HomeMy WebLinkAbout06- West Lincoln Road Annexation Agreement (2)Bozeman City Clerk WEST LINCOLN ROAD
P.~. Box 1230 ANNEXATION AGREEMENT
Bozeman, MT 59771-1230
_ , 2006, by
THIS AGREEMENT is made and entered into this ~,.~_ day of ~A~
and between the CITY OF BOZEMAN, a municipal corporation and political subdivision of t Bo t 1 X30
Montana, with offices at 411 East Main Street, Bozeman, Montana, and mailing address at P.O
Bozeman, Montana, 59771-1230, hereinafter referred to as "City," and Snowload, LLC, P.O. Box 10941,
Bozeman, MT 59719, hereinafter referred to as "Landowner."
WITNESSETH:
WHEREAS, the Landowner is owner in fee of tracts of certain real property, hereinafter referred
to as the "WEST LINCOLN ROAD ANNEXATION," situated in Gallatin County, Montana, and more
particularly described as follows:
Lots 26 and 27 of Beatty's Alder Court Subdivision, Tract 1 as described
in Document No. 2054756, Tract 2 as described in Document No.
2054753, and Tract E as described in Film 191, Page 2361, Records of ~
Gallatin County, situated in the NW '/a of the SW '/a of Section 13, T2S,
R5E, PMM, Gallatin County, Montana
WHEREAS, the Landowner has petitioned the City for annexation of the contiguous tracts; and
WHEREAS, the WEST LINCOLN ROAD ANNEXATION is not within the corporate limits
of the City of Bozeman 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 MCA Title 7, Chapter 2, Part 43; and
WHEREAS, all parties recognize that the annexation of the WEST LINCOLN ROAD
ANNEXATION pursuant to Section 7-2-4301, et seq., MCA, will entitle the said property to City
~~ services, including municipal water and sewer service, upon their availability; and
~; WHEREAS, MCA Section 7-2-4305 provides that a municipality and landowner can agree to the
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LL ~ provision of services to the area to be annexed; and
~IHEREAS, the City's present water supply is insufficient to enable it to supply reasonably
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~~~ WHEREAS, the Landowner wishes to convey to the City certain water rights or take some
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a~= equivalent action to provide water and sewer service to the WEST LINCOLN ROAD ANNEXA I ;
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~a-.~ WI-IEREAS, all parties recognize that the development of the WEST LINCOLN ROA
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° "~' ANNEXATION will impact Lincoln Road, Maple Lane, and Alder Court and will require additiona
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-- ~ WHEREAS, the Landowner finds that this Agreement will provide for the most satisfactory and
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WEST LINCOLN ROAD ANNEXATION
dependable water supply or service available to furnish water and provide traffic circulation for
development near and within the WEST LINCOLN ROAD ANNEXATION; and
WHEREAS, the making and performance of this Agreement is desirable to promote the
development of the most adequate water supply and traffic circulation pattern 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
Landowner, and in furtherance of the public health, safety, and welfare of the community to enter into
and implement this Agreement.
IN CONSIDERATION of the mutual covenants and agreements herein contained, the parties
hereto agree as follows:
1. Recitals
The above recitals are true and correct.
2. Annexation
The Landowner filed an application for annexation of the WEST LINCOLN ROAD
ANNEXATION with the City on June 10, 2004. The City, on August 2, 2004, adopted Resolution of
Intent to Annex No. 3702 for the WEST LINCOLN ROAD ANNEXATION. By execution of this
Agreement, the City has manifested its intention to annex the WEST LINCOLN ROAD
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 LINCOLN ROAD ANNEXATION to the City. Further, upon the execution
of this Agreement, the Landowner 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
WEST LINCOLN ROAD ANNEXATION tracts to the Ciry.
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 WEST LINCOLN ROAD ANNEXATION, 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 of lines or construction of necessary improvements at any cost to the
WEST LINCOLN ROAD ANNEXATION 2
City for delivery of water to and within the WEST LINCOLN ROAD ANNEXATION. Nothing in this
Agreement shall obligate the Ciry to pay for right-of--way acquisition, engineering, construction, and other
costs for the delivery of water to or within the WEST LINCOLN ROAD ANNEXATION to include,
but not limited to, any impact fees, hook-up, connection, or development charges which may be
established by the City. Upon annexation and upon availability of service, any existing
residences/businesses on the property must be connected to Ciry water utilities. Any wells presently used
for domestic purpose can be retained for irrigation only with no physical connection to domestic water
piping.
