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HomeMy WebLinkAboutF5 W Linclon Street Annex Agmnt Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Tim Cooper, Assistant City Attorney Chris Kukulski, City Manager SUBJECT: West Lincoln Road Annexation Agreement MEETING DATE: November 20, 2006 BACKGROUND: On September 7, 2004, the City Commission held a public hearing on a request for annexation of a 1.93± acre parcel located west of Alder Court Lane, south of Lincoln Road, and east of Maple Lane. 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: West Lincoln Road Annexation Agreement WEST LINCOLN ROAD ANNEXATION 1 WEST LINCOLN ROAD ANNEXATION AGREEMENT THIS AGREEMENT is made and entered into this ______ day of _______________, 2004, 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, and mailing address at P.O. Box 1230, Bozeman, Montana, 59771-1230, hereinafter referred to as “City,” and Snowload, LLC, P.O. Box 10941, Bozeman, MT 59719, hereinafter referred to as “Landowner.” WITNESSETH: WHEREAS, the Landowner is owner in fee of tracts of certain real property, hereinafter referred to as the “WEST LINCOLN ROAD ANNEXATION,” situated in Gallatin County, Montana, and more particularly described as follows: Lots 26 and 27 of Beatty’s Alder Court Subdivision, Tract 1 as described in Document No. 2054756, Tract 2 as described in Document No. 2054753, and Tract E as described in Film 191, Page 2361, Records of Gallatin County, situated in the NW ¼ of the SW ¼ of Section 13, T2S, R5E, PMM, Gallatin County, Montana WHEREAS, the Landowner has petitioned the City for annexation of the contiguous tracts; and WHEREAS, the WEST LINCOLN ROAD ANNEXATION is not within the corporate limits of the City of Bozeman 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 MCA Title 7, Chapter 2, Part 43; and WHEREAS, all parties recognize that the annexation of the WEST LINCOLN ROAD ANNEXATION pursuant to Section 7-2-4301, et seq., MCA, will entitle the said property to City services, including municipal water and sewer service, upon their availability; and WHEREAS, MCA 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 WEST LINCOLN ROAD ANNEXATION; and WHEREAS, all parties recognize that the development of the WEST LINCOLN ROAD ANNEXATION will impact Lincoln Road, Maple Lane, and Alder Court and will require additional public street improvements; and WHEREAS, the Landowner finds that this Agreement will provide for the most satisfactory and WEST LINCOLN ROAD ANNEXATION 2 dependable water supply or service available to furnish water and provide traffic circulation for development near and within the WEST LINCOLN ROAD ANNEXATION; and 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 WEST LINCOLN ROAD ANNEXATION with the City on June 10, 2004. The City, on August 2, 2004, adopted Resolution of Intent to Annex No. 3702 for the WEST LINCOLN ROAD ANNEXATION. By execution of this Agreement, the City has manifested its intention to annex the WEST LINCOLN ROAD 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 WEST LINCOLN ROAD 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 WEST LINCOLN ROAD ANNEXATION tracts to the City. 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 WEST LINCOLN ROAD 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 WEST LINCOLN ROAD ANNEXATION 3 City for delivery of water to and within the WEST LINCOLN ROAD 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 WEST LINCOLN ROAD ANNEXATION to include, but not limited to, any impact fees, hook-up, connection, or development charges which may be established by the City. Upon annexation and upon availability of service, any existing residences/businesses on the property must be connected to City water utilities. Any wells presently used for domestic purpose can be retained for irrigation only with no physical connection to domestic water piping. 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 WEST LINCOLN ROAD 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 WEST LINCOLN ROAD ANNEXATION to include, but not limited to, any impact fees, hookup, connection, or development charges which may be established by the City. Upon annexation and upon availability of service, any existing residences/businesses on the property must be connected to City sewer utilities. The existing on- site treatment systems must be properly abandoned and certification provided the abandonment occurred. 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, 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 WEST LINCOLN ROAD ANNEXATION consists of approximately 1.93 acres (exclusive of adjacent right-of-way). The Landowner understands and agrees that they must provide sufficient water rights in accordance with the City’s policy according to the following schedule: WEST LINCOLN ROAD ANNEXATION, consisting of a total of 1.93 acres, shall provide water rights or cash-in-lieu in the amount of WEST LINCOLN ROAD ANNEXATION 4 $_________ to the City of Bozeman, at the time the Annexation Agreement is submitted. 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. 7. Comprehensive Water and Sewer Design Report Prior to development of the subject annexation, the applicant’s engineer will be required to prepare a comprehensive design report evaluating the existing capacity of both the water and sewer utilities. The report must include hydraulic evaluations of each utility for both existing and post development demands. The report findings must demonstrate that adequate capacity is available to serve full development of the annexation area. If adequate water and/or sewer capacity is not available for the full development, the report must identify the water and sewer system improvements required to provide the necessary capacity. Any improvements necessary to serve the full development must be in place prior to further development of the site. 