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HomeMy WebLinkAboutE2 State Lands Annexation Commission Memorandum f � M REPORT TO: Honorable Mayor and City Commission FROM: Tim Cooper, Assistant City Attorney Chris Kukulski, City Manager SUBJECT: State Lands East Annexation Agreement MEETING DATE: November 6, 2006 BACKGROUND: On May 16, 2005, the City Commission held a public hearing on a request for annexation of a 206t acre parcel located west of Flora Lane, north of Mandeville Lane and east of Interstate 90. 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,Assist City ttomey Chris Kukulski, City Manager Attachments: State Lands East Annexation Agreement STATE LANDS EAST 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 the State of Montana, Department of Natural Resources and Conservation,8001 North Montana Avenue,Helena,Montana 59602 hereinafter referred to as "Landowner". WITNESSETI-1: WHEREAS,the Landowner is owner in fee of certain real property,hereinafter referred to as the "STATE LANDS EAST ANNEXATION", situated in Gallatin County, Montana, and more particularly described as follows: A tract of land being the SW '/a of Section 36, less the Lewis & Clark Commercial Subdivision, Plat J-376, less Minor subdivision 320, Lot 1 and including Tract 2, COS 1723 and the W 1/2, SE 1/4 of Section 36, less the Gordon Mandeville State School Section Subdivision,T]S,R5E, 'MM, Gallatin County along with adjacent public streets. Said tract contains 206 acres,more or less,along with and subject to all easements of STATE LANDS EAST ANNEXATION AGREEMEN'r 1 record or apparent on the ground. WHEREAS, the Landowner has petitioned the City for annexation of the contiguous tract; and WHEREAS,the STATE LANDS EASTANNEXATION 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 STATE LANDS EASTANNEXATION 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 STATE LANDS EASTANNEXATION; and WHEREAS, all parties recognize that the development of the STATE LANDS EASTANNEXATION will impact Mandeville Lane, Wheat Drive,Red Wing Drive,Flora Lane, N. 7"' Avenue, 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 STATE LANDS EASTANNEXATION; and STATE LANDS EAST ANNEXATION AGREEMENT 2 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 STATE LANDS EASTANNEXATION with the City_ The City,on April 18,2005,adopted a Resolution of Intent to Annex the STATE LANDS EAST ANNEXATION. By execution of this Agreement,the City has manifested its intention to annex the STATE LANDS EAS`h 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 STATE LANDS EAST 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 STATE LANDS EAST ANNEXATION tract to the City. Landowner agrees to sign and return this STATE LANDS EAST ANNEXATION AGREEMENT 3 agreement along with accompanying map and easements not later than May 16, 2006. The annexation shall include the right-of-way for Flora Lane and those portions of Mandeville Lane adjacent to the property. 3. Services Provided 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 STATE LANDS EAST 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 STATE LANDS EAST 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 STATE LANDS EAST 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 ofBozeman's infrastructure master plans and all city policies that may be in effect at the time of development. S. 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 STATE LANDS EAST ANNEXATION AGREEMENT 4 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 STATE LANDS EASTANNEXATION. 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 STATE LANDS EASTANNEXATION 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. 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, Thal 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 STATE LANDS EAST ANNEXATION consists of approximately 206 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: STATE LANDS EASTANNEXATION, consisting of a total of 206 acres, shall provide water rights or cash-in-lieu at the time the STATE LANDS EAST ANNEXATION AGRUM:1 NT 5 7771 Final Plat or Final Site Plan for development is submitted to the City. As calculated by the City in accordance with its policy at the time of calculation, the Landowner or Developer shall provide sufficient cash-in-lieu for each parcel in the annexed area, upon Landowner's execution of a lease or deed conveying an interest in each parcel within the annexed area or upon final site plan approval whichever occurs first. 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. 7. Comprehensive Water and Sewer Design Report Prior to or concurrent with a future development proposal 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. 8. 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 STATE LANDS EASTANNEXATION until it is verified by the City that necessary municipal services and facilities, STATE LANDS EAST ANNEXATION AGKETMENT 6 including but not limited to police and fire protection and road improvements,are available to all or a portion of the STATE LANDS EASTANNEXATION.Landowner further understands and agrees that installation of facilities required to provide municipal services to future development shall be constructed in accordance with the City of Bozeman's infrastructure master plans and all city policies and standards that may be in effect at the time of development. 9. 