HomeMy WebLinkAbout01- North 27th Area Tract Annexation Agreement
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ANNEXATION AGREEMENT
THIS AGREEMENT is made and entered into this
9th
day of
Apri 1
, 2001, 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
, ,'o(~r:<~
,'iE;./-C' ".
referred to as "City, /I and RONALD LYLE DAVIS, 15830 SE Coilm: Court,
Clackamas, Oregon 97015, hereinafter referred to as "Landowner./1
WITNESSETH:
WHEREAS, Landowner is the owner ln fee of a tract of certain real
property, hereinafter referred to as the "North 27th Area Annexation-Davis
Propertyll and described as follows:
A tract of land being the easterly 765.00 feet of Tract 1 of
Certificate of Survey No. 2050, located in the Northwest Quarter of
Section 35, Township 1 South, Range 5 East, P.M.M., Gallatin
County, Montana, and being more particularly described as follows;
Beginning at the North Quarter corner of said Section 35; thence
South 00"13'52" West, along the east line of said Tract 1, a
distance of 830.24 feet to the southeast corner of said Tract 1;
thence South 89"44'23" West, along the south line of said Tract 1,
a distance of 765.03 feet; thence North 00"13'52" East, a distance
of 830.43 feet to a point on the north line of said Section 35;
thence North 89'45'14" East, along the said north line, a distance
of 765.03 feet to the point of beginning.
The described tract contains 14.58 acres, more or less.
WHEREAS, the Landowner has petitioned the City for annexation of the
contiguous tract; and
WHEREAS, the North 27th Area Annexation-Davis Property 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.C.A. Title 7, Chapter 2, Part 43;
and
NORTH 27T11 AREA TRACT ANNI<:XATlON ACRI!:I!:MENT-DA VIS PROPERTY
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WHEREAS, all parties recognize that the annexation of the North 27th
Area Annexation-Davis Property of 14.58~ acres more particularly
described as:
A tract of land being the easterly 765.00 feet of Tract 1 of
Certificate of Survey No. 2050, located in the Northwest Quarter of
Section 35, Township 1 South, Range 5 East, P.M.M., Gallatin
County, Montana, and being more particularly described as follows:
Beginning at the North Quarter corner of said Section 35; thence
South 00"13'52" West, along the east line of said Tract 1, a
distance of 83D.24 feet to the southeast corner of said Tract 1;
thence South 89"44'23" West, along the south line of said Tract 1,
a distance of 765.03 feet; thence North 00"13'52'1 East, a distance
of 830.43 feet to a point on the north line of said Section 35;
thence North 89"45'14" East, along the said north line, a distance
of 765.03 feet to the point of beginning.
pursuant to Section 7-2-4301, et seq., M.C.A., will entitle the said
property to City services, including municipal water and sewer service,
upon their availability; and
WHEREAS, M.C.A. Section 7-2-4305 provides that a municipality and
landowner 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 Landowner wishes to convey to the City certain water
rights or take some equivalent action to provide water and sewer service
to the North 27th Area Annexation-Davis Property; and
WHEREAS, all parties recognize that the development of the North 27th
Area Annexation-Davis Property will impact area streets, and may require
additional public street improvements for traffic circulation; and
WHEREAS, the Landowner finds that this Agreement will provide for the
most satisfactory and dependable water supply or service available to
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Shelley Vanoe-Gall.t1n Co MT MISC 108.00
furnish water and wastewater collection, and provide traffic circulation
for development near and within the North 27th Area Annexation-Davis
PropertYi 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 enlargei and
WHEREAS, the securing of an adequate water supply and traffic system
by the City is necessary and of mutual advantage to the parties heretoi
and
WHEREAS, the parties have determined that it is in the best interests
of the City and the Landowner, 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 Landowner filed an application for annexation of the North 27th
Area Annexation-Davis Property with the City.
The City, on September 20,
1999, adopted a Resolution of Intent to Annex the North 27Lh Area
Annexation-Davis Property. By execution of this Agreement, the City has
manifested its intention to annex the North 27Lh Area Annexation-Davis
Property 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
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North 27~ Area Annexation-Davis Property 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 effectuate the annexation
of the North 27th Area Annexation-Davis Property 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 North 27th Area Annexation-Davis Property, 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, 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 North 27th Area Annexation-Davis Property. 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 North 27th Area
Annexation-Davis Property to include, but not limited to, any impact
fees, hook-up, connection, or development charges which may be
established by the City.
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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 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 collection of sewage
at and within the North 27th Area Annexation-Davis Property. 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 North 27th Area Annexation-
Davis Property to include, but not limited to, any impact fees, hookup,
connection, or development charges which may be established by the City.
6. Water Riqhts.
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 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 North 27th Area Annexation-Davis Property consists of approximately
14.58 acres. The Landowner understands and agrees that he lnust provide
sufficient water rights.
