HomeMy WebLinkAbout99- O'Malley/Cook Annexation Agreement
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Q~M^LLEY /COOK .ANNEXATION
ANNEXATIQN AGREEMENT
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TI-HS AGREEMENT is made and entered into this
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1999, by and between the CITY OF BOZEMAN, a municipal corporatlOn and political
subdivision of the State of Montana, with offices at 411 East Main Street, Bozeman, Montana
59715, hereinafter referred to as "City", and Salie B. O'Malley and Philip S. Cook, 664
Mourning Dove Drive, Sarasota, Florida, 34236, hereinafter referred to as "Landowners II .
WITNESSETII:
WHEREAS, the Landowners are owners in fee of a tract of certain real property,
hereinafter referred to as the "O'MALL,EY /COOK ANNEXATION", situated in Gallatin
County, Montana, and more particularly described as follows:
Tracts 2, 3 and 4 uf the Van 110m Subdivision,
Gal/atin Cuunty, Montana
WHEREAS, the Landowncrs have petitioned the City for annexation of the
contiguous tract; and
WHEREAS, the O'MALLEY/COOK ANNEXATION is not within the corporate
limits of the City or other municipality but is contiguous to the City and may thcrefore be
annexed to the City in accordance with the provisions of this Agreement and M,C.A. 'ride 7,
Chapter 2, Parr 43.
WHEREAS, all parties recognize that the annexation of the O'MALLEY/COOK
ANNEXATION pursuant to Section 7-2-4301, et seq., M.C.A., will cntitle the said property
to City services, including municipal water and sewer service, upon their availability; and
WHEREAS, M.C.A. Section 7-2-4305 provides that a municipality and Landowners
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 \vater 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 O'MALLEY/COOK
ANNEXATION; and
O'Malley/Cook Annexation Agreement
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WHEREAS, all parries recognize that the development of the O'MALLEY/COOK
ANNEXATION will impact West Babcock Street, Fowler Lane and Ravalli Street, and will
require additional public street improvements for traffic circulation; 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 O'MALLEY/COOK
ANNEXA TION; 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
O'Malley /Cook Annexation Agreement
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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. Re~it~h~
The above recitals are true and correct.
2. Annexatiol}~
The Landowners filed an application for annexatIon of the O'MALLEY/COOK
ANNEXA TION with the City. The City, on July 6, 1998, adopted a Resolution of Intent to
Annex the O'MALLEY/COOK ANNEXATION. By execution of this Agreement, the City
has manifested its intention to annex the O'MALLEY/COOK ANNEXATION tract
pursuant to the terms and conditions of this Agreement. Subject to the provisions of 'fide 7,
Chapter 2, Part 43, the City shall, upon execution of this Agreement, adopt a Resolution of
Annexation of the O'MALLEY/COOK ^ NNEXA TION 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
O'Malley/Cook Annexation Agreement
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effectuate the annexation of the O'MALLEY/COOK ANNEXATION tract to the City.
3. Services Provided.
The City will, upon annexatlOn, make available only eXlstmg City serVlces to the
extent currently available, including municipal water service, municipal sewer service, police
protection, and fire protection, to the O'MALLEY/COOK ANNEXA TION, as provided in
this Agreement.
4. M!:!nicipal Water Sery_k~:O~fin~cL
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, B07.eman 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 Of
construction of necessary improvements at any cost to the City for delivery of water to and
within the O'MALLEY/COOK 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 O'MALLEY/COOK ANNEXA TION to include, but not
limited to, any impact fees, hook-up, connection, or development charges which may be
established by the City.
5. Municipal Se.w~LS~rvice 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 O'MALLEY/COOK 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 O'MALLEY/COOK ANNEXATION to
include, but not limited to, any lmpact fees, hookup, connection, or development charges
which may be established by the City.
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6. paybacks to W;!t~rand Sanitary Sew~rSRecial Improv~m~ntPi~tricts (SIDs),
The Landowners understand and agree to provide documentation of the appropriate payback
to SID No. 621 for use of the existing sanitary sewer, and to SID No. 622 for connection to
the existing water main, at the time the subject property is further subdivided or when
structures on the subject property are connected to the municipal water and sewer system.
7. Wat!;cRights,
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 O'MALLEY/COOK ANNEXATION consists of approximately 8.75 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:
O'MALLEY/COOK ANNEXATION, zoned R-3 "Residential
Medium-Density District" and consisting of a total 0/8.75 acres.
The Landowners 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 Landowners further
understand 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 Landowners agree to pay to the City of Bozeman $8,324.40 in cash-in-lieu of
water rights prior to annexation of the property.
8. AclHlOwledgment of W_<1t~r Impacts,
The Landowners acknowledge that based on the City's Water Facility Plan pressure
zone appurtenances may be required of the Landowners or future developer(s) with future
development.
