HomeMy WebLinkAbout12- South University District Annexation Agreement Inter-office Ori final to:
City of Bozeman
Planning Department
20 East Olive Street
SOUTH UNIVERSITY DISTRICT
ANNEXATION AGREEMENT
THIS AGREEMENT made and entered into this day of , 201'x±by and
between the CITY OF BOZEMAN, a municipal corporation and self-governing political subdivision of the State
0U of Montana with offices at 121 N. Rouse Avenue, Bozeman, Montana 59771-0640, hereinafter referred to as
NN_
rE
"City", and RTR Holdings II 67 Village Drive, Belgrade, Montana 59714, hereinafter referred to as
m
m
LL
"Landowner".
WITNESSETH:
m
WHEREAS, Landowner is owner in fee of a tract of certain real property, hereinafter referred to as the
N 7�-
o
U�
Ci
SOUTH UNIVERSITY DISTRICT ANNEXATION situated in Gallatin County, Montana, and more
N� particularly described as follows:
m�
y= Tract B of COS 2661, excepting Parcel 2 of Document 2311126, located in the SW '1 of
Section 13,T2S, R5E, and in the NW %4 of Section 24 T2S,R5E, PMM, Gallatin County,
o m
Montana. Said Tract of land being 126.96 f acres more or less along with and subject to any
�°o± and all existing easements.
* Q, L!
WHEREAS,the Landowner petitioned the City for annexation to the City of said tract of land;and
0 WHEREAS, the SOUTH UNIVERSITY DISTRICT ANNEXATION is not within the corporate limits
�. of the City or other municipality and may therefore be annexed to the City in accordance with the provisions of
this Agreement and Title 7,Chapter 2,Part 46,MCA;and
WHEREAS, all parties recognize the annexation of the SOUTH UNIVERSITY DISTRICT
ANNEXATION pursuant to Section 7-2-4601, et seq.,MCA will allow the SOUTH UNIVERSITY DISTRICT
South University District Annexation Agreement 1
ANNEXATION to connect to and utilize City services, including municipal water and sewer service, fire
service,and the City's street system; and
WHEREAS, Section 7-2-4610, MCA provides that a municipality and landowner can agree to the
provisions of services to the area to be annexed;and
WHEREAS, the parties recognize additional development on the SOUTH UNIVERSITY DISTRICT
ANNEXATION will impact area streets and fire services, and that future improvements may require additional
public street improvements for traffic circulation and the provisions of fire services; and
WHEREAS, the Landowner wishes to convey to the City certain water rights or take some equivalent
action to provide water and sewer service to the SOUTH UNIVERSITY DISTRICT ANNEXATION; and
WHEREAS,the Landowner finds this Agreement will provide for the most satisfactory and dependable
water supply and sewer supply or service, and provide traffic circulation and fire service for development of the
SOUTH UNIVERSITY DISTRICT ANNEXATION; and
WHEREAS, the parties have determined that it is in the best interests of the City and Landowner, and
in furtherance of the public health, safety and welfare of the community to enter into and implement this
Agreement.
WITNESETH:
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 SOUTH UNIVERSITY DISTRICT
ANNEXATION with the City on March 16,2011. By execution of this Agreement, the City manifests its intent
to annex the SOUTH UNIVERSITY DISTRICT ANNEXATION tracts pursuant to the terms and conditions of
this Agreement. Subject to the provisions of Title 7, Chapter 2,Part 46,MCA the City shall,upon execution of
South University District Annexation Agreement 2
this Agreement, adopt a Resolution of Annexation of the SOUTH UNIVERSITY DISTRICT ANNEXATION.
Further, upon the execution of this Agreement, the Landowner shall do all things required by this Agreement
and all things necessary and proper to aid and assist the City in carrying out the terms,conditions and provisions
of this Agreement and to effect the annexation of the SOUTH UNIVERSITY DISTRICT ANNEXATION.
3. Services Provided
The City will, upon annexation, make available to the SOUTH UNIVERSITY DISTRICT
ANNEXATION existing City services only to the extent currently available,or 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, as amended, as well as any other terms
and conditions which apply to the City's provision of municipal water service but does not include the extension
of lines or construction of necessary improvements at any cost to the City for delivery of water to and within the
SOUTH UNIVERSITY DISTRICT 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
SOUTH UNIVERSITY DISTRICT ANNEXATION to include, but not limited to, any impact fees, hook-up,
connection,or development charges which have been or may be established by the City.
