HomeMy WebLinkAbout04- Rosa Annexation Agreement
ROSA ANNEXATION AGREEMENT
THIS AGREEMENT is made and entered into this I d. fh day of ~_, 2~,
by and between the OTY OF BOZEMAN, a municipal corporation and political subdivision of the
State of Montana, with offices at 411 East Main Street, Bozeman, Montana 59771-1230, hereinafter
referred to as "Oty", and John Rosa, 85 West Clara Street, Bozeman, Montana 59718 hereinafter
referred to as "Landowner".
WITNESSETH:
WHEREAS, the Landowner is owner in fee of a tract of cenain real property, hereinafter
referred to as the "ROSA ANNEXATION", situated in Gallatin County, Montana, and more
particularly described as follows:
A tract of land being Tract B, ca.s, 2389, as filed with the Gallatin C,.ountyderkand
Recorder, located in the W1/z, EYz of Section 4, Township 2 South, Range 5 East,
P.M.M" Gallatin County, Montana,
Said tract contains 39.836 acres, more or less, and is subject to all existing easements or
apparent on the ground.
WHEREAS, the Landowner has petitioned the Otyfor annexation of the contiguous tract; and
WHEREAS, the ROSA ANNEXATION is not within the corporate limits of the Otyorother
municipality but is contiguous to the Otyand may therefore be annexed to the Oty in accordance with
the provisions of this Agreement and M,CA. Title 7, Chapter 2, Part 43,
WHEREAS, all parties recognize thatthe annexation of the ROSA ANNEXATION pursuant
to Section 7-2-4301, et seq., M.CA., will entitle the said propeny to City services, including municipal
water and sewer service, upon their availability; and
WHEREAS, M,CA. Section 7-2-4305 provides that a municipality and landO'wnercan agree to
the provision of services to the area to be annexed; and
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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 Landowner wishes to convey to the City certain water rights or take some
equivalent action to provide water and sewer service to the ROSA ANNEXATION; and
WHEREAS, all parties recognize that the development of the ROSA ANNEXATION will
impact Durston Road, Cottonwood Road and Oak Street, and will require additional public street
improvements [or traffic circulation; and
WHEREAS, all parties recognize that the development o[ the ROSA ANNEXATION will
impact sewer capacity, and will require additional public infrastnIcture improvements for fUhlre
devclopment of the property; 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 [or
development near and within the ROSA ANNEXATION; and
WHEREAS, the making and penormance 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 Ciryis 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 fUltherance of the public health, safety and welfare of the community to enter into
and implement this Agreement,
IN CONSID ERA TI ON of the mutual covenants and agreements herein contained, the parties
hereto agree as follows:
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Shallay Vanoa-Gallatln Co MT MIse 96,00
1. ReciL'lls
The above recitals are true and correct.
2, Annexatiol}
The Landowner filed an application for annexation of the ROSA ANNEXATION with the
Oty. The Oty, on January 20, 2004, adopted a Resolution of Intent to Annex the ROSA
ANNEXA~n ON. By execution of this Agreement, the Oty has manifested its intention to annex the
ROSA ANNEXATION tract pursuant to the term.,> and conditions of this Agreement, Subject to the
provisions of Title 7, Chapter 2, Part 43, the Ory shall, upon execution of this Agreement, adopt a
Resolution of Annexation of the ROSA ANNEXA 11 ON to the Ory. Further, upon the execution of
this Agreement, the Landowner shall do all things necessary and proper to aid and assist the Ory in
carrying out the terms, conditions and provisions of this Agreement and effectuate the annexation of the
ROSA ANNEXATION tract to the Ory,
3. Services Provided
The Ot y will, upon annexation, make available only existing Ory services to the extent currently
available, including municipal water service, municipal sewer service, police protection, and fire
protection, to the ROSA 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 Oty in accordance with Chapter 13.12, Bozeman Municipal (Dde, or as may be
amended, as well as any other terms and conditions which apply to the Oty's provision of this service,
The term does not contemplate the extension of lines or construction of necessary improvements at any
cost to the Ory for delivery of water to and within the ROSA ANNEXATION. Nothing in this
Agreement shall obligate the Ory to pay for right-of-way acquisition, engineering, construction, and
other costs forthe delivery of waterto or within the ROSA ANNEXATION to include, but not limited
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Sh.ll.y Va"o.-Gallatl" Co MT MISC 96.00
The applicant understands and agrees that prior to development the applicant will be responsible for
to, any impact fees, hook-up, connection, or development charges which may be established by the City,
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.
