HomeMy WebLinkAbout02- Westlake/Martinen Annexation
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Snallay Yanoa-Gal1atin Co MT MISC 72.00
WESTLAKE: MA-B-TlNEN
ANNEXATION AGREEMENT
ThIS Agreement made and entered into this 23rd day of September 2002, 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 5977 I -0640, hereinafter referred to as ..
City" and GEORGE E. WESTLAKE, with mailing address of 15008 S.E. Graham Road,
Vancouver, Washington 9X6~n, mld KAY H. MARTIN EN, with mailing address of 401
Sunnyslopc Road, Yakima. Washington 98908, hereinafter collectlvely referred to as "
Landowner"
WJIN~.S S EILL
WHEREAS, the Landowner is the owner in fee of a tract of certalll real propert)
hereinafter referred to as the Westlake-Martin en Annexation Tract and more particularly
described as follows:
A tract of land being the tract of land described in Film X I, Page 543, Records of Gallatin
County, situated in the NE '!. Section I, T2S, R5 E, and in the NW 114 Section 6, T2s, R6E,
P. M. M. Gallatin County, Montana, and being further described as follows:
Beginning at a point in which bears N37059'04 "W a distance of X3 .09 feet from the \I"
corner common to said Sections land 6, said point being the southeast corner of Lot 2A of Minor
Subdivision NO. 1098: thence along the east line of said 2Aand Lot I of Minor Subdivision No
109 N01 016'30"E a distance of 952.37feet to a point on the southerly right-of-way line of
Interstate 90; thence along said right ~of ~way line S720 17'3X"E a distmlee of 324.41 feet and
along a non-tangent curve to the right having a radial bearing of S 17044' 19'W and a radius of
22,795.00 feet a distance of 1096. X I teet to the nortl1\vcst comer of Tract 2 of Certificate of
Survey No. 2128B; thence along the westerly line of said Tract 2 SCll 026 '44 "E a distance of
372.92 feet and S47004 '50"W a distance of 207.62 feet to a point on the north fight ~of ~way
line of West Oak Street, thence along said right-of ~way I ine along a non-tangent curve to the lefl
having a radial bearing of S07049'32'W and a radius of994.93 feet a distance of 126.23 feet mld
N89026'3T'W a distance of 109X07 feet to the Point of Begmning. Said tract being 22.842 acres
WHEREAS, the Landowner has petitioned the City for annexation of the contiguous
tract and
WHEREAS, the Westlake-Martinen Annexation Tract 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 MCA Title 7, Chapter 2, Part
43; and
WHEREAS, all parties recognize that the annexation of the Westlake-Martinen
Annexation Tract pursuant to Section 7-2-4301 et seq.. MCA, will entitle the said propelty to CIty
services, including municipal water and sewer servIce. upon theIr availabilitv: and
WHEREAS, MCA 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 arc
insufl'icient to enable it to supply reasonably adequate water and sewer service to additional
customers outside the City boundaries: and
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Snallay Yanoa-Gallatln Co MT MISC 72.00
WHEREAS, all parties recognize that the development of the Westlake~Martinen
Annexation Tract will impact area streets, and that future improvements may be required
for 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 Westlake-
Martinen Annexation; 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
Westlake-Martinen 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 wastewater collection
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 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.
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 Westlake-Martinen
Annexation Tract with the City. The City on January 18, 2000 adopted a Resolution of
Intent to Annex the Westlake-Martinen Annexation Tract. By execution of this
Agreement, the City has manifested its intention to annex the Westlake-Martinen
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 the Agreement,
adopt a Resolution of Annexation of the Westlake-Martinen 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 of the Agreement and effectuate the annexation of the Westlake-Martinen
Annexation Tract.
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Snallay Vanoa-Gallatln Co MT MISC 72.00
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 Westlake-Martinen
Annexation Tract, 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 Westlake-Martinen 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 Westlake-Martinen 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 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 Westlake-Martinen Annexation Tract. 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
Westlake-Martinen Annexation Tract to include, but not limited to, any impact fees, hook-
up, 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 Westlake-Martinen Annexation Tract consists of approximately 22.840
acres.
The Landowner understands and agrees that they must provide sufficient water
rights in accordance with the City's policy according to the following schedule:
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Snallay Yanoa-Gallatln Co MT MISC 72.00
Westlake-Martinen Annexation Tract, consisting of a total of 22.840 acres,
prior to filing of any final subdivision plat, final site plan approval or the
issuance of any building permit, whichever occurs first.
