HomeMy WebLinkAboutE16 Wilda Lane Annex Agreement
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Tim Cooper, Assistant City Attorney
Chris Kukulski, City Manager
SUBJECT: Wilda Lane Annexation Agreement
MEETING DATE: November 6, 2006
BACKGROUND: On June 20, 2005, the City Commission held a public hearing on a request for
annexation of a 3.34± acre parcel located south of West Babcock, and west of Babcock Meadows
Subdivision. The Commission preliminarily approved the proposed annexation, directing staff to bring
back an Annexation Agreement and Resolution of Annexation for Commission consideration.
RECOMMENDATION: Authorize the City Manager to sign the Annexation Agreement.
FISCAL EFFECTS: Fiscal impacts are undetermined at this time, but will include increased property tax
revenues from new development, along with increased costs to deliver municipal services to the property.
ALTERNATIVES: As suggested by the City Commission
Respectfully submitted,
_________________________________ ____________________________
Tim Cooper, Assistant City Attorney Chris Kukulski, City Manager
Attachments: Wilda Lane Annexation Agreement
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT
THIS AGREEMENT is made and entered into this ______ day of _______________, 200__,
by and between the CITY OF BOZEMAN, a municipal corporation and political subdivision of the
State of Montana, with offices at 411 East Main Street, Bozeman, Montana 59771-1230, hereinafter
referred to as "City", and John Helvy, 9267 Cayuse Trail, Bozeman, MT 59715; SAAM Real
Estate, 7177 Jade Hill Lane, Bozeman, MT 59715, and Dan Barnes, 511 N 18th Avenue,
Bozeman, MT 59715 hereinafter referred to as "Landowner".
WITNESSETH:
WHEREAS, the Landowner is owner in fee of certain real property, hereinafter referred to as
the “WILDA LANE ANNEXATION”, situated in Gallatin County, Montana, and more particularly
described as follows:
Tracts 1B, 7 & 8, Cahill Subdivision along with adjacent public streets.
Said area contains 3.34 acres, more or less, along with and subject to all easements
of record or apparent on the ground.
WILDA LANE ANNEXATION AGREEMENT 1
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 2
WHEREAS, the Landowner has petitioned the City for annexation of the contiguous tract;
and
WHEREAS, the WILDA LANE ANNEXATION is not within the corporate limits of the
City or other municipality but is contiguous to the City and may therefore be annexed to the City in
accordance with the provisions of this Agreement and M.C.A. Title 7, Chapter 2, Part 43.
WHEREAS, all parties recognize that the annexation of the WILDA LANE ANNEXATION
pursuant to Section 7-2-4301, et seq., M.C.A., will entitle the said property to City services,
including municipal water and sewer service, upon their availability; and
WHEREAS, M.C.A. Section 7-2-4305 provides that a municipality and landowner can agree
to the provision of services to the area to be annexed; and
WHEREAS, the City's present water supply is insufficient to enable it to supply reasonably
adequate water service to additional customers outside the present city boundaries; and
WHEREAS, the Landowner wishes to convey to the City certain water rights or take some
equivalent action to provide water and sewer service to the WILDA LANE ANNEXATION; and
WHEREAS, all parties recognize that the development of the WILDA LANE
ANNEXATION will impact Wilda Lane and West Babcock Streets, and will require additional public
street improvements for traffic circulation; and
WHEREAS, the Landowner finds that this Agreement will provide for the most satisfactory
and dependable water supply or service available to furnish water and provide traffic circulation for
development near and within the WILDA LANE ANNEXATION; and
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 3
WHEREAS, the making and performance of this Agreement is desirable to promote the
development of the most adequate water supply and traffic circulation pattern for the City as it now
exists and as it is reasonably expected to enlarge; and
WHEREAS, the securing of an adequate water supply and traffic system by the City is
necessary and of mutual advantage to the parties hereto; and
WHEREAS, the parties have determined that it is in the best interests of the City and the
Landowner, and in furtherance of the public health, safety and welfare of the community to enter into
and implement this Agreement.
