HomeMy WebLinkAbout11- Brander Annexation AgreementCity of Bozeman-City Clerk
P.O. Box 1230
Bozeman, MT 59771-1230
BRANDNER
ANNEXATION AGREEMENT
THIS AGREEMENT made and entered into this La__ day of :)5,� VII) 201 by and
between the CITY OF BOZEMAN, a municipal corporation and self-governing political subdivision of the State
of Montana with offices at 121 N. Rouse Avenue, Bozeman, Montana 59771-0640, hereinafter referred to as
"City", and Jeffery Brandner, 1118 Bridger Drive, Bozeman, Montana 59715, hereinafter referred to as
"Landowner".
WITNESSETH:
WHEREAS, Landowner is owner in fee of a tract of certain real property, hereinafter referred to as the
BRANDNER ANNEXATION situated in Gallatin County, Montana, and more particularly described as
follows:
Tract 1, COS No. 2760, SW/4, SW'./ of Section 32, TIS, R6E, PMM, Gallatin County,
Montana, Said Tract of land being 0,37± acres more or less along with and subject to any and all
existing casements.
WHEREAS, the Landowner petitioned the City for annexation to the City of said tract of land; and
WHEREAS, the BRANDNER ANNEXATION is not within the corporate limits of the City or other
municipality and may therefore be annexed to the City in accordance with the provisions of this Agreement and
Title 7, Chapter 2, Part 46, MCA; and
WHEREAS, all parties recognize the annexation of the BRANDNER ANNEXATION pursuant to
Section 7-2-4601, et seq., MCA will allow the BRANDNER ANNEXATION to connect to and - utilize City
services, including municipal water and sewer service, fire service, and the City's street system; and
WHEREAS, Section 7 MCA provides that a municipality and landowner can agree to the
provisions of services to the area to be annexed; and
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Brandner Annexation Agreement 1
WHEREAS, the parties recognize additional development on the BRANDNER ANNEXATION will
impact area streets and fire services, and that future improvements may require additional public street
improvements for traffic circulation and the provisions of fire services; and
WHEREAS, the Landowner wishes to convey to the City certain water rights or take some equivalent
action to provide water and sewer service to the BRANDNER ANNEXATION; and
WHEREAS, the Landowner finds this Agreement will provide for the most satisfactory and dependable
water supply and sewer supply or service, and provide traffic circulation and fire service for development of the
BRANDNER ANNEXATION; and
WHEREAS, the parties have determined that it is in the best interests of the City and Landowner, and
in furtherance of the public health, safety and welfare of the community to enter into and implement this
Agreement,
WITNESETH:
IN CONSIDERATION of the mutual covenants and agreements herein contained, the parties hereto
agree as follows:
1. Recitals
The above recitals are true and correct,
2. Annexation
The Landowner filed an application for annexation of the BRANDNER ANNEXATION with the City
on May 15, 2010, By execution of this Agreement, the City manifests its intent to annex the BRANDNER
ANNEXATION tract pursuant to the terms and conditions of this Agreement. Subject to the provisions of Title
7, Chapter 2, Part 46, MCA the City shall, upon execution of this Agreement, adopt a Resolution of Annexation
of the BRANDNER ANNEXATION. Further, upon the execution of this Agreement, the Landowner shall do
all things required by this Agreement and all things necessary and proper to aid and assist the City in carrying
out the terms, conditions and provisions of this Agreement and to effect the annexation of the BRANDNER
ANNEXATION.
Brandner Annexation Agreement 2
3. Services Provided
The City will, upon annexation, make available to the BRANDNER ANNEXATION existing City
services only to the extent currently available, or as provided in this Agreement.
4. Municipal Water Service Defined
The term "municipal water service" as is used in this agreement shall be the service which is supplied by
the City in accordance with Chapter 13.12, Bozeman Municipal Code, as amended, as well as any other terms
and conditions which apply to the City's provision of municipal water service but does not include the extension
of lines or construction of necessary improvements at any cost to the City for delivery of water to and within the
BRANDNER ANNEXATION. Nothing in this Agreement shall obligate the City to pay for right -of -way
acquisition, engineering, construction, and other costs for the delivery of water to or within the BRANDNER
ANNEXATION to include, but not limited to, any impact fees, hook -up, connection, or development charges
which have been or 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 amended, as well as any other
terms and conditions which apply to the City's provision of this service but does not include the extension of
lines or construction of necessary improvements at any cost to the City for collection of sewage at and within
the BRANDNER ANNEXATION. Nothing in this Agreement shall obligate the City to pay for right -of -way
acquisition, engineering, construction, and other costs for the collection of sewage services to or within the
BRANDNER ANNEXATION 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 Landowner shall pay cash in -lieu of water rights prior to annexation In accordance with 18.42.180
Bozeman Municipal Code. Pursuant to 18.42,180.E the calculated average annual volume of water necessary to
provide water to this annexation tract on the basis of the zoning designation at annexation is 0.38 acre feet /year.
