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HomeMy WebLinkAbout12- Ditton Annexation Agreement Inter-office Original to: City of Bozeman Planning Department 20 East Olive Street �V 2 4 4 ON 6 1 Page, I of 18 0211212013 04-49 53 PM Fee $126.00 Charlotte Mills - Gallatin County, MT misc 1111111 111111 11111111 1111 1111111111111 1111111111111 111111111111 111111!111111 U 111 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 W R Residing at My Commission Expires: (Use 4 digits for expiration year) C& C %jY Comm.Expires 5-16-2016 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. r t� F'utJluG i'Ycs. ,..� ,r'•.ry" �,+ t k^� rw,i�'l ,.���' .," � ��.'�; 1.g���y) '� � u s ter v n'rnr f a1 ti rinted Name Here) �,A * dc2 wa rp mia—tarn Notary Public for the State of Montana .�; fly corrrru „Vein E,pjr0s. Residing at J „1nr1 _..__.m My Commission Expires: (Use 4 digits for expiration year) 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, (Use 4 digits for expiration year 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) ok"V ,ly�Omm.Expires 5-16-2015 Ditton Annexation Agreement 17