S. 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, as amended, as well as any other
terms and conditions which apply to the City's provision of this service but does not include the extension of
lines or construction of necessary improvements at any cost to the City for collection of sewage at and within
the SOUTH UNIVERSITY DISTRICT 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 SOUTH UNIVERSITY DISTRICT ANNEXATION to include, but not limited to, any impact
fees,hookup,connection,or development charges which may be established by the City.
South University District Annexation Agreement 3
b. Water Rights
The Landowner shall comply with 18.42.180, BMC, as amended, prior to the City's approval of the
SOUTH UNIVERSITY ANNEXATION and also prior to all future or subsequent development on the SOUTH
UNIVERISITY ANNEXATION. The Landowner and City agrees the Landowner has chosen to comply with
18.42.180 by deferring the need to provide water rights or cash-in-lieu payments pursuant to 18.42.1 80.C. As
such, Landowner specifically recognizes and agrees compliance with 18.42.180.A.1 or 2 shall be required prior
to the City permitting construction of any future development on the SOUTH UNIVERSITY ANNEXATION,
including but not limited to the issuance of a building permit, a permit to connect to any city services, or prior to
approval of any development authorized under Title 18,BMC.
In addition, the Landowner recognizes and agrees upon all future and subsequent development on the
SOUTH UNIVERSITY ANNEXATION additional water rights or payment-in-lieu may be required by the City.
Additional water rights or cash-in-lieu payments may be required in addition to any previously transferred water
rights or cash-in-lieu payment if the demand for water use from such additional or subsequent development, as
calculated by the City at the time of the new or subsequent development and based upon the cash-in-lieu amount
established by the City Commission at the time of the future or subsequent development,exceeds the previously
transferred water rights or prior payment for cash-in-lieu for the SOUTH UNIVERSITY ANNEXATION. In
such a case, the Landowner agree to submit a cash-in-lieu payment or transfer sufficient water right for the
additional or subsequent development prior to issuance of a building permit, a permit to connect to any city
services,or prior to approval of any development authorized under Title 18,BMC.
7. Comprehensive Water and Water Design Report
Prior to future development of the property the City may require the Landowner to have prepared by a
Professional Engineer, at Landowner's expense, a comprehensive design report evaluating existing capacity of
sewer and water utilities in the area. The report must include hydraulic evaluations of each 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 infrastructure capacity is not available for the proposed
South University District Annexation Agreement 4
development, the report must identify necessary water or wastewater system improvements necessary for the
proposed development. If improvements to this water or wastewater system are necessary, the Landowner
agrees prior to development of the SOUTH UNIVERSITY DISTRICT ANNEXATION to complete, at
Landowner's expense,the necessary system improvements to serve the proposed development.
S, Future Development Limitations
The Landowner will be responsible for installing all facilities required to provide full municipal services
to the property in accordance with the City's Infrastructure Master Plans and all city regulations, policies and
guidelines that may be in effect at the time of any future development. Thus, Landowner understands and
agrees that there is no right, either granted or implied, for the Landowner to further develop any of the SOUTH
UNIVERSITY DISTRICT ANNEXATION until it is verified by the City that the necessary municipal services,
including but not limited to police and fire protection, streets, and sewer and water capacity, are available to all
or a portion of the SOUTH UNIVERSITY DISTRICT ANNEXATION. Notice is thus provided to the
Landowner that prior to additional development of the property, the Landowner will be solely
responsible for installing, at Landowner's sole expense, any facilities or infrastructure required to
provide full municipal services to the SOUTH UNIVERSITY DISTRICT ANNEXATION in accordance
with the City's infrastructure plans, adopted Growth Policies/Community flans, and all other city
regulations,policies and guidelines that may be in effect at the time of development.