Calculated based on a price of $6,000.00 per acre -foot as established by .Bozeman City Commission Resolution
No. 4095 the cash in lieu payment required at the time of annexation for the BRANDNER ANNEXATION is
Brandner Annexation Agreement 3
two thousand two hundred eighty dollars and zero cents ($2,280.00), The Landowner agrees to pay this amount
as cash in lieu of the water rights upon annexation of the BRANDNER ANNEXATION. The City
acknowledges receipt of said cash in lieu.
7. Comprehensive Water and Water ]Deli p_ n Report
Prior to future development of the property, beyond the construction of a single family residence, the
City may require the Landowner to have prepared by a Professional Engineer, at Landowner's 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
infrastructure capacity is not available for the proposed development, the report must identify necessary water or
wastewater system improvements necessary for the proposed development. If improvements to this water or
wastewater system are necessary, the Landowner agrees prior to development of the Brandner Annexation to
complete, at Landowner's expense, the necessary system improvements to serve the proposed development.
8. Future Development Limitations
Landowner understands and agrees that substantial capacity limitations exist in the wastewater
collection system for this property, which will need to be addressed in conjunction with future development of
the parcel. The Landowner will be responsible for installing all facilities required to provide full municipal
services to the property in accordance with the City's Infrastructure Master Plans and all city regulations,
policies and guidelines that may be in effect at the time of any future development. Thus, Landowner
understands and agrees that there is no right, either granted or implied, for the Landowner to further develop any
of the BRANDNER ANNEXATION beyond that of a single family residence until it is verified by the City that
the necessary municipal services, including but not limited to police and fire protection, streets, and sewer and
water capacity, are available to all or a portion of the BRANDNER ANNEXATION. Notice is thus provided
to the Landowner that prior to additional development of the property, beyond the construction of a
single family residence, the Landowner will be solely responsible for installing, at Landowner's sole
expense, any facilities or infrastructure required to provide full municipal services to the BRANDNER
Brandner Annexation Agreement 4
ANNEXATION in accordance with the City's infrastructure plans, adopted Growth
Policies/Community Plans, and all other city regulations, policies and guidelines that may be in effect
at the time of development.
9. Stormwater Master Plan
Landowner understands and agrees a Stormwater Master Plan for the BRANDNER ANNEXATION for
a system designed to remove solids, oils, grease, and other pollutants from the runoff from the public streets
may be required to be provided to and approved by the City Engineer at the time of any future development
beyond that of a single family dwelling. Such plan, if required, must depict the maximum sized
retention/detention basin location 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 maintenance plan.
10. Waiver of Right-to-Protest Special Improvement Districts
A. Landowner has executed a Waiver of Right -to- Protest Creation of Special Improvement
Districts (SID) for the maintenance of any parks within the annexed area and/or of a City-wide Park
Maintenance District. The Landowner agrees such SID will provide a mechanism for the fair and equitable
assessment of maintenance costs for such parks. The waiver is attached hereto as Exhibit "A" and is hereby
incorporated in and made a part of this Agreement.
B. Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts for street improvements including paving, curb and gutter, sidewalk and stormwater drainage facilities
for: 1) Bridger Drive; 2) Story Mill Road; and 3) signalization improvements for the intersection of Bridger
Drive and Story Mill Road. The Landowner agrees such an SID will provide a mechanism for the fair and
equitable assessment of construction and maintenance costs for such improvements. The waiver is attached
hereto as Exhibit "B" and is hereby incorporated in and made a part of this Agreement,
C. Landowner agrees that in the event an SID is not utilized for the completion of these
improvements as described in subsections A and B above, the Landowner agrees to participate in an alternative
Brandner Annexation Agreement 5
financing method for the completion of said improvements on a fair share, proportionate basis as determined by
square footage of property, taxable valuation of the property, traffic contribution from the development or a
combination thereof.
