HomeMy WebLinkAbout03- Lessley Annexation Agreement
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LESSLEY ANNEXATION
ANNEXA TION AGREEMENT
THIS AGREEMENT made and entered into this / J day of 5Y./e~ , 2003, by and
between the CITY OF BOZEMAN, a municipal corporation and political subdivision of the State of Montana
with offices at 41 I East Main Strect, Bozeman, Montana 5977 I -0640, hereinaftcr rcferrcd to as "City", and
DAVID M. MCDONALD AND CHERYL MACDONALD, 804 North 19th Avcnuc, Bozcman, Montana
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59718, hereinafter refcrrcd to as "Landowner".
WHEREAS, Landowner is owner in fee of a tract of certain real property, hereinafter referred to as the
LESSLE Y ANNEXA TION tract situated in Gallatin County, Montana, and more particularly described as
follows:
A tract of land being Tract 1 A and 2A, Certificate of Survey No. 1855A, as recorded with the Gallatin
County Clerk and Recorder, located in the northeast one-quarter of Section 11, Township 2 South,
Range 5 East, Principal Meridian Montana, Gallatin County State of Montana and being more
particularly described as follows.
Beginning at the NE corner of said Tract 2A, thence along said Tracts 2A and I A through the following
courses: S OOb II' 03" W, a distance 000.18 feet; S OOb 06' 20" W, a distance onO.18 feet; S OOb 06'
20" W, a distance of 24.25 fcet; S OOb 12' 31" W, a distance of 667.74 feet; S OOb 06' 12" W, a distancc
of 625.87 feet; S OOb 04' 57" E, a distancc of 41.79 feet; S 88b 14' 47" W, a distance of 329.36 feet; N
OOb 25' 42" W, a distance of45.02 feet; N OOb DO' 43" W, a distance of409.01 feet; N OOb 01' 21" W, a
distance of213.04 feet; N OOb 05'28" W, a distance of375.63 feet; N OOb 06' 58" E, a distance of56.65
feet; N OOb 13' 02" E, a distance of 55.45 feet; N OOb 22' 07" W, a distance of 54.84 feet; N OOb 04' 40"
W, a distanee of 61.00 feet; N OOb 06' 28" E, a distance of63.56 feet; N OOb OS' 51" E, a distance of
29.91 feet; N OOb 05' 51" E, a distance of 30.18 feet; N 83b 52' 57" E, a distance of 335.82 feet to the
point of bcginning. Said Tract of land being 10.70 acrcs more or less along with and subject to any and
all existing easements.
WHEREAS, the Landowner has petitioned the City for annexation of said tract of land; and
WHERI~:AS, the LESSLEY ANNEXATION is not within the corporate limits of the City or other
municipality and may therefore be annexed to thc City in accordance with the provisions of this Agreement and
M.C.A. Title 7, Chapter 2, Part 46.
WHEREAS, all parties recognize that the annexation of the LESSLEY ANNEXA TION pursuant to
Section 7-2-4601, et seq., M.C.A. will entitlc the said property to City services, including municipal water and
sewer service, upon their availability; and 1111111111111111111111111111111111111111111111111111111 ~~t~~~l:t~A
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Shelley Vanoe-Gallatin Co MT MISC 90.00
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WHEREAS, M.C.A. Section 7-2-4610 provides that a municipality and landowner can agree to the
provisions of scrviccs to thc area to be annexed; and
WHEREAS, the City's present water supply and sewer collection system is insufficient to enable it to
supply reasonably adequate water and sewer service to additional customers outside the prcsent city boundaries;
and
WHEREAS, all parties recognize that the development of the LESSLEY ANNEXATION will impact
area streets, and that future improvements may require additional public street improvements for traffic
circulation; and
WHEREAS, the Landowner wishes to convey to the City certain water rights or take some cquivalent
action to provide water and sewer service to the LESSLEY ANNEXA TION; and
WHEREAS, the Landowner finds that this Agreement will provide for the most satisfactory and
dependable water supply and sewer supply or service available to furnish watcr and wastewater collection, and
provide traffic circulation for development ncar and within the LESSLEY ANNEXA TTON; 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 watcr supply, wastewater eollcction, and traffic systcms by
the City is necessary and of mutual advantagc to the parties hcreto.
WHEREAS, the parties have determined that it is in the best interests of the City and Landowncr, and
in furtherance of the public health, safety and welfare of the community to enter into and implement this
Agreement.
WIT N ESE T H:
IN CONSIDERA nON of the mutual covenants and agreements herein contained, the parties hereto
agree as follows:
1. Recitals
Thc above recitals are true and correct.