Cash-in-lieu of water rights will be calculated
and due at the time of subdivision or development of the property.
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7. Comprehensive Water and Sewer Desiqn Report.
Prior to any further development of the property, the Landowner may be
required 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 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 Landowner agrees to complete at Landowner's expense,
the necessary system improvements to serve the full development.
8. Waiver of Riqht-to-Protest Special Improvement Districts.
Landowner has executed a waiver of Right-to-Protest Creation of
Special Improvement Districts for improvements, including; 1) A City-wide
Park Maintenance District, which would provide a mechanism for the fair
and equitable assessment of maintenance costs for City Parks; 2) Street
improvements, including paving, curb/gutter, sidewalk, and storm drainage
facilities, and any associated traffic signals for the following streets;
a) Davis Lane; b) North 27th Avenue; c) Deadmans Gulch Road; and d)
Hulbert Road; 3) Water main improvements for trunk water lines including
the following;
Davis Lane; and 4) Trunk sewer main improvements to serve
the property as outlined in the Wastewater Facility Plan.
Said waiver is
attached hereto as Exhibit C, and is hereby incorporated in and made a
part of this Agreement.
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9. Public Street and Utility Easements.
Landowner understands and agrees 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 Landowner shall provide public street and utility easements for the
adjacent collector and arterial streets as follows: a) a 30' easement
shall be granted for Hulbert Road; and b) a 65' easement shall be granted
for North 27th Avenue. The Landowner 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.
Landowner understands and agrees that a Stormwater Master Plan for the
North 27ch Area Annexation-Davis Property 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 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.
Landowner understands and agrees that all future development on the
North 27th Area Annexation-Davis Property shall be served by City Water
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and Sewer as provided for in the City's facility master planning
documents. Landowner understands and agrees 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
Landowner to develop any of the North 27th Area Annexation-Davis Property
until it is verified by the City that necessary municipal services are
available to all or a portion of the North 27th Area Annexation-Davis
Property.
upon future development of the North 27th Area Annexation-Davis
Property, 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 North 27th Area Annexation-Davis Property.
Prior to the issuance of building permits for any new construction on
the property, an approved pressurized water supply (fire hydrants)
meeting the flow requirements of the 1994 UFC Appendix III-A shall be
provided to the subject property.
The water system shall be installed,
tested and approved by the city prior to the lssuance any building
permits.
12. Impact Fees.
The Landowner hereby acknowledges that annexation and development of
his property will impact the City's existing street, water and sewer
infrastructure, and fire service requirements.
At the time new
structures apply to the City's Water and Sewer facilities, the Landowner
shall pay all Water and Sewer Impact Fees which are due.
The Landowner
and his successors shall pay all Fire, Street, Water and Sewer Impact
Fees required by chapter 3.24, Bozeman Municipal Code, or as amended, at
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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 of competent
jurisdiction, Landowner agrees to pay the City fees or assessments
established by the City for impact on City services in accordance with a
new or revised Chapter of the Bozeman Municipal Code lawfully enacted as
a result of such court decision after the date of the court decision.
If, prior to enactment of such revised Chapter, the Landowner applies for
any permit which actuates or would have actuated impact fees pursuant to
the current Chapter 3.24 of the Bozeman Municipal Code, the Landowner
further agrees to pay at that time, the amount calculated for all such
fees based upon the rates established at the date of this agreement.
If the Court above declares Chapter 3.24 of the Bozeman Municipal Code
invalid, and if landowner would have been entitled to a refund under the
court's decision but were it not for the sole fact of the 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, returned to
the landowner. All accumulated interest on the sum held in escrow shall
be released 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 North 27th Area
Annexation-Davis Property to municipal services which are wholly
NORTH 27TH AREA TRACT ANNEXATION AGREEMENT -DAVIS PROPERTY
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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.
The City has indicated its desire for Landowner to complete water main
and sewer main improvements which are not wholly attributable to the
property, and Landowner has indicated his willingness to make such
improvements.
Landowner may obtain credit against that portion of
development impact fees due or to become due for any improvements not
wholly attributable to the property by having its offer accepted by the
City to construct non-site-related improvements, in accordance with
Chapter 3.24, Bozeman Municipal Code, or as amended,
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 Landowner of such default, City
may at its 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 Landowner 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
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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 lilniting 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 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 North 27th Area Annexation-
Davis Property.
The parties further agree that the City may file these
documents at any time.
14. Governinq 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, Gallatin
County, State of Montana.
15. Attorneys 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.
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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.
019. No Assiqrument.
It lS expressly agreed that the Landowner 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.
NORTH 27TH AREA TRACT ANNEXATION AGREEMENT-DAVIS PROPERTY
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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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Clark Johnson, City
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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 9 day of , 2001, before me, a Notary Public
for the State of Montana personally appeared 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 and on behalf of said City.
