HomeMy WebLinkAbout13- Flanders Mill Annexation Agreement V/: Page: 1 of 17 11/1212013 04:58:09 PM Fee:, $119.00
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City of Bozeman-City Clerk
P.O. Box 1230
Bozeman, NIT 59771-1230
FLANDERS MILL
ANNEXATION AGREEMENT
THIS AGREEMENT made and entered into this day of , 2013,
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 Flanders Mill LLC, 235 Greenhills Ranch Road, Bozeman
MT 59718, hereinafter referred to as "Landowner".
WITNESSETH:
WHEREAS, Landowner is owner in fee of a tract of certain real property, hereinafter referred
to as the FLANDERS MILL ANNEXATION situated in Gallatin County, Montana, and more
particularly described as follows.
A Tract of Land in the West Half of Section 3, Township 2 South, Range 5 East of
P.M.M., Gallatin County, Montana, and being that part of Tract 1, Certificate of Survey
No. 2834, and the adjacent County Road Right of, Way for Flanders Mill Road, all
described as follows:
Beginning at the North Quarter Corner of said Section 3; thence southerly
180 058'23", assumed azimuth from north, 2,641.51 feet along the east line of the
Northwest Quarter of said Section 3 to the Center Quarter Corner of said Section 3;
thence westerly 269 153'09" azimuth 722.46 feet along the east-west quarter section line of
said Section 3; thence northerly 000 055"49" azimuth 65.01 feet; thence westerly
26'9°53'09" azimuth 630.00 feet along the north public street easement line for Oak Street
and its westerly extension; thence northerly 000155149" azimuth 2,570.08 feet along the
west right of way line of Flanders Mill Road and its northerly extension; thence easterly
Flanders Mill Annexation Agreement I
089136"58" azimuth 1,354.57 feet along the north line of the Northwest Quarter of said
Section 3 to the point of beginning.
Area =3,529,242 square feet, 81.0203 acres or 327,877.3 square meters.
WHEREAS, the Landowner petitioned the City for annexation to the City of said tract of land;
and
WHEREAS, the FLANDERS MILL 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 FLANDERS MILL ANNEXATION
pursuant to Section 7-2-4601, et seq., MCA will allow the FLANDERS MILL 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 FLANDERS MILL
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 FLANDERS MILL 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.
Flanders Mill Annexation Agreement 2
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 FLANDERS MILL ANNEXATION
with the City on August 30, 2013. By execution of this Agreement, the City manifests its intent to
annex the FLANDERS MILL 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 FLANDERS MILL
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
FLANDERS MILL ANNEXATION.
3. Services Provided
The City will, upon annexation, make available to the FLANDERS MILL 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
Flanders Mill Annexation Agreement 3
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 FLANDERS MILL 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 FLANDERS MILL 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.
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 FLANDERS MILL 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 FLANDERS MILL 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 further provided upon development or subdivision of the property in
accordance with Section 38.23.180, BMC. The amount of water rights or cash-in-lieu thereof due at
the time of 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
Flanders Mill Annexation Agreement 4
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.
The Landowner must perform a water rights search to determine if any exist for this property.
Any water rights that exist for this property must be transferred to the City of Bozeman prior to
development. If insufficient water rights exist, cash in lieu of water rights, in an amount determined by
the Director of Public Service must be paid prior to development in accordance with Section
38.23.180, BMC.
7. Comprehensive Water and Water DesilZn 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 FLANDERS MILL 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
Flanders Mill Annexation Agreement 5
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 FLANDERS MILL 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 FLANDERS MILL
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 FLANDERS MILL
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. Stormwater Master Plan
Landowner understands and agrees a Ston-nwater Master Plan for the FLANDERS MILL
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 spot elevation information, flow direction arrows, typical stormwater detention/retention basin and
discharge structure details, basin sizing calculations, culvert capacity calculations, and stormwater
maintenance plan. The plan must also locate and provide easements for adequate drainage ways within
the annexation area to transport treated runoff to the stormwater receiving channel.
Flanders Mill Annexation Agreement 6
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
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 Baxter Lane, Ferguson Avenue, Oak Street, and Flanders Mill Road; and signalization
improvements for the following intersections: a) Baxter Lane and Ferguson Avenue, b,) Oak Street and
Ferguson Avenue, c) Oak Street and Flanders Mill Road, and d) Flanders Mill Road and Baxter Lane.
