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HomeMy WebLinkAboutApprove Resolution No. 4070, Cahill Tracts 4 & 5 Annexation, #A-07004 Report compiled on January 31, 2008 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Martin Knight, Assistant Planner SUBJECT: Resolution of Annexation No. 4070 for Cahill Tracts 4 & 5 Annexation, #A-07004 Consent Item MEETING DATE: Monday, February 11th, 2008 RECOMMENDATION: The City Commission adopts the Resolution of Annexation No. 4070 for the Cahill Tracts 4 & 5 Annexation. BACKGROUND: An annexation application to annex 3.0195 acres located at 414 & 415 Wilda Lane. The subject property is wholly surrounded by the City of Bozeman. The City Commission approved the annexation application on Monday, September 17th, 2007. Further development of the property will address issues such as street improvements and water & sewer connections. This annexation was approved in conjunction with Zone Map Amendment application #Z-07163; an initial municipal zoning of R-3 was granted by the City Commission on Monday, September 17th, 2007. UNRESOLVED ISSUES: The Department of Planning is not aware of any unresolved issues for the proposed development at this time. FISCAL EFFECTS: Fiscal impacts are undetermined at this time, but will include increased property tax revenues from annexation of the property, and costs from additional service demand. ALTERNATIVES: As suggested by the City Commission. CONTACT: Please feel free to email Martin Knight at mknight@bozeman.net if you have any questions. APPROVED BY: Andrew Epple, Planning Director Chris Kukulski, City Manager 37 - 1 - COMMISSION RESOLUTION NO. 4070 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, EXTENDING THE BOUNDARIES OF SAID CITY OF BOZEMAN SO AS TO INCLUDE WITHIN THE CORPORATE LIMITS OF THE CITY OF BOZEMAN A TRACT OF LAND TO SAID CITY, KNOWN AS “TRACTS 4 AND 5 OF THE CAHILL SUBDIVISION AND THE WILDA LANE RIGHT-OF- WAY ADJACENT TO TRACTS 3 THROUGH 6 OF THE CAHILL SUBDIVISION, AND LOCATED IN THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 11, T2S, R5E, PMM, GALLATIN COUNTRY, MONTANA”AND HEREIN MORE PARTICULULARLY DESCRIBED. WHEREAS, the City of Bozeman received a request for annexation from KAM, LLC, PO Box 1273, Bozeman, MT, 59718, owner of the tracts of land, requesting the City Commission to extend the boundaries of the City of Bozeman so as to include certain contiguous tracts of land legally described as Tracts 4 and 5 of the Cahill Subdivision and the Wilda Lane Rights-of-Way adjacent to tracts 3 through 6 of the Cahill Subdivision, located in the northwest quarter of southwest quarter of Section 11, T2S, R5E, PMM, PMM, Gallatin County, State of Montana; and WHEREAS, an annexation staff report has been prepared in accordance with the Commission's goals and policies for annexation and was presented to the Commission on September 17, 2007; and WHEREAS, the parcel being annexed under Title 7, Chapter 2, Part 46 MCA no resolution of intent or public hearing was required; and WHEREAS, a public meeting on the annexation was duly noticed according to the City’s annexation policy and held on September 17, 2007; and WHEREAS, on September 17, 2007, the Commission authorized and directed staff, upon satisfaction by the applicant of the terms of approval, to prepare the necessary annexation agreement and other 38 - 2 - documents to proceed with the annexation of the privately held portion of these tracts in accordance with terms and conditions approved by the Commission; and WHEREAS, on September 17, 2007, the Commission authorized and directed staff to prepare the necessary extension of services plan and other documents to proceed with the annexation of the publicly held portion of these tracts; and WHEREAS, the provision of available services, including, but not limited to, rights-of-way, easements, water rights or cash in lieu, waivers of protest against creation of SID's and impact fees to said contiguous tract is the subject of a written agreement between the City of Bozeman and KAM, LLC, record owner of the tract; and WHEREAS, said contiguous tract is the subject of a certificate of survey, filed in the office of the Gallatin County Clerk and Recorder's Office; and WHEREAS, the Bozeman City Commission hereby finds that the annexation of this contiguous tract is in the best interests of the City of Bozeman and the inhabitants thereof and of the inhabitants of the contiguous tract. Section 1 That it is hereby declared that, pursuant to Title 7, Chapter 2, Part 46, M.C.A., the following- described property be annexed to the City of Bozeman and that the boundaries of said City shall be modified so as to embrace and include such 3.0195 acres of land, to wit, and as further described on Exhibit A, attached hereto: A 3.0195 acre Tracts 4 and 5 of the Cahill Subdivision and the Wilda Lane Rights-of- Way adjacent to Tracts 3 though 6 of the Cahill Subdivision, located in the northwest quarter of the southwest quarter of Section 11, T2S, R5E, PMM, and generally located at 414 and 415 Wilda Lane, Gallatin County, Montana; and Section 2 The effective date of this annexation is ________________________, 2008. 