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 anyotherterms 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 ROSA ANNEXATION. Nothing in this
Agreement shall obligate the City to pay for right-of-way acquisition, engineering, construction, and
other costs forthe collection of sewage services to or within the ROSA ANNEXATION to include, but
not limited to, any impact fees, hookup, connection, or development charges which may be established
by the City. The applicant understands that substantial limitations for growth exist in the sewer
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 identifythe 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,
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Shelley Vance-Gallatin Cc MT MISC 96.00
6, Water Rights
The parties ackrzaWal~};: the faLouing City paicy:Prior to annexation if property, it shaLL be the paicy
if the City if Baz.mun to acquire usable wtL"r rights, or an appropriate fee in Lieu thent/, equaL to dJe
antiLipatai aUTa&t: annuaL cansutnption if WIter by residents and/or users (f the property 1.RlJen JidLy
deuioped. 17x fee tnqlx used to acquire WIla rig;ts or for improzrnTnts to the WIter S)5tml wid)
UOlfLd create additional WIter supply Q:1.pacity. E Xctpt, houeuy, that for any annexation in exlBS (f'
ten (10) a(res, this pauyshaLL Ix carnal out prior toJinal pLat dppmmL (f'mch deudopnmt phase.
Section 2, No. 5, CumrnissionResaution3137, AduptedAu?l1St 19,1996
TIle ROSA ANNEXA nON consists of approximately 39.836 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:
ROSAANNEXATION, consisting ofa total of39, 836 acres, shall
provide water rights or cash-in-lieu prior to final plat, final site
plan or building penn it apprornl or whiche7Xr occurs first.
The Landowner shall provide sufficient cash-in-lieu as calculated by the City in accordance
with its policy at the time of calculation, The Landowner further understands that the Citywill 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
Prior to future development of the property, the Landowner shall have prepared by a
Professional Engineer, at Landowner's 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 [or full development, the report must identify necessary water system and sewer system
improvements required for full development, The Landowner agrees to complete at Landowner's
expense, the necessary system improvements to serve the full development,
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Sn.ll.y V.no.-G.llatln Co MT MISC 98.00
Landowner understands and agrees that adequate municipal services and facilities are not
8, Future Development
currently available to much of the area proposed for annexation, and that there is no right, either
granted or implied by the Gty, for the Landowner to develop any of the ROSA ANNEXA 11 ON lmtil it
is verified by the City that necessary municipal services and facilities, including but not limited to police
and fire protection, road improvements and sewer, are available to all or a portion of the ROSA
ANNEXATION. The Landowner understands and agrees that future development of the ROSA
ANNEXATION may be restricted as defined in paragraph number 5, "Municipal Sewer Service
Defined" and further defined by the following:
a. Prior to development the property owner 'Will be responsible for installing any facilities required
to provide full municipal services to the property in accordance with the City of Bozeman's
infrastmcture master plans and all city policies that may be in effect at the time of development.
b, Prior to any development of the subject annexation, a stormwater drainage and grading plan
shall be provided to and approved by the Oty Engineer. The plan must demonstrate that
adequate treatment of nmoff 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 stmcture details, and
culvert capacity calculations. The plan must also locate and provide easements for adequate
drainage ways within the annexation area to transport treated mnoff to the stormwater receiving
channel.
c. A detailed Traffic Impact Analysis Report may be required prior to future development of the
subject annexation,
d. The applicant is advised that substantial limitations for growth exist in the wastewater collection
system for this propeny, which 'Will need to be addressed in conjunction with development of
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Shelley Vanoe-Gallatin Co MT MISC 96.00
required to prepare a comprehensive design report evaluating the existing capacity of both the
the parcel. Prior to development of the subject annexation, the applicant's engineer will be
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
necessalY to serve the full development must be in place prior to further development of the
slte,
e. Upon annexation and upon availability of service, any existing residences/businesses on the
property must be connected to Gty water and sewer utilities, The existing on-site treatment
systems must be properly abandoned and certification provided the abandonment occurred.
Any wells presently used for domestic putpose can be retained for irrigation only with no
physical connection to domestic water piping,
f. The Annexation Agreement shall include notice that, prior to development, the developer will
give deliberation to implementing the Gty of Bozeman's affordable housing ordinance with
prelim.inary subdivision plat review of said lands.