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.
12. Public Street and Utility Easement
The Landowner understands and agrees that a public street and utility easement shall be
provided for the West half (45 feet) of Ferguson Avenue; North half (65 feet including oversize
Flanders Mill Annexation Agreement 7
median portion) of Oak Street; East half(30 feet) of Flanders Mill Road; South half(50 feet) of Baxter
Lane,
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 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 FLANDERS MILL 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:
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.
1.4, Additional Terms
Flanders Mill Annexation Agreement 8
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 FLANDERS MILL 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. Attornty's Fees
In the event it becomes necessary for either party to this Agreement to retain an attorney to
enforce any of the terms or conditions of this Agreement, then the prevailing party shall be entitled to
reasonable attorney's fees and costs, to include the salary and costs of in-house counsel including City
Attorney.
17. Waiver
No waiver by either party of any breach of any term, covenant or agreement shall be deemed a
waiver of the same or any subsequent breach of this same or any other term, covenant or agreement.
No covenant, term or agreement shall be deemed waived by either party unless waived in writing.
18. Invalid Provision
The invalidity or unenforceability of any provision of this agreement shall not affect the other
provisions hereof, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
19. Modifications or Alterations
Flanders Mill Annexation Agreement 9
No modifications or amendment of this Agreement shall be valid unless evidenced by a writing
signed by the parties hereto.
20. No Assignment
It is expressly agreed that the Landowner 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 FLANDERS MILL
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.
Flanders Mill Annexation Agreement 1 0
LANDOWNER
Walter Wolf
Managing Member, Flanders Mill, LLC
STATE OF
:ss
COUNTY OF 4hl )
On this �['j day of 2013, before me, the undersigned, a Notary
Public for the State of ' t� , personally appeared Walter Wolf known to me to be the
person that executed t e within instrument, and acknowledged to me that he executed the same as
Managing Member on behalf of Flanders Mill, LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year first above written.
(SEAL)
�'i o0-14,S6 v
Susan Hialmarsgon (Printed Name Here)
Notary Public
for the State of Montana Notary Public for the State of
mm Expires.Residing at
Residing at.
,gz Bozeman, Montana
My Commission Expires:
My Commission Expires:
s for xD tj
July 16,2015 (Use 4 digits for expiration year)
Flanders Flanders Mill Annexation Agreement
CITY OF BOZEMAN
r'�j�- ��—K�S�-
By: Chris A. Kukulsk , City Manager
ATTEST: �)
� �
Clerk f t . orninissioi ,'
r ,• wr _
R
STATE OF MONTANA )
:ss
COUNTY OF GALLATIN )
On this 4 ° day of IQ b ye-rki. , 2013, before me, a Notary Public for the
state of Montana, personally appeared Chris Kukulski and Stacy Ulnian, 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)
Notary Public for the State of Montana
Residing at
My Commission Expires:
gu y AIMEE BRU C C R ST (Use 4 digits for expiration year)
,� + NOTARY pU
State of'Montana
* SE,4L Residing at Belgrade,Montana
My Commission Expires
December 04,2016
Flanders Mill Annexation Agreement 12
EXHIBIT "A"
WAIVER OF RIGHT-TO-PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICT
FOR A CITY-WIDE PARK MAINTENANCE DISTRICT
FLANDERS MILL 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 in the West Half of Section 3, Township 2 South, Range 5 East of
P.M.M., Gallatin County, Montana, and being that part of Tract 1, Certificate of Survey
No. 2834, and the adjacent County Road Right of Way for Flanders Mill Road, all
described as follows:
Beginning at the North Quarter Corner of said Section 3; thence southerly
180058'23", assumed azimuth from north, 2,641.51 feet along the east line of the
Northwest Quarter of said Section 3 to the Center Quarter Corner of said Section 3;
thence westerly 269153'09" azimuth 722.46 feet along the cast-west quarter section line of
said Section 3; thence northerly 000155'49" azimuth 65.01 feet; thence westerly
269153'09" azimuth 630.00 feet along the north public street easement line for Oak Street
and its westerly extension; thence northerly 000055'49" azimuth 2,570.08 feet along the
west right of way line of Flanders Mill Road and its northerly extension; thence easterly
089036'58" azimuth 1,354.57 feet along the north line of the Northwest Quarter of said
Section 3 to the point of beginning.