9. Payback District
The Landowner recognizes and agrees that upon annexation into the City all real property included in
the SOUTH UNIVERSITY DISTRICT ANNEXATION lying within the Meadow Creek Subdivision's
Water Improvements, Traffic Signal Improvements, and Sanitary Sewer Improvements payback
districts shall be considered "bernefitted property" and shall be subject to the obligations to contribute
financially to the districts as provided for in the payback agreements for each district which are
recorded with the Gallatin County, Montana, Clerk and Recorder as documents #2293491 (traffic
South University District Annexation Agreement 5
signal improvements agreement), #2293492 water improvements agreement), and #2293493 (sanitary
sewer improvements agreement). The Landowner, its heirs, and successors in interest, shall be bound
to contribute the amount indicated in the above agreements (the "payback charge") on a proportional
basis as calculated by the City to each district at the time any portion of the SOUTH UNIVERSITY
DISTRICT ANNEXATION lying within a district applies for subdivision approval or site plan
approval.
The calculation of the amount of the payback charge required to be contributed to each district
at the time of site plan or subdivision approval shall be determined by multiplying the "pro rata
percentage" for each parcel of real property included in a site plan or subdivision application (as that
percentage is shown in each agreement) by the square footage of each parcel of real property which is
included in the subdivision or site plan approval.
As required by each payback agreement, in addition to the payback charge and the Landowner,
its heirs or successors, shall contribute to the City the 7%administrative fee of each payback charge.
10. Stormwater Master Plan
Landowner understands and agrees a Stormwater Master Plan for the SOUTH UNIVERSITY
DISTRICT ANNEXATION for a system designed to remove solids, oils, grease, and other pollutants from the
runoff from the public streets may be required to be provided to and approved by the City Engineer at the time
of any future development. Such plan, if required, 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 channe](s). The plan shall include site grading and elevation information, typical
stormwater detention/retention basin and discharge structure details, basin sizing calculations, and stormwater
maintenance plan.
South University District Annexation Agreement 6
11. Waiver of Rii!bt-to-Protest Special Improvement Districts
A. Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts (SID) for the maintenance of any parks within the annexed area and/or of a City-wide Park
Maintenance District. The Landowner agrees such SID will provide a mechanism for the fair and equitable
assessment of maintenance costs for such parks. The waiver is attached hereto as Exhibit "A" and is hereby
incorporated in and made a part of this Agreement.
B. Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts for street improvements including paving, curb and gutter, sidewalk and stormwater drainage facilities
for: 1) South 19th Avenue, 2) West Kagy Boulevard, 3) South ll'h Avenue; and 3) signalization
improvements for the intersections of: 1) West Kagy Boulevard and South 19'h Avenue, 2) West Kagy
Boulevard and South 11th Avenue, and 3) Stucky Road and South 19th Avenue. The Landowner agrees
such an SID will provide a mechanism for the fair and equitable assessment of construction and maintenance
costs for such improvements. The waiver is attached hereto as Exhibit "B" and is hereby incorporated in and
made a part of this Agreement.
C. Landowner agrees that in the event an SID is not utilized for the completion of these
improvements as described in subsections A and B above, the Landowner agrees to participate in an alternative
financing method for the completion of said improvements on a fair share,proportionate basis as determined by
square footage of property, taxable valuation of the property, traffic contribution from the development or a
combination thereof.
12. Utility Easements
The Landowner understands and agrees that utility easements, a minimum of thirty (30) feet in width,
may be necessary for the installation and maintenance of water and sewer utility services to the SOUTH
UNIVERSITY DISTRICT ANNEXATION parcel. The Landowner, at its sole expense, shall create such
easements in locations and form agreeable to the City during the appropriate development procedures,but in no
event later than the filing of any final plat or site plan review or issuance of a building permit on the parcel.
South University District Annexation Agreement 7
13. Impact Fees
Landowner acknowledges that annexation and development of their property will impact the City's
existing street,water and sewer infrastructure,and the City's fire service.
At the time the Landowner applies for a permit to connect any existing, modified, or new structure to
the city's municipal sewer service or municipal water service, the Landowner shall pay all water and sewer
impact fees in accordance with and as calculated by chapter 3.24 of the Bozeman Municipal Code, as amended.
At the time the Landowner applies for any of the forms of development listed in chapter 3.24 of the Bozeman
Municipal Code, as amended, the Landowner shall pay such fire and street impact fees in accordance with and
as calculated by chapter 3.24 of the Bozeman Municipal Code,as amended.
