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HomeMy WebLinkAbout03- Smith Annexation Agreement ... . .)]1 / l~~!~!lll~~~j~!~!I'J~~1 !11~j] IIIIII~!I"I ~t~:~~~.: .. I i ANNEXATION AGREEMENT t' TIIIS AGREEMENT is made and entered into this 14th day of July ,~byand between the CITY OF BOZEMAN, a municipal corporation and political subdivision ofthe State of Montana, with offices at 411 East Main Street, Bozeman, Montana 59771~OG40, hereinafter referred to as "City", and Doug Smith, 4521 Durston Road, Bozeman, MT 59718, hereinafter referred to as "Landowner" . WITNESSETH: WHEREAS, the Landowner is owner in fee of a tract of certain real property, hereinafter referred to as the Smith Annexation Tract, and more particularly described as follows: A tract ofland situated in the SEl/4SEl/4SWl/4 and the SW1/4SWl/4SEl/4 Section 3, T2S, R5E, P.M.M., City of Bozeman, Gallatin County, Montana, and being further described as follows: Beginning at the 1/4 corner common to Sections 3 and lOin said Township and Range, said point being on the centerline of the Durston Road right-of~way; thence along the section line between said Sections 3 and 10 and said centerline N8905<)'30"W a distance of 664.23 feet; thence along the east line of Lot 1 of Minor Subdivision No. 253 N00050'29"E a distance 01'670.07 feet to the northeast comer of said Lot 1; thence across an unplatted tract of h.md S89059'30"E a distance of 1320.84 feet and SOo058'57"W a distance of 669.96 feet to a point on the section line between said Sections 3 and 1 0, said point also being on the centerl i ne of said Durston Road right-or-way; thence along said section line and said centerline S89059'47"W a distance of 654.96 feet to the Point of Beginning. Said tract being 20.302 acres. WHEREAS, the Landowner has petitioned the City for annexation of the contiguous tract; and WHEREAS, the Smith Annexation Tract is not within the corporate limits of the City or other municipality hut 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. WHEREAS, all parties recognize that the annexation of the Smith Annexation Tract pursuant to Section 7-2-4301, et seq., M.C.A., will entitle the said property to City services, ineluding municipal watcr and sewer service, upon their availability; and WHEREAS, M.C.A. Section 7-2-4305 provides that a municipality and a 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 cquivalent action to provide water and sewer service to the Smith Annexation Tract; and WHEREAS, all parties recognize that the development ofthe Smith Annexation Tract will impact area streets, that dcvelopment may not be advised or approved until improvements to Durston Road arc SMITH ANNEXATION AGREEMENT 111111111111111111111111111111111111111111111111111111I ~:n~8~t: SMelley Vanae-Gallatin Ca MT MISC 72.00 completed, and that additional PUl1IIC street Improvements tortrattlc circulation maybe required prim-to development on the Smith Annexation Tract; and WHEREAS, the Landowner has been duly advised that a payback district and/or SID has been approved for the streets, water mains and sewer mains installed as part ofthe Valley West Annexation which will impact the Smith Annexation Tract, and that payback and/or SID areas exist which will require the Landowners financial participation in said improvements; and WHEREAS, the Landowner finds that this Agreement will provide for the most satisfactory and dependable water supply or service available to furnish water and wastewater collection, and provide traffic circulation for development near and within the Smith Annexation Tract; and WHEREAS, the making and performance of this Agreement is desirable to promote the development of the most adequate water supply, wastewater collection and traffic circulation pattern for the City as it now exists and as it is reasonably expected to enlarge; and WHEREAS, the securing of an adequate water supply and traffic system by the City is necessary and of mutual advantage to the parties hereto; and WHEREAS, the parties have determined that it IS 111 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 ofthe 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 ofthe Smith Annexation Tract with the City and other adjacent property. The City, on May 1,2000, adopted a Resolution of Intent to Annex the Smith Annexation Tract and other adjacent property. By execution ofthis Agreement, the City has manifested its intention to annex the Smith Annexation Tract pursuant to the terms and conditions of this Agreement. Subject to the provisions of Title 7, Chapter 2, Part 43, the City shall, upon execution of this Agreement, adopt a Resolution of Annexation of the Smith Annexation Tract 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 ofthis Agreement and effectuate the annexation of the Smith Annexation Tract to the City. SMITH ANNEXATION AGREEMENT 2 r' SMITH ANNEXATION AGREEMENT 3 3, Services Provided. 1111111111111111111111111111111111111111111111111111111 ~~t~~~r:~, ~R Sh.ll.y Vano.