HomeMy WebLinkAbout12- Leep Annexation Agreement Inter-office Original to:
City of Bozeman
Planning Department
20 East Olive Street
24400`459
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LEEP
ANNEXATION AGREEMENT
THIS AGREEMENT made and entered into this —61,- day of q L-e e ei 2012, by and
J�
between the CITY OF BOZEMAN, a municipal corporation and self-governing political subdivision of the State
of Montana with offices at 121 N. Rouse Avenue, Bozeman, Montana 59771-0640, hereinafter referred to as
"City", and Leep Dairy LLC, 781 flwy. 437, Toston, Montana 59643, hereinafter referred to as "Landowner".
WITNESSETH:
WHEREAS, Landowner is owner in fee of a tract of certain real property, hereinafter referred to as the
LEEP ANNEXATION situated in Gallatin County, Montana, and more particularly described as follows:
Tract 613, Smith Subdivision located in the NW 1/4 of Section 11, T2S, R.5E, PMM,
Gallatin County, Montana. Said Tract of land being 2.0± acres more or less along with
and subject to any and all existing casements.
WHEREAS,the Landowner petitioned the City for annexation to the City of said tract of land; and
WHEREAS, the LEEP 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, Pail 46, MCA; and
WHEREAS, all parties recognize the annexation of the LEEP ANNEXATION pursuant to Section 7-2-
4601, et seq., MCA will allow the LEEP ANNEXATION to connect to and utilize City services, including
municipal water and sewer service, fire service, and the City's street system; and
Leep Annexation Agreement
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 LEEP 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 Ere services; 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
LEEP 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.
WITIVESETH:
IN CONSIDERATION of the mutual covenants and agreements herein contained, the parties hereto
agree as follows:
I. Recitals
The above recitals are true and correct.
2. Annexation
The Landowner filed an application for annexation of the LEEP ANNEXATION with the City on
March 21, 2012. By execution of this Agreement, the City manifests its intent to annex the LEEP
ANNEXATION tract pursuant to the terms and conditions of this Agreement. Subject to the provisions of'I"itle
7, Chapter 2, Part 46, MCA the City shall, upon execution of this Agreement, adopt a Resolution of Annexation
of the LEEP 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 LEEP ANNEXATION,
Leep Annexation Agreement 2
3. Services Provided
The City will, upon annexation, make available to the LEEP 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 40, Article 2, 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 LEEP 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 LEEP
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 40, Article 3, 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 LEEP 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
LEEP ANNEXATION to include, but not limited to, any impact fees, hookup, connection, or development
charges which may be established by the City.
6. Water Rights
The Landowner specifically recognizes and agrees that provisions for water rights or cash in-lieu of
water rights shall be provided upon further development or subdivision of the property in accordance
Leep Annexation Agreement 3
with Section 38.23.180, BC. The amount of water rights or cash-in-lieu thereof due at the time of
further development or subdivision of the property will be calculated based on the annual demand for
volume of water the development will require multiplied by the most current annual unit price in effect
on the date the water rights are transferred or payment-in-lieu of water rights is to be made to the City.
As such, the Landowner acknowledges that the rates for cash in-lieu of water rights may increase over
time as established by Resolution of the City Commission.
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
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 LEEP ANNEXATION to complete, at Landowner's expense, the necessary
system improvements to serve the proposed development.
8. Future Development Limitations
The Landowner shall 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 fixture development. Thus, Landowner
understands and agrees that there is no right, either granted or implied, for the Landowner to further develop any
of the LEEP ANNEXATION until it is verified by the City that the necessary municipal services, including but
not limited to police and Ere protection, streets, and sewer and water capacity, are available to all or a portion of
the LEEP ANNEXATION, Notice is thus provided to the Landowner that prior to additional
Leep Annexation Agreement 4
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 LEEP
ANNEXATION in accordance with the City's infrastructure plans, adopted Growth
Policies/Community Plans, and all other city regulations, policies and guidelines that may be in effect
at the time of development.
