HomeMy WebLinkAbout90- Fish, Wildlife, Parks Annexation
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FISH, WILDLIFE, PARKS ANNEXATION AGREEMENT
THIS AGREEMENT made and entered into this 21st day
of
May
, 19~, by and between The City of
Bozeman, a municipal corporation with offices at 411 East Main,
Bozeman, Montana 59771-0640, hereinafter referred to as "City"
and The State of Montana by and through its Department of Fish,
wildlife and Parks, Helena, Montana, hereinafter referred to as
"Landowner."
WHEREAS, The State of Montana, Department of Fish, Wildlife
and Parks, owns in fee simple certain real property, the "Fish,
Wildlife and Parks Tract," situated in the SW! of Section 11,
T2S, R5E, P.M.M., Gallatin County, Montana, and more particularly
described as follows:
The tract begins at a point on the south line of the
said S 1/2, SW 1/4, Section 11, which said point is
easterly 33.0 feet from the southwest corner of the
said Section 11; thence from the said point of
beginning northerly 1320.0 feet, more or less, along a
line parallel and 33 feet easterly when measured at
right angles from the west line of the said Section 11,
to a point on the north line of said S 1/2, SW 1/4,
Section 11; thence easterly 710.0 feet along the said
north line of the S 1/2, SW 1/4, Section 11; thence
southerly 1320.0 feet, more or less, along a line
parallel to the said west line of Section 11, to a
point on the said south line of the S 1/2, SW 1/4,
Section 11; thence westerly 710.0 feet along the said
south line of the S 1/2, SW 1/4, Section 11 to the said
point of beginning, which includes 0.49 acres, more or
less, which constitutes part of the acreage in use as a
public highway, gross acreage 21.52 acres, highway
acreage 0.49 acres. And, depicted as Certificate Of
Survey No. J553 on file and of record in -the office of
the Gallatin County Clerk and Recorder.
WHEREAS, the Landowner recognizes that the annexation of the
Fish, Wildlife and Parks Tract pursuant to Section 7-2-4401, et
seq., M.C.A., will entitle the Fish, Wildlife and Parks Tract to
City services, including municipal water and sewer service; 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 Saine equivalent action to provide water and
sewer service to the Fish, Wildlife and Parks Tract; and
WHEREAS, all parties recognize that the development
of the Fish, Wildlife and Parks Tract will impact West Main
FlU~ 112 P!GE 40.37
Street and Fowler Road and will require additional public streets
for 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 within the Fish, Wildlife and Parks
Tract; 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 Landowner understands and agrees that no
development shall be approved for any of the Fish, Wildlife and
Parks Tract until water, sewer and street improvements are made
resulting in adequate city transportation, which adequacy shall
be determined by the Director of Public Service or his designee,
and sanitation facilities to safely accommodate use of and travel
to, from and within the parcel proposed for development; 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.
WIT N E SSE T H:
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 City Commission will annex the Fish, Wildlife and
Parks Tract in accordance with its decision on December 26,
1988.
3. Services Provided by City.
Pursuant to Section 7-2-4409, M.C.A., and Commission
Resolution No. 2644, the City will, after annexation, make
City services, including water and sewer, available to the
Fish, Wildlife and Parks Tract.
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flUIf 11.'2~~GE 40.38
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, 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 for delivery of water to and within the Fish,
Wildlife and Parks Tract or any hook-up, connection, or
development charges which may be established by the City.
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, 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 for collection of sewage at and within the Fish,
wildlife and Parks Tract or any hook-up, connection, or
development charges which may be established by the City.
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 average annual
diversion requirement necessary to provide the anticipated
average annual consumption of water by residents and/or
users of property when fully developed on the basis of the
zoning designation(s). The fee may be used to acquire water
rights or for improvements to the water system which would
create additional water supply capacity. This policy is
subject to the following exceptions:
a. For any annexation in excess of ten (10) acres, it
shall be carried out prior to final plat approval,
final site plan approval or the issuance of any
building permit, whichever occurs first."
Section 2, No.5, Commission
Resolution 2617 adopted
August 4, 1986.