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2. Annexation 1111111111111111111111111111111111111111111111111111111 ~~t~~?:t~R
Shelley Vanoe-Gallatin Co MT MISC 90.00
The Landowner filed an application for anncxation of the LESSLEY ANNEXATION with the City on
March 21, 2002. Thc City, on May 28, 2002, adopted a Resolution of Intent to Annex the LESSLEY
ANNEXA TION. By execution of this Agrcement, the City has manifested its intention to annex the
LESSLEY ANNEXA TION tract pursuant to the terms and conditions of this Agreement. Subject to the
provisions of Title 7, Chapter 2, Part 46, the City shall, upon execution of this Agrcement, adopt a
Resolution of Annexation of the LESSLEY ANNEXATION to the City. Further, upon the execution of this
Agreement, the Landowner 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 etlectuate the annexation of the LESSLEY
ANNEXATION tract to the City.
3. Services Provided
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 LESSLEY ANNEXA TION, as provided in this Agreemcnt.
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, 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 of lines or construction of necessary improvements at any cost to the City for delivery of water to
and within the LESSLEY ANEXATION. Nothing in this Agreement shall obligate thc City to pay for right-of-
way acquisition, engineering, construction, and other costs for the delivery of water to or within the LESSLEY
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, or as may be amcnded, as wcll as any
Lessley Annexation Agreement 3
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Shelley Vanoe-Gallatin Co MT MISC 90.00
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 at any cost to the City for collection of sewage
at and within the LESSLEY 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 LESSLEY ANNEXATION to include, but not limited to, any impact fees, hookup, connection, or
development charges which may be establishcd by the City.
6. Water Riehts
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 licu thereot~ equal to the anticipated averagc 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 of ten (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 Landowner understands and agrees that they must provide sufficient water rights in accordance
with the City's policy according to the following schedulc:
LESSLEY ANNEXATION, consisting of a total of 9.91~ acres exclusive of public right-of-
way amI/or public access easements for West Babcock Street and West Beal Street, prior to
final site plan approval, or jiling of any jinalsubtlivision plat, whichever occurs first that will
create atltlitionalsubtlivision lots anti/or development proposals.
Should the Landowner create additional subdivision lots with further subdivision of said property, or
should the Landowner develop said property under the provisions of the City of Bozeman Zoning Ordinance,
the Landowner shall provide sufficient water rights or cash-in-Iieu as calculated by the City in accordance with
its policy at the time of calculation. The Landowner and further understands that the City will calculate 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 for the property at the time such calculation is madc.
7. Comprehensive Water and Water Desien Report
Prior to future development of the property, the Landowner may be required to have prepared by a
Professional Engineer, at Landowner's expensc, a comprehensive design report evaluating existing capacity of
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sewer and water utilities in the area. Thc 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 full developmcnt, the
report must identify necessary system improvements required for full development. The Landowner agrees to
complete at Landowner's expense, the necessary system improvements to serve the full development.
8. Future Development Limitations
Landowner understands and agrees that substantial limitations for growth exist in the wastewater
collection system for this property, which will need to be addressed in conjunction with development of the
parcel. The future developer will be responsible for installing any facilities requircd to providc full municipal
services to the property in accordance with the City's Infrastructure Master Plans and all city policies and
guidelines that may be in effect at the time of development. Thus, Landowner understands and agrees that there
is no right, either granted or implied by the City, for the Landowner to develop any of the LESSLEY
ANNEXATION until it is verified by thc City that necessary municipal services, including but not limited to
police and fire protection, and sewer and water capacity, are available to all or a portion of the LESSLEY
ANNEXA TION.
9. Stormwater Master Plan
Landowner understands and agrees that a Storm water Master Plan for the LESSLEY ANNEXA TION
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.
The master 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 storm water 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 stonnwater maintenance plan.
10. Waiver of Rh!ht-to-Protest Special Improvement Districts
Landowner has executcd a Waiver of Right-to-Protest Creation of Special Improvement Districts tor
maintenance of any parks within the annexed area and/or of a City-wide Park Maintenance District, and Waivers
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of Right-to-Protest Creation of Special Improvement Districts, which would provide a mechanism for the fair
and equitable assessment of maintenance costs for such parks, is attached hereto as Exhibit "A"", and is hereby
incorporated in and made a part of this Agreement.
Landowner has further executed a Waiver of Right-to-Protest Creation of Special Improvement Districts
for improvements, including: I) paving, curb and gutter, sidewalk, storm water drainage improvements, and any
associated traffic signals for West Babcock Street, is attached hereto as Exhibit "B", and is hereby incorporated
in and made a part of this Agreement.
