HomeMy WebLinkAbout05- North Forty Annexation Agreement
1
North Forty Annexation Agreement
and
supply reasonably adequate water and sewer service to additional customers outside the present city boundaries;
WHEREAS, the City's present water supply and sewer collection system is insufficient to enable it to
provisions of services to the area to be annexed; and
WHEREAS, M,C.A, Section 7-2-4305 provides that a municipality and landowner can agree to the
and sewer service, upon their availability; and
to Section 7-2-4305, et seq" M,C.A. will entitle the said property to City services, including municipal water
WHEREAS, all palties recognize that the annexation of the NORTH FORTY ANNEXATION pursuant
Agreement and M,C.A, Title 7, Chapter 2, Part 43.
other municipality and may therefore be annexed to the City in accordance with the provisions of this
WHEREAS, the NORTH FORTY ANNEXATION is not within the corporate limits of the City or
WHEREAS, the Landowner has petitioned the City for annexation of said tract of land; and
Beginning at the Northwest corner of said Section 10; thence East along the East-West Section Line, a
distance of 45,00 feet, to the true point of beginning; thence East, along the East-West Section Line, a
distance of 600,00 feet; thence South 01006'05" West, a distance of 408,00 feet; thence West, a distance
of 600 feet; thence North 01006'05 East, a distance of 408,00 feet, to the true point of beginning. Said
Tract ofland being 5.6188 acres more or less along with and subject to any and all existing easements.
A tract of land being Certificate of Survey No, 985 located in the Northwest One-Quarter of Section 10,
Township 2 South, Range 5 East, Principal Meridian Montana, Gallatin County State of Montana and
being more particularly described as follows,
as follows:
NORTH FORTY ANNEXATION tract situated in Gallatin County, Montana, and more particularly described
WHEREAS, Landowner is owner in fee of a tract of certain real property, hereinafter referred to as the
SHEA HOMES, INC., P,O, Box 10337, Bozeman, Montana 59719, hereinafter referred to as "Landowner",
with offices at 411 East Main Street, Bozeman, Montana 59771-0640, hereinafter referred to as "City", and
between the CITY OF BOZEMAN, a municipal corporation and political subdivision of the State of Montana
, 2005, by and
THIS AGREEMENT made and entered into this L.\ ~\... day of 'Sd.."'.....Hl
NORTH FORTY ANNEXATION
ANNEXA TION AGREEMENT
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WHEREAS, all parties recognize that the development of the NORTH FORTY ANNEXA TlON 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 equivalent
action to provide water and sewer service to the NORTH FORTY ANNEXATION; 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 water and wastewater collection, and
provide traffic circulation for development near and within the NORTH FORTY ANNEXATION; 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, wastewater collection, and traffic systems by
the City is necessary and of mutual advantage to the parties hereto.
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.
WITNES ET H:
IN CONSIDERATION of the mutual covenants and agreements herein contained, the parties hereto
agree as follows:
1. Recitals
The above recitals are true and conect.
2. Annexation
The Landowner filed an application for annexation of the NORTH FORTY ANNEXATION with the
City on April 10, 2003, The City, on June 16,2003, adopted a Resolution of Intent to Annex the NORTH
FORTY ANNEXA TlON. By execution of this Agreement, the City has manifested its intention to annex
the NORTH FORTY ANNEXATION tract pursuant to the terms and conditions of this Agreement. Subject
North Forty Annexation Agreement
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Shelley Vanoe-Gallatin Co ~T ~ISC 90,00
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 NORTH FORTY 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
canying out the terms, conditions and provisions of this Agreement and effectuate the annexation of the
NORTIl FORTY ANNEXATION tract to the City,
3. Services Provided
The City will, upon annexation, make available only existing City servIces to the extent cunently
available, including municipal water service, municipal sewer service, police protection, and fire protection, to
the NORTH FORTY ANNEXATION, 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 FORTY ANEXATION. 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
NORTH FORTY ANNEXATION to include, but not limited to, any impact fees, hook-up, connection, or
development charges which have been or may be establjshed 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 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 FORTY ANNEXA TlON. 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
North Forty Annexation Agreement
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Shelley Vanoe-Gallatin Co ~T ~ISC 90,00
or within the NORTH FORTY ANNEXA TJON to include, hut 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 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 schedule:
NORTH FORTY ANNEXATION, consisting of a total of 5,6188'1; acres, prior to annexation
of said lands to the corporate limits o.fthe City of Bozeman,
The Landowner shall provide sufficient water rights or cash-in-lieu as calculated by the City in
accordance with its policy at the time of calculation, The Landowner 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 made,
7, Comprehensive Water and Water Desi2n Report
Prior to future 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 infrastructure capacity is not available for full development, 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.