The Fish, Wildlife and Parks Tract consists of approximately
21.52 acres.
The Landowner understands and agrees that he must provide
sufficient water rights in accordance with the City's policy
prior to final plat approval, final site plan approval or the
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FfLM 112 ?~GE 4039
issuance of any building permit for any portion of the Fish,
Wildlife and Parks Tract, whichever first occurs. The Landowner
shall supply such water rights or fee in lieu as calculated by
the City in accordance with its policy at the time of
calculation. The Landowner further understands that the City
shall calculate average annual diversion requirement necessary to
provide water on the basis of the zoning designation for the
property at the time such calculation is made.
Water rights or the appropriate fee calculated hereunder
shall be based on the acreage contained in Tract 1 of cas No.
IS-53 on file and of record in the office of the Gallatin County
Clerk an Recorder. In the event that the portion of the
annexation described above and as depicted as the remainder tract
on cas No. 1S-5~, undergoes a change of use or a facility or
other improvement thereon seeks to be connected to City
water/sewer services, then the required water rights or
appropriate fee on the remainder tract shall be immediately
provided by the landowner.
7. Public Access Easement.
Landowner has executed a sixty-foot {60'} wide Public
Access Easement, attached hereto as Exhibit A; said easement
to be extinguished after access is provided off Fowler Road.
8. Waivers of Right to Protest Special Improvement Districts
for Improvements to Fowler Road and U.S. 191.
The Landowner has executed a Waiver of Right to Protest
Creation of Special Improvement Districts for improvements
to Fowler Road and U.S. 191. This Waiver is attached hereto
as Exhibit B.
9. Waiver of Right to Protest Special Improvement District{s}
for Traffic Control Devices at the Intersection of Fowler
Road and U.S. 191.
The Landowner executed a Waiver of Right to Protest
Creation of Special Improvement Districts for the installation
of a traffic control system at the intersection of Fowler
Road and U.S. 191. This Waiver is attached as Exhibit C.
10. Additional Terms for Road Easements and Waivers.
All parties recognize that these documents must be
filed and of record with the Gallatin County Clerk and
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FILM 112 ~~GE 4.040
Recorder prior to the sale of any land within the Parcel by
the Landowner, and the party agrees that the City may file
these documents at any time. In addition to executing the
Easements, the Landowner shall dedicate all public streets
on the final subdivision platts) .
Upon completion, Fowler Road shall be the sole access
to the existing fishing ponds. Maintenance of said fishing
ponds is the sole responsibility of the Department of Fish,
Wildlife and Parks. The use of existing or proposed
sanitary facilities will be subject to the approval of the
Director of Public Service or his designee.
11. Utility Easements.
The Landowner understands and agrees that utility
easements, thirty (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
subdivision, conditional use, planned unit development or
parking review procedures, but in no event later than the
filing of any final plat or site plan, issuance of a building
permit, or issuance of a business license in the Fish,
wildlife and Parks Tract.
12. Payback of SID 621 and SID 622
The Landowner shall enter into a payback agreement with
the City which payback amount is $467.18 per acre for SID
621 for the existing sewer trunk installation per Commission
Resolution No. 2267, Section 5; and, $606.39 per acre for
SID 622 for the existing water trunk per Commission
Resolution No. 2268, Section 5. Payback shall occur prior
to final site plan approval, final plat approval or issuance
of a building permit.
The payback calculated hereunder shall be based upon
the acreage contained in Tract 1 of cas No. I~S3 on file
and of record in the office of the Gallatin County Clerk and
Recorder. In the event that the portion of the annexation
described above and as depicted as the remainder tract of
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fiLM 112Pi~GE~.041
cas No. 1S-~3, undergoes a change of use or a facility or
other improvement thereon, and seeks to be connected to City
water/sewer services, then the required payback on the
remainder tract shall be immediately provided by the
landowner.
13. Governing Law.
This agreement shall be construed according to the laws
of the State of Montana.
14. 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.
