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MONTANA DEPARTMENT OF STATE LANDS
ANNEXA TION AGREEMENT
THIS AGREEMENT is made and entered into this 5th day of
June
2000
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by and between the CITY OF BOZEMAN, a municipal corporation and political subdivision of the
State of Montana, with offices at 411 East Main Street, Bozeman, Montana 59771-0640, hereinafter
referred to as "City", and the State of Montana, Department of Natural Resources and Conservation,
2705 Spurgin Road, Missoula, Montana, 59804, hereinafter referred to as "Landowners".
WITNESSETH:
WHEREAS, Landowriers are owners in fee of a tract of certain real property, hereinafter
referred to as the Montana State Lands Annexation Tract, and more particularly described as follows:
Tract ofland being a portion of unplatted State of Montana Lands situated in the W 1/2 of
Section 36, T.1 S., R.5E., P.M.M., Gallatin County, Montana, and being further described
below:
Beginning at a point being the southwest corner of said Section 36; Thence along said line N
00020'24" E a distance of2652.50 feet to a point on the east-west mid-section line of Section 36;
Thence along said line S 89022'17" E a distance of61.58 feet to a point on the westerly Right-of-
way line of Interstate Highway 90; Thence along said line along a non-tangent curve to the left
with a radial bearing ofN 83024'30" E and having a radius of 4407.50 feet a distance of3122.76
feet to a point on the north Right-of-way line of Baxter Lane; Thence along said line N 8r02'30"
W a distance of 59. 57 feet to a non-tangent curve to the left with a radial bearing ofS 24053'55"
W and having a radius of 877.41 feet a distance of 331. 55 feet, N 86045'37" W a distance of
198.62 feet and S 030 14'23" W a distance of 64.46 feet to a point on the south line of said Section
36; Thence along said line N 8r02'31 " W a distance of 880.30 feet to the Point of Beginning.
Said Tract being 32.894 acres along with and subject to any existing easements.
WHEREAS, the Landowners have petitioned the City for annexation of the contiguous tract; and
WHEREAS, the Montana State Lands Annexation Tract is not within the corporate limits of the
City or other municipality but is contiguous to the City and may therefore be annexed to the City in
accordance with the provisions of this Agreement and M.CA. Title 7, Chapter 2, Part 43.
WHEREAS, all parties recognize that the annexation of the Montana State Lands Annexation
Tract pursuant to Section 7-2-4301, et seq., M.CA., will entitle the said property to City services,
including municipal water and sewer service, upon their availability; and
WHEREAS, M,CA. Section 7-2-4305 provides that a municipality and landowners can agree to
the provision of services to the area to be annexed; and
WHEREAS, the City's present water distribution and sewer collection systems are insufficient to
enable it to supply reasonably adequate water and sewer service to the subject property; and
WHEREAS, the Landowners wish to convey to the City certain water rights or take some
equivalent action to provide water and sewer service to the Montana State Lands Annexation Tract;
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WHEREAS, all parties recognize that the development of the Montana State Lands Annexation
Tract will impact area streets, and may require additional public street improvements for traffic
circulation; and
WHEREAS, the Landowners find that this Agreement will provide for the most satisfactory and
dependable water supply or service available to furnish water and wastewater collection, and provide
traffic circulation for development near and within the Montana State Lands Annexation Tract; and
WHEREAS, the making and performance of this Agreement is desirable to promote the
development of the most adequate water supply, wastewater collection 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
Landowners, 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 Landowners filed an application for annexation ofthe Montana State Lands Annexation Tract
with the City. The City, on August 2, 1999, adopted a Resolution ofIntent to Annex the Montana
State Lands Annexation Tract. By execution of this Agreement, the City has manifested its
intention to annex the Montana State Lands 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 Montana State
Lands Annexation Tract to the City. Further, upon the execution of this Agreement, the
Landowners 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 Montana
State Lands Annexation Tract to the City.
3. Services Provided.
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The City will, upon annexation, make available only existing City services to the extent currently
available, including municipal water service, municipal sewer service, police protection, and fire
protection, to the State Lands Annexation Tract, as provided in this Agreement.
4. Munici(lal 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 oflines or construction of necessary improvements at any
cost to the City for delivery of water to and within the Montana State Lands Annexation Tract.
Nothing in this Agreement shall obligate the City to pay for right-of-way acquisition, engineering,
construction, and/or other costs for the delivery of municipal water service to or within the Montana
State Lands Annexation Tract to include, but not limited to, any impact fees, hook-up, connection, or
development charges which may be established by the City.
5. Municioal 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 oflines or construction of necessary improvements at any
cost to the City for collection of sewage at and within the Montana State Lands Annexation Tract.
