Full Text
DRAFT 9/21/2009 Draft Annexation Development Agreement; Clark Fork Terrace No. 1 Page 1 of 10 Return to: City Clerk City of Missoula 435 Ryman Street Missoula MT 59802-4297 ANNEXATION DEVELOPMENT AGREEMENT CLARK FORK TERRACE ADDITION NO. 1 As authorized by the Missoula City Council on the day of September, 2009, this Annexation Development Agreement, hereinafter referred to as “Development Agreement”, is entered into by and between the City of Missoula, a municipal corporation of the State of Montana, hereinafter referred to as “City”, and RGB Development, hereinafter referred to as “Developer”, whose mailing address is 231 East Front Street, Missoula, Montana, 59802, owner of the property more particularly described below. LEGAL DESCRIPTION: All of Tract 2, Certificate of Survey No. 5850, as filed July 28, 2006 at the office of the Missoula County Clerk and Recorder, Missoula County, Montana, located in north half of Section 20, Township 13 North, Range 18 West, P.M.M. shown on Exhibit A attached hereto and made a part hereof and hereinafter referred to as “Property.” Developer and City desire to enter into a contract agreement pursuant to Montana Code Annotated Section 7-13-4312 titled, “Authorization to furnish sewer services to persons located outside municipality,” and Section 7-13-4314 titled, “Annexation as a requirement for receiving sewer services,” for the City to furnish municipal sanitary sewer services to the Property at rates adopted in accordance with Montana State Law. ARTICLE I, STATEMENTS 1.1 The Property described herein was conditionally annexed into the City of Missoula’s jurisdictional boundary on September 2009 by City Council Resolution No. The Property obtained Missoula City Council approval for subdivision with conditions. Development within the City is eligible for all City services including municipal sanitary sewer. The approved subdivision is titled Clark Fork Terrace Addition No. 1, hereinafter referred to as Subdivision. 1.2 The Developer agrees to abide by all City of Missoula subdivision and new development codes and regulations; will pay all city fees related to new development, and agrees to abide by the special conditions outlined in Article IV of this Development Agreement. 1.3 That this Development Agreement and City Council Resolution No. shall immediately become null and void and City shall immediately revoke rights to city services including municipal sanitary sewer service upon any failure of Developer or Developer’s heirs, successors, administrators, executors, personal representatives and assigns to fulfill this Development Agreement. ---PAGE BREAK--- DRAFT 9/21/2009 Draft Annexation Development Agreement; Clark Fork Terrace No. 1 Page 2 of 10 1.4 Upon Developer's execution of this Development Agreement, City permits shall be issued in accordance with the City's currently adopted policies and procedures for construction of the proposed Subdivision. However, in the event that the Developer fails to timely execute the development agreement and/or defaults on this agreement issuing of permits for the Property subject to this agreement shall be suspended indefinitely until the default is cured by the Developer, his heirs, successors, administrators, executors, personal representatives and assigns. ARTICLE II, LEGAL AUTHORITY 2.1 All new development of the Property subject to this Development Agreement is subject to special conditions outlined in Article IV that are made in accordance with and referencing the provisions of Missoula Municipal Code Title 8 “Health and Safety;” Title 10 “Vehicles and Traffic;” Title 12 “Streets, Sidewalks and Public Places;” Title 13 “Public Services;” Title 15 “Buildings and Construction;” Title 17 “Subdivisions;” Title 18 “Floodplain Regulations;” Title 19 “Zoning; Missoula City Subdivision Regulations; and any Conditions of Subdivision as approved by the Missoula City Council. 2.2 This Development Agreement is subject to the successful completion of all covenants, duties, obligations and special conditions outlined in the Development Agreement to be completed by the Developer. The purpose of the Development Agreement is to assure that all new development within the City’s jurisdictional boundary or utilizing the City’s sanitary sewer system is built to the City’s urban standards and requirements. ARTICLE III, CITY ADMINISTRATIVE REVIEW 3.1 In accordance with M.M.C. Titles 8 through 19, inclusive of the Missoula City Subdivision Regulations and the Conditions of Subdivision approval, the City shall perform administrative review and approval of the new development on the Property subject to this Development Agreement, including but not limited to the following: 3.1.1 City Parks and Recreation Department shall review and approve all site designs for compliance with Title 12 “Streets, Sidewalks and Public Places” and Title 17 “Subdivisions” of the M.M.C., Missoula City Subdivision Regulations related to parkland dedication requirements, and the Conditions of Subdivision approval. 