15. Modifications or Alterations.
No modification or amendment of this agreement shall be
valid unless evidenced by a writing signed by the parties
hereto.
16. 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.
17. Successors.
Except as provided in paragraph 18, this agreement
shall be binding upon, inure to the benefit of Gnd be
enforceable by the parties hereto and their respective
heirs, successors and assigns.
18. 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.
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed the day and year first above written.
CITY OF BOZEMAN
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FilM 112~~GEti.042
Attest:
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Clerk of the City Commission
LANDOWNER
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C~Jl,,\1X, l ,~~~,t
for the STATE OF MONTANA
Department of Fish, Wildlife
and Parks
STATE OF MONTANA
ss.
County of Lewis and Clark
On this 11th day of May , 1990, before
me, a Notary Public for the State of Montana, personally appeared
Errol T. Galt , knm'l7n to me to be the
Chairman. fish and Game Conmlission of the State of
Montana, Department of Fish, wildlife and Parks, and 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 first above written.
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"".\ ^.~ ' , DeLude
,:"J_~~Nd~}; ~t!.blic for State of Montana
?'<'~':.? :.<f~~9!4f'J.).~'~~ Clancy! Montana 59634
, i ~MY COIrl1T8-sEl.1.on explres: October 22. 1991
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STATE OF MONTANA
ss.
County of Gallatin
On this 21st day of May , 1990, before me,
a Notary Public for the State of Montana, personally appeared
James E. Wysocki 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.
I have hereunto set my hand and affixed
and year first above written.
1990
(No-tar ia1 Seal)
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fiLM 112p~GE4043
TEMPORARY PUBLIC ACCESS EASEMENT
FISH, WILDLIFE AND PARKS 'rRACT
The State of Montana, Department of Fish, Wildlife and
Parks, GRANTOR, in consideration of receiving annexation to the
City of Bozeman along with accompanying rights and privileges and
for other and valuable consideration, receipt of which is
acknowledged, grants to The City of Bozeman, a municipal corpor-
ation of the State of Montana, with offices at 411 East Main,
Bozeman, Montana 59771-0640, GRANTEE, a temporary public access
easement for the use of the public, in, through, and across a
strip of land situated in Gallatin County, Montana, sixty (60)
feet wide, to be extinguished when Fowler Road is completed,
which temporary public access will be located on the following
described property:
A sixty (60) foot-wide public access easement across
Tract 1 as shown on C.O.S. No. /5S3 .
The GRANTOR warrants that he is lawfully seized and
possessed of the real property described above, that he has a
lawful right to convey the property, or any part of it, and that
he will forever defend the title to this property against the
claims of all persons.
The GRAN'fOR further agrees that the GRANTEE may peaceably
hold and enjoy the rights and privileges herein granted without
any interruption by the GRANTOR.
The terms, covenants and provisions of this easement shall
extend to and be binding upon the heirs, executors, administrators,
personal representatives, successors, and assigns of the parties
hereto.
DATED this 11th
day of May
, 1990.
GRANTOR
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Department of Fish, Wildlife and Parks
S'l'A'I'E OF MONTANl~
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County of Lewis and Clark)
On the 11th day of May
before me, a Notary Public for the
appeared Errol T. Galt
the Chairman. Fish and Game Commission
Wildlife and Parks, State of Montana,
, 19..2Q,
State of Montana, perscinally
, known to me to be
of the Department of Fish,
whose name is subscribed to
Exhibit A
-1-
flL~ 112p~GEd.044
the within instrument and acknowledged to me that he executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my seal on the day and year first written above.