g, The Annexation Agreement shall include notice that, prior to submittal of a preliminary plat
application for all or any portion of the property, the developer of said lands will create a Master
Plan identifying the land use patterns and types and the trail, park and open space connectivity
for the integrated development of the property within the organizational scheme of the
adjoining neighborhood(s) and will implement through the design of the subdivision a variety of
housing types to selVe the varied needs of households of different size, age and character,
subject to review and approval by the Gty of Bozeman,
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Snel1ey Vanoe-Ga1latln Co MT MISC 98,00
9. Impact Fees
The Landowners hereby acknowledge that annexation and development of their property will
impact the Oty's existing street, water and sewer infrastructure, and fire service requirements. There are
no existing structures on the property, At the time new structures apply to the Oty's Water and Sewer
facilities, the Landowners shall pay all Water and Sewer Impact Fees which are due. The Landowners
and their successors shall pay all Fire, Street, Water and Sewer Impact Fees required by chapter 3.24,
Bozeman Municipal Code, or as amended, at the time of application [or any permit listed in Section
3.24,050A, 3.24.060A, 3,24,070A, or 3,24,080A, respectively, If the impact fees currently imposed
pursuant to Chapter 3.24 of the Bozeman Municipal Code are subsequently voided or declared invalid
by a court of competent jurisdiction, Landowners agree to pay the Oty fees or assessments established
by the Oty for impact on City services in accordance with a new or revised Chapter of the Bozeman
Municipal C.ode lawfully enacted as a result of such court decision after the date of the court decision.
If, prior to enactment of such revised Chapter, the Landowner applies [or any permit which actuates or
would have actuated impact fees pursuant to the current Chapter 3,24 of the Bozeman Municipal Code,
the Landowner further agrees to payat that time, the amount calculated for all such fees based upon the
rates established at the date of this agreement,
If the Court above declares Chapter 3.24 of the Bozeman Municipal Code invalid, and if
landowner would have been entitled to a refund under the court's decision but were it not for the sole
fact of the landowner paying impact fees because of this agreement, then all such impact fees paid prior
to the court's decision shall be held in escrow until a revised Chapter of the CAlde is enacted after the
CDun's decision.
At the time the revised code is enacted, then all such fees held in escrow shall be released to the
city and the balance, if any, rChlmed to the landowner. All accumulated interest on the sum held in
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escrow shall be released to the Oty or landowner on the same percentage as the money released to
either party bears to the total sum held in escrow,
Landowners further understand and agree that any improvements, either on- or off-site,
necessary to provide connection of ROSA ANNEXA 11 ON to municipal selVices which are wholly
attributable to the property are "project related improvements" as defined in Chapter 3,24, Bozeman
Municipal C...ode, or as amended, and as such, are not eligible for impact fee credits,
If Landowners default on this condition at the time such is to be performed, and should default
not be remedied or corrected within thirty (30) days after written notice byOtyto Landowners of such
default, Oty may at their option:
A) Declare the amounts owing for impact fees inunediately due and payable and
Gty shall have the right and privilege to take legal action against Landowners
for the collection of such sum, including the entry of any judgment. In addition,
the Oty may, at its option, enforce payment of such amount by levying an
assessment on the premises.
B) Elect any other remedy available to Gtyunderthe laws of the State of Montana.
q Any waiver by Oty 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
the Oty 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
bysuch a declaration or judgment and, therefore, notwithstanding any judgment
either limiting impact fee payments under annexation agreements to specified
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Shelley Vanoe-Gallatln Co MT MISC ge.00 .
amounts, or prohibiting anysuch payment, lando'Wllerwill pay such amount as
specified above.
10. Stoffilwater Master Plan
Lando'Wller understands and agrees that a Stormwater Master Plan for the ROSA
ANNEXATION for a system designed to remove solids, oils, grease, and other pollutants from the
nmoff from the public streets must be provided to and approved by the City Engineer at the time of any
future development. The master plan must depict the maximum sized retention/detention basin
location and locate and provide easements for adequate drainage ways within the area to transport
mnoff to the stonnwater receiving channel(s), The plan shall include site grading and elevation
information, typical stormwater detention/ retention basin and discharge stmcture details, basin sizing
calculations, and stormwater maintenance plan,
11. T rafflc Analys is Report
Lando'Wller may be required to provide a detailed Traffic Analysis Report(s) at the time of future
devclopment of any portion of the annexed property,
12. Waiver of Right-to- Protest Special Improvement Districts
Lando'Wller has executed a Waiver of Right-to-Protest Oeation of Special Improvement
Districts for
a, Street improvements to Durston Road, Cottonwood Road, and Oak Street; including paving,
curb and gutter, sidew,llk, and storm drainage improvements.
b, Signalization of the intersection of Durston Road and Cottonwood Road.
c. Signalization of the intersection of Oak Street and Cottonwood Road,
d. Tmnk sewer main improvements and a regional lift station.
e. Parks Maintenance District.
Said Waivers are attached hereto as Exhibits A.
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Shelley Vanoe-Gallatin Co MT MISC 96,00
13, Right-of- Way/Easement for Future Roadways
Landowner has dedicated, by Public Street and Utility Easement, the following land to the Gty
of Bozeman for right-of-way purposes, which represent Landowner's proportionate share of the
necessary right-of-way, Said Public Street and Utility Easement will be filed with the Gallatin Omnty
Oerk and Recorder at the time this Annexation Agreement is filed.
a. NOlth half (additional 10 ft) of Durston Road,
b. South half (60-feet) of Oak Street.
c. Q,)ntinuation of the east-west streets from Laurel Glen Subdivision thm this property,
14. Utility Easements
Landowner understands and agrees that utility easements, a minimum of 30 feet in width, will be
necessary for the installation and maintemnce of water and sewer utility selVices to the annexed parcel.