39 - 3 - Section 3 The annexation of the above-described tract is subject to the terms of the Agreement dated _____________________, by and between the City of Bozeman and KAM, LLC; and the extension of services plan prepared for the portion owned by the City of Bozeman. PASSED AND ADOPTED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the day 2008. _________________________________________ KAAREN JACOBSON, Mayor ATTEST: ____________________________________ STACY ULMEN, City Clerk APPROVED AS TO FORM: ___________________________________ PAUL J. LUWE City Attorney 40 41 Inter-office Original to: City of Bozeman Planning Department PO Box 1230 Bozeman, MT 59715 CAHILL TRACTS 4 & 5 ANNEXATION AGREEMENT THIS AGREEMENT is made and entered into this ______ day of _______________, 2007, 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, and mailing address at P.O. Box 1230, Bozeman, Montana, 59771-1230, hereinafter referred to as “City,” and David L. Stevens, 1723 Lane NE, Dutton, MT 59433, and KAM, LLC, PO Box 1230, Bozeman, MT 59718 hereinafter referred to as “Landowners.” WITNESSETH: WHEREAS, the Landowner is owner in fee of tracts of certain real property, hereinafter referred to as the CAHILL TRACTS 4 & 5 ANNEXATION,” situated in Gallatin County, Montana, and more particularly described as follows: Tracts 4 & 5 of the Cahill Subdivision, located in the southwest quarter of Section 11, Township 2 South, Range 5 East, P.M.M., Gallatin County, Montana. WHEREAS, the Landowner has petitioned the City for annexation of the contiguous tracts; and WHEREAS, the CAHILL TRACTS 4 & 5 ANNEXATION is not within the corporate limits of the City of Bozeman 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 46; and WHEREAS, all parties recognize that the annexation of the CAHILL TRACTS 4 & 5 ANNEXATION pursuant to Section 7-2-4601, et seq., MCA, will entitle the said property to City services, including municipal water and sewer service, upon their availability; and WHEREAS, MCA Section 7-2-4610 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 supply is insufficient to enable it to supply reasonably adequate water service to additional customers outside the present city boundaries; and WHEREAS, the Landowners wish to convey to the City certain water rights or take some equivalent action to provide water and sewer service to the CAHILL TRACTS 4 & 5 ANNEXATION; and WHEREAS, all parties recognize that the development of the CAHILL TRACTS 4 & 5 ANNEXATION will impact Wilda Lane, and will may require additional public street improvements; and WHEREAS, the Landowners find that this Agreement will provide for the most satisfactory and dependable water supply or service available to furnish water and provide traffic circulation for development near and within the CAHILL TRACTS 4 & 5 ANNEXATION; and WHEREAS, the making and performance of this Agreement is desirable to promote the development of the most adequate water supply and traffic circulation pattern for the City as it now Cahill tracts 4 & 5 Annexation Agreement: Page 1 of 12 42 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 in the best interests of the City and the Landowners, 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 Landowners filed an application for annexation of the CAHILL TRACTS 4 & 5 ANNEXATION with the City on July 5, 2007. By execution of this Agreement, the City has manifested its intention to annex the subject property pursuant to the terms and conditions of this Agreement. Subject to the provisions of Title 7, Chapter 2, Part 46, the City shall, upon execution of this Agreement, adopt a Resolution of Annexation of the CAHILL TRACTS 4 & 5 ANNEXATION to the City. Further, upon the execution of this Agreement, the Landowners 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 CAHILL TRACTS 4 & 5 ANNEXATION tracts 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 CAHILL TRACTS 4 & 5 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 CAHILL TRACTS 4 & 5 ANNEXATION. 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 CAHILL TRACTS 4 & 5 ANNEXATION to include, but not limited to, any impact fees, hook-up, connection, or development charges which may be established by the City. Upon annexation and availability of services, any existing residences or businesses on the subject property must be connected to City water and sewer utilities. Any wells presently used for domestic purpose can be retained for irrigation only with no physical connection to domestic water piping. 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 Cahill tracts 4 & 5 Annexation Agreement: Page 2 of 12 43 cost to the City for collection of sewage at and within the CAHILL TRACTS 4 & 5 ANNEXATION. Nothing in this Agreement shall obligate the City to pay for right-of-way acquisition, engineering, construction, and other costs for the collection of sewage services to or within the CAHILL TRACTS 4 & 5 ANNEXATION to include, but not limited to, any impact fees, hookup, connection, or development charges which may be established by the City. Upon annexation and availability of services, any existing residences or businesses on the subject property must be connected to City water and sewer utilities. The existing on-site treatment systems must be properly abandoned and certification provided indicating that the abandonment has occurred. 