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 Montana State
Lands Annexation Tract to include, but not limited to, any impact fees, hookup, 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
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 often (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 Montana State Lands Annexation Tract consists of approximately 32.894 acres. The
Landowners understand and agree that they must provide sufficient water rights. The City
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calculated 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. The amount of
water use per year based upon the zoning designation of the Montana State Lands Annexation
Tract is 86-acre feet. Cash-in-lieu of water rights thereof is equal to $30,877.44.
7. Comprehensive Water and Sewer Desien Report.
Prior to any further development of the property, the Landowners may be required to have
prepared by a Professional Engineer, at Landowners' expense, a comprehensive design report
evaluating existing capacity of sewer and water utilities in the area. The report must include hydraulic
evaluations of each utility for both existing and post-development demands, and the report findings
must demonstrate adequate capacity to serve the full development of the land. If adequate water
and/or sewer capacity is not available for full development, the report must identify necessary water
system and sewer system improvements required for full development. The Landowners agree to
complete at Landowners' expense, the necessary system improvements to serve the full development.
8. Waiver of Right-to-Protest Special Improvement Districts.
Landowners have executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts for improvements, including a) paving, curb/gutter, sidewalk, and storm drainage facilities for
Baxter Lane and Simmental Lane; b) signalization and intersection improvements for the intersection
of Baxter Lane and North 19th Avenue Avenue; and c) a City-wide Parks Maintenance District, which
would provide a mechanism for the fair and equitable assessment of maintenance costs for city parks.
Said Waiver is attached hereto as Exhibit A, and is hereby incorporated in and made a part of this
Agreement.
9. Public Street and Utility Easements.
Landowners understand and agree that utility easements, a minimum of thirty (30) feet in width,
will be necessary for the installation and maintenance of water and sewer utility services to the annexed
parcel. The Landowners shall create any such other 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 the subject property.
10. Stormwater Master Plan.
Landowners understand and agree that a Stormwater Master Plan for the Montana State Lands
Annexation Tract for a system designed to remove solids, oils, grease and other pollutants from the
runoff from the public streets must be provided to and approved by the City Engineer at the time of
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any future development. The master plan must depict the maximum sized retention/detention basin
locations and locate and provide easements for adequate drainage ways within the area to transport
runoff to the Stormwater receiving channel(s). The plan shall include site grading and elevation
information, typical Stormwater detention/retention basin and discharge structure details, basin sizing
calculations, and Stormwater facilities maintenance plan.
11. Future Development.
Landowners understand and agree that all future development on the Montana State Lands
Annexation Tract shall be served by City Water and Sewer as provided for in the City's facility master
planning documents. Landowners understand and agree that municipal services are not currently
available to the area proposed for annexation and that there is no right, either granted or implied by the
City, for the Landowners to develop any of the Montana State Lands Annexation Tract 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 Montana State Lands Annexation Tract.
Upon future development of the Montana State Lands Annexation Tract, the City Water/Sewer
Department will review plans for development of the proposed water infrastructure when they are
provided and make any recommendations required to supply water to any proposed development on
the Montana State Lands Annexation Tract.
Prior to the issuance of building permits for any new construction on the property or on the
property directly north and owned by the same, an approved pressurized water supply (fire hydrants)
meeting the flow requirements of the 1994 UFC Appendix lII-A shall be provided to the subject
property. The water system shall be installed, tested and approved by the city prior to the issuance any
building permits.
12. 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 no existing structures on the property. At the time new structures apply to the City's
Water and Sewer facilities, the Landowners shall pay all Water and Sewer Impact Fees which are
due. The Landowners and their successors shall pay all Fire, Street, Water and Sewer Impact Fees
required by Chapter 3.24, Bozeman Municipal Code, or as amended, at the time of application for
any permit listed in Section 3.24.0S0A, 3.24.060.A, 3.24.070.A, or 3.24.080.A, respectively. If
impact fees imposed pursuant to Chapter 3.24 of the Bozeman Municipal Code are subsequently
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voided or declared invalid by a court of competent jurisdiction, Landowners agree to pay City, at
that time, the amount calculated for all such fees based upon the rates established at the date of this
agreement. Landowners further understand and agree that any improvements, either on- or off-site,
necessary to provide connection of Montana State Lands Annexation Tract to municipal services
which are wholly attributable to the property are "project related improvements" as defined in
Chapter 3.24, Bozeman Municipal Code, or as amended, and as such, are not eligible for impact fee
credits.
If 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 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.
13. Additional Terms of Waivers.
The parties recognize that these documents shall be executed and returned to the Bozeman
Planning and Community Development Department within one (I) year of preliminary approval of
the annexation request by the Bozeman City Commission. The parties also recognize that these
documents shall be filed and recorded with the Gallatin County Clerk and Recorder prior to the sale
or transfer of ownership of any land within the Montana State Lands Annexation Tract. The parties
further agree that the City may file these documents at any time.
