HomeMy WebLinkAbout12- Ditton Annexation Agreement Inter-office Original to:
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DITTON
ANNEXATION AGREEMENT
THIS AGREEMENT made and entered into this 50 7 day of 2012,
by and 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 Randy S. Ditton and Susan R. Ditton, Co-Disability
Trustees, Clara 0. Ditton Living Trust, 4126 Strong Creek Drive, Fort Collins, CO 80525, hereinafter
referred to as "Landowner".
WITNESSETH:
WHEREAS, Landowner is owner in fee of a tract of certain real property, hereinafter referred
to as the DITTON ANNEXATION situated in Gallatin County, Montana, and more particularly
described as follows:
A tract of land being Tract B-IA of Certificate of Survey No. 2392D as amended by
right of way acquisition located in the SE 1/4 of Section 32, TIS, R6E, PMM, Gallatin
County, Montana. Said Tract of land being 19.42± acres more or less along with and
subject to any and all existing easements.
WHEREAS,the Landowner petitioned the City for annexation to the City of said tract of land;
and
Ditton Annexation Agreement
WHEREAS, the DITTON 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 DITTON ANNEXATION pursuant to
Section 7-2-4601, et seq., MCA will allow the DITTON 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 DITTON 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 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 DITTON 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:
Recitals
The above recitals are true and correct.
Ditton Annexation Agreement
2
2. Annexation
The Landowner filed an application for annexation of the DITTON ANNEXATION with the
City on March 26, 2012. By execution of this Agreement, the City manifests its intent to annex the
DITTON ANNEXATION tract 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 this Agreement, adopt
a Resolution of Annexation of the DITTON 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 DITTON ANNEXATION,
3. Services Provided
The City will, upon annexation, make available to the DITTON ANNEXATION existing City
services only to the extent currently available,or as provided in this Agreement.
4. Munici al 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 DITTON 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 DITTON 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.
Ditton Annexation Agreement
3
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 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 DITTON 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 DITTON 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 with Section 38.23.180, BMC and/or payment is required for the existing single-family
residence at the time that residence connects to municipal water. 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. Com reheAsive Water and Water Design ort
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
Ditton Annexation Agreement 4
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 LITTON ANNEXATION to complete, at Landowner's expense, the necessary
system improvements to serve the proposed development.
S. Future Develo 3ment 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 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 DITTON 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 DITTON 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 DITTON 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.
The existing single-family home may continue to utilize the on-site groundwater well for
domestic use until: a)the existing well fails to the point it needs to be drilled deeper or replaced; b)the
existing single-family home is converted to any use other than a single-family home; c) the existing
Ditton Annexation Agreement 5
single-family home is removed or destroyed, beyond 50 percent of the market value, or d) other
habitable development occurs anywhere on the DITTON ANNEXATION.
The existing single-family home may continue to utilize the on-site sewer system until: a) the
existing on-site sewer system fails; b) the existing single-family home is converted to any use other
than a single-family home; c) the existing single-family home is removed or destroyed, by whatever
means, beyond 50 percent of the market value, or d) other habitable development occurs anywhere on
the annexed parcel. If the existing on-site sewer system fails, the existing single-family home must
connect to the public sanitary sewer main. A replacement on-site sanitary sewer system cannot be
utilized. At the time the existing on-site sewer system is disconnected, the on-site system must be
properly vacated and removed, which at a minimum entails the septic to be pumped and filled in with
gravel/dirt, or the tank totally removed, as required by the Gallatin County Health Department.
9. Stormwater Master Plan
Landowner understands and agrees a Stormwater Master Plan for the DITTON
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 channel(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.
10. 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
Ditton Annexation Agreement 6
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: a) street improvements, including paving, curb and gutter, sidewalk and stormwater
drainage facilities for Bridger Drive, b) public water main improvements providing service to the
property identified in the current edition of the City of Bozeman Water Facility Plan, and c) public
sewer main improvements providing service to the property identified in the current edition of the City
of Bozeman Wastewater Facility Plan- 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 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.
11. Public Street and Utility Easement
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
DITTONANNEXATION 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
Ditton Annexation Agreement 7
event later than the filing of any final plat or site plan review or issuance of a building permit on the
parcel.
12. .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. As approved by the
City,the land owners and their successors shall pay:
A) Fire impact fees equal to the amount for an equivalent single family home per Chpt. 2,
Art. 6. Div. 9 BMC,or as amended,at time of annexation.
B) Water impact fees as required by Chpt. 2, Art. 6. Div. 9 BMC, or as amended, at the
time of application for connection to city water.
C) Sewer impact fees as required by Chpt. 2, Art. 6. Div. 9 BMC, or as amended, at the
time of application for connection to city sewer.
D) Street impact fees as required by Chpt. 2,Art. 6. Div. 9 BMC, or 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 DITTON 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 6, 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:
Ditton Annexation Agreement 8
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.
13. Additional Terms
The parties recognize these documents shall be filed and of record with the Gallatin County
Clerk and Recorder prior to the sale of any land with the DITTON ANNEXATION. The parties
further agree that the City may the these documents at any time.
14. Governing Lake 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.
15. 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.
116. '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.