The amount of impact fee to be paid for connection to the city's water and sewer services, if any, shall
be calculated based on the provisions of the Bozeman Municipal Code, as amended, in effect at the time of
application for a permit to connect. The amount of street or fire impact fees to be paid, if any, shall be
calculated based on the provisions of the Bozeman Municipal Code, as amended, in effect at the time an
application for development approval is deemed sufficient for review.
Landowner further understands and agrees that any improvements,either on-site or off-site,necessary to
provide connection of the SOUTH UNIVERSITY DISTRICT ANNEXATION municipal services and which
are wholly attributable to the property as determined exclusively by the city are considered "project related
improvements" as defined in chapter 3.24, Bozeman Municipal Code, as amended, and as such, are not eligible
for impact fee credits.
If Landowner defaults 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 the Landowner and
Landowner/Developer of such default,City may at their option:
A) Declare the amounts owing for impact fees immediately due and payable and City shall
have the right and privilege to take legal action against 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.
B) Elect any other remedy available to City under the laws of the State of Montana.
South University District Annexation Agreement 8
14. Additional Terms
The parties recognize these documents shall be filed and of record with the GaIIatin County Clerk and
Recorder prior to the sale of any land with the SOUTH UNIVERSITY DISTRICT ANNEXATION. The parties
further agree that the City may file these documents at any time.
15. 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,venue is in the Eighteenth Judicial District Court,in and for County of Gallatin, 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 shaII 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 modifications or amendment of this Agreement shall be valid unless evidenced by a writing signed
by the parties hereto.
20. No AssiSnment
It is expressly agreed that the Landowner and/or Landowner/Developer shall not assign this Agreement
in whole or in part without prior written consent of the City.
South University District Annexation Agreement 9
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 and specifically to any subsequent purchaser of the annexed
property.
22. Covenants to Run with the Land
The parties intend that the terms of this Agreement shall benefit the SOUTH UNIVERSITY DISTRICT
ANNEXATION and shall be covenants running with the land and shall not expire at their deaths or upon
transfer of ownership of the property.
The undersigned Landowner affirms that they have authority to enter into this Agreement and to bind
themselves to this Agreement.
IN WITNESS WHEREOF,the parties hereto have caused this agreement to be executed the day and
year first above written.
LANDOWNER
LKj Z, i,
RTR Holdings 11
CC&.4bM�
STATE OFD )
�a.� Vinci�►�.,�
COUNTY OF-E�T }
On this 21L day f Q y ( , 2011 , before me, the undersigned, a Notary
Public for the State of i t' ,personally appeared 4 L-. efy)?- known
to me to be the f.IrY't of RTR Holding II, 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 axed my official seal the day and year first
above written.
(SEAL) REBECCA t..VOIGT
South University District Annexation Agreement Commission# 1843820 z 10
a a u Notary Public -Calitornia z San Francisco Conty
My Comm. Expires Apr 9.2013
{Printed Name Here} CaCC a L t'
Notary Public for the State of�A4erz4Rna
Residing at Lf16--,CC;
My Commission Expires:
(Use 4 digits for expiration year)
South University District Annexation Agreement 1 i
CITY OF BOZEMAN
C�� 4.
By: Chris A. Kukulski,City Manager
ATTEST: �.
� T r
erk of e- Cain .:�
STATE OF MONTANA
:ss
COUNTY OF GALLATIN )
+1-1
On this Q ) day of ; YU G ,20 before me,a Notary Public for the state of
Montana,personally appeared Chris Kukulski an Stacy Ulman,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 official seal the day and year first
above written.
(SEAL) ,
(Prin d Name Here)
j�//X Notary Public for the State of Montana
�\
V— K l S /, Residing at
My Commission E ' es: —0 4 (2
NOT
IlI IIY
C % (Use 4 digits for expiration year)
South University District Annexation,Agreement 12
EXHIBIT`°A"
WAIVER OF RIGHT-TO-PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICT
FOR A CITY-WIDE PARK MAINTENANCE DISTRICT
SOUTH UNIVERSITY DISTRICT ANNEXATION
The undersigned owner of the real property situated in the County of Gallatin, State of Montana, and
more particularly described as follows:
Tract B of COS 2661, excepting Parcel 2 of Document 2311126, located in the SW 1/ of
Section 13, T2S,R5E, and in the NW 11 of Section 24 T2S, R5E,PMM, Gallatin County,
Montana. Said Tract of land being 126./96 f acres more or less along with and subject to any
and all existing easements.