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 WILDA LANE ANNEXATION
with the City. The City, on May 16, 2005, adopted a Resolution of Intent to Annex the WILDA
LANE ANNEXATION. By execution of this Agreement, the City has manifested its intention to
annex the WILDA LANE ANNEXATION tract pursuant to the terms and conditions of this
Agreement. Subject to the provisions of Title 7, Chapter 2, Part 43, the City shall, upon execution of
this Agreement, adopt a Resolution of Annexation of the WILDA LANE ANNEXATION to the City.
Further, upon the execution of this Agreement, the Landowner shall do all things necessary and
proper to aid and assist the City in carrying out the terms, conditions and provisions of this Agreement
and effectuate the annexation of the WILDA LANE ANNEXATION tract to the City.
3. Services Provided
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 4
The City will, upon annexation, make available only existing City services to the extent
currently available, including municipal water service, municipal sewer service, police protection, and
fire protection, to the WILDA LANE ANNEXATION, 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 13.12, Bozeman Municipal Code, or as may be
amended, as well as any other terms and conditions which apply to the City's provision of this service.
The term does not contemplate the extension of lines or construction of necessary improvements at
any cost to the City for delivery of water to and within the WILDA LANE 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 WILDA LANE
ANNEXATION to include, but not limited to, any impact fees, hook-up, connection, or development
charges which may be established by the City. The applicant is further on notice that prior to
development the applicant will be responsible for installing any facilities required to provide full
municipal services to the property in accordance with the City of Bozeman’s infrastructure master
plans and all city policies that may be in effect at the time of development.
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 13.24, Bozeman Municipal Code, or as may be
amended, as well as any other terms and conditions which apply to the City's provision of this service.
The term does not contemplate the extension of lines or construction of necessary improvements at
any cost to the City for collection of sewage at and within the WILDA LANE ANNEXATION.
Nothing in this Agreement shall obligate the City to pay for right-of-way acquisition, engineering,
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 5
construction, and other costs for the collection of sewage services to or within the WILDA LANE
ANNEXATION to include, but not limited to, any impact fees, hookup, connection, or development
charges which may be established by the City. The applicant is further on notice that prior to
development the applicant will be responsible for installing any facilities required to provide full
municipal services to the property in accordance with the City of Bozeman’s infrastructure master
plans and all city policies that may be in effect at the time of development.
6. Connection to Services
Upon annexation and upon availability of services, the existing residences or businesses on the
property shall be connected to City water and sewer utilities. The existing on-site treatment systems
shall be properly abandoned and certification provided the abandonment occurred. Any wells
presently used for domestic purposes may be retained for irrigation purposes only and shall have no
physical connection to domestic water piping.
7. Water Rights
The parties acknowledge the following City policy:
Prior to annexation of property, it shall be the policy of the City of Bozeman to
acquire usable water rights, or an appropriate fee in lieu thereof, equal to the
anticipated average annual consumption of water by residents and/or users of the
property when fully developed. The fee may be used to acquire water rights or for
improvements to the water system which would create additional water supply
capacity. Except, however, that for any annexation in excess of ten (10) acres, this
policy shall be carried out prior to final plat approval of each development phase.
Section 2, No. 5, Commission Resolution 3137, Adopted August 19, 1996
The WILDA LANE ANNEXATION consists of approximately 3.34 acres.
The Landowner understands and agrees that they must provide sufficient water rights in
accordance with the City’s policy according to the following schedule:
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 6
WILDA LANE ANNEXATION, consisting of a total of 3.34 acres,
shall provide water rights or cash-in-lieu at the time the executed
Annexation Agreement is submitted to the City .
The Landowner shall provide sufficient cash-in-lieu as calculated by the City in accordance
with its policy at the time of calculation. The Landowner further understands that the City will
calculate the average annual diversion requirement necessary to provide water to this annexation tract
on the basis of the zoning designation and/or City-approved development for the property at the time
such calculation is made.
8. Comprehensive Water and Sewer Design Report
Prior to future development of the property, the Landowner shall have prepared by a
Professional Engineer, at Landowner’s expense, a comprehensive design report evaluating existing
capacity of sewer and water utilities. 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 water and/or sewer capacity is not
available for full development, the report must identify necessary water system and sewer system
improvements required for full development. The Landowner agrees to complete at Landowner’s
expense, the necessary system improvements to serve the full development.
