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HomeMy WebLinkAbout97- XL Limited Partnership Annexation Agreement r XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT THIS AGREEMENT is made and entered into this 1st day of December 19 97, 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 referred to as "City", and XL LIMITED PARTNERSHIP, a Montana Limited partnership, P.O. Box 1238, Livingston, Montana 59047, hereinafter referred to as "Landowner". WITNESSETH: WHEREAS, Landowner is owner in fee of a tract of certain real property, hereinafter referred to as the "XL LIMITED PARTNERSHIP ANNEXATION", situated in Gallatin County, Montana, and more particularly described as follows: Northwest one-quarter of Section 2, Township 2 South, Range 5 East, M.P.M.,Gallatin County,Montana. WHEREAS, the Landowner has petitioned the City for annexation of the contiguous tract; and WHEREAS, the XL LIMITED PARTNERSHIP 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 recognize that the annexation of the XL LIMITED PARTNERSHIP 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 city boundaries; and WHEREAS, all parties recognize that the development of the XL LIMITED PARTNERSHIP ANNEXATION will impact Baxter Lane, West Oak Street, North 27th Avenue, XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 1 1 tl 179 FAU2%4 and Fowler Avenue, and will require additional public street improvements for traffic circulation; and WHEREAS, the Landowner wishes to convey to the City certain water rights or take some equivalent action to provide water service to the XL LIMITED PARTNERSHIP ANNEXATION; 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 XL LIMITED PARTNERSHIP 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 XL LIMITED PARTNERSHIP ANNEXATION with the City. The City, on June 16, 1997, adopted a Resolution of Intent to Annex the XL LIMITED PARTNERSHIP ANNEXATION . By execution of this Agreement, the City has manifested its intention to annex the XL LIMITED PARTNERSHIP 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 XL LIMITED PARTNERSHIP ANNEXATION to the City. XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 2 11W 179 PAC[2M5 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 XL LIMITED PARTNERSHIP ANNEXATION tract to the City. 3. Services Provided. The City will, upon annexation, make currently existing and available City services, including water service, sewer service, police protection, and fire protection, available to the XL LIMITED PARTNERSHIP 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 City for delivery of water to and within the XL LIMITED PARTNERSHIP ANNEXATION. Nothing in this Agreement shall obligate the City to pay for right-of-way acquisition, engineering, construction, and other costs for the delivery of water to or within the XL LIMITED PARTNERSHIP 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 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 XL LIMITED PARTNERSHIP 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 XL LIMITED PARTNERSHIP ANNEXATION to include, but not limited to, any impact fees, hookup, connection, or development charges which may be established by the City. XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 3 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 XL LIMITED PARTNERSHIP ANNEXATION consists of approximately 160 acres. The Landowner understands and agrees that they must provide sufficient water rights in accordance with the City's policy according to the following schedule: XL LIMITED PARTNERSHIP ANNEXATION, consisting of a total of 160 acres, prior to filing of any final subdivision plat, final site plan approval, or the issuance of any building permit, whichever occurs first. The Landowner shall provide sufficient water rights or 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 made. All parties understand and agree that in order to obtain final plat or final site plan approval, either water rights or cash-in-lieu thereof must be provided to the City by the subdivider, landowner, or developer for all or a portion of the XL LIMITED PARTNERSHIP ANNEXATION tract. 7. Acknowledument of Water Impacts Prior to future development of the property, the future developer(s) shall prepare, at their own expense, a comprehensive design report evaluating existing capacity of water utilities. The report must include hydraulic evaluations of the utility for both existing and post-development demands, and the report findings must demonstrate adequate capacity to serve the full development of the land. If adequate water capacity is not available for full development, the report must identify necessary water system improvements required for full development. The future developer(s) will be responsible to complete the necessary system improvements to serve the full development. XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 4 f 1W 179 FAC12GS7 Both parties agree that a comprehensive design report evaluating existing capacity of sewer utiltics will not be necessary prior to development, as reserve sewer capacity has been provided to serve this property, as outlined in Section 14 of this agreement. Landowner acknowledges that City's Water Facility Plan is currently being finalized, and that pressure zone appurtenances may be required of the Landowner or future developer(s) with future development. 