IN WITNESS WHEREOF, I have hereunto s
the day and year first written above.
and affixed my seal on
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On this 2i!- day of JAIv'(/,f(LS/ , 2001, before me personally
appeared RONALD LYLE DAVIS, wtlose identity was proved to me on
NORTH 27TlI AREA TRACT ANNEXATION AGREEMENT-DAVIS PROPERTY 13
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the basis of satisfactory evidence to be the person whose name lS
subscribed to this instrument, and acknowledged that he executed
the same.
_OFFICIAL SEAL
. ROSE PANZA
' \,./ NOTARY PUBLIC-OREGON
. , COMMISSION NO. 340173
MY COMMISSION EXPfRES NOV. 7, 2004
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Notary Public f,gr t,he State of Oregon
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M ,1 Commission Expires: j j- ? - ') eM""
( SEAL)
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EXHIBIT A
North 27th Area Annexation, Davis Property
Description:
A tract of land being the easterly 765.00 feet of Tract 1 of Certificate of Survey No. 2050, located
in the Northwest Quarter of Section 35, Township 1 South, Range 5 East, P.M.M., Gallatin
County, Montana, and being more particularly described as follows:
Beginning at the North Quarter corner of said Section 35; thence South 00013'52" West, along the
east line of said Tract 1, a distance of 830.24 feet to the southeast corner of said Tract 1; thence
South 89044'23" West, along the south line of said Tract 1, a distance of765.03 feet; thence North
00013'52" East, a distance of 830.43 feet to a point on the north line of said Section 35; thence
North 89045'14" East, along the said north line, a distance of 765.03 feet to the point of beginning.
The described tract contains 14.58 acres, more or less.
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EXHIBIT B
NORTH 27TH AREA ANNEXATION
DAVIS PROPERTY
A TRACT OF LAND BEING THE EASTERLY 765.00' OF TRACT 1 OF C,O.S. NO, 2050,
LOCATED IN THE NORTHWEST QUARTER OF SECTION 35.
TOWNSHIP 1 SOUTH. RANGE 5 EAST. P.M.M.. GALLATIN COUNTY. MONTANA
ANNEXATION TRACT AREA: 14.58 ACRES
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EXHIBIT C
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
NORTH 27TH AREA ANNEXATION-DAVIS PROPERTY
The undersigned owners of the real property situated in the County of
Gallatin, State of Montana, and more particularly described as follows;
A tract of land being the easterly 765.00 feet of Tract 1 of
Certificate of Survey No. 2050, located in the Northwest Quarter of
Section 35, Township 1 South, Range 5 East, P.M.M., Gallatin
County, Montana, and being more particularly described as follows;
Beginning at the North Quarter corner of said Section 35; thence
South 00"13'52" West, along the east line of said Tract I, a
distance of 830.24 feet to the southeast corner of said Tract 1;
thence South 89"44'23" West, along the south line of said Tract I,
a distance of 765.03 feet; thence North 00"13'52" East, a distance
of 830.43 feet to a point on the north line of said Section 35;
thence North 89"45'14" East, along the said north line, a distance
of 765.03 feet to the point of beginning.
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 on traffic, 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:
1) A City-wide Park Maintenance District, which would
provide a mechanism for the fair and equitable assessment of maintenance
costs for City Parks; 2) Street improvements, including paving,
curb/gutter, sidewalk, and storm drainage facilities, and any associated
traffic signals for the following streets: a) Davis Lane; b) North 27th
Avenue; c) Deadmans Gulch Road; and d) Hulbert Road; 3) Water main
improvements for trunk water lines including the following: Davis Lane;
and 4) Trunk sewer main improvements to serve the property as outlined in
.' (
.. "
the Wastewater Facility Plan, or to make any written protest against the
slze 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.
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 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
day of
, 2001.
-, ~ ~
/ ,,/ ' ,) ''', ,/\
!3!- fT-t- "J._.~W _) (LVI)}-
RONA D LYLE DA IS
STATE
OF
OREGON)
County of ~J~)
ss.
On this ~ day of JIf/'VUA-fLY ,2001, before me personally appeared
RONALD DAVIS, whose identity was proved to me on the basis of
satisfactory evidence to be the person whose nalne is subscribed to this
instrument, and acknowledged that he eX~S::.l.)ted the same.
,'/-) /1 /
/(tuvt-- !t/{'N~)
Notary Public for25the State of Oregon
(SEAL) Residing at ("gf1L.L/UJ.../X-1AH , Oregon
My Commission Expires; 11-)- ,}Ot.~ if
(8 OFFICIAL SEAL
. ROSE PANZA
\. ) , NOTARY PUBLIC-OREGON
.... .... COMMISSION NO. 340173
MY COMMISSION EXPIRES NDV. 7, 2004
1111111111111111111111 ~~i~~~~~p
Shelley Vanoe-Gallatin Co MT MISC 108.00