5. Municipal Sewer Service Defined
The term "municipal sewer service" as is used in this Agreement shall be the service which is
supplied by the City in accordance with Chapter 13.24, Bozeman Municipal Code, or as may be amended,
as well as any other terms and conditions which apply to the City's provision of this service. The term
does not contemplate the extension of lines or construction of necessary improvements at any cost to the
City for collection of sewage at and within the WEST LINCOLN ROAD ANNEXATION. Nothing in
this Agreement shall obligate the Ciry to pay for right-of--way acquisition, engineering, construction, and
other costs for the collection of sewage services to or within the WEST LINCOLN ROAD
ANNEXATION to include, but not limited to, any impact fees, hookup, connection, or development
charges which may be established by the City. Upon annexation and upon availability of service, any
existing residences/businesses on the property must be connected to City sewer utilities. The existing on-
site treatment systems must be properly abandoned and certification provided the abandonment occurred.
6. Water Rights
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 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 LINCOLN ROAD ANNEXATION consists of approximately 1.93 acres (exclusive
of adjacent right-of--way). The Landowner understands and agrees that they must provide sufficient water
rights in accordance with the City's policy according to the following schedule:
WEST LINCOLN ROAD ANNEXATION, consisting of a total of 1.93
acres, shall provide water rights or cash-in-lieu in the amount of
WEST LINCOLN ROAD ANNEXATION 3
$ ~ .~ 3.1 to the City of Bozeman, at the time the Annexation
Agreement is submitted.
The Landowner shall provide 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 Ciry 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.
7. Comprehensive Water and Sewer Design Report
Prior to development of the subject annexation, the applicant's engineer will be required to
prepare a comprehensive design report evaluating the existing capacity of both the water and sewer
utilities. The report must include hydraulic evaluations of each utility for both existing and post
development demands. The report findings must demonstrate that adequate capacity is available to serve
full development of the annexation area. If adequate water and/or sewer capacity is not available for the
full development, the report must identify the water and sewer system improvements required to provide
the necessary capacity. Any improvements necessary to serve the full development must be in place prior
to further development of the site. 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 there is no right, either granted or implied by the Ciry, for
the Landowner to develop any of the WEST LINCOLN ROAD ANNEXATION 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 WEST LINCOLN ROAD ANNEXATION. The Landowner is
hereby on notice of the following requirements upon further development of the WEST LINCOLN
ROAD ANNEXATION:
a) Prior to development, the applicant will be responsible for installing any facilities required to
provide full municipal services to the property in accordance with the Ciry of Bozeman's
infrastructure master plans and all city policies that may bein effect at the time of development.
b) Prior to development, the applicant will be responsible for paving the portions of Alder Court
Lane and Maple Lane that are directly adjacent to the subject property.
c) Prior to development of the subject annexation, the 12-inch water main in West Lincoln Road
shall be extended from Maple Lane to the east side of Alder Court Lane and a fire hydrant shall be
installed.
d) The applicant is advised that water main extensions in excess of 500-ft must be looped.
WEST LNCOLN ROAD ANNEXATION 4
9. Impact Fees
The Landowners hereby acknowledge that annexation and development of their property will
impact the Ciry's existing street, water, and sewer infrastructure, and fire service requirements. There are
two existing residences on the property. At the time of annexation, the landowners shall pay all street and
fire impact fees that are attributable for the existing residences. At the time of connection to the City's
water and sewer facilities, the landowners shall pay all applicable water and sewer impact fees for the
existing residences. At the time of any further development on the properties, the land owners 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,
3.24.060A, 3.24.070A, or 3.24.080A, respectively. If the impact fees currently imposed pursuant to
Chapter 3.24 of the Bozeman Municipal Code are subsequently voided or declared invalid by a court of
competent jurisdiction, Landowners agree to pay the City fees or assessments established by the Ciry 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 agrees to pay at that time, the amount calculated for all such fees based upon the rates
established at the date of this agreement.
If the Court above declares Chapter 3.24 of the Bozeman Municipal Code invalid, and if
landowner would have been entitled to a refund under the court's decision but were it not for the sole fact
of the landowner paying impact fees because of this agreement, then all such impact fees paid prior to the
court's decision shall be held in escrow until a revised Chapter of the Code is enacted after the Court's
decision.