3.1.2 City Engineering shall review and approve all site designs for compliance with Title 10 “Vehicles and Traffic,” Title 12 “Streets, Sidewalks and Public Places;” and Title 13 “Public Services;” and Title 17 “Subdivisions” of the M.M.C., and Missoula City Subdivision Regulations Conditions of Subdivision approval. 3.1.3 The Office of Planning and Grants shall review and approve all site designs for compliance with Title 17 “Subdivisions;” Title 18 “Floodplain Regulations;” and Title 19 “Zoning,” of the M.M.C., Missoula City Subdivision Regulations, and Conditions of Subdivision approval. ---PAGE BREAK--- DRAFT 9/21/2009 Draft Annexation Development Agreement; Clark Fork Terrace No. 1 Page 3 of 10 3.1.4 City Fire Department shall review and approve all site designs for compliance with Title 8 “Health and Safety” and Title 17 “Subdivisions” of the M.M.C., Missoula City Subdivision Regulations, and Conditions of Subdivision approval. 3.1.5 City Police Department shall review and approve all site designs for compliance with Title 8 “Health and Safety;” Title 9 “Public Peace, Morals and Welfare;” Title 10 “Vehicles and Traffic;” and Title 12 “Streets, Sidewalks and Public Places.” 3.1.6 City Building Inspection Division shall review and approve all building permit applications for compliance with Title 15 “Buildings and Construction” and Title 17 “Subdivisions” of the M.M.C., inclusive of the Missoula City Subdivision Regulations, and Conditions of Subdivision approval. 3.1.7 City Building Inspection division shall calculate and City Engineering shall accept and receipt all City impact fees paid by the Developer based upon the approved site design. ARTICLE IV, SPECIAL CONDITIONS 4.1 The special conditions for the new development proposed on the Property shall include all requirements outlined in the Missoula City Council approved Conditions of Subdivision on file in the Office of Planning and Grants, which are set forth in Exhibit B attached hereto and made a part hereof. 4.2 These special conditions are in addition to the standards and requirements outlined in M.M.C. Title 8 “Health and Safety;” Title 10 “Vehicles and Traffic;” Title 12 “Streets, Sidewalks and Public Places;” Title 13 “Public Services,” Title 15 “Buildings and Construction;” Title 17 “Subdivisions;” Title 18 “Floodplain Regulations;” and Title 19 “Zoning, and Missoula City Subdivision Regulations. 4.34.2 The Developer shall incorporate these special conditions along with the standards and requirements in the M.M.C. and inclusive of the Missoula City Subdivision Regulations in the design and construction of the new development on the Property. The City shall review in accordance with the same and approve said design. 4.4 The Developer shall pay all City impact fees to the City prior to connecting to the City’s municipal sanitary sewer system. ARTICLE V, DEVELOPER’S OBLIGATIONS 5.1 In return for the opportunity to connect to the municipal sanitary sewer system and the benefits allowed within City zoning of the Property, Developer shall construct the proposed Subdivision in substantial compliance with all representations in the subdivision submittal packet and the City Council approved preliminary plat as amended by conditions of subdivision, subject to review and approval by the City as required in Titles 8 through 19 of the M.M.C., and inclusive of the Missoula City Subdivision Regulations, including along with the following: 5.1.1 The Developer shall submit plans to staff for approval before construction; ---PAGE BREAK--- DRAFT 9/21/2009 Draft Annexation Development Agreement; Clark Fork Terrace No. 1 Page 4 of 10 5.1.2 The Developer shall submit construction drawings for street, drainage, water, sewer, and landscaping improvements to the City prior to obtaining building and excavating permits; 5.1.3 The Developer shall submit plans for installation of street tree plantings along Deer Creek Road and all new roads within the Clark Fork Terrace No. 1 subdivision to City Parks and Recreation for approval prior to installation of the trees. 