9. Future Development
Landowner understands and agrees that adequate municipal services and facilities are not
currently available to much of the area proposed for annexation, and that there is no right, either
granted or implied by the City, for the Landowner to develop any of the WILDA LANE
ANNEXATION until it is verified by the City that necessary municipal services and facilities,
including but not limited to police and fire protection and road improvements, are available to all or a
portion of the WILDA LANE ANNEXATION.
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 7
10. Impact Fees
Landowner(s) hereby acknowledge that annexation and development of their property will
impact the City’s existing street, water, and sewer infrastructure, and fire service capacities.
Landowners shall pay to the City Fire and Street Impact Fees for any existing structures within the
Tract prior to or at the time of Landowners’ execution of this Agreement. At the time of connection to
the City’s water and sewer facilities, the landowners shall pay all applicable water and sewer impact
fees for any existing structures within the Tract. At the time of any further development on the
properties, the landowners and their successors shall pay all Fire, Street, Water and Sewer Impact
Fees required by chapter 3.24, Bozeman Municipal Code, or as amended, at the time of application for
any permit listed in Section 3.24.050A, 3.24.060A, 3.24.070A, or 3.24.080A, respectively.
Landowners further understand and agree that any improvements, either on- or off-site,
necessary to provide connection of WILDA LANE Annexation Tract to municipal services which are
wholly attributable to the property are “project related improvements” as defined in Chapter 3.24,
Bozeman Municipal Code, or as amended, and as such, are not eligible for impact fee credits.
If Landowner shall default 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 Landowner
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 Landowner for the collection of such
sums, including the entry of any judgment. In addition, the City may, at its option, enforce
payment of such amounts by levying an assessment on the premises.
B. Elect any other remedy available to City under the laws of the State of Montana.
C. Any waiver by City of any default shall not be construed as a waiver of any subsequent
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 8
default.
Landowner(s) hereby acknowledge and agree that it shall be no defense to the enforcement of
this provision by City that impact fees imposed pursuant to Chapter 3.24 of the Bozeman Municipal
Code are subsequently voided or declared invalid by a court of competent jurisdiction. It is the
express intention of the parties not to be bound by such a declaration or judgment and, therefore,
notwithstanding any judgment either limiting impact fee payments under annexation agreements to
specified amounts, or prohibiting any such payment, landowner will pay such fees as specified above,
in the amounts calculated for all such fees based upon the rates established at the date of this
agreement.
11. Stormwater Master Plan
Landowner understands and agrees that a Stormwater Master Plan for the WILDA LANE
ANNEXATION for a system designed to remove solids, oils, grease, and other pollutants from the
runoff from the public streets must be provided to and approved by the City Engineer at the time of
any future development. The master plan 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.
12. Traffic Analysis Report
Landowner may be required to provide a detailed Traffic Analysis Report(s) at the time of
future development of any portion of the annexed property.
13. Waiver of Right-to-Protest Special Improvement Districts
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 9
Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts for street improvements, including paving, curb/gutter, sidewalk, and storm drainage
appurtenances to Wilda Lane and West Babcock Street and signalization of the intersection of West
Babcock and Fowler Avenue and have further executed a Waiver of Right-to-Protest Creation of
Special Parks Maintenance Districts. Said Waivers are attached hereto as Exhibits A and B.
In the event an SID is not utilized for the completion of these improvements, the developer
agrees to 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 form the development, or a combination thereof.
14. Additional Terms of Waivers
The parties recognize that these documents shall be filed and of record with the Gallatin
County Clerk and Recorder prior to the sale of any land within the WILDA LANE ANNEXATION.
The parties further agree that the City may file these documents at any time.
15. Right-of-Way/Easement for West Babcock Street
Landowner has dedicated, by Public Street Easement, the following land to the City of
Bozeman for right-of-way purposes, which represent Landowner’s proportionate share of the
necessary right-of-way. Said Public Street Easement will be filed with the Gallatin County Clerk and
Recorder at the time this Annexation Agreement is filed.
a) Landowner shall grant the required additional public street and utility easements to
the City of Bozeman for a 12.5 foot wide strip the full width of the property from east
to west parallel to West Babcock Street and along the northern property line of Tract
8, Cahill Subdivision.
