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HomeMy WebLinkAbout14- Hanson Annexation Agreement 2476619 Page: 1 of is 03/20/2014 11 10:54 PM Fee $126 00 Charlotte Mills - Gallatin County. MT MISC IIIII IN 111111111111111111111(II 111111/1 IN City of Bozeman-City Clerk P.O. Box 1230 Bozeman, MT 59771-1230 HANSON ANNEXATION AGREEMENT THIS AGREEMENT made and entered into this�day of , 2014, 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 Vision Development, Inc., Dennis Balian, P.O. Box 1858, Bozeman, MT 59771, hereinafter referred to as "Landowner". WITNESSETH: WHEREAS, Landowner is owner in fee of a tract of certain real property, hereinafter referred to as the HANSON ANNEXATION situated in Gallatin County, Montana, and more particularly described as follows: An area of land being Tract 2A of Certificate of Survey No. 501, together with the strip of Iand described in Document No. 2268861, on file and of record in the office of the Clerk and Recorder, Gallatin County, Montana, and located the Southeast Quarter of Section 3, Township 2 South, Range 5 East of P.M.M., Gallatin County, Montana, and further described as follows: Commencing at the Southeast corner of Section 3, Township 2 South, Range 5 East; thence westerly 269°59'52" azimuth from north, 262.06 feet along the South line of said Section 3, to the Southeast corner of Tract 2A of Certificate of Survey No. 501 and the Hanson Annexation Agreement I Point of Beginning of the Parcel herein described; thence continue westerly 269°59'52" azimuth, 392.83 feet along the South line of said Section 3 thence northerly 001°09'56" azimuth, 690.18 feet; thence easterly 090°14'41" azimuth, 364.86 feet; thence southerly 17892'14" azimuth, 93.53 feet; thence easterly 089°59'52" azimuth, 30.00 feet; thence southerly 181°4943" azimuth, 595.29 feet to the point of beginning. The described parcel has an area, including adjacent road right-of-ways, of 270,403 square feet or 6.2076 acres, more or less and is along with and subject to any existing easements as described on the Hanson Annexation Map. WHEREAS, the Landowner petitioned the City for annexation to the City of said tract of land; and WHEREAS, the HANSON 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, Mont. Code Ann.; and WHEREAS,all parties recognize the annexation of the HANSON ANNEXATION pursuant to Section 7-2-4601, et seq., Mont. Code Ann. will allow the HANSON 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, Mont. Code Ann. 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 HANSON 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 HANSON ANNEXATION; and Hanson Annexation Agreement 2 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. WITNESSETH• 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 HANSON ANNEXATION with the City on October 16, 2013. By execution of this Agreement, the City manifests its intent to annex the HANSON ANNEXATION tract pursuant to the terms and conditions of this Agreement. Subject to the provisions of Title 7, Chapter 2, Part 46, Mont. Code Ann. the City shall, upon execution of this Agreement, adopt a Resolution of Annexation of the HANSON 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 HANSON ANNEXATION. 3. Services Provided The City will,upon annexation, make available to the HANSON ANNEXATION existing City services only to the extent currently available,or as provided in this Agreement. Hanson Annexation Agreement 3 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 HANSON 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 HANSON 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 HANSON 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 HANSON 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 agrees to provide water rights or cash in-lieu of water rights to the City at an amount equal to the anticipated average annual water demand required for any new connections or new development on the property. In the event water rights are not provided the amount of-cash-in-lieu due Hanson Annexation Agreement 4 at the time of connection, 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 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 HANSON 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 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 HANSON ANNEXATION until it is verified by the City that the necessary municipal services, including but not limited to police and fire protection, streets, and Hanson Annexation Agreement 5 sewer and water capacity, are available to all or a portion of the HANSON 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 HANSON 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 structure 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 structure is converted to any use other than a residence; c) the existing structure is removed or destroyed, beyond 50 percent of the market value, or d) other habitable development occurs anywhere on the annexed parcel. The existing structure may continue to utilize the on-site sewer system until: a) the existing on- site sewer