5.1.4 Maintenance of landscaping and furnishings in all public rights-of-way, parks, common areas, and open spaces shall be the responsibility of the applicant until the Home Owner’s Association is able to assume the responsibility. 5.1.5 Developer shall pay all new development and impact fees to the City at the time such fees are due and in the amounts specified within adopted City codes and policies for those portions of the development to be constructed by the Developer and developer representatives. 5.2 No change in the use or restrictions specified in this Development Agreement shall be allowed or changed without modification of this Development Agreement pursuant to the requirements of the M.M.C. In the event Developers change or expand the use permitted by this Development Agreement or fail to comply with the restrictions without formal modification of this Development Agreement as allowed by the M.M.C., Developers shall be in default of this Development Agreement. 5.3 Failure to construct the Subdivision consistent with this Development Agreement and the special conditions outlined herein and included as Exhibit B or without formal modification of this Development Agreement shall result in a default of this Development Agreement by the Developer. ARTICLE VI, AFFIDAVIT OF PROPERTY OWNERS 6.1 RGB Development hereby certifies that he/she/they are all the owners of the real Property subject to this Development Agreement and that all owners agree to abide by the requirements and special conditions outlined within this Development Agreement. 6.2 The signatures of all owners of the Property agreeing to submit the Property to this Development Agreement and the provisions and special conditions set forth within are incorporated into the Development Agreement. ARTICLE VII, FINANCIAL ASSURANCES 7.1 Developer is responsible for all costs associated with the construction and maintenance of the Property and Subdivision site and hereby holds the City harmless for any financial obligations related to the proposed new development or the Property that may belong to or be incurred by the Developer. 7.2 Developer shall purchase a construction guarantee bond in sufficient amount, to be approved by the City Engineer to cover the costs of relocating and reconstructing those portions affected by the proposed new development of any off-site improvements to existing infrastructure adjacent to the ---PAGE BREAK--- DRAFT 9/21/2009 Draft Annexation Development Agreement; Clark Fork Terrace No. 1 Page 5 of 10 new development. In lieu of any bonds or cash escrow deposits for these improvements, the developer may furnish to the City an irrevocable letter of credit in a form approved by the City Attorney certifying that adequate funds are and will remain available at a reputable financial institution authorized to do business in the state of Montana. The irrevocable letter of credit is to be in effect for the length of time required to complete said improvements, and in a form to allow the City to procure the funds irrevocably committed to complete the required improvements if construction of those improvements shall be in default. ARTICLE VIII, DEFAULT 8.1 In the event Developer, its successors, assigns or subsequent owners of the Property or any other person acquiring an interest in the Property, fail to faithfully and materially comply with all of the terms and conditions included in this Development Agreement, such failure to comply will be deemed a default hereunder. In that event, City shall have the following options: 8.1.1 Enforcement of this Development Agreement may be sought in an action at law or in equity in Missoula County District Court. 8.1.2 A waiver by City of any default by Developer of any one or more of the conditions hereof shall apply solely to the breach waived and shall not bar any other rights or remedies of City or apply to any subsequent breach of any covenants or conditions. 8.1.3 Notwithstanding anything to the contrary herein, in the event of a material default of the Development Agreement, the parties agree that City and/or Developer shall have thirty (30) days after delivery of notice of such default to correct the same prior to the non- defaulting party’s seeking of any remedy provided for herein; provided, however, that in the case of any such default which cannot with diligence be cured within such thirty (30) day period, if the defaulting party shall commence curing the same within the thirty (30) day period and prosecute the curing of same with diligence and continuity, then the time within which such default may be cured shall be extended for such period as may be necessary to complete the curing of the same, but in any event not to exceed months; and provided further, however, no default by a subsequent owner of a portion of the property shall constitute a default by Developer for the portion of the property still owned by Developer. 