At the time the revised code is enacted, then all such fees held in escrow shall be released to the
city and the balance, if any, returned to the landowner. All accumulated interest on the sum held in
escrow shall be released to the Ciry or landowner on the same percentage as the money released to either
party bears to the total sum held in escrow.
Landowners further understand and agree that any improvements, either on- or off-site, necessary
to provide connection of WEST LINCOLN ROAD 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.
WEST LINCOLN ROAD ANNEXATION 5
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 such
default, City may at their option:
a) Declare the amounts owing for impact fees immediately due and payable and Ciry 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 Ciry may, at its option, enforce payment of such
amount by levying an assessment on the premises.
b) Elect any other remedy available to Ciry 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 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.
10. Stormwater Master Plan
Landowner understands and agrees that prior to development of the WEST LINCOLN ROAD
ANNEXATION, a Stormwater drainage and grading plan shall be provided to and approved by the City
Engineer. The plan must demonstrate that adequate treatment of runoff from the public streets and all
future lots will be achieved by providing spot elevations, flow direction arrows, detention and/or
retention basin details (including basin sizing calculations and basin typical sections), outlet structure
details, and culvert capacity calculations. The plan must also locate and provide easements for adequate
drainage ways within the annexation area to transport treated runoff to the stormwater receiving channel.
The plan shall also include a stormwater maintenance plan.
11. Traffic AnalXsis 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 Right-to-Protest Special Improvement Districts
Landowner has executed aWaiver ofRight-to-Protest Creation of Special Improvement Districts
for street improvements, including but not limited to: paving, curb, gutter, sidewalk, and storm drainage
improvements to Lincoln Road, Alder Court, and Maple Lane; and have further executed a Waiver of
Right-to-Protest Creation of Special Parks Maintenance Districts. Said Waivers are attached hereto as
Exhibits A and B.
13. Right-of--Way Easement for Future Roadways
Landowner has dedicated, by written easement, the following land to the City of Bozeman, which
represents the Landowner's proportionate share of the necessary right-of--way:
WEST LINCOLN ROAD ANNEXATION 6
a. South half (additional 15 feet) for West Lincoln Road
b. 40 feet for Maple Lane
Said easements will be filed with the Gallatin County Clerk and Recorder at the time this Annexation
Agreement is filed.
14. Utility Easements
Landowner understands and agrees that utility easements, a minimum of 30 feet in width, will be
necessary for the installation and maintenance of water and sewer utility services to the annexed parcel.
The Landowner shall create such easements in locations agreeable to the City during the appropriate
development procedure, but in no event later than the filing of any final plat or site plan or issuance of a
building permit on any of the parcels.
15. Provisions for a Turnaround
Landowner understands and agrees that prior to annexation, the applicant shall provide provisions
for aturn-around, with the design and legal status subject to review and approval by the Department of
Public Safety -Inspections.
16. Provisions for aNorth-South Pedestrian Easement
Landowner understands and agrees that, with further development of these lots, the property
owners shall provide a pedestrian connection extending northward from the University Apartments
development toward the Montana State University campus on an alignment to be reviewed and approved
by the Office of Planning and Community Development.
17. 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 LINCOLN ROAD ANNEXATION.
The parties further agree that the City may file these documents at any time.
18. Governing Law and Venue
This Agreement shall be construed under and governed by the laws of the state of Montana. In
the event of litigation concerning this Agreement, venue is in the Eighteenth Judicial District Court,
Gallatin County, State of Montana.
19. Attorney's Fees
In the event it becomes necessary for either parry to this Agreement to retain an attorney to
enforce any of the terms or conditions of this Agreement, then the prevailing party shall be entitled to
reasonable attorney's fees and costs, to include the salary and costs of in-house counsel including City
Attorney.
WEST LINCOLN ROAD ANNEXATION 7
20. 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.
21. Invalid Provision
The invalidity or unenforceabiliry 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.
22. Modifications or Alterations
No modification or amendment of this Agreement shall be valid unless evidenced by a writing
signed by the parties hereto.
23. No Assignment
It is expressly agreed that the Landowner shall not assign this Agreement in whole or in part
without prior written consent of the Ciry.
24. Successors
This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties
hereto and their respective heirs, successors and assigns.
25. 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.
The undersigned Landowners affirms that they have authority to enter into this Agreement on
behalf of their partnership, and to bind the partnership to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the
day and year first above written.