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 capacity. At the time of any 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.O60A, 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 STATE LANDS EAST 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 STATE LANDS EAST ANNEXATION AGREEMENT 7 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 default. D. The Landowner and the City intend and agree that their obligations under this Agreement are fully contractual in nature, and that the validity of their financial obligations set forth herein are not dependent upon the validity, application, or interpretion of any portion of the Bozeman Municipal Code, or any other law. 11. Stormwater Master Plan Landowner understands and agrees that a Stormwater Master Plan for the STATE LANDS EASTANNEXATION 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 fixture development. The plan must demonstrate that adequate treatment of runoff from the public streets and all future lots will be achieved by providing spot elevations,flow direction arrows, detention and/or retention basin details (including basin sizing calculations and basin typical sections), outlet structure details, and culvert capacity calculations. 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. 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. STATE LANDS EAST ANNEXATION AGREEMENT 8 13. Waiver of Right-to-Protest ,Special Improvement Districts 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 Wheat Drive, Red Wing Drive Flora Lane, Mandeville Lane, and N. 7`"Avenue and signalization of the intersection of N. 7`�'Avenue and Mandeville Lane; 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 from the development, or a combination thereof. 14. Ri=ht-of-Wa /Easement for Future Roadways and Trails Landowner agrees to provide at the time of development, by Public Street or Pedestrian Easement, the following land to the City of Bozeman for right-of-way purposes, which represent Landowncr's proportionate share of the necessary right-of-way. Said Public Easements will be dedicated with the filing of final plats or final site plans. a) That concurrent with further development of the property easements be provided.fi r a trail along the watercourse which traverses the property.from south to north. b) The applicant shall provide and file with the County Clerk and Recorder's gffrce a frdl 60,foot executed Public Street and utility easement for the future Wheat Drive extension. 15. Utility Easements STATE LANDS EAST ANNEXATION AGREEMENT 9 Landowner understands and agrees that utility easements,a minimum of 30 feet in width,will 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. 16. 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 STATE LANDS EASTANNEXATION. The parties further agree that the City may file these documents at any time. 17. Payback District. The STATE LANDS EAST ANNEXATION lies within the Solvent Site Main Payback District. The repayment of the sum required for the payback shall be paid to the City upon connection to City services. The sum shall be $0.082 per square foot plus a consumer price index adj ustment. 18. Compliance with Local Regulations. Any proposed lease on the subject property involving a change of use or division of land shall be subject to review under local planning, zoning, and subdivision regulations. 19. Fees and Taxes. The state will require a lessee of any property on the STATE LANDS EAST ANNEXATION to agree to pay as due all real and personal property taxes including beneficial use taxes assessed against the lease property and lessee's personal property and equipment installed and located upon STATE LANDS EAST ANNEXATION AGREEMENT 10. the leased property,in addition to any special assessments that might be apportioned to the property. The state understands and acknowledges, as owner of the subject property, that private use of said property is subject to a "beneficial use"tax as provided in Section 15-24-1201, et. sec. 20. 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. 21. 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 22. 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. 23. 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. 24. Modifications or Alterations No modification or amendment of this Agreement shall be valid unless evidenced by a writing signed by the parties hereto. STATE LANDS EAST ANNEXATION AGREEMENT I 25. 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_ 26. 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. 27. 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 dissolution or upon transfer of ownership of the property. The undersigned Landowners affirms that they have authority to enter into this Agreement on behalf of the State of Montana, and to bind the State of Montana to this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. LANDOWNE By: Mary Sexton, Director State of Montana, Department of Natural Resources and Conservation STATE OF MONTANA ) :ss COUNTY OF On this I q day of ,200 L, before me,a Notary Public for the. State of Montana, personal y appeared Mary Sexton, Director, representing the State of Montana, Department of Natural Resources and Conservation 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.. STATE LANDS EAST ANNI XA'r10N AGRF,FMFNT 12 (SEAL) UA N 0 (Printed Name Here) Notary Publi for the State of Montana Residing at LtA&jU_ 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 520 ,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: STATE LANDS EAST ANNEXATION AGREEMENT 13