North Forty Annexation Agrccment
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8.
Future Development Limitations
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Shelley Vanoe-Gallatln Co ~T ~ISC 90,00
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 required to provide full municipal
services to the property in accordance with the City's Infrastructure Master Plans and all cily policies and
guidelines that may oe 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 NORTH FORTY
ANNEXATION until it is verified by the 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 NORTH FORTY
ANNEXATION.
9. Stormwater Master Plan
Landowner understands and agrees that a Stonnwater Master Plan for the NORTH FORTY
ANNEXAT10N for a system designed to remove solids, oils, grease, and other pollutants from the runoff from
lhe 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
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 Ril!ht-to-Protest Special Improvement Districts
Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement Districls for
maintenance of any parks within the annexed area and/or of a City-wide Park Maintenance Districl, and Waivers
of Right-to-Protesl 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.
North Forty Annexation Agreement
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Shelley Vanoe-Gallatin Co ~T MISC 90,00
Landowner has further executed a Waiver of Right-to-Protest Creation of Special Improvement Districts
for improvements, including: I) paving, curb and gutter, sidewalk, stonnwater drainage improvements, and any
associated traffic signals for Durston Road and Cottonwood Road, 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.LD. 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 determined by square footage of property, taxable valuation of the
property, traffic contribution from the development or a combination thereof.
12. 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 annexed parcel.
The Landowner shall create such easements in locations 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(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. 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 sha1l 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 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 lawfu1ly 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 pennie which
North Forty Annexation Agreement
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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 unti I 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 and/or Landowner/Developer. All accumulated interest on the
sum held in escrow shall be released to the City or Landowner on the same percentage as tbe 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 arc
"project related improvements" as defined in Chapter 3,24, Bozeman Municipal Code, or as amended, and as
such. arc not eligible for impact fee credits,
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 tbe 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 couri 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,
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14,
Progressive Urban Design
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Shelley Vanoe-Gallatln Co ~T ~ISC 90,00
The Landowner understands that with annexation or 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 concem for implementation of progressive urban design guidel i nes outl ined 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 the future developer shall implement a Master Plan of the 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 Waiyers
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 NORTH FORTY ANNEXATION. The parties further agree
that the City may file these documents at any time.
16. 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,
17. 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,
18, 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 or 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,
North Forty Annexation Agreement
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Invalid Provision
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Shelley VanQe-Gallatln Co ~T ~ISC 90,00
The invalidity or unenforceability of any provision of this agreement shall not affect the other
provisions hereof, and this Agreement shall be construcd 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 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.
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 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 and Landowner/Developer affirms that they have authority to enter into
this Agreement on behalf of their 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,
NOI.th Forty Annexation Agreement
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Shelley Vanoe-Gallatin Co MT ~ISC 90,00
LANDOWNER
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ST ATE OF MONTANA
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COUNTY OF GALLA TIN )
On this c....\ day of ,2005, before me, a Notary Public for the State of
Montana, personally appeared Jere Shea, represen ing Shea Homes, Inc" known to me to be the person that
executed the foregoing Annexation Agreement, and acknowledged to me that he/she 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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North Forty Annexation Agreement
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CITY OF BOZEMAN
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By: CHRIS A. KUKULSKI, City Manager
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Clerk of thc City Commission
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STATE OF MONT ANA )
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COUNTY OF GALLA TIN )
On this 2h~ay of YVLcZ-<tfI' ._._._..,__...,2005, before me, a Notary Public for thc statc of
Montana, personally appeared Chris K ulskt and Rob1l1 Sulhvan, known to me to the persons descrIbed In and
who exccuted the foregoing instrument as City Manager and Clerk of the City Commission rcspectively, of thc
City of Bozeman, whose names are subscribed to the within instrument and acknowledged to me that they
executed thc 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 ycar first
above written.