8.1.4 In the event the performance of any obligation to be performed hereunder by any party hereto is delayed for causes that are beyond the reasonable control of the party responsible for such performance, which shall include, with limitation, acts of civil disobedience, strikes or similar causes, the time for such performance shall be extended by the amount of time of such delay. 8.2 In addition to the remedies set forth above, in the event of a default by Developer, or any other party claiming an interest herein, City may withhold building permits for any remaining construction within the Subdivision until such time as the default is cured. 8.3 This Development Agreement shall be binding upon and inure to the benefit of the parties, successor owners of record of land which is subject to this Development Agreement, assignees, lessees, and upon any successor municipal authorities of the City and successor municipalities. ---PAGE BREAK--- DRAFT 9/21/2009 Draft Annexation Development Agreement; Clark Fork Terrace No. 1 Page 6 of 10 ARTICLE IX, ENFORCEABILITY AND SEVERABILITY 9.1 This Development Agreement shall be enforceable in the Missoula County Court of the Fourth Judicial District by any of the parties by any appropriate action at law or in equity to secure the performance of the covenants contained here. 9.2 If any provision of this Development Agreement is invalidated, that invalidity shall not affect any of the other provisions contained in this Development Agreement. ARTICLE X, TERM AND BINDING EFFECT 10.1 This Development Agreement shall be in perpetuity and runs with the land. 10.2 This Development Agreement is binding upon the heirs, successors, administrators, executors, personal representatives, and assigns of the parties hereto. ARTICLE XI, MISCELLANEOUS 11.1 Choice of Law. This Development Agreement shall be construed in accordance with the laws of the State of Montana in effect at the time of the execution of this Development Agreement. Any action brought in connection with this Development Agreement shall be brought to the Fourth Judicial Court located in Missoula County, Montana. 11.2 This Development Agreement may be modified only by means of a subsequently executed and acknowledged written agreement. 11.3 In the event Developer fails to comply with the commitments set forth herein, within one hundred twenty (120) days of written notice of such failure from the City, in addition to any other remedies which the City may have available to it, the City shall have the right, without prejudice to any other rights or remedies, to cure such default or enjoin such violation and otherwise enforce the requirements contained in this Development Agreement, and to collect the direct costs associated with such action from RGB Development. 11.4 In the event that a judicial dispute arises regarding the enforcement or breach of this Development Agreement, then the prevailing party in such dispute shall be entitled to recover its attorney’s fees and costs reasonably incurred, including fees and costs incurred on appeal. 11.5 Except as specifically set forth in the Development Agreement, the rules, regulations and official policies governing permitted uses of land, density, design, improvements and construction standards and specifications applicable to Clark Fork Terrace Addition No. 1 and the property shall be those rules, regulations and official policies in effect as of the effective date of the resolution effecting the annexation and comparable zoning of the Property. Provided, however, that the applicable building codes for structures shall be the codes in effect when a complete application for a building permit is filed. Development impact fees, if imposed by ordinance, shall be payable as specified in said ordinance even if the effective date is after the date of this Development Agreement or the annexation and comparable zoning thereto. ---PAGE BREAK--- DRAFT 9/21/2009 Draft Annexation Development Agreement; Clark Fork Terrace No. 1 Page 7 of 10 11.6 After its execution, this Development Agreement shall be recorded in the office of the Missoula County Clerk and Recorder, at the expense of Developer. Each commitment and covenant contained in this Development Agreement shall constitute a burden on, shall be appurtenant to, and shall run with the Property. This Development Agreement shall be