Landowner agrees that in the event an S.I.D. is not utilized for the completion of these improvements,
the developer agrees to participate in an alternative financing method for the completion of said improvements
on a fair share, proportionate basis as dctermined by square footage of property, taxable valuation of the
property, traffic contribution from the development or a combination thereof.
12. Utilitv 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 annexed parcel.
The Landowner shall create such easemcnts in locations agreeable to the City during the appropriatc
development procedures, but in no event later than the fi] ing of any final plat or site plan review or issuance of a
building permit on the parcel(s).
13. Impact Fees
Landowner and Landowner/Developer 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 is one (I) existing structure 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 Landowner
and Landowner/Developer 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 3.24.050A, 3.24,060A, 3.24.070A, or 3.24.080A, respectively. If the impact fees currently imposed
pursuant to Chapter 3.24 of the Bozeman Municipal Code are subsequently voided or declared invalid by a court
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Shelley Vanoe-Gallatln Co MT MIse 90.00
of competent jurisdiction, Landowner agrees to pay the City fecs or assessments established by the City for
impact on City serviccs in accordance with a new or revised Chaptcr of the Bozeman Municipal Code lawfully
enactcd as a result of such court decision aftcr the date of the court decision. It~ prior to enactment of such
revised Chaptcr, the Landowner, applies for any permit, which actuates or would have actuated impact fees
pursuant to the currcnt Chapter 3.24 of thc Bozeman Municipal Code, the Landowner further agrees to pay at
that time, the amount calculated for all such fecs based upon the rates established at the date ofthis agrcement.
If the Court above declares Chapter 3.24 of the Bozeman Municipal Code invalid, and if Landowner
would have been entitled to a refund undcr the court's decision but wcre it not for the sole fact ofthc Landowner
paying impact fees because of this agreement, then all such impact fees paid prior to the court's decision shall be
held in escrow until a revised Chapter of the Code is enacted after the Court's decision.
At the time the revised code is enacted, then all such fees held in escrow shall be released to the city and
the balance, if any, retumed to the Landowncr and/or Landowner/Developer. All accumulated interest on the
sum held in escrow shall be relcased to the City or Landowner on the same percentage as the money released to
either party bears to the total sum held in escrow.
Landowner further understands and agrees that any improvements, either on- or off-site, necessary to
provide connection of Annexation Tracts to municipal services which are wholly attributable to the property are
"project related improvemcnts" as defined in Chapter 3.24, Bozeman Municipal Code, or as amended, and as
such, are not cligible for impact fec credits.
If Landowner defaults on this condition at thc time such is to be performed, and should default not be
remedied or corrected with i n 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 immcdiately due and payable and City shall
have the right and privilege to take legal action against Landowners for thc collection of
such sum, including thc cntry 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 Statc of Montana.
C) Any waiver by City of any default shall not be construed as a waiver of any subscquent
default.
D) It is agreed that it shall bc no defense to the enforcement of this provision by City that
impact fees imposed pursuant to Chapter 3.24 of the Bozeman Munieipal Code are
subsequently voided or declared invalid by a court of competent jurisdiction. It is the
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express intention of the parties not to be bound by such a declaratIOn or Judgment ana,
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.
14. Proj!rcssive Urban Desi!!n
The Landowner understands that with annexation of said property it is the intent of the Landowner and
City that future development will comply with the goals and policies of the Bozeman 2020 Community Plan.
Having recognized the City's concern for implementation of progressive urban design guidelines outlined in the
Bozeman 2020 Community Plan for both community and neighborhood design, the Landowner understands and
agrees that with submittal of a preliminary plat application or site plan review application for all or any portion
of the property, and/or prior to executing the Annexation Agreement, the future developcr shall implement a
Master Plan ofthe land use patterns and types for development of the property that addresses compatibility with,
and sensitive to, the immediate environment of the site and the adjacent neighborhoods relative to architectural
design, building mass and height, neighborhood identity, landscaping, historical character, orientation of
buildings, and visual integration.
15. Additional Terms of Waivers
The parties recognize that these documents shall be filed and of record with the Gallatin County Clerk
and Recorder prior to the sale of any land with the LESSLEY ANNEXA TION. The pm1ies further agree that
the City may file these documents at any time.
16. Governinj! 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.
n. 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.
Lessley Annexation Agreement 8
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18. Waiver Shelley Vanoe-Gallatln Co MT MISC 90.00
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 ofthis same or any other term, covenant or agreement. No covenant, term or
agreement shall be deemed waived by either party unless waived in writing.
19. Invalid Provision
The invalidity or unenforceability of any provision of this agreement shall not affect the other
provisions hereot~ and this Agreement shall be construed in all respects as if such invalid or unenforceable
provision were omitted.