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9. Compreh~l1$ive Water and S~w:~r Design RepQrt.
Prior to future development of the property, the Landowners shall have prepared by a
Professional Engineer, at the Landowners' expense, a comprehensive design report evaluating
existing capacity of sewer and water utilities. 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 is not available for full development, the report must identify necessary
water system and sewer system improvements required for full development. The
Landowners agree to complete at the Landowners' expense, the necessary system
improvements to serve the full development.
10. fllture DeveIo12!n~Jlt.
The Landowners understand and agree that municipal serVIces are not currently
available to much of the area proposed for annexatIOn, and that there is no right, either
granted or implied by the City, for the Landowners to develop any of the
O'MALLEY/COOK ANNEXATION until it is verified by the City that necessary
municipal services, including but not limited to police and fire protection, arc available to all
or a portion of the O'MALLEY /COOK ANNEXATION.
11. Impact f~es,
The Landowners hereby acknowledge that annexation and development of their property
will impact the City's existing street, water, sewer infrastructure, and fire service requirements.
The Landowners shall pay to the City Fire and Street Impact Fees for the existing structure(s)
within the O'MALLEY/COOK ANNEXATION prior to or at the time of Landowners'
execution of this Agreement. The Landowners understand and agree that the existing structures
on the property must connect to City water and sewer services upon any future development.
For the purposes of this agreement, the extension of Ravalli through the subject property, to
provide access to neighboring properties, would not constitute further development. At the time
the existing and/or new structures apply for connection to the City's Water and Sewer facilities,
the Landowners shall pay all Water and Sewer Impact Fees which are due. The Landowners and
their successors shall pay all Fire, Street, Water and Sewer Impact Fees required by Chapter
3.24.050A, 3.24.060A, 3.24.070A and 3.24.080A, respectively.
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If 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, the Landowners
agree to pay the City at that time, the amount calculated for all such fees based upon the rates
established at the date of this agreement. The Landowners further understand and agree that
any improvements, either on- or off-site, necessary to provide connection of O'Malley/Cook
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 the Landowners should default on this condition at the time such is to be performed,
and should the default not be remedied or corrected within thirty (30) days after written
notice by City to the Landowners of such default, the 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 the 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
prenllses.
B. Elect any other remedy available to City under the laws of the State of Montana.
C. Any waiver by City of any default shall not be construed as a waiver of any
subsequent default.
D. It is agreed that it shall be no defense to the enforcement of this provision by City
that impact fees imposed pursuant to Chapter 3.24 of the Bozeman Municipal Code are
subsequently voided or declared invalid by a 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, the
Landowners will pay such amount as specified above.
O'Malley /Cook Annexation Agreement
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12. St9f!llwater MastecPlan,
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The Landowners understand and agree that a Stormwater Mastcr Plan for thc
O'MALLEY/COOK ANNEXATION for a system designed to remove solids, oils, grease,
and other pollutants from the runoff from the public streets must bc provided to and
approved by the City Engineer at the time of any futurc dcvelopment. The master plan must
depict the maximum sized retention/detention basin location and locatc and provide
eascments for adequate drainage ways within the area to transport runoff to the storm water
receiving channcl(s). The plan shall include site grading and elevation information, typical
stormwater dctention/retention basin and discharge structure details, basin sizing calculations,
and stormwater maintcnance plan.
13. Tr~ffic Analysis Re12Qrt!
The Landowners shall providc a detailed Traffic Analysis Report(s) at the lIme of
future developmcnt of any portion of the annexed property.
14. Waiver of Right- to-Protest Spec!!11 ImprovementPistricts.
The Landowners have executed a Waiver of Right-to-Protest Creation of Spccial
Improvement Districts for street improvements, including paving, curb/gutter, sidewalk,
boulevard and storm drainage appurtenances to: a) West Babcock Strect and b) Fowler Lanc;
and for signalization improvements at thc intersections ofW est Babcock Street and Fowler
Lanc; and have further executed a Waiver of Right-to-Protest Creation of Rural Improvement
Districts for paving, curb and gutter, sidewalk, boulevard, and storm drainage appurtenances
to a) West Babcock Street and b) Fowler Lane; and for signalization improvements at the
intersections of West Babcock Street and Fowler Lane. The Landowners have also executed a
Waiver of Right-to-Protest Creation of Special Improvement 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. Said Waivers are attached hereto as Exhibits A and B.
15. Right-of-Way/Easement for Future Roadway-~.
The Landowners have dedicated, by written easement, the following land to the City
of Bozeman for right-of-way purposes, which represent The Landowners' proportionate share
of the necessary right-of-way. Said easements will be filed with the Gallatin County Clerk
and Recorder at the time this Annexation Agreement is filed.
