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2. Draft Annexation Agreement - Kelsey SubdivisionCity of Kalispell Charles A. Harball Office of City Attorney City Attorney 312 First Avenue East P.O. Box 1997 Kalispell, MT 59903-1997 MEMORANDUM TO: Mayor Pamela B. Kennedy and Kalispell City Council FROM: Charles Harball, City Attorney Chris Kukulski, City Manager Tel 406-758.7708 Fax 406.758.7771 charbali@kalispell.com SUBJECT: Kelsey Subdivision —Annexation District Agreement and Interlocal Agreement MEETING DATE: Monday, July 26, 2004 Workshop BACKGROUND: As Council is aware, Mr. Farris has been attempting to get some traction with the Kelsey Subdivision for some time. Much of our discussions revolving around Annexation Districts and Interlocal Agreements have been generated by this issue. The two agreements attached to this memorandum are templates that Council has seen before. The Interlocal Agreement is quite similar to the Cottonwood Estates agreement. The primary difference takes into account that Kelsey Subdivision is currently an approved subdivision of Flathead County. Therefore, Mr. Farris will need to petition the County to reopen the issue and waive any rights he has already obtained as a result of their previous approval. The Annexation District Agreement is similar to the template that we have discussed at previous workshops. This version, however, is more specific and does not implement any incremental city tax. Respectfully submitted, Charles Harball, City Attorney �� e jj{gj 97:j'� F . 'd^ Chris Kukulski, City Manager ANNEXATION DISTRICT AGREEMENT PARTIES TO THE AGREEMENT: "The City" - The City of Kalispell is a municipal corporation and city of the first class with general powers existing under the laws of the State of Montana. "The Property Owner" — Andrew R. Farris, whose address is owns real property located in Flathead County, Montana known as Kelsey Subdivision and as more particularly described in Exhibit "A" attached hereto and fully incorporated herein by this reference and referred to hereinafter as the "Subject Property." EFFECTIVE DATE: The date of this Agreement is the day of 2004. APPLICABLE LAW: Title 7, Chapter 2, Part 46 of the Montana Code Annotated and more particularly MCA § 7-2-4625 - Annexation district — is the state law upon which this Agreement relies. The City further relies upon its Extension of Services policy as adopted by Resolution , dated the day of TERM: This agreement shall have a term of no more than ten (10) years and shall expire on the tenth anniversary of this agreement or sooner in the event the CITY elects to annex the subject real property described herein at an earlier date and to assume those obligations as more fully described below. RECITALS WHEREAS, Property Owner desires to connect the Subject Property to the City's sanitary sewer system to be conveyed through the Evergreen Sewer District; and WHEREAS, the City is willing to grant permission to Property Owner for a server system connection on the Subject Property, subject to payment of all applicable fees and charges and compliance with all terms and conditions of this Agreement; and WHEREAS, Property Owner hereby agrees to file a waiver of protest to the annexation of the Subject Property to the City, and to take all other actions requested by the City or required by law to accomplish the annexation of the Subject Property to the City; and WHEREAS, a public hearing to consider this Agreement, including specifically, but without limitation, the provisions of this Agreement relating to the annexation of the ANNEXATION DISTRICT AGREEMENT Page 1 of 5 KELSEY SUBDIVISION Subject Property to the City, was held by the City Council on the day of 20 ; and WHEREAS, the City has conducted all hearings and procedures required by law to be conducted to approve and implement this Agreement, and this Agreement has been drafted, considered, and approved in accordance with City Ordinance, state law and all other applicable laws. NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the City and Property Owner, and in further consideration of the covenants and agreements hereinafter set forth, the City and Property Owner agree as follows: GENERAL TERMS The City of Kalispell, hereinafter referred to as "the City", and Andrew R. Farris, hereinafter referred to as "the Property Owner", hereby agree that the Subject Property, described above and owned by the Property Owner shall become an Annexation District of the City subject to the terms set forth below. Annexation District. In consideration for the City providing the Utilities described below to the Subject Property, Property Owner shall allow the City to annex the Subject Property into the City anytime within the period of ten years from the date of this Agreement. The Subject Property shall be subject to City fees as particularly set forth below. Upon annexation and the termination of the Annexation District, the City shall provide all City services to the Subject Property. Legal Description: The legal description of the Subject Property and Annexation District shall be as described in Exhibit "A" attached hereto and incorporated fully herein by this reference. Recordation: Property Owner understands and agrees that the