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HomeMy WebLinkAbout09-10-07_Approve Resolution No_ 4068, Kagy Gardens Annexati_3 Report compiled on September 5th 2007 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Allyson C. Bristor, Associate Planner SUBJECT: Resolution of Annexation No. 4068 for Kagy Gardens Part 46 Annexation, #A-06008 Consent Item MEETING DATE: Monday, September 10th 2007 RECOMMENDATION: The City Commission adopts the Resolution of Annexation No. 4068 for the Kagy Gardens Part 46 Annexation. BACKGROUND: An annexation application to annex 2.68 acres located north of Kagy Boulevard, east of Bozeman Creek and west of Sourdough Road. The City Commission approved the annexation application on Monday, October 2, 2006 with an extension on January 22, 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 Allyson Bristor at abristor@bozeman.net if you have any questions. APPROVED BY: Andrew Epple, Planning Director Chris Kukulski, City Manager 5 - 1 - COMMISSION RESOLUTION NO. 4068 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 TRACTS OF LAND TO SAID CITY, KNOWN AS “THOSE PARCELS DESCRIBED IN BOOK 134, PAGE 415 AND IN BOOK 146, PAGE 198, ACCORDING TO THE PLATS THEREOF, ON FILE AND OF RECORD IN THE OFFICE OF THE CLERK AND RECORDER, GALLATIN COUNTY, MONTANTA; EXCEPT THAT PART CONVEYED TO THE STATE OF MONTANA FOR HIGHWAY RIGHT-OF-WAY AS RECORDED IN ON FILM 75, PAGE 2436 AND LOCATED IN THE SOUTHEAST QUARTER OF SECTION 18, TOWNSHIP 2 SOUTH, RANGE 6 EAST OF P.M.M, GALLATIN COUNTY, MONTANA” AND HEREIN MORE PARTICULULARLY DESCRIBED. WHEREAS, the City of Bozeman received a request for annexation from Panache Properties, 4152 Penwell Bridge Road, Belgrade, MT 59714, 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 those parcels described in Book 134, Page 415 and in Book 146, Page 198, according to the plats thereof, on file and of record in the office of the Clerk and Recorder, Gallatin County, Montana; EXCEPT that part conveyed to the State of Montana for highway right-of-way as recorded on Film 75, Page 2436 and located in the Southeast Quarter of Section 18, Township 2 South, Range 6 East of P.M.M., Gallatin County, 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 October 2, 2006 and January 22, 2007; and 6 - 2 - 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 October 2, 2006 and January 22, 2007; and WHEREAS, on October 2, 2006 and January 22, 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 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 October 2, 2006 and January 22, 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 Montana Fish, Wildlife, & Parks, 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 7 - 3 - so as to embrace and include such 2.68 acres of land, to wit, and as further described on Exhibit A, attached hereto: A 2.68 acre, parcels described in Book 134, Page 415 and in Book 146, Page 198, according to the plats thereof, on file and of record in the office of the Clerk and Recorder, Gallatin County, Montana; EXCEPT that part conveyed to the State of Montana for highway right-of-way as recorded on Film 75, Page 2436 and located in the Southeast Quarter of Section 18, Township 2 South, Range 6 East of P.M.M, located north of Kagy Boulevard, east of Bozeman Creek, and west of Sourdough Road, Gallatin County, Montana; and Section 2 The effective date of this annexation is ________________________, 2007. Section 3 The annexation of the above-described tract is subject to the terms of the Agreement dated April 9, 2007, by and between the City of Bozeman and Panache Properties, owner of said tracts of land. PASSED AND ADOPTED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the day 2007. _________________________________________ JEFF KRAUSS, Mayor ATTEST: ____________________________________ CYNTHIA DELANEY, Acting Clerk of the Commission APPROVED AS TO FORM: ___________________________________ PAUL J. LUWE City Attorney 8 Bozeman City Clerk P o Box 1230 Bozeman MT 59771 1230 KAGY GARDENS ANNEXATION AGREEMENT THIS AGREEMENT is made and entered into this day of L 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 Panache Properties 4152 Penwell Bridge Road Belgrade MT 59714 hereinafter referred to as Landowner WITNESSETH WHEREAS the Landowner is owner in fee of tracts of certain real property hereinafter referred to as the KAGY GARDENS ANNEXATION situated in Gallatin County Montana and more particularly described as follows Tracts ofland in the southeast quarter of Section 18 Township 2 South Range 6 East P M M Gallatin County Montana and more specifically described as Plat recorded in Book 134 Deeds Page 415 and Plat recorded in Book 146 Deeds Page 198 WHEREAS the Landowner has petitioned the City for annexation of the contiguous tracts and WHEREAS the KAG TGARDENS ANNEXATION is not within the corporate limits ofthe 