11. Utility Easements
The Landowner understands and agrees that utility easements, a minimum of thirty (30) feet in width,
may be necessary for the installation and maintenance of water and sewer utility services to the Brandner
Arinexation parcel. The Landowner, at its sole expense, shall create such easements in locations and form
agreeable to the City during the appropriate development procedures, but in no event later than the filing of any
final plat or site plan review or issuance of a building permit on the parcel.
12. Impact Fees
Landowner acknowledges that annexation and development of their property will impact the City's
existing street, water and sewer infrastructure, and the city's fire service.
At the time the Landowner applies for a permit to connect any existing, modified, or new structure to
the city's municipal sewer service or municipal water service, the Landowner shall pay all water and sewer
impact fees in accordance with and as calculated by chapter 124 of the Bozeman Municipal Code, as amended.
At the time the Landowner applies for any of the forms of development listed in chapter 3.24 of the Bozeman
Municipal Code, as amended, the Landowner shall pay such fire and street impact fees in accordance with and
as calculated by chapter 3.24 of the Bozeman Municipal Code, as amended.
The amount of impact fee to be paid for connection to the city's water and sewer services, if any, shall
be calculated based on the provisions of the Bozeman Municipal Code, as amended, in effect at the time of
application for a permit to connect. The amount of street or fire impact fees to be paid, if any, shall be
calculated based on the provisions of the Bozeman Municipal Code, as amended, in effect at the time an
application for development approval is deemed sufficient for review.
Landowner further understands and agrees that any improvements, either on-site or off-site, necessary to
provide connection of the BRANDNER ANNEXATION municipal services and which are wholly attributable
to the property as determined exclusively by the city are considered "project related improvements" as defined
in chapter 3,24, Bozeman Municipal Code, as amended, and as such, are not eligible for impact fee credits.
Brandner Annexation Agreement 6
If Landowner defaults 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 the Landowner and
Landowner/Developer 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.
13. Additional Terms
The parties recognize these documents shall be filed and of record with the Gallatin County Clerk and
Recorder prior to the sale of any land with the BRANDNER ANNEXATION, The parties further agree that the
City may file these documents at any time.
14. Governing Law and Venue
This agreement shall be construed under and governed by the laws of the state of Montana. In the event
of litigation, venue is in the Eighteenth Judicial District Court, in and for County of Gallatin, State of Montana.
15. Attorney's Fees
In the event it becomes necessary for either party to this Agreement to retain an attorney to enforce any
of the terms or conditions of this Agreement, then the prevailing party shall be entitled to reasonable attorney "s
fees and costs, to include the salary and costs of in -house counsel including City Attorney,
17. Waiver
No waiver by either party of any breach of any terra, 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.
18. 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.
Brandner Annexation Agreement 7
1.9. Modifications or Alterations
No modifications or amendment of this Agreement shall be valid unless evidenced by a writing signed
by the parties hereto.
20. No Assignment
It is expressly agreed that the Landowner and/or Landowner /Developer shall not assign this Agreement
in whole or in part without prior written consent of the City.
21. Successors
This Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto
and their respective heirs, successors and assigns and specifically to any subsequent purchaser of the annexed
property.:
22. Covenants to Run with the Land
The parties intend that the terms of this Agreement shall benefit the BRANDNER ANNEXATION and
shall be covenants running with the land and shall not expire at their deaths or upon transfer of ownership of the
property.
The undersigned Landowner affirms that they have authority to enter into this Agreement and to bind .
themselves to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and
year first above written.
LANDOWNER
Y: Jeffery Brandner
STATE OF MONTANA
COUNTY OF GALLATIN
:ss
Brandner Annexation Agreement
On this ' day of J ?_ , 2011, before me, a Notary Public for the State of
Montana, personally appeared Jeffery Brandner, known to me to be the person that executed the foregoing
Annexation Agreement, and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set tray hand and affixed my official seal the day and year first
above written.
(SEAL)
s cy`' Thomas Chapman (Printed Name Here)
�� = Notary public Notary Public for the State of Montana
OTAq,gj s for the State of Montana
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Ap si 28, 24715
Brandner Annexation Agreement 9
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By. Claris A. ukulski, City Manager
On this day of 0 , 2011, before me, a Notary Public for the state of
Montana, personally appeared Chris Ku lski and Stacy Ulman, known to me to the persons described in and
who executed the foregoing instrument as City Manager and Clerk of the City Commission respectively, of the
City of Bozeman, whose names are subscribed to the within instrument and acknowledged to me that they
executed the same for and on behalf of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official sea] the day and year first
above written.