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a) Forty-five (45) feet for south one-half of West Babcock Street
b) Seventeen (17) feet for part of the cast one-half of Fowler Lane
c) Sixty (60) feet for the extension of Ravalli Street
16. Ytility Eas_~m~nts.
The 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. A4qitional Terms oCW_3iy!;r~_,
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
O'MALLEY/COOK ANNEXA TTON. The parties further agree that the City may file these
documents at any time.
18. !:iQYl::Iping Law and Venue.
This Agreement shall be construed under and governed by the laws of the state of
Montana. Tn the event of litigation concerning this Agreement, venue is in the Eighteenth
Judicial District Court, Gallatin County, State of Montana.
19. At.torney's Fees,
In the event it becomes necessary for either party to this Agreement to retam 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 the City Attorney.
20. WaiY~r,
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.
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21. Inv.aUcLProvision,
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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.
22. ModiH~Ations or Alte~;!tjQn~
No modification or amendment of this Agreement shall be valid unless evidenced by a
writing signed by the parties hereto.
23. No AssignJll~nt,
It is expressly agreed that the Landowners shall not assign this Agreement in whole or
in part without prior written consent of the City.
24. 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,
25. Covenants 19-'1\11n 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.
IN WITNESS WHEREOF, the partles hereto have caused this Agreement to be
executed the day and year first above written.
O'Malley/Cook Annexation Agreement
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LANDOWNERS
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Shelley Vance-Gallatln Co ~T MISC 94,00
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By: Salie $. O'Malley
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By: Philip- S,--C:Jok ' ---
STATE OF _~)
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County of _ )
On the _ < ~___ day of ~"l_0'l....J. __, 1999 , before me, a Notary Public
for the State of --~3-t.~~- , personally appeared 5ALTE B. O'MALLEY
AND PHILIP S. COOK, known to me to be the persons whose names are subscribed to the
above instrument and acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day
and year first written above.
(Seal)
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Notary Public for the State of~J!lrustc-,-- '
Residing: \ It '\ ),,~'- c;~\, -
Commission Expires: 11.--'? 7- Z.CjC) l
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SHEILA F FLORIAN
NarARY~UC~A~OFRORIDA
COMMISSJON J\IO, CC699788
MY COMMISSION EXP. DEC. 27 001
CITY OF BOZEMAN
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By: Clark V, Johnson, City Manager
ATTEST:
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Clerk of the City Commission
STATE OF MONTANA)
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County of Gallatin
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On the ~~cI. day of /~ ___ ,..1!?9?-, before me, a Notary Public for the
State of Montana, personally appeared CLARK V. JOHNSON AND ROBIN L.
SULLTV AN, known to me to be the City Manager and Clerk of the City Commission
respectivel y, of the City of Bozeman, whose names are subscribed to the within instrument
and acknowledged to me that they executed the same for and on behalf of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the
day and year first written above
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otary Public for the State of Montana
Residing at Bozeman, Montana
My Commission Expires: ~ -/.)":0>
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Shelley Vanoe-Gallatin Co ~T ~ISC 84,00
EXHIBIT "A"
:Wj\IY~R_OF RIGHT TO PROr~~T_
CREA TIQN Of'_SPE~JAL IMPROVEMEN'CPISJRI~IS
O'MALLEY /COOI\..b-NNEXA TION
The undersigned owners of the real property situated in the County of Gallatin, State
of Montana, and more particularly described as follows:
Tracts 2, 3 and of the Van Horn Subdivision, Gallatin County, Montana
TN 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 Fowler Lane and West Babcock Street and the intersection of W cst Babcock Street
and Fowler Lane which will be caused by the development of the above-described property,
have waived and do hereby waive for ourselves, our successors and assigns, the right to protest
the creation of one or more special improvement districts for paving, curb, gutter, sidewalk,
and drainage improvements to: l)Improvements to West Babcock Street and 2) [oowler Lane,
including paving, curb and gutter, sidewalks and storm drainage facilities and [or signalization
improvements to the intersections of West Babcock Street and Fowler Lane or to make any
written protest against the proposed work, or the size or area or creation of the district be to
assessed in response to a duly passed resolution of intention to create one or more special
improvement districts which would include the above-described property.
In the event Special Improvement Districts are not utilized for the completion of these
projects, we agree to participate in an alternate financing method for completion of said
improvements on a fair share, proportionate basis as determined by square footage of the
property, linear front footage of the property, taxable valuation of the property, or a
combination thereof.
Further, the owners recognize the impact to City parks which will be caused by the
development of the above-described property, and have waived and do hereby waive for
ourselves, our successors and assigns, the right to protest the creation of one or more City-
wide park maintenance district(s) which would provide a mechanism for the fair and equitable
assessment of maintenance costs of City parks, or 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
O'Malley/Cook Annexation Agreemcnt
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intention to create one or more City-wide park maintenance district(s)which would include
the above-described property.