-Gallatln Co MT MISC 72.00 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 Smith/Christ the King Lutheran Church Annexation Tract, as provided in this Agreement. Prior to development, the Landowners 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 City policies and guidelines that may be in effect at the time of development. Upon availability of service as defined by City code, any existing dwelling shall connect to City water and sewer services. 4, Municipal Water Service Defined. The tenu "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 ofthis service. The term docs not contemplate the extension oflines or construction of necessary improvements at any cost to the City for delivery of water to and within the Smith Annexation Tract. Nothing in this Agreement shall obligate the City to pay for right-of-way acquisition, engineering, construction, and/or other costs for the delivery of municipal water service to or within the Smith Annexation Tract to include, but not limited to, any impact fees, hook-up, connection, or development charges which may be established by the City. 5, 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 tenus and conditions which apply to the City's provision of this service. The ternl does not contemplate the extension oflines or construction of necessary improvements at any cost to the City for collection of sewage at and within the Smith Annexation Tract. Nothing in this Agreement shall obligate the City to pay for right-oC-way acquisition, engineering, construction, and other costs for the collection of sewage services to or within the Smith Almexation Tract to include, but not limited to, any impact fees, hookup, connection, or development charges which may be established by the City. 6. Water Ril!hts. The partics acknowledge the following City policy: Prior to annexation of property, it shall be the policy ofthe City of Bozeman to acquire 111111111111111111111111111111111111111111111111111111I ~:t~;.~r: f.~, Shelley Vanoe-Gallatln Co MT MISC 72.00 usable water rights, or an appropriate fee in lieu thereof, equal to the anticipated average annual consumption of water by residents and/or users ofthe property when fully developed. The [ee may be used to acquire water rights or for improvements to the water system which would create additional water supply capacity. Except, however, that for any annexation in excess often (10) acres, this policy shall be carried out prior to final plat approval of each development phase. Section 2, No.5, Commission Resolution 3137, Adopted August I '), 1')')6 SMITH ANNEXATION AGREEMENT 4 The Smith Annexation Tract consists of approximately 20.302 acres. The Landowner understands and agrees that it must provide sufficient water rights or cash-in-lieu of water rights, which will be detemlined by the City based on the calculated average annual diversion requirement necessary to provide water to this annexation tract specific to the zoning designation and/or City- approved development. Water rights, or eash-in-lieu o[water rights thereol: will be required prior to final subdivision approval or final site plan approval [or any development, whichever comes first. 7, Comprehensive Water and Sewer Desi2n Report. Prior to any further development o[ the property, the Landowners may be required to have prepared by a Professional Engineer, at the Landowners' expense, a comprehensive design report evaluating existing capacity of sewer and water utilities in the area. The report must include hydraulic evaluations of each utility for both existing and post-development demands, and the report findings must demonstrate adequate capacity to serve the [ull development of the land. If adequate water and/or sewer capacity is not available for full development, the repOli must identify necessary water system and sewer system improvements required for full development. The Landowners agree to complete at the Landowners' expense, the necessary system improvements to serve the full development. 8, Waiver of Ri2ht-to-Protest Special Improvement Districts, The Landowners have executed a Waiver of Right-to-Protest Creation of Special Improvement Districts for: a) street improvements, including paving, curb/gutter, sidewalk, stoml drainage [aeilities, and any associated traffic signals for Durston Road, Oak Street, Flanders Mill Road and Ferguson Avenue; and b) a City-wide Parks Maintenance District. Said Waivers are attached hereto as Exhibits A and B, are hereby incorporated in and made a pali of this Agreement. 