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 3907, Adopted August 24, 2006 The CAHILL TRACTS 4 & 5 ANNEXATION consists of approximately 3.0195 acres. The Landowners understand and agree that they must provide sufficient water rights in accordance with the City’s policy according to the following schedule: CAHILL TRACTS 4 & 5 ANNEXATION, consisting of a total of 3.0195 acres, shall provide water rights or cash-in-lieu prior to final subdivision plat approval, final site plan approval, or issuance of building permits, whichever comes first. The Landowners shall provide sufficient cash-in-lieu as calculated by the City Engineer in accordance with its policy at the time of calculation. The Landowners 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 Sewer Design Report The applicant is advised 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. Prior to development of the subject annexation, the applicant’s engineer will be required to prepare a comprehensive design report evaluating the existing capacity of both the water and sewer utilities. The report must include hydraulic evaluations of each utility for both existing and post development demands. The report findings must demonstrate that adequate capacity is available to serve full development of the annexation area. If adequate water and/or sewer capacity is not available for the full development, the report must identify the water and sewer system improvements required to provide the necessary capacity. Any improvements necessary to serve the full development must be in place prior to further development of the site. 8. Future Development and/or Subdivision Landowners understand and agree that there is no right, either granted or implied by the City, for the Landowners to develop any of the CAHILL TRACTS 4 & 5 ANNEXATION until it is verified by the City that necessary municipal services, including but not limited to police and fire protection, are Cahill tracts 4 & 5 Annexation Agreement: Page 3 of 12 44 available to all or a portion of the CAHILL TRACTS 4 & 5 ANNEXATION. The Landowners are hereby on notice of the following requirements upon further development or subdivision of the CAHILL TRACTS 4 & 5 ANNEXATION: a) Prior to future development, the applicant will be responsible for installing any facilities required to provide full municipal services to the property in accordance with the City of Bozeman’s infrastructure master plans and all city policies that may be in effect at the time of development. b) Existing mature vegetation shall be saved and/or relocated within the subject property to the maximum extent feasible. 9. Existing Non-Conforming Uses The Landowners understand and agree that whenever a lawful nonconforming use of a building, structure, or land is discontinued for a period of 90 days, any future use of the building, structure, or land shall be in conformity with the provisions of this title. 10. Impact Fees Landowners hereby acknowledge that annexation and development of their property will impact the City’s existing street, water, and sewer infrastructure, and fire service capacities. At the time of annexation, the landowners shall pay all street and fire impact fees that are attributable for the existing residence unless the structure is removed. At the time of connection to the City’s water and sewer facilities, the landowners shall pay all applicable water and sewer impact fees. The applicants should be made aware that at the time of any further development on the properties, the land owners and their successors shall pay all additional impact fees required by Chapter 3.24, Bozeman Municipal Code. Landowners further understand and agree that any improvements, either on- or off-site, necessary to provide connection of the CAHILL TRACTS 4 & 5 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 shall 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 sums, including the entry of any judgment. In addition, the City may, at its option, enforce payment of such amounts 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. Landowners hereby acknowledge and agree 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 amounts, or prohibiting any such payment, landowner will pay such fees as specified above, in the amounts calculated for all such fees based upon the rates established at the date of this agreement. 11. Stormwater Master Plan Landowners understand and agree that prior to development of the CAHILL TRACTS 4 & 5 ANNEXATION, a stormwater drainage and grading plan shall be provided to and approved by the City Cahill tracts 4 & 5 Annexation Agreement: Page 4 of 12 45 Engineer. The plan must demonstrate that adequate treatment of runoff from the public streets and all future lots will be achieved by providing spot elevations, flow direction arrows, detention and/or retention basin details (including basin sizing calculations and basin typical sections), outlet structure details, and culvert capacity calculations. The plan must also locate and provide easements for adequate drainage ways within the annexation area to transport treated runoff to the stormwater receiving channel. 