This waiver shall be a covenant running with the land and shall not expire, provided
however this waiver shall apply to the lands herein described.
We warrant that we are lawfully seized and possessed of the real property described
above and that we have a lawful right to convey the property of any part of it.
DATED this '" J day of r)I/L:(lldJ/'l/: 1999.
LANDOWNERS
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By: Philip S, Cook
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ST A TE 01~=tb..t.A~)
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County ofSr"tAo.<>c.J~+
On the ~ day o~~ . , 1999 , before me, a Notary Public
for the State of ~&..o.::.- , personally appeared SALIE B. O'MALLEY AND PHILIP S.
COOK, known to me to be the persons whose names are subscribed to the above instrument
and acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day
and year fi rst written above.
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Notary Public for the State of '" . u-cC~
Residing: ~ (II ~~- ,,~
Commission Expires: ) "'2. - 2- 7- - ZC"'C) (
(Seal)
SHEILA F 'FLORIAN
NarARY PUBUC STATE OF FLORIDA
COMMISSION NO, CC699788
MY COMMISSION EXP, DEe. T7 ,2001
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EXHIBIT "~~~
WAIVER,.QF RIGHT TO PROIESI_
(KEA TION OF RURAL IMPE,QYEMENT DISTRICTS
O'MALLEY /COOK ANNEXATION
The undersigned owners of the real propcrty situated in the County of Gallatin, Statc
of Montana, and more particularly described as follows:
Tracts 2, 3 and of the Van Horn Subdivision, Gallatin County, Montana
IN CONSIDERATION of receiving approval for annexation of the subject property
from thc City of Bozeman, along with accompanying rights and privileges and for othcr and
valuable consideration, the receipt of which is hereby acknowledged, and in recognition of the
impact to Fowler Lane and West Babcock Street and the intersection of West Babcock Street
and Fowler Lanc which will be caused by the development of the above-dcscribed property,
have waived and do hereby waive for ourselves, our successors and assigns, the right to protest
the creation of one or more rural improvement districts for paving, curb, gutter, sidewalk, and
drainage improvements to: l)Improvements to West Babcock Street and 2) Fowler Lane,
including paving, curb and gutter, sidewalks and storm drainage facilities and for signalization
improvements to the intersections of West Babcock Street and Fowler Lane or to make any
written protest against the proposed work, or the size or area or creation of the district bc to
assessed in response to a duly passed resolution of intention to create one or more rural
improvement districts which would include the above-described property.
Further, the owners recognize the impact to public parks which will be caused by the
development of the above-described property, and have waived and do hereby waive for
ourselves, our successors and assigns, the right to protest the creation of one or more park
maintenance district(s) which would provide a mechanism for the fair and equitable
assessment of maintenance costs of public parks, or make any written protest against thc 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 park maintenance district(s)which would include the above-
described property.
Tn the event Special Improvement Districts are not utilized for the completion of these
projects, we agree to participate in an alternate financing method [or completion of said
improvements on a fair share, proportionate basis as determined by square footage of the
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property, linear front footage of the property, taxable valuation of the prOperlY, or a
combination thereof.
This waiver shall be a covenant running with the land and shall not expire, provided
however this waiver shall apply to the lands herein described.
We warrant that we are lawfully seized and possessed of the real property described
above and that we have a lawful right to convey the property of any part of it.
A~
DATED this ~ day of (;1 uittn Dt/l...-J ,1999.
LANDOWNERS
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By: Salie B. O'Malley ,
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By: Philip S. Cook
STATE~)
~I :ss
County of ~(l!....u~
On the t day of ~-0. .., 1999 , before me, a Notary Public
for the State of~ &. Ll , personally appeared SA LIE B. O'MALLEY ^ ND
PHILIP S. COOK, known to me to be the persons whose names are subscribed to the above
instrument and acknowledged to me that they executed the same.
IN WITNESS WHEREOF, T have hereunto set my hand and affixed my Notarial Seal the day
and year fj rst written above.
(Seal)
,-, ~-., ~
n ' ~
~ ~ - - ):~T'-U4cJ
Notary Publtc for the State of ~ P4n 1COcc..
Residing: \ II') ~~ ':~\"'
Commission Expires: J 2.--~ 2--7--- ?.oO (
OFHCIAL NOTARY SEAL
SHEILA F FLORIAN
NOfARY PUBUC STATE OP FLORIDA
COMMISSION ]\'() CC699788
MY COMMISSION EXP. DEe. 27,2001
O'Malley/Cook Annexation Agreement
Page 14
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