9, Public Street and Utilitv Easements. The Landowners understand and agree that utility easements, a minimum of thirty (30) feet in width, are necessary for the installation and maintenance of water and sewer utility services to the annexed parcel. The Landowner, Doug Smith, has provided an casement acceptable to the City for the 18" and 21 " Valley West Annexation sewer that crosses through the adjacent property also owned by the Landowner. The Landowners have provided and granted public street and utility easements for the adjacent collector and arterial streets as follows: a) A 45' casement (the north Yz ofthe full 90' width) lor SMITH ANNEXATION AGREEMENT 5 111111111111111111111111111111111111111111111111111111I ~:t~~~rJ~, Shelley Vance-Gallatin Cc MT MISC 72.00 Durston Road, along the south boundary of the Smith Almexation Tract; b) A 100' easement (the full width) for Ferguson Road, from Durston to the northern boundary of the annexed property. The Landowners shall create any such other easements in locations agreeable to the City during the appropriate development procedure, but in no event later than the filing of any final plat or site plan or issuance of a building pelmit on the subject property. 10, Stormwater Master Plan. The Landowners understand and agree that a Stonnwater Master Plan for the Smith Annexation Tract for a system designed to remove solids, oils, grease and other pollutants from the runofffrolll 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 Stonnwater 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 Stoffi1water facilities maintenance plan. 11. Future Development, The Landowners understand and agree that all future development on the Smith Annexation Tract shall be served by City Water and Sewer as provided for in the City's facility master planning documents. The Landowner understands and agrees that municipal services arc not currently available to the area proposed for annexation and that there is no right, either granted or implied by the City, for the Landowners to develop any of the Smith Annexation Tract until it is verified by the City that necessary municipal services, including but not limited to police and fire protection, are available to all or a portion of the Smith Annexation Tract. Upon future development of the Smith Annexation Tract, the City Water/Sewer Department will review plans for development o[the proposed water infrastructure when they are provided and make any recommendations required to supply water to any proposed development on the Smith Annexation Tract. Prior to the issuance of buildi ng perm its 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 issuance any building permits. 12. Impact Fees. The Landowners hereby acknowledge that annexation and development oftheir property will 111111111111111111111111111111111111111111111111111111I ~~ ~:~r: f.:: Sh.ll.y Vano.-Gallatln Co MT MISC 72.00 impact the City's existing street, water and sewer mhastructure, and fire service requirements. There are no existing structures on the property. At the time new structures apply to the City's Water and Sewer facilities, the Landowners shall pay all Water and Sewer Impact Fees which are due. The Landowners and their successors shall pay all Fire, Street, Water and Sewer Impact Fees required by chapter 3.24, Bozeman Municipal Code, or as amended, at the time of application for any permit listed in Section 3.24.050A, 3.24.060A, 3.24.070A, or 3.24.080A, respectively. If the impact fees currently imposed pursuant to Chapter 3.24 ofthe Bozeman Municipal Code are subsequently voided or declared invalid by a court of competent jurisdiction, Landowners agree 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 SMITH ANNEXATION AGREEMENT (, decision after the date of the COllli 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 ofthis 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." Landowners further understand and agree that any improvements, either on- or off-site, necessary to provide connection of Smith Annexation Tracts to municipal services which are wholly attributable to the property are "project related improvements" as defined in Chapter 3.24, Bozeman Municipal Code, or as amended, and as such, are not eligible for impact fee credits. TCLandowners default on this condition at the time such is to be performed, and should default not be remedied or corrected within thirty (30) days after written notice by City to Landowners of such default, City may at their option: A) Declare the amounts owing for impact fees immediately due and payablc and SMITH ANNEXATION M;REEMENT 7 111111111111111111111111111111111111111111111111111111I ~~t~~~r~l~R Shelley Vance-Gallatin Co MT MISC 72.00 City shall have the right and pnvllege 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 ofthe State of Montana. C) Any waiver by City of any default shall not be construed as a waiver of any subsequent default. D) It is agreed that it shall be no defense to the enforcement of this provision by City that impact fees imposed pursuant to Chapter 3.24 of the Bozeman Municipal Code are subsequently voided or declared invalid by a court of competent jurisdiction. It is the express intention ofthe parties not to be bound by such a declaration or judgment and, therefore, notwithstanding any judgment either limiting impact fee payments under annexation agreements to specified amounts, or prohibiting any such payment, landowner will pay such amount as specified above. 