9. Durston Road Improvement Annexation Area
Prior to annexation, the City shall require a financial contribution from all propel-ties
within the Durston Road Improvement Annexation Area annexing to the City per Resolution
4359, At the time of future subdivision or development of the annexed property, the City shall
calculate the financial contribution to the Improvement Area as follows:
Durston Road Improvement Area: The amount of the financial contribution required to
be paid shall be calculated by the City at a rate of $0.186164 per square foot of the
newly created lot(s). In the case of site plan development that does not create additional
lots, the contribution cost shall be calculated based on the number of residential and/or
commercial units added to the property, with the square foot of each residential and/or
commercial unit determined by the minimum lot area required by the zoning of the
property. This contribution shall be paid prior to final subdivision plat or final site plan
approval, unless otherwise determined by the City Commission during review of the
future subdivision or development. Credit will be applied for previously paid
contributions on a pro-rata square foot basis.
10. Stormwater Master Plan
Landowner understands and agrees a Stormwater Master Plan for the LEEP 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 casements for adequate drainage ways within the area to transport
Leep Annexation Agreement 5
runoff' to the stormwater receiving channel(s). The plan shall include site grading and elevation
information, typical stormwater detention/retention basin and discharge structure details, basin siring
calculations, and stormwater maintenance plan..
11. Waiver of Right-to-Protest Special Improvement Districts
A. Landowner shall execute 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 shall execute 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 Fowler Avenue and signalization improvements for the following intersections: a) Durston Road/27"'
Avenue, b) Durston Road/Fowler Avenue and e) West Babcock Street/Fowler Avenue. The Landowner agrees
such an SID will provide a ►nechanism 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 shall 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. Publie Street and Utility Easement
The Landowner understands and agrees that a public street and utility easement shall be provided for
West Villard Street across the subject property. The easement shall be 60 feet wide which is the local street
standard as shown in the Greater Bozeman Area Transportation Plan. The Landowner, at its sole expense, has
Leep Annexation Agreement 6
created such an easement in a location and for►rr agreeable to the City and the easement will be filed at the
Gallatin County Clerk and Recorder's Office.
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. The land owners and their successors
shall pay all fire, street, water and sewer impact fees at the time of connection; and for fixture development, as
required by Chapter 2, Bozeman Municipal Code, or as amended at the time of application for any permit listed
therein.
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 LEEP 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 2, Article b, Division 9, 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.
L,eep Annexation Agreement 7
14. Additional Terms
The parties recognize these documents shall be -filed and of record with the Gallatin County Clerk and
Recorder prior to the ou|e of any 1uod with the LOEP ANNE}C/\T[()yJ. The parties further agree that the City
may file these documents a1 any time.
l5^ Governinz Law and Venue
This agreement shall be construed under and governed by the laws of the state of Montana. In the event
u[litigation, venue isip the Eighteenth Judicial District Court, io and for County ofGallatin, State oyMontana.
16. Attorney's Fees
In the cweoL it becomes ocue$ymry for either party tothis /\grccmmcoT to rcim}o on 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 sarne or any other terrn, covenant or agreement. No covenant,term ur
agreement shall he deemed waived by either party unless waived in writing.
18. Invalid Provision
The invalidity or unouforceubUlty of any provision of this ugrccozeot mbu1i not affect the other
provisions bc,cnf, and this Agreement obuU he construed in all n:apeuta as if such invalid or unenforceable
provision were omitted.
I9^ Modifications or Alterations
No modifications or amendment of this Agreement sDoD be valid unless evidenced bna writing signed
by the parties hereto.
I.eey Annexation Agreement 8
20. No Assignment
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.
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 LEEP 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.
Leep Annexation Agreement �
IN 'WITNESS 'WHEREOF, the parties hereto have caused this agreement to be CXCCttted the day and
year first above written.
LANDOWNER
Jerry Lee
Leep Dai L(c
STATE OF MONTANA
:ss
COUNTY OF GALLATIN )
Can this day of sac ap() -- , 2012, before me, the undersigned, a Notary
Public for the State of , personally appeared Jerry Leep, known to me to be the
of the Leep Dairy 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 any hand and affixed my official seal the day and year first
above written.