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.
The Landowner agrees to provide sufficient water rights or cash in-lieu of water rights
prior to filing of any Final Subdivision Plat, Final Site Plan approval, or the issuance of
any building permit, whichever occurs first.
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 the 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 are 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 the Landowner's expense, the necessary system improvements to
serve the full development.
8. Future Development Limitations.
Landowner understands and agrees that there may be limitations for growth in
the wastewater collection system of the city which could affect this property, which will
need to be addressed in conjunction with development of the parcel. Water pressure
may also be minimal in this area and individual booster pumps may be required for
service. 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 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 Westlake-
Martinen 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 Westlake-Martinen Annexation.
9. Stormwater Master Plan.
Landowner understands and agrees that a Stormwater Master Plan for the
Westlake-Martinen Annexation for a system designed to remove solids, oils, grease, and
other pollutants from the runoff from the public streets may be required to be provided to
and approved by the City Engineer at the time of any future development. 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
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Snallay Yanoa-Gallatln Co ~T MISC 72.00
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. Traffic Analysis Report.
Landowner understands and agrees that a detailed Traffic Analysis Report(s)
may be required to be submitted at the time of future development of any portion of the
annexed property.
11. Waiver of RiQht~to-Protest Special Improvement Districts and Rural Improvement
Districts.
Landowner has executed a Waiver of Right~to-Protest Creation of Special
Improvement Districts for maintenance of any parks within the annexed area and/or of
City-wide Park Maintenance District, and Waivers 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.
12. Utilitv Easements.
The 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 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 of site plan review or
issuance of a building permit on any of the parcels.
13. Impact Fees.
The Landowners 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 are no existing structures on the property. At the time new
structures apply to the City's Water and Sewer facilities, 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 of the 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 the 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 which would actuate impact fees pursuant to 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.
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Shallay Yanoa-Gallatln Co MT MISC 72.00
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.
landowners further understand and agree that any improvements, either on or off site,
necessary to provide connection of the Annexation Tract 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.
If landowners 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 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.
8) 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 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 limiting impact fee payments under
annexation agreements to specified amount, or prohibiting any such
payment, landowner will pay such amount as specified above.
14. Additional Terms of Waivers.
The parties recognize that these documents shall be executed and returned to
the Bozeman Planning and Community Development Department within one year of
preliminary approval of the annexation request by the Bozeman City Commission. The
parties also recognize that these documents shall be filed and recorded the Gallatin
County Clerk and Recorder prior to the sale or transfer of ownership of any land within
the Westlake-Martinen Annexation Tract. The parties further agree that the City may file
these documents at any time.
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Shallay Yanoa-Gallatin Co MT MISC 72.00 .
15. Governino 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.
16. 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.
17. 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.
18. 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.
19. Modifications or Alterations.
No modification or amendment of this Agreement shall be valid unless evidenced
in writing and signed by the parties hereto.
20. No Assionment.
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, inure 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 terms of the 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.
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Snallay Yanoa-Gallatin Co MT MISC 72.00
LANDOWNER
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George E. Westlake
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Kay H. ~rtmen . "
State of Washington
County of (lfM~
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On the ~ day of
State of Washington, personall
who executed the above and fo
same.
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-<-, 2000 before me, a notary public for the
ppe d George E. Westlake known to me to be the individual
goin nstrument, and acknowledged to me that he executed the
Furthermore, that the individual has read the foregoing instrument, knows the contents
thereof and do hereby swear and affinn that the facts and matters contained therein are true.
accurate and complete to the best of his knowledge and belief.
S!JiJ8~'BI:i~AND SWORN to me this /'l~ay of 2000.
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State of Wa~l'Ti"gtID'l'l"\
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County of Yakima )
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On the .? '1- day of u... \~ ' 2900' before me, a notary public for
the State of Washington, personally ap eared Kay H. Martmen known to me to be the mdlvldual
who executed the above and foregoing instrument, and acknowledged to me that she executed
the same.
Furthermore, that the individual has read the foregoing instrument, knows the contents
thereof and does hereby swear and affirm that the facts and matters contained therein are true,
accurate and complete to the best of her knowledge and belief.