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Brandner Annexation Agreement 10
EXHIBIT "A"
WAIVER OF RIGHT-TO-PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICT
FOR A CITY-WIDE PARK MAINTENANCE DISTRICT
BRANDNER ANNEXATION
The undersigned owner of the real property situated in the County of Gallatin, State of Montana, and
more particularly described as follows:
Tract 1, COS No. 2760, SW/4, S W'/ of Section 32, T1S, R6E, PMM, Gallatin County,
Montana. Said Tract of land being 0.37=L acres more or less along with and subject to any and all
existing easements.
IN CONSIDERATION of receiving approval for annexation of the subject property from the City of
Bozeman, along with accompanying rights and privileges and for other and valuable consideration, the receipt
of which is hereby acknowledged, and in recognition of the impact to City parks which will be caused by the
development of the above-described property, the Landowner has waived and does hereby waive for itself, its
successors and assigns forever the right to protest the creation of one or more special improvement districts for
maintenance of any parks within the annexed area and/or of a City-wide Park 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 be assessed in response to a duly
passed resolution of intention to create one or more special improvement districts which would include the
above-described property.
This waiver is made for the benefit of the property described above and shall be a covenant running with
the land.
The terms, covenants and provisions of this waiver shall extend to, and be binding upon the successors-
in-interest and assigns of the Landowner.
DATED this / 3 day of "
�J L4 N 2011.
Brandner Annexation Agreement
I lBel MZ
STATE OF MONTANA )
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COUNTY OF GALLATIN )
er' randner
On this / day of 2011, before me, a Notary Public for the State of
Montana, personally appeared Jeffery Brandner, known to me to be the person that executed the foregoing
Annexation Agreement, and acknowledged to nee 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.
(
�s cr��A.,, Thomas Chapman
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NotaN Public
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for the State of Montana
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Residing at:
Belgrade, Montana
My Commission Expires:
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April 28, 2015
(Printed Name Here) f
Notary Public for the State of Montana
Residing; at Ff-;?�r
My Commission Expires: x -�
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Brandner Annexation Agreement 12
EXHIBIT "B"
WAIVER OF RIGHT TO PROTEST
CREATION OF ,SPECIAL, IMPROVEMENT DISTRICTS
BRANDNER ANNEXATION
The undersigned owner of the real property situated in the County of Gallatin, State of
Montana, and more particularly described as follows:
Tract 1, COS No. 2760, SWI /, SW/4 of Section 32, T1S, RhE, PMTMrI, Gallatin County,
Montana, Said Tract of land being 0.37± acres more or less along with and subject to any
and all existing easements.
IN CONSIDERATION of receiving approval for annexation of the subject property from the
City of Bozeman, along with accompanying rights and privileges and for other and valuable
consideration, the receipt of which is hereby acknowledged, and in recognition of the impacts to
Bridger Drive and Story Mill Road, which will be caused by the development of the above -
described property, the owner has waived and does hereby waive for itself, its successors and assigns
forever the right to protest the creation of one or more special improvement districts for the
construction and maintenance of following improvements: paving, curb /gutter, sidewalk, storm
drainage facilities for Bridger Drive and Story Mill Road, and signalization improvements at the
intersection of Bridger Drive and Story Mill Road, or to make any written protest against the size or
area or creation of the district be assessed in response to a duly passed resolution of intention to create
one or more special improvement districts which would include the above- described property.
In the event an SID is not utilized for the completion of these improvements, the developer
agrees to participate in an alternate financing method for the completion of said improvements on a fair
share, proportionate basis as determined by square footage of property, taxable valuation of the
property, traffic contribution from the development or a combination thereof.
This waiver is made for the benefit of the property described herein shall be a covenant running
with the land.
Brandner Annexation Agreement 13
The terms, covenants and provisions of this waiver shall extend to, and be binding upon the
successors -in- interest and assigns of the Landowner.
DATED this / day of ,lV" - 1 2011,
STATE OF MONTANA }
:ss
COUNTY OF GALLATIN )
On this day of _
y .:r2e. , 2011, before me, a Notary Public for the
State of Montana, personally appeared Jeffery Brandner, known to me to be the person that executed
the foregoing Annexation Agreement, 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.
(SEAL)
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State ct Jlontan
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for the
Notary Public for the State of Montana
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Brandner Annexation Agreement 14
LANDOWNER