8. Acknowledgment of Traffic Impacts Landowner understands and agrees that additional traffic from development of the XL LIMITED PARTNERSHIP ANNEXATION will impact existing streets in the area, and that mitigation of those impacts must be addressed prior to development of the property. Prior to future development of the property, the future developer(s) shall prepare at their own expense a detailed traffic analysis report(s) evaluating existing capacity of existing streets in the area. 9. Waiver of Right-to-Protest Special Improvement Districts Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement Districts for a City-wide Park Maintenance District, which would provide a mechanism for the fair and equitable assessment of maintenance costs for City parks, and for street improvements, including paving, curb/gutter, sidewalk and storm drainage, to a) Baxter Lane b) West Oak Street; c) Fowler Avenue; and d) North 27th Avenue; and for signalization improvements at the intersections of West Oak Street and North 19th Avenue, and of Baxter Lane and North 19th Avenue; and have further executed a Waiver of Right-to-Protest Creation of Rural Improvement Districts for West Oak Street. Said Waivers are attached hereto as Exhibits A and B. 10, 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 parcels. 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. 11. Right-of-Way/Easement for Future Roadways. Landowner has dedicated, by written easement, the following land to the City of Bozeman for right-of-way purposes, which represent Landowner's proportionate share of the necessary XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 5 f Its A�9��SE2Q�� right-of-way. Said easements will be filed with the Gallatin County Clerk and Recorder at the time this Annexation Agreement is filed. a) 45-feet for Baxter Lane b) 65-feet for Oak Street c) 32.5-feet for North 27th Avenue d) 50-feet for Fowler Avenue 12. Stormwater Master Plan. Landowner understands and agrees that a Stormwater Master Plan for the XL LIMITED PARTNERSHIP ANNEXATION fir a system designed to remove solids, oils, grease, and other pollutants from the runoff from the public streets must he 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 runoff to the stormwater receiving channel(s). The plan shall include side grading and elevation information, typical Stormwater detention/retention basin and discharge structure details, basin sizing calculations, and stormwater maintenance plan. 13. 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 XL LIMITED PARTNERSHIP ANNEXATION. The parties further agree that the City may file these documents at any time. 14. Reserved Sewer Capacity Landowner has provided the City $74,748.80 as the payback required appurtenant to the real property hereinabove described for Special Improvement District 621. In recognition of this receipt, that portion of the XL LIMITED PARTNERSHIP ANNEXATION tract which is served by gravity sewers, shall he entitled to reserved sewer capacity in the original Far West Sewer Trunk line. The total amount of reserved sewer capacity in the trunk line shall be 307,200 gallons average daily flow (based on a residential density of six units per acre, a maximum total of 960 residential dwellings units, and an average flow rate of 320 gallons per residential dwelling unit per day.) XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 6 15. Governinti Law and Venue. F f� 79 FacE2 9 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. 16. Attorney's Fees. In the event it becomes necessary for either party 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. 17. 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. 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 Assignment. 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 by 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 deaths or upon transfer of ownership of the property. XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 7 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. LANDOWNER XL LIMITED PARTNERSHIP A Montana Limited Partnership By THOMAS E. LANE Its: Cenexal Partner By: ? z - RO ERT D. LANE Its: General Partner STATE OF MONTANA ) :ss County of Gallatin ) On this 25thday of November , 19 97 , before me, a Notary Public for the State of Montana, personally appeared THOMAS E. LANE AND ROBERT D. LANE, known to me to the General Partners of XL LIMITED PARTNERSHIP, a Montana limited partnership, and acknowledged to me that they executed this instrument on behalf of said limited partnership pursuant to the power and authority vested in them. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the day and year first above written. V:::jArn A,4 Lnl ,�'Q`��••'�Al31,��•.;"g�r- Notary Public or the State of Montana esiding: Bozeman ^Commission Expires: 12/21/99 r ON T CITY OF BOZEMAN By: Clark Jobnson, City Manager ATTEST: 9 � Clerk of the City Commission XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 8 f ILN 179 W[20% STATE OF MONTANA ) :ss County of Gallatin ) // On the �7 day of /c 4 (",c t 19 17, before me, a Notary Public for the State of Montana, personally appeared CLARK JOHNSON AND ROBIN L. SULLIVAN, known to me to be the City Manager and Clerk of the City Commission respectively, of the City of Bozeman, whose names are subscribed to the within instrument and acknowledged to me that they executed the same for and on behalf of said City. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day and year first written above. �. • ''3 , Notary Public for the State of Montana Residing at Bozeman, Montana ,_ My Commission Expires: �> XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 9 19 179,1AC12072 EXHIBIT "A" WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL IMPROVEMENT DISTRICTS XL LIMITED PARTNERSHIP ANNEXATION The undersigned owner of the real property situated in the County of Gallatin, State of Montana, and more particularly described as follows: Northwest one-quarter of Section 2, Township 2 South, Range 5 East, M.P.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 parks and the traffic impacts to Baxter Lane, West Oak Street, North 27th Avenue, Fowler Avenue, and the intersections of West Oak Street and North 19th Avenue and Baxter Lane and North 19th Avenue which will be caused by the development of the above-described property, 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: 1) a City-wide Park Maintenance District; and 2) paving, curb, gutter, sidewalk, and drainage improvements to: a) Baxter Lane; b) West Oak Street; c) Fowler Avenue; and d) North 27th Avenue; and for signalization improvements to the intersections of West Oak Street and North 19th Avenue, and Baxter Lane and North 19th Avenue, 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. In the event Special Improvement Districts are not utilized for the completion of these projects, we agree to participate in an alternate financing method for completion of said improvements on a lair 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. XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 10 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 1st day of December , 1997. XL LIMITED PARTNERSHIP A Montana Limited Partnership YT4HOMAS By: E. LA Its: General Partner By: ROBERT D. LANE Its: General Partner STATE OF MONTANA ) . ss County of Gallatin ) On this 25th day of November—, 1997, before me, a Notary Public for the State of Montana, personally appeared THOMAS E. LANE and ROBERT D. LANE, known to me to be the General Partners of XL LIMITED PARTNERSHIP, a Montana limited partnership and acknowledged to me that they executed this instrument on behalf of said limited partnership pursuant to the power and authority vested in them. IN WITNESS WHEREOF, I have hereunto set my hand and set my seal on the date noted above. NA F Z�:� , u , Notary Public ' r State of Montana it Residing at Bozeman My Commission Expires: 12/21/99 XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 11 f I!# V9 MC72074 EXHIBIT "B" WAIVER OF RIGHT TO PROTEST CREATION OF RURAL IMPROVEMENT DISTRICTS FOR PAVEMENT, CURB, GUTTER, SIDEWALK, BOULEVARD AND DRAINAGE TO BAXTER LANE XI, LIMITED PARTNERSHIP ANNEXATION The undersigned owner of the real property situated in the County of Gallatin, State of Montana, and more particularly described as follows: Northwest one-quarter of Section 2, Township 2 South, Range 5 East, M.P.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 Baxter Lane which will be caused by the development of the above-described property, has waived and do hereby waive for itself, its successors and assigns, the right to protest the creation of one or more rural improvement districts for paving, curb, gutter, sidewalk, and drainage improvements to Baxter Lane, 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 rural 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 1st day of December , 1997. XL LIMITED PARTNERSHIP A Montana Limited Partnership B'y THOMAS E. LANE Its: General Partner By: -Z,-)l� ROBERT D. LANE Its: General Partner XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 12 FILM V9 PACE2075 STATE OF MONTANA ) : ss County of Gallatin ) On this 25th day of November , 1997, before me, a Notary Public for the State of Montana, personally appeared THOMAS E. LANE and ROBERT D. LANE, known to me to be the Ge'e�ral Partners of XL LIMITED PARTNERSHIP, a Montana limited partnership and acknowledged to me that they executed this instrument on behalf of said limited partnership pursuant to the power and authority vested in them. IN WITNESS WHEREOF, I have hereunto set my hand and set my seal on the date noted above. Y Public Mr State of Montana A -!Residing at Bozeman My Commission Expires: 12/21/99 i ',I''MN'(,�1►,N`" 7 RpLATT&DD\ 3553Y3 State of MoW., County of Gallatin. ss Filed for rawrd DECEMBER 4, at 2:20 P M., and recorded 111 Boat 179 MISCELLANEOUS page 2063 rS dS it�COi'�8r. ey 0ePLAY FEE: $78.00 RT: ROBIN SULLIVAN, CLERK OF THE COMMISSION CITY OF BOZEMAN XL LIMITED PARTNERSHIP ANNEXATION AGREEMENT Page 13