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 ofdIe KAGY GARDENS 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 Kagy Gardens Annexation Agreement Page 1 of 15 9 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 KAGY GARDENS ANNEXATION and WHEREAS all parties recognize that the development of the KAGY GARDENS ANNEXATION will impact Kagy Boulevard and Sourdough Road and will require additional public street 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 provide traffic circulation for development near and within the KAGY GARDENS 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 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 Landowner and in furtherance of the public health safety and welfare ofthe 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 flied an application for annexation of the KAGY GARDENS ANNEXATION with the City onJuly 19 2006 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 KAGY GARDENS ANNEXATION to the City Further upon the execution of this Agreement the Landowner shall do all things necessary and proper to aid and assist the City in canying out the terms conditions and provisions of this Agreement and effectuate the annexation of the KAGY GARDENS lNNEXATION tracts to the City Kagy Gardens A nnexation greement Page 2 of 1510 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 KAGY GARDENS 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 notcontemplate the extension oflines or constructionofnecessary improvements at any cost to the City for delivery ofwater to and within the KAGY GARDENS 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 KAGY GARDENS ANNEXATION to include but notlimited 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 docs not eontcmplate the extension oflines or construction ofnecessary improvements at any cost to the City for collection ofsewage at and within the KAGY GARDENS 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 KAGY GARDENS ANNEXATION to include but notlimited to any impact fees hookup connection or development charges which may be established by the City 6 Water Rights The parties acknowledge the following City policy Prior to annexation of property it shall be the policy ofthe City ofBo7cman 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 Kagy Gardens Annexation greement Page 3 of 1511 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 S Commission Resolution 3907 Adopted August 24 2006 The KAGY GARDENS ANNEXATION consists of approximately 2 68 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 KAGY GARDENS ANNEXATION consisting ofa total of 2 68 acres shall provide water rights or cash in lieu with the annexation of the subject property The Landowner shall provide sufficient cash in lieu as calculated by the City Engineer in accordance with its policy at the time ofcalculation 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 ofthe 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 ofthe 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 ofthe site 8 Future Development and or Subdivision Landowner understands and agrees that there is no right either granted or implied by the City for the Landowner to develop any of the KAGY GARDENS ANNEXATION until it is verified by the City that necessary municipal services including but not limited to police and f1re protection are availab1c to all or a portion of the KAGY GARDENS NNEXATION The Landowner is hereby on notice of the following requirements upon further development or subdivision ofthe KAGY GARDENS ANNEX TTON Kagy Gardens inneXation Agreement Page 4 of 1512 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 9 Non Conforming Uses The Landowner understands and agrees 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 Landowner s 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 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 ofany further development on the properties the land owners and their successors shall pay all additional impact fees requited by Chapter 3 24 Bozeman Municipal Code If Landowner shall default on this condition at the time such is to be performed and should default notbe remedied or cottected within thirty 30 days after written notice by City to Landowner 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 Landowner for the collection of such sums including the entry ofany judgment In adclition 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 further understand and agree that any improvements either on or off site necessary to provide connection ofthe KAGY GARDENS 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 J andowner s 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 324 of the Bozeman Municipal Code are subsequently voided or declared invalid by a court of competent jurisdiction Itis 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 Kagy Gardens