system fails; b) the existing residential structure is converted to any use other than a residence; c) the existing residential structure 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 structure 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. Durston Road Improvement Area Upon annexation, the Landowner agrees to provide the financial contribution required from all properties within the Durston Road Improvement Area annexing to the City for all existing residential Hanson Annexation Agreement 6 units. The amount of the financial contribution required to be paid by each annexing property for each existing residential and/or commercial unit shall be $1,470.70. (Resolution 4359) Durston Road Improvement Area: The amount of the financial contribution required to be paid by each annexing property for each existing residential and/or commercial unit shall be $1,470.70. This amount is derived by multiplying the Durston Road Special Improvement District assessment rate of $0.186164 per square foot by 7,900 square feet, which is the average single-family residential lot area within the Durston Road Special Improvement District. This per-unit financial contribution shall be applied to each existing residential and/or commercial unit, regardless of the actual size of the real property or the size of each existing residential and/or commercial unit. The financial contribution for the existing residential and/or commercial units on the property at the time of annexation shall be paid by the Indowner prior to the City's execution of the Annexation Agreement. At the time of future subdivision or development of the annexed property, the City shall calculate the financial contribution to the applicable Improvement Area as follows (Resolution 4359): Durston Road Improvement Area: The contribution cost 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. 10. Stormwater Master Plan Landowner understands and agrees a Stormwater Master Plan for the HANSON 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 Hanson Annexation Agreement 7 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. 11. Waiver of Right-to-Protest Special Imurovement 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 Durston Road and signalization improvements for the following intersections: a) Durston Road/27`h Avenue, b) Durston Road/Fowler Avenue, and c) Durston Road/Ferguson Avenue. The Landowner agrees such an SID will provide a mechanism for the fair and equitable assessment of construction and maintenance costs for such improvements. The waiver is attached hereto as Exhibit "B"and is hereby incorporated in and made a part of this Agreement. C. Landowner agrees that in the event an SID is not utilized for the completion of these improvements as described in subsections A and B above, the Landowner 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. Hanson Annexation Agreement 8 12. Public Street and Utility Easement The Landowner understands and agrees that a public street and utility easement shall be provided for Durston Road extending the length of the subject property. The easement shall be 45 feet wide from the centerline of Durston Road which is the width of the dedicated right of way for Durston Road east and west of this property. The Landowner, at its sole expense,has created such an easement in a location and form agreeable to the City and the easement will be filed at the Gallatin County Clerk and Recorder's Office. 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 HANSON ANNEXATION parcel. The Landowner, at its sole expense, shall create such easements in locations and form agreeable to the City during the appropriate development procedures, but in no event later than the filing of any final plat or site plan review or issuance of a building permit on the parcel. 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. As approved by the City,the land owners and their successors shall pay: A) Fire impact fees equal to the amount for the existing residence per Chpt. 2,Art. 6. Div. 9 BMC, or as amended,at time of annexation. This amount is $321.45. 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, at the time of application for development approval. 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 Hanson Annexation Agreement 9 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 HANSON 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. 14. 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 HANSON 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. Hanson Annexation Agreement 10 16. Attorney's Fees In the event it becomes necessary for either party to this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement, then the prevailing party shall be entitled to reasonable attorney's fees and costs, to include the salary and costs of in-house counsel including City Attorney. 