12. Traffic Analysis Report If required by the Engineering Department, the landowner shall provide a detailed Traffic Impact Analysis Report(s) prior to future development of any portion of the annexed property. 13. Waiver of Right-to-Protest Special Improvement Districts Landowners have executed, at the Gallatin County Clerk & Recorder’s Office, a Waiver of Right-to-Protest Creation of Special Improvement Districts for street improvements, including but not limited to the following improvements: West Babcock Street; signalization improvements for the intersection of West Babcock Street and Fowler Avenue. Furthermore, the landowners have provided, as determined by the City Engineering Department, paybacks for the following payback districts; Far West Sewer, SID 622 Water and Sewer Babcock Street SID. Furthermore, the landowners have executed, at the Gallatin County Clerk & Recorder’s Office, a Waiver of Right-to-Protest Creation of Special Improvements Districts for a City-wide Park Maintenance District, which would provide a mechanism for the fair and equitable assessment of maintenance costs for City parks as part of the Annexation Agreement. Said Waivers are attached hereto as Exhibits A and B. The filed documents specify that in the event an SID is not utilized for the completion of these improvements, the developer agrees to participate in an alternate 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. 14. Parks, Open Space and Trails The landowners understand and agree that to achieve the goals and objectives set forth in the Bozeman 2020 Community Plan, any contiguous parks, open space, and/or trails shall be extended to the annexed property, and a master plan of said parks, open space and trails shall be provided with the signed annexation agreement. 15. Master Plan The landowners acknowledge and agree that future development will comply with the goals and policies of the Bozeman 2020 Community Plan, and having recognized the City’s concern for implementation of progressive urban design guidelines outlined in the Bozeman 2020 Community Plan for both community and neighborhood design, a Master Plan of the land use patterns and types for development of the property that addresses compatibility with and sensitivity 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 shall be provided with the signed annexation agreement. Special attention to the provision of adequate buffering, between the subject property and the residential uses to the west, will be of utmost importance. 17. Utility Easements Cahill tracts 4 & 5 Annexation Agreement: Page 5 of 12 46 Landowners understand and agree that utility easements, a minimum of 30 feet in width, will be necessary for the installation and maintenance of water and sewer utility services to the annexed parcel. The Landowners shall create such 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 any of the parcels. 17. Additional Terms of Waivers The parties recognize that these documents shall be filed and of record with the Gallatin County Clerk and Recorder prior to the sale of any land within the CAHILL TRACTS 4 & 5 ANNEXATION. The parties further agree that the City may file these documents at any time. 18. 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 concerning this Agreement, venue is in the Eighteenth Judicial District Court, Gallatin County, State of Montana. 19. 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. 23. 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. 24. Invalid Provision The invalidity or unenforceability of 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. 25. Modifications or Alterations No modification or amendment of this Agreement shall be valid unless evidenced by a writing signed by the parties hereto. 26. No Assignment It is expressly agreed that the Landowners shall not assign this Agreement in whole or in part without prior written consent of the City. 27. 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. 28. 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 Landowners affirm that they have authority to enter into this Agreement on behalf of their partnership, and to bind the partnership to this Agreement. Cahill tracts 4 & 5 Annexation Agreement: Page 6 of 12 47 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. LANDOWNER ______________________ David L. Stevens Tract 4 STATE OF ) ss. County of ) On this _____ day of_______________, 2007, before me, a Notary Public for the State of Montana, personally appeared David L. Stevens, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. ______________________________ (Print Name Here) Notary Public for the State of Montana (Seal) Residing at My Commission Expires: (Use 4 digits for expiration year) Cahill tracts 4 & 5 Annexation Agreement: Page 7 of 12 LANDOWNERS ______________________ Larry Witt Tract 5, KAM, LLC ______________________ Alex McIntosh Tract 5, KAM, LLC STATE OF ) ss. County of ) On this _____ day of_______________, 2007, before me, a Notary Public for the State of