WEST LINCOLN ROAD ANNEXATION 8
CORPORATION
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Managing Member of Snowload, LLC
STATE OF MONTANA
County of Gallatin
ss.
On this ~_ day of , 2006, before me, the undersigned, a
Notary Public for the State of Montana, pe onally appeared ShG.uh S~'~.~0.n ,known ''
to me to be the managing member of Snowload. LLC, the corporation that executed the within ',
instrument, and acknowledged to me that he executed the same for and on behalf of said corporation.
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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By Chris A. Kulkulski, City Manager
County of Gallatin )
On this ~ day of I V ~~ll y , 200 be re e, a Notary Public for
the state of Montana, personally appeared Chris A. Kulkulski and n, known to me to the
persons described in and who executed the foregoing instrument as 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 Notarial Seal the day
and year first above written. ~ ~~
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WEST. LINCOLN ROAD ANNEXATION 1
EXHIBIT A
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
WEST LINCOLN ROAD ANNEXATION
The undersigned owners of the real property situated in the County of Gallatin, State of
Montana, and more particularly described as follows:
Lots 26 and 27 of Beatty's Alder Court Subdivision, Tract 1 as described in
Document No. 2054756, Tract 2 as described in Document No. 2054753, and
Tract E as described in Film 191, Page 2361, Records of Gallatin County, situated
in the NW 1/4 of the SW '/4 of Section 13, T2S, RSE, 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 other and valuable consideration, the
receipt of which is hereby acknowledged, and in recognition of the impact to West Lincoln Road,
Alder Court, and Maple Lane, which will be caused by the development of the 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 including but not limited to the
following improvements: paving, curb, gutter, sidewalk, and storm drainage improvements, or to
make any written protest against the size or area or creation of the district 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.
This waiver shall be a covenant running with the land and shall not expire with the dissolution of the
limited partnership, provided however this waiver shall apply to the lands herein described.
The terms, covenants and provisions of the Waiver shall extend to, and be binding upon the
successors-in-interest and assigns of the parties hereto.
DATED this ~~ day of , 2006.
WEST LINCOLN. ROAD ANNEXATION 1
CORPORATION
(print name here)
Managing Member of Snowload, LLC
STATE OF MONTANA
County of Gallatin
ss.
On this ~ day of , 2006, before me, the undersigned, a
" Notary Public for the State of Montana, per, Wally appeared C ~,tiyl ,, Gt V~ ,known
to me to be the managine~ of Snowload, LLC, the corporation that executed the within
'.', iYStiument, and acknowledged to me that he executed the same for and on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the
day and year first above w~~~~nuttt;l~~~~
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WEST LINCOLN ROAD ANNEXATION 1
EXHIBIT B
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL PARKS MAINTENANCE DISTRICTS
WEST LINCOLN ROAD ANNEXATION
The undersigned owners of the real property situated in the County of Gallatin, State of Montana,
and more particularly described as follows:
Lots 2G and 27 of Beatty's Alder Court Subdivision, Tract 1 as described in
Document No. 2054756, Tract 2 as described in Document No. 2054753, and
Tract E as described in Film 191, Page 2361, Records of Gallatin County, situated
in the NW 1/4 of the SW '/4 of Section 13, T2S, R5E, 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 other and valuable consideration, the
receipt of which is hereby acknowledged, and in recognition of the impacts on the City's park facilities
and the need for the maintenance of municipal park areas to serve Ciry residents, 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 parks maintenance or improvement districts for aCity-wide Parks
Maintenance District, 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 parks
maintenance or improvement districts.
In the event City-wide Parks Maintenance or Special Improvement Districts are not utilized for the
Ciry-wide park maintenance, we agree to participate in an alternate financing 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, 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.
WEST LINCOLN ROAD ANNEXATION I
DATED this ~_ day of ~ , 2006.
CORPORATION
(print name here)
Managing Member of Snowload, LLC ''
STATE OF MONTANA
County of Gallatin
ss.
On this ~_ day of , 2006, before me, the undersigned, a
Notary Public for the State of Montana, perso ally appeared ,~~ t) ~ 4h~ hc~..~1 ,known
to me to be the managing member of Snowload, LLC, the corporation that executed the within
instrument, and acknowledged to me that he executed the same for and on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the ',
day and year first abo`~~ NEE D,~ ~y~'i;,
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WEST LINCOLN ROAD ANNEXATION I