obligations assumed by Property Owner under this Agreement shall be binding upon Property Owner and any and all of Property Owner's present and future beneficiaries, heirs, successors, and assigns, and the successor legal and beneficial owners of all or any portion of the Subject Property. To assure that future beneficiaries, heirs, successors, and assigns have notice of this Agreement and the obligations created by it, Property Owner agrees that this Agreement shall be recorded with the Clerk and Recorder for Flathead County, Montana. Obligations of the Property Owner: In further consideration for the services provided by the City, as more fully described below, the Property Owner agrees that the real property within the Annexation District shall be developed to the standards of the City as more fully described in Exhibit " B" attached hereto and incorporated fully herein by this reference. ANNEXATION DISTRICT AGREEMENT Page 2 of 5 KELSEY SUBDIVISION Connection to and Use of the Utilities. Subject to the terms and conditions set forth in this Agreement and satisfaction of all applicable federal, state, and local rules, regulations, ordinances, laws, and statutes, the City hereby agrees to grant permission to Property Owner to connect to and use the municipal sewer system in order to serve the Subject Property, Any connection of the Subject Property to the sewer service shall be at Property Owner's sole cost and expense and in accordance with the provisions of any and all City ordinances and Evergreen Sewer District regulations applicable thereto from Time -to -time and with such specifications as may be approved by the Director of Public Works. Fees and Rates. Prior to connection of improvements on the Subject Property to the sewer service, Property Owner hereby agrees to pay to the City the City's then - current connection and inspection fees as well as the fees of the Evergreen Sewer District. Property Owner shall also be responsible for and agrees to pay the City's user charges for sanitary sewer service. Property Owner shalt also be responsible for and agrees to pay any and all charges of the sewage conveyance by Evergreen Sewer District. Remedies. It is agreed that the parties hereto may in law or in equity, by suit, action, mandamus, or any other proceedings, including specific performance, enforce or compel the performance of this Agreement; provided, however, that Property Owner agrees that Property Owner shall not seek and does not have the right to seek to recover a judgment of monetary damages against the City or any elected or appointed officials, officers, representatives, agents, attorneys, or employees thereof for any breach of any of the terms and conditions of this Agreement; and provided further, however, that the City may maintain an action to recover any sums and any costs agreed to be paid to it pursuant to this Agreement and that have become due and remain unpaid, plus interest on such sums and costs at a rate of ten per cent per annum. Nature and Survival of Obligations. The parties hereto agree that all terms, requirements, and conditions contained in this Agreement and all charges payable pursuant thereto, together with interest and costs of collection, shall until paid constitute the personal obligation of Property Owner and of the beneficiaries, heirs, successors, and assigns of Property Owner, whether such beneficiaries, heirs, successors, or assigns succeed to a legal or to a beneficial interest in the Subject Property. In the event of non- payment within 30 days after the due date, such charges shall become a lien upon the Subject Property. The lien of the charges provided for herein shall be subordinate to the lien of any first mortgage now placed upon the Subject Property shall apply only to the charges that have become due and payable prior to a transfer of such property pursuant to a decree of foreclosure or any other proceeding in lieu of foreclosure. Such sale or transfer shall not relieve the Subject Property from liability for any charges thereafter becoming due, nor from the lien of any such subsequent charge. Amendment and Waiver. The parties, and each of them, agree, acknowledge, and understand that this Agreement shall not be modified, changed, altered, amended, or terminated, nor shall any right under it be waived or relinquished without the written consent of all of the parties hereto specifically referring to such amendment or waiver. ANNEXATION DISTRICT AGREEMENT Page 3 of 5 KELSEY SUBDIVISION The City's written consent shall be by resolution duly adopted by the City Council. The failure of the parties to enforce this Agreement or any particular provision hereof at any given time shall in no event be deemed a waiver of the right to do so thereafter. Severability: If any provision, covenant, agreement, or portion of this Agreement or its application to any person, entity, or property is held invalid, such invalidity shall not affect the application or validity of other provisions, covenants, agreements, or portions of this Agreement that can be given effect without the invalid provisions or applications, and to this end, the provisions, covenants, and agreements in this Agreement are declared to be severable. Entire Agreement: This Agreement