17. Waiver No waiver by either party of any breach of any term, covenant or agreement shall be deemed a waiver of the same or any subsequent breach of this same or any other term, covenant or agreement. No covenant,term or agreement 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 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. Hanson Annexation Agreement 11 22. Covenants to Run with the Land The parties intend that the terms of this Agreement shall benefit the HANSON 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. Hanson Annexation Agreement 12 IN WITNESS WHEREOF,the parties hereto have caused this agreement to be executed the day and year first above written. LANDOWNER Vision Development, Inc., Dennis Balian,President STATE OF COUNTY OF G1ki_L A"T- 4 On this ) `1' U \- day of R �T 2014, before me, the undersigned, a Notary Public for the State of A-\C: 0•T-P�n1 lI . personally appeared Dennis Balian known to me to be President of Vision Development, Inc., the landowner that executed the within instrument, and acknowledged to me that he executed the same as said landowner. IN WITNESS WHEREOF,I have hereunto set my hand and affixed my official seal the day and year first above written. (SEAL) HOLLY J PARKER J". Pq �b Notary Public (Printed Name Here) o .....��,,, "r•No?ARI,4 9=_for the State of Montana Notary Public for the State of — * Residing at: 'e*' SEAL < Bozeman, Montana Residing at IPA mac ' My Commission Expires: My Commission Expires: March 04,2016 (Use 4 digits for expiration year) Hanson Annexation Agreement 13 CITY OF BOZEMAN n A By: Chris A. Kukulski, City Manager ATTEST -. � e•d - "I - Cl' rk - he City Commission STATE OF MONTANA ) :ss COUNTY OF GALLATIN ) On this ZT day of ��a , 2014, be e, a Notary Public for the state of Montana,personally appeared Chris KjAulski and Stacy UlmV, own 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) ' (Print d Name Here) _ Notary Public for the State of Montana BpUkC AIMEE BRUNCKHCRST Residing at a� aosAR% NOTARY PUBLIC for the My Commission Expires: State of Montana SEA Residing at Belgrade,Montana (Use 4 digits for expiration ear) �9.. �= My Commission Expires OF'"O`� December 04,2016 Hanson Annexation Agreement 14 EXHIBIT "A" WAIVER OF RIGHT-TO-PROTEST CREATION OF SPECIAL IMPROVEMENT DISTRICT FOR A CITY-WIDE PARK MAINTENANCE DISTRICT HANSON ANNEXATION The undersigned owner of the real property situated in the County of Gallatin, State of Montana, and more particularly described as follows. Tract 2A, COS 501 located in the Southeast One-Quarter (SE 1/) of Section 3, Township Two South (T02S), Range Five East (R5E), PMM, Gallatin County, Montana. Said Tract of land being 6.2076-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. Hanson Annexation Agreement 15 DATED this/ytllday of e "�_' , 2014. LANDOWNER V Dennis Balian,Vision Development,Inc. STATE OF MT ) COUNTY OF t_ _ s On this 44y of 1 � , 2014, before me, the undersigned,a Notary Public for the State of personally appeared Dennis Balian known tome to be President of Vision Development, Inc.,known to me to be the landowner that executed the within instrument, and acknowledged to me that he executed the same as said landowner. 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) HOLLY 7din KER Notary Public forhe State of �� d PAq,�'%., N �fZ v ,�pSARlq�9 for the Sit ana Residing at Z-� _ R My Commission Expires:���,Y,. Q Bozena (Use 4 digits for expiration year) = My Coires: OFM0,. Ma , 16 Hanson Annexation Agreement 16 EXHIBIT "B" WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL IMPROVEMENT DISTRICTS HANSON ANNEXATION The undersigned owner of the real property situated in the County of Gallatin, State of Montana, and more particularly described as follows: Tract 2A, COS 501 located in the Southeast One-Quarter (SE '/) of Section 3, Township Two South (T02S), Range Five East (R5E), PMM, Gallatin County, Montana. Said Tract of land being 6.2076-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 Durston Road and the intersections of Durston Road/27'h Avenue, Durston Road/Fowler Avenue, and Durston Road/Ferguson 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 Durston Road and improvements to the intersections of Durston Road/271h Avenue, Durston Road/Fowler Avenue and Durston Road/Ferguson 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 Hanson Annexation Agreement 17 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 NI'4' day of e � rv-t r , 2014. LANDOWNER Vision Development,Inc.,Dennis Balian,President STATE OF r1lGlU ( rI�?�j COUNTY OF � �+�r/! , On this /7W1 day of f �T1 t,(i� `� , 2014, before me, the undersigned, a Notary Public for the State of personally appeared Dennis Balian known tome to be President of Vision Development, Inc., known to me to be the landowner that executed the within instrument, and acknowledged to me that he executed the same as said landowner. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. (SEAL) HOLLY J PARKER (Printed Name ere Notary Public z . 9; Notary Public for the State of oTARI q' :for the State of Montana Residing at: Residing at e ;'t'l -i — *o*.SEAL. Bozeman, Montana My Commission Expires: � 1t My Commission Eires: March 04,2016 (Use 4 digits for expiration year) Hanson Annexation Agreement 18