13. Paybacks Landowners shall provide the necessary paybacks for the Valley West street improvements at the time of annexation. The amount of street payback for the property owned by Doug Smith has been calculated as the sum of $58,876.61. Landowners shall further provide the necessary paybacks for the Valley West water and sewer mains at the time of Final Site Plan approval or Final Plat approval, whichever comes first. The payback amount will be calculated at the time of Final Site Plan or Final Plat approval. 14. Additional Terms of Waivers, The parties recognize that these documents shall be executed and returned to the Bozeman Planning and Community Development. 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 Smith Annexation Tract. The parties further agree that the City may file these documents at any time. 15, Governin{! Law and Venue. This Agreement shall be construed under and governed by the laws of the state of Montana. In the event oflitigation concerning this Agreement, venue is in the Eighteenth Judicial District Court, SMITH ANNEXATION A(lREEMENT x 16, Attornevs Fees. 111111111111111111111111111111111111111111111111111111I g~:~r: f,~, Gallatin County, State of Montana. Shelley Vance-Gallat1n Cc MT MISC 72.00 In the event it becomes necessary for either party to this Agreement to retain an attorney to enforce any oCthc terms or conditions of this Agrccmcnt, 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 ternl, covenant or agreement shall be deemed a waiver of the same or any subsequent breach of this same or any other ternl, covenant or agreement. No covenant, tenn or agreement shall be deemed waived by either party unless waived in writing. 18. I nvalid 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. 19. Modifications or Alterations. No modillcation or amendment of this Agreement shall be valid unless evidenced in writing and signed by the parties hereto. 20. No Assi2nment. It is expressly agreed that the Landowners 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, insure to the benefit of and be enforceable by the parties hereto and their respective heirs, successors and assigns. 22, Covenants to Run with the Land, The parties intend that the tenns of this Agreement shall be covenants running with the land and shall not expire at their deaths or upon transfer of ownership of the property. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. STATE OF MONTANA ) :ss County or Gallatin ) . On this 2 J S"- day of, R-bruo..e1..-\ ' 2002, Doug Smith, whose identity Iveriiied Ol~ the basIs of (TIT .sta.~ tx\~<u L\.Q..r'-~e... , personally appeared before me, a Notary PublIc for the State of Montana, and subscribed before me the within instrument. IN WITNESS WHEREOF, I have hereunto set my hqIlq fir? set my seal the day and year first b .. ", III a ovewntten. ,\\~\p...M."" 1/ "O~"'" 'J~ 1'.". ...... ~J~ . .~.. ,. 'Vii .,,,!::~ _....M..:'"M~h :: Q.:~O'lAR/~i'.'1> :. otary Public for the State of Montana . - Residingat~..._6f"r1-Lkn.r"\ Co. j,*:. SEAL.:*= My CommissionExpires: ~\ ';),,~ lZ,bbS -:.. d};.. .' ~ ~ "', -1h..' . . .~'f <' // ;C:-OFtIP~ \,' Iltllll\\\ CITY OF BOZEMAN =- ~ 1. By: Clark Johnson, City Manager ?;l~~ Clerk of the City Commission On the(LjI::h. day of VU ~ ,.(W?before me, a Notary Public for the State of Montana, personally appeared CL JOIINSON 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 set my hand and affixed my seal on the day and year first written above. {}1{:O/2 #l t?( tLJuJ Notary Public for the State of Montana Residing at Bozeman, Mo~ana My Commission ExpiresU b - (JLj 2. ()() 5 N/{j)/~ 11. Hahev \\111/1/1 " , " \.:e. M. A.t 1/ .....'(;0 ,..., "'IA./,.. '" . " -r ,..., .... .... " , ~-- ~ <:: ~OTAAI..q{',.";p ~ ~*:',SEAL ,:*~ -- ~ ' , '~";(:' .:: "',.. ""1;;' , , . . '_~'?' .,,-... // -(;:--0 o,~." I, F M " Itlllll\\\ STATE OF MONTANA) :ss County of Gallatin ) IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII~ 11111I1111111 ~t ~~~r: f,: SMelley Vance-Gallatin Cc MT MISC 72.00 SMITII ANNEXAI'ION AGREEMENT 9 111111111111111111111111111111111111111111111111111111I ~~t ~~~~1 ~~ ~R Shelley Vance-Gallatin Cc MT MISC 72.00 EXHIBIT A WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL IMPROVRMRNT DISTRICTS SMITH ANNEXATION TRACT The undersigned owner ofthe real property situated in the County of Gallatin, State of Montana, and more particularly described as follows: A tract ofland situated in the SEl/4SE1/4SW1/4 and the SW1/4SW1/4SE1/4 Section 3, T2S, R5R, P.M.M., City of Bozeman, Gallatin County, Montana, and being further described as follows: Beginning at the 1/4 comer common to Sections 3 and lOin said Township and Range, said point being on the centerline of the Durston Road right-of-way; thence along the section line between said Sections 3 and 10 and said centerline N89059'30"W a distance of 664.23 feet; thence along the east line of Lot 1 of Minor Subdivision No. 253 NOoo50'29"R a distance of 670.07 feet to the