constitutes and is a full integration of the entire agreement of the parties. PROPERTY OWNER CITY OF KALISPELL Andrew R. Farris ANNEXATION DISTRICT AGREEMENT KELSEY SUBDIVISION By: City Manager Page 4 of 5 STATE OF MONTANA ss. County of Flathead On this day of in the year 20 , before the undersigned Notary Public for the State of Montana, personally appeared , the City Manager of the City of Kalispell, Montana known to me to be the person whose name is subscribed to the within instrument, 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 hereinabove first written. {SEAL} STATE OF MONTANA County of Flathead Notary Public, State of Montana Residing in My commission expires: _ ss. On this day of in the year 20_, before the undersigned Notary Public for the State of Montana, personally appeared , known to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year hereinabove first written. {SEAL} Notary Public, State of Montana Residing in My Commission expires: ANNEXATION DISTRICT AGREEMENT Page 5 of 5 KELSEY SUBDIVISION INTERLOCAL AGREEMENT CITY OF KALISPELL FLATHEAD COUNTY, MONTANA for KELSEY SUBDIVISION WHEREAS, Title 7, Chapter 11, Part 1, M.C.A., known as the "Interlocal Cooperation Act," permits governmental units to make the most efficient use of their powers by enabling them to cooperate with other local governmental units on a basis of mutual advantage and thereby to provide services and facilities in a manner and pursuant to forms of governmental organization that will accord best with geographic, economic, population, and other factors influencing the needs and development of local communities; and WHEREAS, said Act provides that an Interlocal agreement may be authorized and approved by the governing body of each party to said contract; and WHEREAS, Andrew R. Farris, owner of that certain real property located outside municipal boundaries and in Flathead County, Montana and more particularly described in Exhibit "A", attached hereto and fully incorporated herein by this reference, and hereafter referred to as "Kelsey Subdivision", seeks to develop said property to an urban density and therefore desires the services of a municipal sewer and community water supply; and WHEREAS, it is in the best interests of the Flathead County and the City of Kalispell and their citizens, that water quality of the shared aquifer be protected by the connection to and utilization of a municipal sewer by Kelsey Subdivision; and WHEREAS, Kelsey Subdivision is located within such proximity to the Evergreen Sewer District that it may be served by the Evergreen Sewer District which is a customer of the City of Kalispell municipal sewer system and contractually provided with an allotment of sewer capacity and which conveys its sewerage to the City of Kalispell municipal sewer system; and WHEREAS, the City of Kalispell may agree to allow Kelsey Subdivision to convey its sewage through the Evergreen Sewer District conveyance system without requiring the Evergreen Sewer District to assign such sewerage to its own contractual capacity; and WHEREAS, it is in the best interests of the City of Kalispell that developments such as Kelsey Subdivision that utilize the utilities of the City be developed to urban standards that are compatible to those standards generally used by the City. INTERLOCAL AGREEMENT KELSEY SUBDIVISION Page - I of 5 NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Kalispell and the Commission of the County of Flathead, State of Montana, each a local government agency of the State of Montana, that: Pursuant to MCA 7-11-104, the City of Kalispell and Flathead County agree it is to their mutual advantage to adopt this Interlocal Agreement as follows: Section l: Recitals The City of Kalispell is a municipality of the State of Montana located within Flathead County and organized pursuant to Title 7 Chapter 3 Part 43. The City owns, maintains and provides certain utility services, including sanitary sewer and water, to its city residents. The City may legally provide its utilities to serve areas outside of the City for consideration and if it is deemed to be in the best interests of the City and its residents. Flathead County is a duly formed County government of the State of Montana created by the authority of the Montana State Legislature. Flathead County possesses the exclusive statutory authority to review and approve, and has reviewed and approved the subdivision request of Kelsey Subdivision and to enforce any conditions placed thereon. The County may consult with the City of Kalispell or any other agency providing services to the development in this regard. The area covered by this Interlocal Agreement is defined by the boundaries of that real property known as Kelsey Subdivision and more particularly described by Exhibit "A", attached hereto. Section 2: Purpose It is the purpose of this Agreement to delineate the provision of services and land use planning responsibilities of the local governments with respect to the Kelsey Subdivision, and the development, implementation, and enforcement of the conditions of the subdivision. Section 3: Administration of Land Use Controls 3.01. No separate legal entity is established by this Interlocal Agreement. 