The Landowner shall create such easements in locations agreeable to the Gty during the appropriate
development procedure, but in no event later than the filing of any fiml plat or site plan or issmnce of a
building permit on any of the parcels,
15. Additional T enns of Waivers
The parties recognize that these documents shall be filed and of record with the Gallatin ('Dunty
Clerk and Recorder prior to the sale of any land within the ROSA ANNEXA 11 ON. The parties further
agree that the Gty may file these documents at any time.
16, Goveming Law and Venue
This Agreement shall be constmed 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 ('"ounry, State of Montana,
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Shelley Vanoe-Gallatin Co /'IT /'IISC 98,00 '
17, 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 aty
Attorney,
18, 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,
19. Invalid Provision
TIle 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,
20, Modifications or Alterations
No modification or amendment of this Agreement shall be valid unless evidenced by a writing
signed by the panies hereto.
21. No Assignment
It is expressly agreed that the Lando'WIler shall not assign this Agreement in whole or in part
without prior written consent of the aty.
22, 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,
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Sh.ll.y Vano.-Gallatln Co ~T MISC 96.00
23, Covenants to Run with the Land
The parties intend that the terms of this Agreement shall be covenants nmning with the land and
shall,not expire at their deaths or upon transfer of ownership of the property.
The undersigned Landowners affirms that they have authority to enter into this Agreement on
behalf of their pannership, and to bind the partnership to this Agreement,
IN WITNE SS WHE RE OF, the parties hereto have caused this Agreement to be executed the
day and year first above written,
STATE OF MONTANA)
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County of Gallatin
On this,c..}h day of 11v.~l4:t-- , 20 tJL{, before me, the undersigned, a
NotalY Public for the State of Montana, pe onally appeared John Rosa, known to be the person whose
name is subscribed to the within instnunent 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.
(SE AL)
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CITY OF BOZEMAN
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ris Kukuls " Gty Manager
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Robin L. Sulliva!i, ,
Oerkof the"a~5?oriuni:>sion
STATE OF MONTANA)
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On the ~ day of ~, 20 oJ , before me, a Notal)' Public for the State of
Montana, personally appeared a-IRIS KUKULSKI ~ ROBlNL. SULLIVAN, known to me to be
the Gty Manager and Oerk of the GtyCommission respectively, of the Gtyof Bozeman, whose names
are subscribed to the within instrument and acknowledged to me that they executed the same for and on
behalf of said Gty.
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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EXHIBIT A
WAIVER OF RIGHT TO PROTEST
CREATION OF SPECIAL IMPROVEMENT DISTRICTS
ROSA ANNEXATION
The undersigned owners of the real property situated in the CDunty of Gallatin, State of
Montana, and more particularly described as follows:
A tract of land being Tract B, CO.S, 2389, as filed with the Gallatin CDuntyOerk and
Recorder, located in the WYz, EIA of Section 4, Township 2 South, Range 5 East,
P,M.M., Gallatin C..ounty, Montana,
Said tract contains 39,836 acres, more or less, and is subject to all existing easements or
apparent on the ground,
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
Durston Road, CDttonwood Road and Oak Street, the impacts to the sewer and water infrastructure
that will provide service to the property and to the park system, which will be caused by the
development of the above-described property, the owner has waived and do herebywaive for itself, its
successors and assigns, the right to protest the creation of one or more special improvement districts
for: a) The paving, CUth, gutter, sidewalk, and drainage improvements to Durston Road,
Cottonwood Road and Oak Street; b) signalization of the intersection of DUl"Ston Road and
Cottonwood Road; c) signalization of the intersection of Oak Street and Cottonwood Road; d)
any tnll1k sewer main improvements and for the installation of a regional lift station to service
the propelty; and e) Parks Maintenance District 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,
This waiver shall be a covenant numing 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.
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Shelley Vance-Gallatin Cc MT MISC 96,00
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The terms, covenants and provisions of the Waiver shall extend to, and be binding upon the
successors-in~interest and assigns of the parties hereto.
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DATED this K day of Hu:yJ , 2 OQ:L ,
: ss
STATE OF MONTANA)
('.Dunty of Gallatin
On this } a J..h day of ~~ , 20 d-f , before me, the undersigned, a
Notary Public for the State of Montana, pe~ appeared r ohn Rosa, known to be the person whose
name is subscribed to the within instmment 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,
(SEAL)
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