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NpAl S. OP.f,llr1A
Notary Public, State of Montana
Residing at r.1Anry'. Mont;:mA SC}fl14
My Commission expires: October 22,
1991
Exhibit A
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FIU~ 112~~GE 4045
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
FOR IMPROVEMENTS TO PORTIONS OF FOWLER ROAD AND U.S. 191
FISH, WILDLIFE AND PARKS TRACT
The undersigned, owner of a parcel of real property situated
in the County of Gallatin, State of Montana, and more
particularly described as follows:
The Fish, Wildlife and Parks Tract situated in the swl
of Section 11, T2S, R5E, P.M.M., Gallatin County,
Montana, and more particularly described as follows:
The tract begins at a point on the south line of the
said S 1/2, sw 1/4, Section 11, which said point is
easterly 33.0 feet from the southwest corner of the
said Section 11; thence from the said point of
beginning northerly 1320.0 feet, more or less, along a
line parallel and 33 feet easterly when measured at
right angles from the west line of the said Section 11,
to a point on the north line of said S 1/2, SW 1/4,
Section 11; thence easterly 710.0 feet along the said
north line of the S 1/2, SW 1/4, Section 11; thence
southerly 1320.0 feet, more or less, along a line
parallel to the said west line of Section 11, to a
point on the said south line of the S 1/2, SW 1/4,
Section 11; thence westerly 710.0 feet along the said
south line of the S 1/2, SW 1/4, Section 11 to the said
point of beginning, which includes 0.49 acres, more or
less, which constitutes part of the acreage in use as a
public highway, gross acreage 21.52 acres, highway
acreage 0.49 acres. And, as depicted on Certificate Of
Survey No. IS~3 on file and of record in the office of
Gallatin County Clerk and Recorder.
IN CONSIDERATION of receiving annexation approval along with
the accompanying rights and privileges and for other sufficient
independent consideration, to which the undersigned is party, and
in recognition of the impact to Fowler Road and U.S. 191 which
will be caused by the development of the above-described
property, has waived and does hereby for the State of Montana,
its Department of Fish, Wildlife and Parks, its heirs, executors,
administrators, personal representatives, successors and assigns,
waive the right to protest the creation of one or more special
improvement districts for improvements to the portions of the
following street easements located on the above-described
properties:
Fowler Road
U.S. 191
or to make any written protest against the proposed work or against
the extent or creation of the district to be assessed in response
to a duly passed resolution of intention to create one or Juore
special improvement districts which would include -the above-
Exhibit B
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FILM' 112p,~GE4046
described property.
This waiver is limited to the State's proportional share of
any assessment for the costs of the administration, engineering,
inspection and installation of the traffic control devices as
said costs may apply to the portion of the land annexed pursuant
to the terms of the annexation agreement and depicted as Tract 1
of Certificate of Survey No. 1~53, on file and of record in the
office of the Gallatin County Clerk and Recorder. This waiver is
further limited as it applies to the remainder tract of land
described in COS No. /65:L annexed under the terms of this
annexation agreement in that any assessment for improvement costs
must bear a reasonable relationship in proportion to the benefit
received by said remainder.
This waiver is limited to one-half of the costs for the
administration, engineering, inspection and construction of
Fowler Road (including curbs, gutters and sidewalks) to local
street standards.
This ~Taiver shall be a covenant running with the land and
shall not expire.
I warrant that I am the State's lawful designee and that the
State is lawfully SAized and possessed of the real property
described above and that the State has a lawful right to convey
the property or any part of it.
The terms, covenants and provisions of this Waiver shall
extend to and be binding upon their successors and assigns of the
party hereto.
DATED this 11th
day of
May
, 19 90.
LANDOWNER
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STATE OF MONTANA
Department of Fish, Wildlife and Parks
STA'l'E OF MONTANA
ss.
C t Of .\
oun Y T.('wi <; Rnn rl ;JrK
On the 11th day of May , 19-.19,
before me, a Notary Public for the State of Montana, personally
appeared Errol T. Galt known to me to be
Exhibit B
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FILM 112~,~GE~.047
the Chairman. Fish and Game Commission of the Department of Fish,
Wildlife and Parks, State of Montana, and 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 seal on the day and year first written above.