Chris Bodeski
p , 5 BUp Notary public
s
: a5nar � ,tcar the state gat Ivlontan (Printed Natne Here)
4�esiding at
" SEAL �ezen Montana
Notary Public for the State of Montana
#' p ? my Commission Expires: Residing at M
November s, let 5 My Commission Expires: O , G —Zol �
(Use 4 digits for expiration year)
Leep Annexation Agreement 10
CITY OF BOZEMAAN
cq?�4 A- 2�0 "
By: Chris A. Kukulski, City Manager
ATTEST:
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Clerk f i#y'Coffifirs- cin
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STATE OF MONTANA
:ss
COUNTY OF GALLATIN )
On this day of , 2013,,before me, a Notary Public for the state of
Montana, personally appeared Chris KukulsKi and Stacy Ulmen, 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) j
-xuw 6ta'n 0" e'
(Printe Name Here)
Notary Public for the State of Montana
IV6 1�Y N'°c gip AiMEE BR �r1CK11ORST l esidin at
•. NOTARY PUBLIC for the g
* :� State of Montana My Commission Expires:_
E L Residing at Beigrade,Montana (Use 4 digits for expiration year)
of My Commission Expires
December 04,LLI
Leep Annexation Agreement 11
EXHIBIT "A"
"
WAIVER OF RIGHT-TO-PROTEST
CREATION OF SPECIAL INIPROVEMENT DISTRICT
FOR A CITY-WIDE PARK MAINTENANCE DISTRICT
LEEP ANNEXATION
The undersigned owner of the real property situated in the County of Gallatin, State of Montana, and
more particularly described as follows:
Tract 6B, Smith Subdivision located in the NW 1/4 of Section 11, T2S, R5E, PMM,
Gallatin County, Montana. Said Tract of land being 2.0+- 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.
Leep Annexation Agreement 12
DATED this day of �n (]E ter' > 2012.
LANDOWNER
,ferry Lee
Leep Dai LC'
STATE OF MONTANA
:ss
COUNTY OF GALLATIN )
On this day of Lo u , 2012, before me, the undersigned, a Notary Public
r the State of jo v ,personally appeared Jerry Leep, known to me to be the
T t : .� of the Leep Dairy 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 any official seal the day and year first
above written.
(SEAL) ,
,,, Chris Budeski
�' sa�� (Printed Name Here)
Notary Public
1,oTARil,% _for the State of Montane Notary Public for the State of Montana
* "* Residing at: Residing at -t
.SEAL.' g6 -A_
,` Bozeman, Montana
cr ,,
y Commission apires: My Commission Expires: , -41(�
November 25,2015 (Use 4 digits for expiration year)
Leep Annexation Agreement 13
EXHIBIT "B"
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
LEEP ANNEXATION
The undersigned owner of the real property situated in the County of Gallatin, State of
Montana, and more particularly described as follows:
Tract 6B, Smith Subdivision located in the NW 1/4 of Section 11, T2S, R5E, PMM,
Gallatin County, Montana. Said Tract of land being 2.0± acres more or less along with
and subject to any and all existing casements.
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
Fowler Avenue and the intersections of Durston Road/27'h Avenue, Durston Road/Fowler
Avenue and West Babcock Street/Fowler Avenue 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 Fowler Avenue and improvements to the intersections of Durston
Road/27`x' Avenue, Durston Road/Fowler Avenue and West Babcock Street/Fowler 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
Leep Annexation Agreement 14
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 7-? day of O ' 2012.
LANDOWNER
Jerry Lew,-
Leep Daffy LLC
STATE OF MONTANA
:ss
COUNTY OF GALLATIN
On this 2-';�_day of A/0 /Z- 2012, before me, the undersigned, a Notary Public
for the State of............M f !A--Vk A ,personally appeared Jerry Leep, known to me to be the
of the Leep Dairy 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 #fixed my official seal the day and
year first above written.
(SEAL)
Chris Budeski C LIP 45 eufd4. 51�1
Notary PublIc
. for the state of Montana (Printed Name Here)
4
Residing at: Notary Public for the State of Montana
Bozernan, Montana
Residing at
N4y Commission Expires:
November 26,2015 My Commission Expires: &/,,u, >' 7-0c
(Use 4 digits for expiration year)
Leep Annexation Agreement 15
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