14. Governine 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,
In the event it becomes necessary for either party to this Agreement to retain an attorney to
Gallatin County, State of Montana.
15. Attornevs Fees.
enforce any of the terms or conditions of this Agreement, then the prevailing party shall be entitled
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to reasonable attorney's fees and costs, to include the salary and costs of in-house counsel including
City Attorney.
16. 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.
17. Invalid Provision.
The invalidity or inability to enforce 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.
18. Modifications or Alterations.
No modification or amendment of this Agreement shall be valid unless evidenced in writing and
signed by the parties hereto.
19. No Assignment.
It is expressly agreed that the Landowners shall not assign this Agreement in whole or in part
without prior written consent of the City.
20. Successors.
This Agreement shall be binding upon, insure to the benefit of and be enforceable by the parties
hereto and their respective heirs, successors and assigns.
21. 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.
LANDOWNER
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.Jelf iii e . dmini,'i ator
Trust Land Management Division
Department (~fNatural Re.wJUrces and Conservation
State of Montana
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STATE OF MONTANA
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County ofLD.w.A~ Q~ )
II. O~ 1I)e ~ay of Oct, A..c , !'l'l'L JEFF HAGENER, whose identity I verified on the basis of
~ t\.J:.o.-. , personally appeared and subscribed the foregoing document before me,
a Notary Public for the State of'{'<\~ . IN WITNESS WHEREOF, 1 have hereunto set
my hand and affixed my seal the day and year first written above.
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o ry Public for the State of '0\ I
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CITY OF BOZEMAN
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By: Clark Johnson, City Manager
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Clerk of the City Commission
STATE OF MONTANA
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County of Gallatin
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On the J day of ,,,,(()(I() , before me, a Notary Public for the State of
Montana, personally appe CLARK JOHNSON 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 'an~_on behalf of said City.
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'>l,~~stding !it ~'bzeman, Montana
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EXHIBIT A
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
MONTANA STATE LANDS ANNEXATION TRACT
The undersigned owners of the real property situated in the County of Gallatin, State of Montana,
and more particularly described as follows:
Tract of land being a portion of unplatted State of Montana Lands situated in the
SW./4 of Section 36, T.l S., R.5E., P.M.M., Gallatin County, Montana, and being
further described below:
Beginning at a point being the southwest corner of said Section 36; Thence along said line N
00020'24" E a distance of3442.26 feet to a point on the south Right-of-way line ofInterstate
Highway 90; Thence along said line along a curve to the left with a radial bearing of S
85024'17" W and having a radius of 4187.50 feet a distance of 69.18 feet, S 03 039'30" E a
distance of 497.70 feet to a curve to the left with a radius of 4407.50 feet a distance of
3348.41 feet to a point on the north Right-of-way line of Baxter Lane; Thence along said line
N 8r02'30" W a distance of59,57 feet to a non-tangent curve to the left with a radial bearing
of
S 24053'55" W and having a radius of877.41 feet a distance of331.55 feet, N 86045'37" W
a distance of 198.62 feet and S 03014'23" W a distance of64.46 feet to a point on the south
line of said Section 36; Thence along said line N Sr02'31" W a distance of8S0.30 feet to the
Point of Beginning. Said Tract being 33 .415 acres along with and subject to any existing
easements.
IN CONSIDERATION of receiving approval for annexation ofthe 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 traffic, parks, and
the need for municipal water and sewer services that will be a result of the development of the above-
described property, 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 improvement districts for: a) paving,
curb/gutter, sidewalk, and storm drainage facilities for Baxter Lane and Simmental Lane; b)
signalization and intersection improvements for the intersection of Baxter Lane and North 19th Avenue;
and c) a City-wide Parks Maintenance District, which would provide a mechanism for the fair and
equitable assessment of maintenance costs for city parks, or to make any written protest against the size
or area or creation of the district( s) to 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,
In the event Special Improvement Districts are not utilized for the completion of these projects,
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
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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 ~8~ay of O~~j2I\.,
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Jeff Ha en minstra r,
Trust Land Management Division
Department of Natural Resources and Conservation
State of Montana
STATE OF MONTANA )
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County ofGw~ ~ Q~ )
On the ~day of oc/;,1"" , /99 q. , JEFF HAGENER, whose identity I verified
on the basis of rt~A,r,k , personall~d and subscribed the foregoing
document before me, a Notary Public tor the State of \fY\ - . IN WITNES S WHEREOF,
I have hereunto set my hand and affixed my seal the day and year first written above.
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ary Public for the Stat~ of iV\ --,-
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