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 City parks which will be caused by the
development of the above-described property, the Landowner has waived and does hereby waive for itself, its
successors and assigns forever the right to protest the creation of one or more special improvement districts for
maintenance of any parks within the annexed area and/or of a City-wide Park Maintenance District, which
would provide a mechanism for the fair and equitable assessment of maintenance costs for City parks, 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 is made for the benefit of the property described above and shall be a covenant running with
the land.
The terms, covenants and provisions of this waiver shall extend to, and be binding upon the successors-
in-interest and assigns of the Landowner.
DATED this day of 12011,
South University District Annexation Agreement 13
LANDOWNER
RTR Holdings II
STATE OF*tffNTA1TA )
COUNTY OF GAT� )
On this day vf 6UVUU , 201 , before me,the undersigned, a Notary Public
for the State of r i ,per nally appeared 1<M , known to me
to be the Mf'VrYI of RTR Holding II, the corporation thai 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 official seal the day and year first
above written.
(SEAL)
AW96- 7�q
( rinted Name Here) L, vp�
Notary Public for the State { t c�
Residing at 00an Ty-e4 CA C..0
REBECCA L.V0lGT My Commission Expires: W
Commission#1843820 i3
i ,: Notary Public -California D (Use 4 digits for expiration year)
Z San Francisco County
My Comm. Expires Apr 8,2013
South University District Annexation Agreement 14
EXHIBIT "B"
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
SOUTH UNIVERSITY DISTRICT ANNEXATION
The undersigned owner of the real property situated in the County of Gallatin, State of
Montana, and more particularly described as follows:
Tract B of COS 2661, excepting Parcel 2 of Document 2311126, located in the SW '/a of
Section 13, T2S, R5E, and in the NW t/ of Section 24 T2S,R5E, PMM, Gallatin County,
Montana. Said Tract of land being 126.96 ::L acres more or less along with and subject to any
and all existing easements.
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 to South
19th Avenue, W. Kagy Boulevard, South 11th Avenue, and Stucky Road, which will be caused by
the development of the above-described property, the owner has waived and does hereby waive for
itself, its successors and assigns forever the right to protest the creation of one or more special
improvement districts for the construction and maintenance of following improvements: paving,
curb/gutter, sidewalk, storm drainage facilities for South 191h Avenue, W. Kagy Boulevard,
South 11th Avenue and improvements to the intersections of W. Kagy Boulevard and South 10
Avenue, West Kagy Boulevard and South 11th Avenue, and Stucky Road and South 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 an SID is not utilized for the completion of these improvements, the developer
agrees to participate in an alternate financing method for the completion of said improvements on a fair
South University District Annexation Agreement 15
share, proportionate basis as determined by square footage of property, taxable valuation of the
property, traffic contribution from the development or a combination thereof.
This waiver is made for the benefit of the property described herein shall be a covenant running
with the land.
The terms, covenants and provisions of this waiver shall extend to, and be binding upon the
successors-in-interest and assigns of the Landowner.
DATED this_�day of ,fa , 201 X�
LANDOWNER
RTR Holdings II
STATE OF MaNTAN e )
COUNTY OF )
On this day,of , 201 before me, the undersigned, a Notary Public
for the State of i� ,pers pally appeared ,known to me
to be the &1r"Yl of RTR Holding I1, 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 official seal the day and
year first above written.
(SEAL)
(Pri ted Name Here) R6b e_CC� Vol
REBECCA L.VOIGT Notary Public for the State ofA4ea+mm
Commission#1843820 L Residing at FY-M G ,
a -,; Notary Public-California a
Z San Francisco County v My Commission Expires:
M Comm.Ex Tres Apr 9,2013 (Use 4 digits for expiration y ar)
South University District Annexation Agreement 16