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North Forty Annexation Agreement
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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 or Montana, and
more particularly described as follows:
A tract of land be Certificate of Survey No, 985 located in the Northwest One-Quarter of Section 10,
Township 2 South, Range 5 East. Principal Meridian Montana, Gallatin County State of Montana and
being more particularly described as follows.
Beginning at the Northwest comer of said Section 10; thence East along the East-West Section Line. a
distance or 45,00 feet, to the true point or beginning; thence East, along the East-West Section Line, a
distance of 600.00 feet; thence South 01006'05" West, a distance of 408.00 feet; thence West, a distance
of 600 feet; thence North 01006'05 East. a distance of 408.00 feet, to the true point of beginning. Said
Tract of land being 5.6188 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 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 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 or intention to create one or more special improvement districts which would include the
above-described property,
This waiver shall he 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,
DATED this _'1_ day of ~........~r,
,2005,
North Forty A nncxatiOI1 Agreement
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LANDOWNER
By: ~ REMY SHEA, Representing
S ,A HOMES, INC.
STATE OF MONTANA )
:ss
COUNTY OF GALLA TIN )
On this 4ilJ day of '--::Jc(/H,A,..,L.(l.i~' 2005, before me, a Notary Public for the State of
Montana, personally appeared Jerer>>{ Shea, representi'hg Shea Homes. Inc., known to me to be the person that
executed the foregoing Annexation Agreement, and acknowledged to me that he/she 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)
(Q~~t;!net:fs!l1/; L. S (' /~ 1-7
Notary PubllcJor the State of Montana
Residing at>:,{.(i-~l L{1...../yLj -' . ,
My Commission Expires: / ~/ I 2.> /c70{; 7
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EXHIBIT "B"
WAIVER OF RIGHT TO PROTEST
CREA TION OF SPECIAL IMPROVEMENT DISTRICTS
FOR DlJRSTON ROAD AND COTTONWOOD ROAD 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 being Certificate of Survey No, 985 located in the Northwest One-Quarter of Section 10,
Township 2 South, Range 5 East, Principal Meridian Montana, Gallatin County State of Montana and
being more particularly described as follows,
Beginning at the Northwest corner of said Section 10; thence East along the East-West Section Line, a
distance of 45,00 feet, to the true point of beginning; thence East, along the East-West Section Line, a
distance of 600,00 feet; thence South 01006'05" West, a distance of 408,00 feet; thence West, a distance
of 600 feet; thence North 01006'05 East, a distance of 408,00 feet, to the true point of beginning, Said
Tract of land being 5,6188 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 the accompanying rights and privileges and for other valuable consideration, the receipt of
which is hereby acknowledged, have waived and do hereby for itself, it's successors 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 traffic signalization
improvements for Durston Road and Cottonwood Road, or to make any written protest against the 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 of the parties hereto,
DATED this ____'1__ day of ')(<''''....''''7
,2005,
North Forty Annexation Agreement
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Shelley Vanoe-Callatln Co ~T ~ISC 90.00
LANDOWNER
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Bp'JEREMY SHEA, Representing
SfIEA HOMES, INC.
ST ATE OF MONT ANA )
:ss
COUNTY OF GALLATIN
4/) '1
On this l-J~' day of /;l, .J(AA.-ei /l-y. ,2005, before me, a Notary Puhlic for the State of
Montana, personally appeared Jer~:rrIY Shea, reprcs'enting Shea Homes, Inc., known to me to be the person that
executed the foregoing Annexation Agreement. and acknowledged to me that he/she 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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My Commission Expires: / I /13/2 I)D?
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North Forty Annexation Agreement
15