Annexation greement Page 5 of 1513 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 ofthis agreement 11 Stormwater Master Plan Landowner understands and agrees that prior to development of the KAGY GARDENS ANNEXATION a stormwater drainage and grading plan shall beprovided to and approved by the City Engineer The plan must demonstrate that adequate treatment ofrunoff 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 stormwatcr receiving channel 12 Traffic Analysis Report Ifrequired 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 Landowner has executed at the Gallatin County Clerk Recorder s Office a Waiver ofRight to Protest Creation of Special Improvement Districts for street improvements including but not limited to the following improvements Paving curb gutter sidewalk storm drainage facilities for Kagy Boulevard and Sourdough Road and signalization improvements for the Sourdough Road Kagy Boulevard Kagy Boulevard Highland Boulevard and Willson Avenue and 3rd Avenue intersections Further the landowner has 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 ftled 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 ftnancing method for the completion of said improvements on a fair share proportionate basis as determined by square footage ofproperty taxable valuation of the property traffic contribution from the development or a combination thereof Kagy Gardens nnexation greement Page 6 of 1514 14 Parks Open Space and Trails The landowner understands and agrees 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 landowner acknowledges and agrees 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 ofprogressive 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 ofbuildings 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 16 Right of Way Easement for Future Roadways Landowner has dedicated by written easement the following land to the City of Bozeman which represents the Landowner s proportionate share of the necessary right of way a The owner shall provide a public street and utility easement for Kagy Boulevard The easement shall be 60 feet wide from the centerline ofthe road which is one half of the principal arterial standard as shown in the Greater Bozeman Area Transportation Plan Said easements will be fUed with the Gallatin County Clerk and Recorder at the time this Annexation Agreement is fUed 17 Utility Easements Landowner understands and agrees that utility casements a minimum of30 feet in width will be necessary for the installation and maintenance ofwater and sewer utility services to the annexed parcel The Landowner shall create such easements in locations agreeable to the City during the appropriate development procedure but in no event later than the filing ofany final plat or site plan or issuance ofa building permit on any ofthe parcels Kagy Gardens nnexation greement Page 7 of 1515 18 Wetlands Landowner understands and agrees that a detailed wetlands map and summary report shall be submitted for the subject property with the signed annexation agreement The map must be depicted on an 18 inch x 24 inch paper copy and a compact disk in accordance with Section 18 56 050 Wetlands Mapping 19 Cultural Resources The Landowner acknowledges and agrees that a cultural resource inventory or a letter from the State Historic Preservation Office indicating a cultural resource inventory is not necessary shall be submitted to the City Planning Department with the signed Annexation Agreement 20 Additional Terms of Waivers The parties recognize that these documents shall be f1led and ofrecord with the Gallatin County Clerk and Recorder prior to the sale of any land within the KA GY GARDENS ANNEXATION The parties further agree that the City may fue these documents at any time 21 Governing Law and Venue This Agreement shall be construed under and governed by the laws of the state ofMontana In the event of litigation concerning this Agreement venue is in the Eighteenth Judicial District Court Gallatin County State of Montana 22 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 ofthis Agreement then the prevailing party shall be entitled to reasonable attorney s fees and costs to include the salary and costs ofin house counsel including City Attorney 23 Waiver No waiver by either party of any breach ofany 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 ofany provision ofthis 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 Kagy ardens AnnexatIon Agreement Page 8 of 1516 25 Modifications or Alterations No modification or amendment ofthis Agreement shall be valid unless evidenced by a writing signed by the parties hereto 26 No Assignment It is expressly agreed that the Landowner 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 ofand 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 ofthe property The undersigned I andowners afftrms that they have