Montana, personally appeared Larry Witt and Alex McIntosh, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. ______________________________ (Print Name Here) Notary Public for the State of Montana (Seal) Residing at My Commission Expires: (Use 4 digits for expiration year) 48 CITY OF BOZEMAN Chris A. Kukulski City Manager ATTEST _______________________________ Stacey Ulmen City Clerk STATE OF MONTANA ) ss. County of Gallatin ) On this _____ day of __________________________, 2007, before me, a Notary Public for the state of Montana, personally appeared Chris A. Kulkulski and Stacey Ulmen, known to me to the persons described in and who executed the foregoing instrument as City Manager and City Clerk 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 Notarial Seal the day and year first above written. (Print Name Here) Notary Public for the State of Montana (Seal) Residing at My Commission Expires: (Use 4 digits for expiration year) Cahill tracts 4 & 5 Annexation Agreement: Page 8 of 12 49 EXHIBIT A WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL IMPROVEMENT DISTRICTS CAHILL TRACTS 4 & 5 ANNEXATION The undersigned owners of the real property situated in the County of Gallatin, State of Montana, and more particularly described as follows: Tracts 4 & 5 of the Cahill Subdivision, located in the southwest quarter of Section 11, Township 2 South, Range 5 East, P.M.M., Gallatin County, Montana. 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 to West Babcock Street which will be caused by the development of the above-described property, the owners have waived and do hereby waive for itself, its successors and assigns, the right to protest the creation of one or more special improvement districts including but not limited to the following improvements: West Babcock Street; signalization improvements for the intersection of West Babcock Street and Fowler Avenue; or to make any written protest against the size or area or creation of the district be assessed in response to a duly passed resolution of intention to create one or more special improvement districts which would include the above-described property. In the event an SID is not utilized for the completion of these improvements, the developer agrees to participate in an alternate 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. 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. Cahill tracts 4 & 5 Annexation Agreement: Page 9 of 12 50 LANDOWNER ______________________ David L. Stevens Tract 4 STATE OF ) ss. County of ) On this _____ day of_______________, 2007, before me, a Notary Public for the State of Montana, personally appeared David L. Stevens, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. ______________________________ (Print Name Here) Notary Public for the State of Montana (Seal) Residing at My Commission Expires: (Use 4 digits for expiration year) LANDOWNERS ______________________ Larry Witt Tract 5, KAM, LLC ______________________ Alex McIntosh Tract 5, KAM, LLC STATE OF ) ss. County of ) On this _____ day of_______________, 2007, before me, a Notary Public for the State of Montana, personally appeared Larry Witt and Alex McIntosh, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. ______________________________ (Print Name Here) Notary Public for the State of Montana (Seal) Residing at My Commission Expires: (Use 4 digits for expiration year) Cahill tracts 4 & 5 Annexation Agreement: Page 10 of 12 51 EXHIBIT B WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL PARKS MAINTENANCE DISTRICTS CAHILL TRACTS 4 & 5 ANNEXATION The undersigned owners of the real property situated in the County of Gallatin, State of Montana, and more particularly described as follows: Tracts 4 & 5 of the Cahill Subdivision, located in the southwest quarter of Section 11, Township 2 South, Range 5 East, P.M.M., Gallatin County, Montana. 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 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 of the 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 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 __________________, 2007. Cahill tracts 4 & 5 Annexation Agreement: Page 11 of 12 52 LANDOWNER ______________________ David L. Stevens Tract 4 STATE OF ) ss. County of ) On this _____ day of_______________, 2007, before me, a Notary Public for the State of Montana, personally appeared David L. Stevens, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. ______________________________ (Print Name Here) Notary Public for the State of Montana (Seal) Residing at My Commission Expires: (Use 4 digits for expiration year) LANDOWNERS ______________________ Larry Witt Tract 5, KAM, LLC ______________________ Alex McIntosh Tract 5, KAM, LLC STATE OF ) ss. County of ) On this _____ day of_______________, 2007, before me, a Notary Public for the State of Montana, personally appeared Larry Witt and Alex McIntosh, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. ______________________________ (Print Name Here) Notary Public for the State of Montana (Seal) Residing at My Commission Expires: (Use 4 digits for expiration year) Cahill tracts 4 & 5 Annexation Agreement: Page 12 of 12 53