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 there is no right, either granted or implied by the City, for the Landowner to develop any of the WEST LINCOLN ROAD ANNEXATION until it is verified by the City that necessary municipal services, including but not limited to police and fire protection, are available to all or a portion of the WEST LINCOLN ROAD ANNEXATION. The Landowner is hereby on notice of the following requirements upon further development of the WEST LINCOLN ROAD ANNEXATION: a) 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. b) Prior to development, the applicant will be responsible for paving the portions of Alder Court Lane and Maple Lane that are directly adjacent to the subject property. c) Prior to development of the subject annexation, the 12-inch water main in West Lincoln Road shall be extended from Maple Lane to the east side of Alder Court Lane and a fire hydrant shall be installed. d) The applicant is advised that water main extensions in excess of 500-ft must be looped. WEST LINCOLN ROAD ANNEXATION 5 9. Impact Fees The Landowners hereby acknowledge that annexation and development of their property will impact the City’s existing street, water, and sewer infrastructure, and fire service requirements. There are two existing residences on the property. At the time of annexation, the landowners shall pay all street and fire impact fees that are attributable for the existing residences. 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 the existing residences. At the time of any further development on the properties, the land owners 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. If the impact fees currently imposed pursuant to Chapter 3.24 of the Bozeman Municipal Code are subsequently voided or declared invalid by a court of competent jurisdiction, Landowners agree to pay the City fees or assessments established by the City for impact on City services in accordance with a new or revised Chapter of the Bozeman Municipal Code lawfully enacted as a result of such court decision after the date of the court decision. If, prior to enactment of such revised Chapter, the Landowner applies for any permit which actuates or would have actuated impact fees pursuant to the current Chapter 3.24 of the Bozeman Municipal Code, the Landowner further agrees to pay at that time, the amount calculated for all such fees based upon the rates established at the date of this agreement. If the Court above declares Chapter 3.24 of the Bozeman Municipal Code invalid, and if landowner would have been entitled to a refund under the court’s decision but were it not for the sole fact of the landowner paying impact fees because of this agreement, then all such impact fees paid prior to the court’s decision shall be held in escrow until a revised Chapter of the Code is enacted after the Court’s decision. At the time the revised code is enacted, then all such fees held in escrow shall be released to the city and the balance, if any, returned to the landowner. All accumulated interest on the sum held in escrow shall be released to the City or landowner on the same percentage as the money released to either party bears to the total sum held in escrow. Landowners further understand and agree that any improvements, either on- or off-site, necessary to provide connection of WEST LINCOLN ROAD ANNEXATION 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. WEST LINCOLN ROAD ANNEXATION 6 If Landowners 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 Landowners 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. c) Any waiver by City of any default shall not be construed as a waiver of any subsequent default. d) It is agreed that it shall be no defense to the enforcement of this provision by the 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 amount as specified above. 10. Stormwater Master Plan Landowner understands and agrees that prior to development of the WEST LINCOLN ROAD ANNEXATION, a stormwater drainage and grading plan shall be provided to and approved by the City Engineer. 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. The plan shall also include a stormwater maintenance plan. 11. Traffic Analysis Report Landowner shall provide a detailed Traffic Analysis Report(s) at the time of future development of any portion of the annexed property. 12. 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 but not limited to: paving, curb, gutter, sidewalk, and storm drainage improvements to Lincoln Road, Alder Court, and Maple 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. 13. Right-of-Way Easement for Future Roadways Landowner has dedicated, by written easement, the following land to the City of Bozeman, which represents the Landowner’s proportionate share of the necessary right-of-way: WEST LINCOLN ROAD ANNEXATION 7 a. South half (additional 15 feet) for West Lincoln Road b. 40 feet for Maple Lane Said easements will be filed with the Gallatin County Clerk and Recorder at the time this Annexation Agreement is filed. 14. Utility Easements 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. 15. Provisions for a Turnaround Landowner understands and agrees that prior to annexation, the applicant shall provide provisions for a turn-around, with the design and legal status subject to review and approval by the Department of Public Safety – Inspections. 16. Provisions for a North-South Pedestrian Easement Landowner understands and agrees that, with further development of these lots, the property owners shall provide a pedestrian connection extending northward from the University Apartments development toward the Montana State University campus on an alignment to be reviewed and approved by the Office of Planning and Community Development. 17. 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 WEST LINCOLN ROAD ANNEXATION. The parties further agree that the City may file these documents at any time. 18. 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. 19. 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. WEST LINCOLN ROAD ANNEXATION 8 20. 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. 21. 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. 22. Modifications or Alterations No modification or amendment of this Agreement shall be valid unless evidenced by a writing signed by the parties hereto. 23. 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. 24. 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. 25. 