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Neal S. DeLude
Notary Public, State of Montana
Residing at Clancy, Montana 59634
My Commission expires: October 22, 1991
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Exhibit B
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FILM 112 ~,WE 4048
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
FOR INSTALLATION OF TRAFFIC CONTROL DEVICES
AT THE INTERSECTION OF FOWLER ROAD AND U.S. 191
FISH, WILDLIFE AND PARKS TRACT ANNEXATION
The undersigned, owner of a parcel of real property situated
in the County of Gallatin, State of Montana, and more
particularly described as follows:
The Fish, Wildlife and Parks Tract situated in the SW!
of Section 11, T2S, R5E, P.M.M., Gallatin County,
Montana, and more particularly described as follows:
The tract begins at a point on the south line of the
said S 1/2, SW 1/4, Section 11, which said point is
easterly 33.0 feet from the southwest corner of the
said Section 11; thence from the said point of
beginning northerly 1320.0 feet, more or less, along a
line parallel and 33 feet easterly when measured at
right angles from the west line of the said Section 11,
to a point on the north line of said S 1/2, SW 1/4,
Section 11; thence easterly 710.0 feet along the said
north line of the S 1/2, SW 1/4, Section 11; thence
southerly 1320.0 feet, more or less, along a line
parallel to the said west line of Section 11, to a
point on the said south line of the S 1/2, SW 1/4,
Section 11; thence westerly 710.0 feet along the said
south line of the S 1/2, SW 1/4, Section 11 to the said
point of beginning, which includes 0.49 acres, more or
less, which constitutes part of the acreage in use as a
public highway, gross acreage 21.52 acres, highway
acreage 0.49 acres. And, as depicted on Certificate of
Survey No. 1~53 on file and of record in the office of
Gallatin County Clerk and Recorder.
IN CONSIDERATION of receiving annexation approval along with
the accompanying rights and privileges and for other sufficient
independent consideration, to which the undersigned is a party,
and in recognition of the impact to the intersection of Fowler
Road and U.S. 191 which will be caused by the development of the
above-described property, does hereby for the State of Montana,
and its Department of Fish, Wildlife and Parks, and their
successors and assigns, waive the right to protest the creation
of one or more special improvement districts for installation of
traffic control devices at the intersection of Fowler Road and
U.s. 191 or to make any written protest against the proposed work
or against the extent or creation of the district to be assessed
~n 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 is limited to the State's proportional share of
any assessment for the costs of the administration, engineering,
Exhibit C
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FilM :1.12 P~GE d:049
inspection and installation of the traffic control devices as
said costs may apply to the portion of the land annexed pursuant
to the terms of the annexation agreement and depicted as Tract 1
of certificate of Survey No. /5'"53, on file and of record in the
office of the Gallatin County Clerk and Recorder. This waiver is
further limited as it applies to the remainder tract of land
described in COS No. 1553 annexed under the terms of this
annexation agreement in that any assessment for improvement costs
must bear a reasonable relationship in proportion to the benefit
received by said remainder.
This waiver shall be a covenant running with the land and
shall not expire .
I warrant that I am the State of Montana's designee and
that the State is lawfully seized and possessed of the real
property described above and that the State has a lawful right to
convey the property or any part of it.
The terms, covenants and provisions of this Waiver shall
extend to and be binding upon their successors and assigns.
DATED this
11th
day of /l.fav
, 19.2Q.
LANDOWNER
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STATE OF MONTANA
Department of Fish, Wildlife and Parks
STATE OF MONTANA
S<'
v.
County of Lewis and Clark)
On the 11th day of May , 19...2Q,
before me, a Notary Public for the State of Montana, personally
appeared Errol T. Galt , known to me to be
the Chairman. Fish and Game Commission of the Department of Fish,
wildlife and Parks, State of Montana, and 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 seal on the day and year first written above.
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Neal S. DeT.llnp.
Notary Public, State of Montana
Residing at (1 fJnCy Mont.Am SC)fl14
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My Commlss,lon expl.res: October 22.
1991
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lty 0 Bozeman
$70.00
State oj MOHt., County o) (;u1!Glin, ss Filed lor record SePtember
24th, 19.2Q...nt3: 26P M" and f('corr!ild ill Hoot....112 ~
MI..S..C.IiI..LbNEOUS poqe ill? .:&&/!~lJ. t!~"~:::!__Recorde,.
By
Exhibit C
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