks maintenancc or improvement districts for a City-wide Parks
Maintenance District, or to make any written protest against the sizc or area or creation o[the district
to be asscssed in responsc to a duly passed resolution ofintcntion to create one or more special parks
maintenancc or improvement districts.
Tn the event City-wide Parks Maintenance or Spcciallmprovement Districts are not utilized l'or
the City-wiele park maintenance, we agrec to participate in an alternate financing method for
completion of said improvcments on a fair share, propOliionate basis as determined by square f'ootage
orthe property, linear front f'ootagc ofthe property, taxable valuation ofthc property, or a combination
thereof.
This waiver shall be a covenant running with the land and shall not expire with thc 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 fl-dL day of-----S?4~U-tV
,2001.
WEST VILLAR!) STREET DEVELOPMENT ANNEXATION AGREEMENT
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))onald E. Cape, Srr/
LANDOWNER
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~lo Ann L. Cape ,-
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STATE OF MONTANA )
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County of Gallatin )
On the ,!'1.. day Of~_ _~____, 2001, before mc, a Notary Public for the State of
Montana, personally appeared Donald E. and.To Ann L. Cape, known to me to be the persons whose
names are subscribcd to the above instrument and acknowledged to me that they exccuted the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal thc
day and year first written above.
, ~\t~R!AlScal)
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Notary Public for, the State of Montana
Residing at LX!;! "c.__ /t'/r
My Commission Expires:~....:; '/\---:;;X-'4tJoS-
WEST VILLARD STREET DEVELOPMENT ANNEXATION AGREEMENT
14