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NOTARY p;~ THE STATE OF WASHINGTON
Residing at: (YI..f}...., ,
My commission pires: "( -ll-oL{
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Snal1ay Yanoa-Gallatln Co MT MIse 72.00
City of Bozeman
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By;-4--~'=---''.
Clark Johnson, City Manager
ATTEST:
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Clerk of the City Commission
State of Montana )
:ss.
County of Gallatin )
On the dlcL.. day of , 2002, before me, a notary public for the
State of Montana, personally a peared Clark Johnson and Robin L. Sullivan, known to
me to be City Manager and Clerk of the City Commission, respectively, of the City of
Bozeman, whose names are subscribed to forgoing instrument, and acknowledged to
me that they execute 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.
Signature:
(print Nae
NOTA PUBLIC FOR THE STATE OF Montana
Residing at: Bozeman, Montana
My commission expires: b -j"f'drJO.)
(Use 4 digits for expiration year)
( Seal)
EXHIBIT "A"
WAIVER OF RIGHT - TO- PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICT
FOR A CITY-WIDE PARK MAINTENANCE DISTRICT
WESTLAKE-MARTINEN ANNEXATION TRACT
The undersigned is the 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 an unplatted portion of land situated in the NE % of
Section 1, T2S, R5E and the NW 14 of Section 6, T28, R6E P.M.M^ Gallatin
County, Montana. Beginning at a point which bears N3T55'47" W a distance of
8307 feet from the E1/4 corner of Section 1, T28, R5E, said point also being the
Southeast corner of Lot 2-A of Minor Subdivision NO.1 09-B; thence from said
True Point of Beginning along the east line of said Lot 2-A N01 '16'30" E a
distance of 952.46 feet to a point on the southeasterly Right of way line of
Interstate 90; thence along said line S72' 16'02" E a distance of 324.41 feet to a
curve to the right with a radius of 22,795.00 feet a distance of 1096.82 feet to a
point on the west line of Tract 2 of certificate of Survey No. 2128B; thence along
said line 801 '26'44" E a distance of 372.92 feet; thence S47'04'50"W a distance
of 207.62 feet to a point on the north Right of way line of West Oak Street;
thence along said line along a non-tangent curve to the left with a radial bearing
of S07'49'32"W and a radius of 994.93 feet diastase of 126.23 feet and N
89'26'37"Wa distance of 1 098.07 feet to the Point of Beginning_ Said Tract being
22.840 acres.
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 lor 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 nay 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 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.
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Snallay Vanoa-GallaUn Co MT MISC 72.00 .
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Snallay Vanoa-Gallatin Co MT MISC 72.00
DATED this /1 t-4 day of September 2002_
LANDOWNERS
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George E Westlake
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Kay . artinen-
State of Washington
County of do. ( ~
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On the ~ay of September 2002, before me, a notary public for the
State of Washington, personally appeared George E. Westlake, known to me to
be the individual who executed the above and foregoing instrument, and
acknowledged to me that he executed the same.
Furthermore, that the individual has read the foregoing instrument, knows
the contents thereof and does hereby swear and affirm that the facts and matters
contained therein are true, accurate and complete to the best of his knowledge
and belief.
SUBSCRIBED and SWORN to before me this (9~ay of
~-t~ , 2002.
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Print Name Here: ,..- K L . e-.- ~
NOTARY PUBLIC FOR THE STATE OF was~
Residing at: Uevt Ii.. 1 CL\..L,^ \-'-'\ I
My commission expires: lo IlD L.;u; l) Ll
State of Washington
County of ~~ ~
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Snallay Vanoa-Gallat1n Co MT MISC 72.00
On the Jq~ay of September 2002, before me, a notary public for the
State of Washington, personally appeared Kay H. Martinen, known to me to be
the individual who executed the above and foregoing instrument, and
aCknowledged to me that she executed the same.
Furthermore, that the individual has read the foregoing instrument, knows
the contents thereof and does hereby swear and affirm that the facts and matters
contained therein are true, accurate and complete to the best of her knowledge
and belief.
SUBSCRIBED and SWORN to before me this l q~ day of
~, ,2002.
(Seal)
Signature~ . ct~ ~
Print Name Here: '"'Kos e... L III fY1 ,. C--h...
NOTARY PUBLIC FOR THE STATE OF Washington
Residing at: ~ j{ , (~ uJ v:+:-
My commission expires: . l )i
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