3.02. The City and the County agree to work cooperatively to provide a reasonable opportunity for Kelsey Subdivision to be developed to an urban density, to be served by one or more municipal utilities and to be developed to urban standards as outlined in Exhibit B attached to this agreement. INTERLOCAL AGREEMENT KELSEY SUBDIVISION Page - 2 of 5 3.03. Application and Review Process 3,03.01 The owner of Kelsey Subdivision shall provide a petition and waiver to the Flathead County Commissioners requesting that the subdivision approval previously granted by Flathead County be reviewed and reconsidered for the purpose of accessing municipal sewer services through the Evergreen Sewer District and the City of Kalispell. If the Flathead County Commissioners approve the petition and accept the waiver, they shall notify the Tri-City Planning Office that Kelsey Subdivision has requested urban development and connection to the Evergreen sewage collection system. The Tri-City Planning Office shall immediately schedule the matter before the Kalispell Site Review Committee and following their action, respond to the Flathead County Planning and Zoning Office with recommended Conditions of Approval and applicable "Urban Development Standards" requested by the City of Kalispell within 10 working days of the Site Review meeting. The "Urban Development Standards" shall be as set forth in Exhibit `B" attached hereto and fully incorporated herein by this reference. 3.03.02 The Flathead County Planning and Zoning Office shall prepare the Staff Report and recommended conditions of approval for transmittal and public hearing by the Flathead County Planning Board. Said transmittal shall be made to the Planning Board at least 14 days prior to the hearing. 3.03.03 The Flathead County Planning and Zoning Office shall verbally inform the Tri-City Planning Office as to the Planning Board Recommendation within 3- 5 days of the planning board hearing and action. A copy of the transmittal letter to the Flathead County Commissioners shall be forwarded to the Tri-City Planning Office within 10 days of the Public Hearing. 3.03.04 The Flathead County Commissioners will not schedule the project for final decision for 30 days after transmittal to afford the City of Kalispell an opportunity to comment on the action recommended by the County Planning Board. 3,03.05 The City shall comment within the 30-day period to County Commissioners concerning the Planning Board recommendation either supporting the recommendation or asking for re -consideration of key points that may have been recommended by the Planning Board for modification or elimination. 3.03.06 The Flathead County Planning and Zoning Office shall send notice of the action taken by the County Commissioners to the Tri-City Planning Office, 3.03.07 The Tri-City Planning Office shall forward to the City Manager and the City Council the Commissioners' final action for determination if the subdivision will receive a Resolution to Provide Certain Municipal Services from the City of Kalispell. INTERLOCAL AGREEMENT KELSEY SUBDIVISION Page - 3 of 5 3,03.08 In the event Flathead County grants the subdivision approval with conditions that are inclusive of the Urban Standards as set forth in Exhibit `B", the City of Kalispell shall issue a Resolution to Provide Certain Municipal Services. The developer of Kelsey Subdivision will execute a waiver of protest to annexation for the subject property and enter into an annexation district agreement and a developer's agreement with the City of Kalispell and the Evergreen Sewer District for extension of municipal sewer or other services as deemed appropriate and that is consistent with the conditions for subdivision approval issued by Flathead County. 3.03.09 Review and enforcement of the conditions for subdivision approval shall be the duty of Flathead County. Any bonding requirements imposed by the Developer's Agreement with the City of Kalispell or the Evergreen Sewer District shall be subject to the civil enforcement provisions of that Agreement. Section 4: Modification 4.01. This Agreement shall become effective upon approval by the Council of the City of Kalispell and the County Commission of Flathead County. 4.02. This agreement maybe changed with additions and/or deletions upon mutual written consent of the parties hereto, and, if necessary, with the written consent of the developer of Kelsey Subdivision. Section 5: Term of Agreement This Agreement will be effective from signature date by both parties and will be effective for a period of the life of the approved preliminary plat or 3 years which ever is longer. IN WITNESS WHEREOF, the local governments have caused this instrument to be duly executed by their proper officers as follows: CITY OF KALISPELL APPROVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL on the _day of July, 2004, authorizing the Mayor to execute the Interlocal Agreement. ATTEST: Theresa White City Clerk (SEAL) INTERLOCAL AGREEMENT KELSEY SUBDIVISION C Pamela B. Kennedy Mayor Page - 4 of 5 COUNTY OF FLATHEAD, STATE OF MONTANA APPROVED BY THE COUNTY COMMISSION OF FLATHEAD COUNTY, STATE OF MONTANA on the_ day of July, 2004. 0 Howard W. Gipe, Chairman Robert W. Warne Gary Hall INTERLOCAL AGREEMENT KELSEY SUBDIVISION Page - 5 of 5