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. WEST LINCOLN ROAD ANNEXATION 9 CORPORATION ______________________ ______________________ (print name here) Managing Member of Snowload, LLC STATE OF MONTANA ) ss. County of Gallatin ) On this ________ day of ____________________, 2004, before me, the undersigned, a Notary Public for the State of Montana, personally appeared _________________________, known to me to be the managing member of Snowload, LLC, the corporation that executed the within instrument, and acknowledged to me that he executed the same for and on behalf of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. _________________________________ (Seal) ___________________(Print Name Here) Notary Public for the State of Montana Residing at ______________________ My Commission Expires:____________ (Use 4 digits for expiration year) WEST LINCOLN ROAD ANNEXATION 10 CITY OF BOZEMAN By Chris A. Kulkulski, City Manager ATTEST: _______________________________ Clerk of the City Commission STATE OF MONTANA ) ss. County of Gallatin ) On this _____ day of __________________________, 2004, before me, a Notary Public for the state of Montana, personally appeared Chris A. Kulkulski and Robin Sullivan, 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 Notarial Seal the day and year first above written. (Seal) ___________________(Printed Name Here) Notary Public for the State of Montana Residing at ______________________ My Commission Expires:____________ (Use 4 digits for expiration year) WEST LINCOLN ROAD ANNEXATION 11 EXHIBIT A WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL IMPROVEMENT DISTRICTS WEST LINCOLN ROAD ANNEXATION The undersigned owners of the real property situated in the County of Gallatin, State of Montana, and more particularly described as follows: Lots 26 and 27 of Beatty’s Alder Court Subdivision, Tract 1 as described in Document No. 2054756, Tract 2 as described in Document No. 2054753, and Tract E as described in Film 191, Page 2361, Records of Gallatin County, situated in the NW ¼ of the SW ¼ of Section 13, T2S, R5E, PMM, Gallatin County, Montana 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 West Lincoln Road, Alder Court, and Maple Lane, which will be caused by the development of the above-described property, the owner has waived and do hereby waive for itself, its successors and assigns, the right to protest the creation of one or more special improvement districts including but not limited to the following improvements: paving, curb, gutter, sidewalk, and storm drainage improvements, 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 shall be a covenant running with the land and shall not expire with the dissolution of the limited partnership, provided however this waiver shall apply to the lands herein described. The terms, covenants and provisions of the Waiver shall extend to, and be binding upon the successors-in-interest and assigns of the parties hereto. DATED this _____ day of __________________, 2004. WEST LINCOLN ROAD ANNEXATION 12 CORPORATION ______________________ ______________________ (print name here) Managing Member of Snowload, LLC STATE OF MONTANA ) ss. County of Gallatin ) On this ________ day of ____________________, 2004, before me, the undersigned, a Notary Public for the State of Montana, personally appeared _________________________, known to me to be the managing member of Snowload, LLC, the corporation that executed the within instrument, and acknowledged to me that he executed the same for and on behalf of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. _________________________________ (Seal) ___________________(Print Name Here) Notary Public for the State of Montana Residing at ______________________ My Commission Expires:____________ (Use 4 digits for expiration year) WEST LINCOLN ROAD ANNEXATION 13 EXHIBIT B WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL PARKS MAINTENANCE DISTRICTS WEST LINCOLN ROAD ANNEXATION The undersigned owners of the real property situated in the County of Gallatin, State of Montana, and more particularly described as follows: Lots 26 and 27 of Beatty’s Alder Court Subdivision, Tract 1 as described in Document No. 2054756, Tract 2 as described in Document No. 2054753, and Tract E as described in Film 191, Page 2361, Records of Gallatin County, situated in the NW ¼ of the SW ¼ of Section 13, T2S, R5E, PMM, Gallatin County, Montana 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 on the City’s park facilities and the need for the maintenance of municipal park areas to serve City residents, the owners have waived and do hereby waive for themselves, their successors and assigns, the right to protest the creation of one or more special parks maintenance or improvement districts for a City-wide Parks Maintenance District, or to make any written protest against the size or area or creation of the district to be assessed in response to a duly passed resolution of intention to create one or more special parks maintenance or improvement districts. In the event City-wide Parks Maintenance or Special Improvement Districts are not utilized for the City-wide park maintenance, we agree to participate in an alternate financing method for completion of said improvements on a fair share, proportionate basis as determined by square footage of the property, linear front footage of the property, taxable valuation of the property, or a combination thereof. This waiver shall be a covenant running with the land and shall not expire with the dissolution of the limited partnership, provided however this waiver shall apply to the lands herein described. The terms, covenants and provisions of the Waiver shall extend to, and be binding upon the successors-in-interest and assigns of the parties hereto. WEST LINCOLN ROAD ANNEXATION 14 DATED this _____ day of __________________, 2004. CORPORATION ______________________ ______________________ (print name here) Managing Member of Snowload, LLC STATE OF MONTANA ) ss. County of Gallatin ) On this ________ day of ____________________, 2004, before me, the undersigned, a Notary Public for the State of Montana, personally appeared _________________________, known to me to be the managing member of Snowload, LLC, the corporation that executed the within instrument, and acknowledged to me that he executed the same for and on behalf of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. _________________________________ (Seal) ___________________(Print Name Here) Notary Public for the State of Montana Residing at ______________________ My Commission Expires:____________ (Use 4 digits for expiration year)