16. Utility Easements
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 10
Landowner understands and agrees that utility easements, a minimum of 30 feet in width, may
be necessary for the installation and maintenance of water and sewer utility services to the annexed
parcel. The Landowner shall create such easements in locations agreeable to the City during the
appropriate development procedure, but in no event later than the filing of any final plat or site plan or
issuance of a building permit on any of the parcels.
17. Payback Participation
The WILDA LANE ANNEXATION is located within the SID 683 payback boundaries and
the Far West Sewer payback boundaries. These paybacks must be made prior to initiation of
construction of infrastructure improvements to serve the WILDA LANE ANNEXATION.
18. Parks
Landowner understands and agrees that any contiguous parks, open space, and/or trails shall
be extended to the annexed property and that location, facility type, and other park development issues
will be coordinated between Landowner and reasonably anticipated development on adjacent
property. While coordination is needed, final approval will remain with the City, and Landowner will
be responsible for the development of their property to the standards required by ordinance or
development approval on their property.
19. 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 concerning this Agreement, venue is in the Eighteenth Judicial District Court,
Gallatin County, State of Montana.
20. Attorney’s Fees
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 11
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.
21. 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.
22. 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.
23. Modifications or Alterations
No modification or amendment of this Agreement shall be valid unless evidenced by a writing
signed by the parties hereto.
24. No Assignment
It is expressly agreed that the Landowner shall not assign this Agreement in whole or in part
without prior written consent of the City.
25. 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.
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 12
26. Covenants to Run with the Land
The parties intend that the terms of this Agreement shall be covenants running with the land
and shall not expire at their deaths or upon transfer of ownership of the property.
The undersigned Landowners affirms that they have authority to enter into this Agreement on
behalf of their partnership, and to bind the partnership to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the
day and year first above written.
LANDOWNER
______________________________________________
By: ______________________________, Representing
SAAM Real Estate.
STATE OF MONTANA )
:ss
COUNTY OF ___________)
On this _________ day of _______________________, 2005 before me, a Notary Public for
the State of Montana, personally appeared _________________, __________, representing SAAM
Real Estate, known to me to be the person that executed the foregoing Annexation Agreement, and
acknowledged to me that he/she executed the same on behalf of SAAM Real Estate.
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)
Notary Public for the State of Montana
Residing at _______________________
My Commission Expires:____________
LANDOWNER
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 13
______________________________________________
By: John Helvy
STATE OF MONTANA )
:ss
COUNTY OF ___________)
On this _________ day of _______________________, 2005, before me, a Notary Public for
the State of Montana, personally appeared John Harvey, known to me to be the person that executed
the foregoing Annexation Agreement, and acknowledged to me that she executed the same.
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)
Notary Public for the State of Montana
Residing at _______________________
My Commission Expires:____________
LANDOWNER
______________________________________________
By: Dan Barnes
STATE OF MONTANA )
:ss
COUNTY OF ___________)
On this _________ day of _______________________, 2005, before me, a Notary Public for
the State of Montana, personally appeared Dan Barnes, known to me to be the person that executed
the foregoing Annexation Agreement, and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year first above written.
(SEAL)
_________________________________________
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 14
(Printed Name Here)
Notary Public for the State of Montana
Residing at _______________________
My Commission Expires:____________
CITY OF BOZEMAN
___________________________
By: Chris A. Kukulski, City Manager
ATTEST:
_________________________
Robin L. Sullivan,
Clerk of the City Commission
STATE OF MONTANA )
:ss
COUNTY OF GALLATIN )
On the _____ day of ______________, 20____, before me, a Notary Public for the State of
Montana, personally appeared CHRIS A. KUKULSKI AND ROBIN L. SULLIVAN, known to me to
be the 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 seal on the day and
year first written above.
(Seal) _______________________________
Notary Public for the State of Montana
Residing at Bozeman, Montana
My Commission Expires:___________
Return Interoffice Mail to:
Bozeman Department of Planning and Community Development
20 E Olive Street, Bozeman MT 59715
WILDA LANE ANNEXATION AGREEMENT 15