northeast corner of said Lot 1; thence across an unplatted tract of land S89059'30"E a distance of 1320.84 feet and SOoo58'57"W a distance of 669.96 feet to a point on the section line between said Sections 3 and I 0, said point also being on the centerline of said Durston Road right-of-way; thence along said section line and said centerline S89059'47"W a distance of654.96 feet to the Point of Beginning. Said tract being 20.302 acres. IN CONSIDERATION ofreceiving approval for annexation ofthe subject property from the City of Bozeman, along with accompanying rights and privileges and for other and valuable consideration, the receipt of which is hereby acknowledged, and in recognition ofthe impacts on traffic, ,md the need for municipal water and sewer services that will he a result ofthe development ofthe above-descrihed 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 street improvements, including paving, curb/gutter, sidewalk, storm drainage facilities, and any associated traffic signals for Durston Road, Oak Street, Flanders Mill Road and Ferguson Avenue, orto 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. 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 ofthe property, linear front footage ofthe 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 he binding upon the successors-in-interest and assigns of the parties hereto. 51- DATED this Z/-- day of FG.8RVAI!'1 ' 2002. SMITH ANNEXATION AGREEMENT 10 STATE OF MONTANA ) :ss County of Gallatin ) On this .:J/..p" day of .J" hl.(()....-v\ ,2002, Doug Smith, whose identity I verified on the basis of rrrr $-t:;+el)nvees W~€- <}personally appeared before me, a Notary Public for the State of Montana, and subscribed before me the within instrument. IN WITNESS WHEREOF, I have hereunto set my hand and set my seal the day and year first above written. n ~\. . ~:-YI}t-1 DtDM-M, M.-\\eR.- Notary Pliblic for the State of Mont<.ma Residing at Q:>o~, bI"U.Jffir'lCO...........'\""') My Commission Expires: A~;\ I 2.'7, 200$" , \ \ \ 11/ 'I . , I ,," ~..fir. M.II# I, "' O,~.-.. · · ...(~~~ ...... h~ · . ~ .... :!'Iff · ., ~ (). \lO"A1tbt. '.~ ~ - . ~. ... --- . ---- . ... =*. SIAL .*- -:. ~" ~. ~ ..-. .. .... ..-,,/ ~......' ".... /'1 011' " "If'f"'\ SMITH ANNEXATION ACiRr:EMENT II I111I11111111111111111111111111111111111111111111111111 ~~ ~i~?, f~~, SMelley Vanoe-Gallatin Co MT MIse 72.00 1111111 11111 111111111111111111111111111 "'1111111" I11I ~:t~i~~ f~: Sh.ll.y Vano.-Gallatin Co MT MISC 72.00 EXHIHIT H WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL PARKS MAINTENANCE DISTRICfS SMITH ANNEXATION TRACT The undersigned owner ofthe real property situated in the County of Gallatin, State of Montana, and more particularly described as follows: A tract ofland being the, said tract being 20.302 acres along with and subject to any existing easements. IN CONSIDERA nON of receiving approval for annexation ofthe subject property from the City of Bozeman, along with accompanying rights and privileges and for other and valuable consideration, the receipt of which is hereby acknowledged, and in recognition of the impacts on the City's park facilities and the need for the maintenance of municipal park areas to serve City residents, 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 parks maintenance or improvement districts for a City-wide Parks Maintenance District, or to make any written protest against the size or area or creation ofthe district to be assessed in response to a duly passed resolution of intention to create one or more special parks maintenance or improvement districts. In the event City-wide Parks Maintenance or Special Improvement Districts are not utilized for the City-wide park maintenance, we agree to participate in an altemate financing method for completion of said improvements on a fair share, proportionate basis as detennined by square footage ofthe property, linear lront footage ofthe property, taxable valuation ofthe 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 tenns, covenants and provisions of the Waiver shall extend to, and be binding upon the successors-in-interest and assigns of the parties hereto. .s"f DATED this 2 J -- day of , 2002. STATEOFMONTANA ) :ss County of Gallatin ) On this 2/,f day of ~R...b~ .,2002, Doug Smith, whose identity I verified on the basis of m'\ .std..t~ 1)r-\\)f'r'..s "(J....~~._.______, personally appeared before me, a Notary Public for the State of Montana, and subscribed before me the within instrument. IN WITNESS WHEREOF, 1 have hereunto set n,\)( iU1dtlj1P set my seal the day and year Jirst above written. . ", ~~}A, 11ft/I/;/ ..~ _k&~"\.\&o. ........Ii.O; .'0' . . ....(""".. .......... I..n~---;: . Ii ............,. . . '~..... ..~-) - ' A____ ~ Q :~o'TAA1Ai'~. 'S. Notary Public for the State of Montana . :. :-.- . : * ~ Residing at ~(V--.. ~r{ Co. :. *.'. SEAL: ::: My Commission Expires:~(, \ At- \~~ -:-...." ~~. , . . . . .;"',.::: 7/.."!'OFtAO \,' . !Iftll\\\ SMITH ANNEXATION ACiREEMENT 12 .' ..