20. Modifications or Alterations
No modifications or amendment of this Agreement shall be valid unless evidenced by a writing signed
by the parties hereto.
21. No Assienment
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 ofthe City.
22. 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.
23. Covenants to Run with the Land
The parties intend that the terms of this Agreement shalf be covenants running with the land and shall
not expire at their deaths or upon transfer of ownership of the property.
The undersigned Landowner and LandownerlDeveloper affirms that they have authority to enter into
this Agreement on behalf oftheir corporation, and to bind the corporation to this Agreement
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and
year first above written,
Lessley Annexation Agreement 9
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Shelley Vanoe-Gallatin Co MT MISC 90.00
LANDOWNER
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STArE OF MONT ANA )
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COUNTY OF GALLATIN )
On this l6+h day of , 2003, before me, a Notary Public for the State of
Montana, personally appeared David M. MacDonald and Cheryl A. MacDonald, known to me to be the persons
that cxecuted the foregoing Annexation Agreement, and acknowledged to me that they 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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Lessley Annexation Agreement 10
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CITY OF BOZEMAN
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00 thi, Il-""day of J C0vUi~ _, 20<i'J~ befmc me, a Notary Publictocthe ,tate of
Montana, personally appeared Clark V. Johnson a d Robm Sulhvan, known to me to the persons described 111
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 seal the day and year first
above written.
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Lessley Annexation Agreement 11
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EXHIBIT "A"
WAIVER OF RIGHT-TO-PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICT
FOR A CITY-WIDE PARK MAINTENANCE DISTRICT
The undersigned owner of the real property situated in the County of Gallatin, State of Montana, and
more particularly described as follows:
A tract of land being Tract I A and 2A, Certificate of Survey No. 1855A, as recorded with the Gallatin
County Clerk and Recorder, located in the northeast one-quarter of Section II, Township 2 South,
Range 5 East, Principal Meridian Montana, Gallatin County, Montana, being 10.70* acres along with
and subject to any and all existing easements.
IN CONSIDERATION of reeeiving 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 owner has waived and do hereby waive for itself, its
successors and assigns, the right to protest the creation of one or more special improvement districts for
maintenance of any park.\' within the annexed area and/or (~l 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 shall be a covenant running with the land and shall not expire with the dissolution of the
corporation, 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.
DA TED this I r day of ~ p Ie IW-~ L"'- . _,2003.
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Lessley Annexation Agreement 12
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By: DAVID M. MACDONALD
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By: CHERYL A. MACDONALD
STATE OF MONTANA )
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COUNTY OF GALLATIN )
On this --l6 ~ day of ,2003, before me, a Notary Public for the State of
Montana, personally appeared DavId M. MacDonald and Cheryl A. MacDonald, known to me to be the persons
that executed the foregoing Annexation Agreement, and acknowledged to me that they executcd 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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EXHIBIT ""B"
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
FOR WEST BABCOCK STREET IMPROVEMENTS
The undersigned owner of real property situated in the County of Gallatin, State of Montana, and more
particularly described as follows:
A tract of land bcing Tract 1 A and 2A, Certificate of Survey No. 1855A, as recorded with the Gallatin
County Clerk and Recordcr, located in the northeast one-quarter of Section 11, Township 2 South,
Range 5 East, Principal Meridian Montana, Gallatin County, Montana, being 10.70+ acres 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 the accompanying rights and privilegcs and for other valuable consideration, the receipt of
which is hereby acknowledged, have waived and do hereby for itself, it's suecessors and assigns, waive the right
to protest the creation of one or more special improvement districts for improvements, including: 1) paving,
curb and gutter, sidewalk, storm water drainage improvements, and any associated tra./Jic signalization
improvements for West Babcock Street., or to make any written protest against thc size or area or creation of
the district 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. This waiver shall be a covenant
running with the land and shall not expire upon the dissolution of the company provided however this waiver
shall apply only to the lands herein described.
The terms, covenants and provisions of the Waiver shall extend to, and be binding upon the successors
and assigns ofthe parties hereto.
DATED this -.LL day of "_. ~ep~.~~. ,2003.
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By:
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By: CHERYL A. MACDONALD
STATE OF MONTANA )
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COUNTY OF GALLATIN ) ~
On this ~ day of __ ,2003, before me, a Notary Public for the State of
Montana, personally appeared [)av d M. acDonald and Cheryl A. MacDonald, known to me to be the persons
that executed the foregoing Annexation Agreement, and acknowledged to me that they 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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~; {S EAL i ~ Not~r!, Public for the State of Montana
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Shelley Vanoe-Gallatln Co MT MISC 90.00
Lessley Annexation Agreement 15