binding on the City and Developer and their respective heirs, administrators, executors, agents, legal representatives, successors and assigns; provided, however, that if all or any portion of the Property is divided, each owner of a legal lot shall only be responsible for duties and obligations associated with an owner’s parcel and shall not be responsible for duties and obligations or defaults as to other parcels or lots within the Property except the responsibilities of the Home Owner’s Association. Developer shall not be relieved of its responsibilities and duties under this Development Agreement absent an agreement with the City which designates a successor to Developer, who accepts such responsibilities and duties as are then remaining. 11.7 Any notice which a party may desire to give to another party must be in writing and may be given by personal delivery, by mailing the same by registered or certified mail, return receipt requested postage prepaid, or by Federal Express or other reputable overnight delivery service, to the party to whom the notice is directed at the address of such party set forth below: Missoula: City Clerk City of Missoula 435 Ryman Street Missoula, Montana 59802-4297 Developer: Bob Brugh RGB Development 231 East Front Street Missoula, Montana 59802 or such other addresses and to such other persons as the parties may hereafter designate in writing to the other parties. Any such notice shall be deemed given upon delivery if by personal delivery, upon deposit in the United States mail, if sent by mail pursuant to the foregoing. IN WITNESS WHEREOF, the parties have hereunto caused this Development Agreement to be executed, effective on the day and year first above written. RGB DEVELOPMENT By: Robert (Bob) G. Brugh STATE OF MONTANA ) ) ss. County of Missoula ) On this day of 2008, before me the undersigned, a Notary Public for the State of Montana, personally appeared Robert (Bob) B. Brugh, representing RGB Development, known to ---PAGE BREAK--- DRAFT 9/21/2009 Draft Annexation Development Agreement; Clark Fork Terrace No. 1 Page 8 of 10 me to personally (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledge to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Official Seal on the day, month, and year in this certificate first above written. Notary Public for the State of Montana. Printed Notary Name (SEAL) Residing at , Montana. My Commission expires: . MM/DD/YYYY CITY OF MISSOULA By: John Engen, Mayor ATTEST for CITY: By: Martha L. Rehbein, City Clerk (CITY SEAL) ---PAGE BREAK--- DRAFT 9/21/2009 Draft Annexation Development Agreement; Clark Fork Terrace No. 1 Page 9 of 10 2 3 1 2 1 1 3 2 4 5 7 6 9 8 OLD BOUNDARY 10-A TRACT 1 2 4-A 3-A 19 18 17 16 1514 13 12 11 10 98 7 65 4 3 2 1 15 14 13 12 11 10 9 8 2 1 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 1 A A B A B C C 1 TRACT D TRACT C 24B 24A 1A2A3A4A5A6A 24C 1 2 3 4 5 GOLF COURSE LOT 4 GOLF COURSE LOT 3 1B 2B 3B 4B 5B 6B 7B 8B 9B 10B 11B 12B 13B 8A 8B LOT 3 ADDITION HEYER PINE GROVE SUBURBAN ACRES PINE GROVE SUBURBAN ACRES LOT 10-A & TRACT 1 HEYER ADDITION THE THIBODEAU AND POITRAS TRACT BK 25 PG 16 QUIET PINES LOTS BK 32 PG 36 TRACT 1 COS 3300 TRACT A COS 4437A TRACT B-1 COS 5123 B-2 5123 COS TRACT COS 356 COS A 4278 3604 PORTION A TRACT 1 PORTION A PORTION B TRACT 1 COS 3289 COS 3300 PORTION A COS 3300 PORTION B COS 4473 TRACT 1 COS 3943 COS 3943 COS 3943 COS 1355 TRACT 1 TRACT 2 D C B A COS 376 COS TRAC PORTION A TRACT 2-A-1-A COS 3753 COS 3653 PARCEL A A-2 A-1 TRACT 1 COS 4491 PARCEL E-1 COS 4491 PORTION A PORTION B PORTION C OLD BOUNDARY COS 4051 PARCEL A COS 3566 COS 4501 TRACT 5 PORTION A COS 4871 TRACT 1 COS 4871 TRACT 2 COS 4871 COS 5241 TRACT 3B COS 5241 TRACT 3A 21-A COS 5037 TRACT 1 4973 COS 6-A TRACT 21-A COS COS 5037 TRACT 2 COS 4973 TRACT 5-A TRACT 1 COS 5850 TRACT 2 COS 5850 TRACT 3 COS 5850 COS 6028 CLARK FORK RIVER HIGHWAY 200 DEER CREEK RD INTERSTATE 90 EB JUNIPER DR INTERSTATE 90 WB ZAUGG DR KIM WILLIAMS TRL BANDMANN TRL TAMARACK RD PINE GROVE LN INTERSTATE 90 RAMP UNNAME 34 AABEAR LN SHOOTING CENTER LN MARS LN UNNAME 34 UNNAME 34 RES. NO. 7165 (10/2/2006) RES. NO. 7300 (11/26/2007) EXHIBIT Legend Annexation City Limits as of 11-10-2008 Located in the N1/2 of Section 20, T.13 R.18 P.M.M. Prepared by: CITY OF MISSOULA ENGINEERING DIVISION - GIS / MAPPING SECTION Tract 2, Certificate of Survey No. 5850 (Proposed Clark Fork Terrace Addition No.1) Subject Property ---PAGE BREAK--- DRAFT 9/21/2009 Draft Annexation Development Agreement; Clark Fork Terrace No. 1 Page 10 of 10 EXHIBIT B Pending approved conditions of subdivision.