authority to enterinto this Agreement on behalf of their partnership and to bind the partnership to this Agreement IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed the day and year first above written Kagy Gardens innexation igreement Page 9 of 1517 LAND c STATE OF MOI IfC ss County of bCt llq l 1O k 1ClIIid Sovle kJ On this C day of Api iI 2007 before me the undersigned a JeYrjNotaryPublicfortheStateofMontanapersonallyappeared10mIQVIdletitknowntometoS b th O a2 ofPanache Properties the company that executed the within instrument and acknowledged to me that he executed the same for and on behalf of said company 7 0 IN WITNESS WH ERlOr Ihave hereunto set my hand and affixed my Notarial Seal the day e f and year fIrst above writtn eJ e R K t Nam ere 1 Notary Public for the tate of Montana s Residing at 3 Qde I M oV My Commission Expires u 30 I d Use 4 digits for expiration year Seal Kagy Gardens nnexation greement Page 10 of 1518 CITY OF BOZEMAN J2wA Chris A Kukulski City Manager Brit Fonteffot City Cltr1 STATE OF MONTANA ss County of Gallatin On this day of J IL 2007 before me a Notary Public for the state ofMontana personally appeared Chris A Kulkulski and Brit Fontenot 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 Erst above written Seal f2 H 17 4 T ffbJ2jmu 1lLLJfI2LrintNameHere Notary Public for the State of Montana Residing at b JYQf My Commission Expires q dfj II Use 4 digits for expiration year Kagy Gardens nnexation greement Page 11 of 1 S19 EXHIBIT A WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL IMPROVEMENT DISTRICTS KAGY GARDENS ANNEXATION The undersib11ed owners of the real property situated in the County of Gallatin State of Montana and more particularly described as follows Tracts of land in the southeast quarter of Section 18 Township 2 South Range 6 East P M M Gallatin County Montana and more specifically described as Plat recorded in Book 134 Deeds Page 415 and Plat recorded in Book 146 Deeds Page 198 IN CONSIDERATION ofreceiving 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 ofwhich is hereby acknowledged and in recognition ofthe impacts to Kagy Boulevard Sourdough Road and Highland Boulevard whichwillbe caused by the development of the above described property the ownerhas 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 Paving curb gutter sidewalk storm drainage facilities for Kagy Boulevard and Sourdough Road and signalization improvements for the Sourdough Road Kagy Boulevard Kagy Boulevard Highland Boulevard and WillsonAvenue and 3rd Avenue intersections 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 DATED this day of 2007 KagGardens innexation igreement Page 12 of 1520 STATE OF GV htL County of uujtQtd s 1 etu k lMVi J S V41 t1OSki JV1j S On this q day of tel I 2007 before me the unClersigned a Notary Public for the State of Montana personally appeared T noVelI eeof knowntometo 7 a c1 be the ownlte ofPanache Properties the company that executed the within Fr iss 10 instrument and acknowledged to me that he executed the same for and on behalf of said company IN WITNESS WHEREOF Ihave hereunto set my hand and affixed my Notarial Seal the day afJ and year fIrst above written I0kpu c iff1 If rfprint Nun Here boVt Notary Public for tl1e State of Montana pSealResidingatfpIeGcJRMT My Commission xpires J 30uq Usc 4 digits for expiration year Kagy Gardens nnexation greement Page 13 of 1521 EXHIBIT B WAIVER OF RIGHT TO PROTEST CREATION OF SPECIAL PARKS MAINTENANCE DISTRICTS KAGY GARDENS ANNEXATION The undersigned owners ofthe real property situated in the County ofGallatin State ofMontana and more particularly described as follows Tracts ofland in the southeast quarter of Section 18 Township 2 South Range 6 East P M M Gallatin County Montana and more specifically described as Plat recorded in Book 134 Deeds Page 415 and Plat recorded in Book 146 Deeds Page 198 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 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 ofintention 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 ofthe 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 Kagy Gardens nncxatlon greement Page 14 of 1522 DATED this day of Atx 2007 STATE 0F tlc V W County of 04 lQ ss On this q day of A e l 2007 before me the undersigned a Notary Public for the State of Montana personally appeared roM d 1flee known to meto be the LJuJflee5 of Panache Properties the company that executed the within instrument and acknowledged to me that he executed the same for and on behalf ofsaid company INXlITNESS WHEREOF I have hereunto set my hand and affixed my Notarial Seal the day and year firsr above written Seal f 2 W P IV eefl Uirtjeprint me Here Notary Public for the State of Montana Residing atbe 1M d f VV My Commission ItxpiresJ 3U JQJq Use 4 digits for expiration year Kagy Gardens Annexation A grcemcnt Page 15 of 1 S23 24