Ditton Annexation Agreement 9
17. 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.
18. Modifications or Alterations
No modifications or amendment of this Agreement shall be valid unless evidenced by a writing
signed by the parties hereto.
19. 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.
20. 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.
21. Covenants to Run with the Land
The parties intend that the terms of this Agreement shall benefit the DITTON 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.
Ditton Annexation Agreement 10
LANDOWNER
� -A Q n.
J,and; y S. Ditton
Co-Disability Trustee,Clara Q. Ditton Living Trust
co D'ia"-- ry
Susan R. Ditton
Co-Disability Trustee,Clara 0. Ditton Living Trust
STATE OF,
:ss
COUNTYOF U3MNY,
On this day of 2012,before me,the undersigned, a Notary Public
for the State of personally appeared Randy S. Ditton and Susan R. Ditton,
known to me to be the Co-Disability Trustees for the Clara 0.Ditton Living Trust, whose names are
subscribed to the within instrument and acknowledged to me that they executed the same for and on
behalf if said living trust.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year first above written.
tS L)
(Printed Name Here)
S
L
Notary Public for the State of 1(1�ct
DNDSEYJ.
POVVE
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My Commission Expires:
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Ditton Annexation Agreement
CITY OF BOZEMAN
By: Chris A. Kukulski,City Manager
13 r)
ATTEST; m
of t e'City
STATE OF MONTANA ) +
:ss
COUNTY OF GALLATIN,
On this ,.,'_.. day of 9 g�,s� ....(s _, 2012,before me,a Notary Public for the
state of Montana,personally appeared Chris Kukulski and 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.
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dc2 wa rp mia—tarn Notary Public for the State of Montana
.�; fly corrrru „Vein E,pjr0s. Residing at
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Ditton Annexation Agreement 12
EXHIBIT "A"
WAIVER OF RIGHT-TO-PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICT
FOR A CITY-WIDE PARK MAINTENANCE DISTRICT
DITTON ANNEXATION
The undersigned owner of the real property situated in the County of Gallatin, State of
Montana, and more particularly described as follows.
A tract of land being Tract B-1A of Certificate of Survey No. 2392-B as amended by
right of way acquisition located in the SE 1/4 of Section. 32, T1S, R6E, PMM, Gallatin
County, Montana. Said Tract of land being 19.42± 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 snake 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.
Ditton Annexation Agreement 1 J
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 12012.
LANDOWNER
17
Randy S. Ditton
CO-Disability Trustee, Clara O.Ditton Living Trust
Susan R. Ditton
Co-Disability Trustee,Clara O. Ditton Living Trust
STATE OF
-CL
:ss
COUNTY OF_"( q
-1-14N
On this Y of
AM A/V
for the State of cm, C�aQ personally ,2012, before me,the undersigned, a Notary Public
appeared Randy S. Ditton and Susan R. Ditton,
known to me to be the Co-Disability Trustees for the Clara O. Ditton Living Trust,whose names are
subscribed to the within instrument and acknowledged to me that they executed the same for and on
behalf if said living trust.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year first above written.
(Printed rinted Name re)
LINDSEyj Notary Public for the State.of Cc�u-�-Lc
R
04 POWE Residing at
MY Commission Expires: e,
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My G"n.ExPims 5-16-201,
Ditton Annexation Agreement 14
EXHIBIT "B"
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
DITTON ANNEXATION
The undersigned owner of the real property situated in the County of Gallatin, State of
Montana, and more particularly described as follows:
A tract of land being Tract B-IA Of Certificate of Survey No. 2392-B as amended by
right of way acquisition located in the SE 1/4 of Section 32, TIS, R6E, PMM, Gallatin
County, Montana. Said Tract of land being 19.42±- 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
Bridger Drive and City of Bozeman water and sanitary sewer infrastructure 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 for: a) street
improvements including paving,curb and gutter,sidewalk and stormwater drainage facilities for
Bridger Drive, b) public water main improvements providing service to the property identified
in the current edition of the City of Bozeman Water Facility Plan, and c) public sewer main
improvements providing service to the property identified in the current edition of the City of
Bozeman Wastewater Facility Plan, 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.
Ditton Annexation Agreement 15
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
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.
Ditton.Annexation Agreement 16
DATED this day of be rAuf '`' 2012.
LANDOWNER
Randy S.Ditton
Co-Disability Trustee, Clara 0. Ditton Living Trust
Susan R. Ditton
0 Co-Disability Trustee,Clara 0.Ditton Living Trust
STATE OF
COUNTY OF :ss
On this dav of J)E C) � 2012,before me,the undersigned, a Notary Public
for the State of personally appeared Randy S. Ditton and Susan R. Ditton,
known to me to be the Co-Disability Trustees for the Clara O. Ditton Living Trust,whose names are
subscribed to the within instrument and acknowledged to me that they executed the same for and on
behalf if said living trust.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year first above written.
(SEAL) \AA
(Printed Name Here)
Notary Public for the State of
LINDSEY J. Residing at
POWER My Commission Expires:
(Use 4 digits for expiration year)
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,ly�Omm.Expires 5-16-2015
Ditton Annexation Agreement 17