Area =3,529,242 square feet, 81.0203 acres or 327,877.3 square meters.
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
Flanders Mill Annexation Agreement 13
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 24 day of 2013.
LANDOWNER
Walter Wolf
Managing Member, Flanders Mill, L
STATE OF ,hblAl�kl(V )
•ss
COUNTY OF AG hi., )
On this ay of c
UPYA , 2013, before me, the undersigned, a Notary
Public for the State o 11VA , personally appeared Walter Wolf known to me to be the
person that executed the within instrument, and acknowledged to me that he executed the same as
Managing Member on behalf of Flanders Mill, LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year first above written.
(SEAL)
.........
........
Susan Hiairnarsson
A L-A4,q NotarY Public (Printed Name Here) 5VSA-I�j
9.ko f or the state of montar Notary Public for the State of
Residing at;
S—, A Residing at PMf--ki"
L Bozeman, Montana
tar k. 'J6jjv 16,2015 A=
Y'� commisslon F_xplres: I My Commission Expires:
(Use 4 digits for expiration ear)
Flanders Mill Annexation Agreement 14
EXHIBIT "B"
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
FLANDERS MILL 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 in the West Half of Section 3, Township 2 South, Range 5 East of
P.M.M., Gallatin County, Montana, and being that part of Tract 1, Certificate of Survey
No. 2834, and the adjacent County Road Right of Way for Flanders Mill Road, all
described as follows:
Beginning at the North Quarter Corner of said Section 3; thence southerly
180058'23", assumed azimuth from north, 2,641.51 feet along the cast line of the
Northwest Quarter of said Section 3 to the Center Quarter Corner of said Section 3;
thence westerly 269"53'09" azimuth 722.46 feet along the east-west quarter section line of
said Section 3; thence northerly 000'55'49" azimuth 65.01 feet; thence westerly
269153'09" azimuth 630.00 feet along the north public street casement line for Oak Street
and its westerly extension-, thence northerly 000'55'49" azimuth 2,570.08 feet along the
west right of way line of Flanders Mill Road and its northerly extension; thence easterly
089136'58" azimuth 1,354.57 feet along the north line of the Northwest Quarter of said
Section 3 to the point of beginning.
Area =3,529,242 square feet, 81.0203 acres or 327,877.3 square nieters.\
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
Baxter Lane, Ferguson Avenue, Oak Street and Flanders Mill Road, and the intersections of
Baxter Lane/Ferguson Avenue, Oak Street/ Ferguson Avenue, Oak Street/Flanders Mill Road
and Baxter Lane/Flanders Mill 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
Flanders Mill Annexation Agreement 15
construction and maintenance of following improvements: paving, curb/gutter, sidewalk, storm
drainage facilities for Baxter Lane, Ferguson Avenue, Oak Street and Flanders Mill Road, and
improvements to the intersections of Baxter Lane/Ferguson Avenue, Oak Street/ Ferguson
Avenue, Oak Street/Flanders Mill Road and Baxter Lane/Flanders Mill Road, 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
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 2013.
Flanders Mill Annexation Agreement 16
LANDOWNER
Walter Wolf
Managing Member, Flanders Mill, LLC
6'
STATE OF
" s
COUNTY OF 641R,40)
On this day ofl 2013, before me, the undersigned, a Notary
Public for the State Tof ;Afan,,L6 personally appeared Walter Wolf known to me to be the
person that executed the within instrument, and acknowledged to me that he executed the same as
Managing Member on behalf of Flanders Mill, LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year first above written.
(SEAL)
(Printed Name Here)
Susan Hialmarsson Notary Public for the State of [Pnht I'LIL
Notary Public
01 o .,,:,
Residing at A?
G, AF"F"A4 for the State of nu
Residnq at: My Commission Expires:
L
-z'
S S
E3ozeman,
EAL ear}
my cornmission EYP'-' (Use 4 digits for expiration
�OF M July 1,3, 201 h
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Flanders Mill Annexation Agreement 17