HomeMy WebLinkAbout00- Delaney and WBW, LLC Annexation
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DELANEY AND WBW. LLC ANNEXATION AGREEMENT
THIS AGREEMENT is made and entered into this 1st day of May , 2000,
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 59771-0640, hereinafter
referred to as "City", and Michael W. Delaney and Ileana Indreland, 101 East Main Street, Bozeman,
Montana 59715, Delaney & Co., Inc., 101 East Main Street, Bozeman, Montana 59715, and WBW
LLC, c/o Delaney & Co, Inc., 101 East Main Street, Bozeman, Montana 59715, hereinafter referred
to as "Landowner".
WITNESSETH:
WHEREAS, Landowner is owner in fee of tracts of certain real property, hereinafter referred
to as the "Delaney & WBW (D&WBW) ANNEXATION ", situated in Gallatin County, Montana,
and more particularly described as follows:
Tract A of Certificate of Survey No. 1872 containing 20_35 acres, Tract B
of Certificate of Survey No. 1872 containing 96.92 acres, and Tract 2 of Certificate
,of Survey No. 1846 containing 19.58 acres for a total of 136_85 acres all located in
the Southwest Quarter of Section 10, Township Two South, Range Five East, PMM,
Gallatin County, Montana.
WHEREAS, the Landowner has petitioned the City for annexation of the contiguous tracts;
and
WHEREAS, the D&WBW ANNEXATION is not within the corporate limits of the City or
other municipality but is contiguous to the City and may therefore be annexed to the City ~n
accordance with the provisions of this Agreement and M.C.A. Title 7, Chapter 2, Part 43.
WHEREAS, all parties recognize that the annexation of the D&WBW ANNEXATION
pursuant to Section 7-2-4301, et seq., M.C.A., will entitle 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 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 Landowner wishes to convey to the City certain water rights or take some
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equivalent action to provide water and sewer service to the D&WBW ANNEXATION; and
WHEREAS, all parties recognize that the development ofthe D& WBW ANNEXA nON will
impact Ferguson Avenue, West Babcock Street, Fallon Street, and the intersection of Huffine Lane
and Ferguson Avenue, and will require additional public street improvements for traffic circulation;
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 D&WBW 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 al1d 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 filed an application for annexation ofthe D& WBW ANNEXATION with the
City. The City, on October 7, 1996, adopted a Resolution of Intent to Annex the D&WBW
ANNEXATION. By execution of this Agreement, the City has manifested its intention to annex the
D&WBW ANNEXATION tract pursuant to the terms and conditions of this Agreement. Subject
to the provisions of Title 7, Chapter 2, Part 43, the City shall, upon execution of this Agreement,
adopt a Resolution of Annexation of the D&WBW 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 carrying out the terms, conditions and provisions of this Agreement and effectuate the
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annexation of the D&WBW ANNEXATION tract 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 D&WBW 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 ofthis 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 D&WBW 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 D&WBW ANNEXATION to include, but
not limited to, any impact fees, hook-up, connection, or development charges which may be
established by the City.
5. Municipal Sewer Service Defined.
The term "municipal sewer service" as is used in this Agreement shall be the service which
is supplied by the City in accordance with Chapter 13.24, Bozeman Municipal Code, or as may be
amended, as well as any other terms and conditions which apply to the City's provision of this service.
The term does not contemplate the extension of lines or construction of necessary improvements at
any cost to the City for collection of sewage at and within the D&WBW 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 D&WBW
ANNEXATION to include, but not limited to, any impact fees, hookup, connection, or development
charges which may be established by the City.
6. Water Ri2hts.
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
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capacity. Except, however, that for any annexation in excess often (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 D&WBW ANNEXATION consists of approximately 136_85 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:
D& WBW ANNEXATION, prior to filing of any final subdivision plat, final site
plan approval, or the issuance of any building permit, whichever occurs .fin.t.
The Landowner shall provide sufficient water rights or cash-in-lieu as calculated by the City
in accordance with its policy at the time of calculation. The Landowner further understands that the
City will calculate the average annual diversion requirement necessary to provide water to this
annexation tract on the basis of the zoning designation and/or City-approved development for the
property at the time such calculation is made.
7. Connection of Existinf! Residential Structure to Citv Water and Sewer
Landowners understand and agree that the existing residential dwelling unit on the D&WBW
ANNEXA nON shall be connected to City water and sewer as soon as the infrastructure is within
150 lineal feet of the existing dwelling unit and able to serve the structure. At the time of connection
of the existing structures to city sewer, the existing septic tanks and drain fields shall be removed
and/or pumped and filled. These connections shall be completed in conformance with all City and
State requirements for said facilities.
8. Connection of Future Development to City Water and Sewer
Landowners understand and agree that all future development on the D&WBW
ANNEXATION shall be served by City Water and Sewer as provided for in the City's facility master
planning documents. Landowners further understand and agree that connection is subject to the City
Engineer's approval of the point of connection and subject to the following:
a) Plans and Specifications for the sewer and water main extensions, prepared and signed
by a Professional Engineer (PE) registered in the State of Montana, shall be provided to and approved
by the City Engineer and Water Superintendent. The plans shall also be approved by the Montana
Department of Environmental Quality. The applicant shall provide Professional Engineering services
for Construction Inspection, Post-Construction Certification, and preparation of Mylar (and digital
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if available) Record Drawings. Construction shall not be initiated on the public infrastructure
improvements until the plans and specifications have been approved and a preconstruction conference
has been conducted.
b) No building permits will be issued prior to completion and City acceptance of the sewer
and water main improvements.
9. 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 requirements.
Landowners shall pay to the City Fire and Street Impact Fees for the existing structures within the
Tract prior to or at the time of Landowners' execution of this Agreement. At the time the existing
and/or new structures apply 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, Bozeman Municipal Code, or as
amended, at the time of application for any permit listed in Section 3,24.050A, 3.24.060A,
3.24.070A, or 3.24.080A, respectively. If 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, Landowner agrees to pay City at that time, the amount calculated for all such fees based
upon the rates established at the date of this agreement. Landowners further understand and agree
that any improvements, either on- or off-site, necessary to provide connection of the D&WBW
ANNEXATION 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 Landowner 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 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 sum,
including the entry of any judgment. In addition, the City may, at its option, enforce payment of such
amount by levying an assessment on the premises.
b) Elect any other remedy available to City under the laws of the State of Montana.
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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, landowner
will pay such amount as specified above.
10. Waiver of Ri2ht-to-Protest Soecial Improvement Districts
Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts for street improvements, including paving, curb/gutter, sidewalk, boulevard and storm
drainage appurtenances to:
a) West Babcock Street; and
b) Ferguson Avenue; and
c) Cottonwood A venue; and
d) Durston Road; and
e) for signalization improvements at the intersections of Huffine Lane (U S 191) and Ferguson
Avenue.
Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts for wastewater improvements to:
a) Trunk sanitary sewer improvements master planned to serve the subject property, including
those installed with the Valley West annexation, under the City's Wastewater Facilities Plan Update.
Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts for wastewater improvements to:
a) Water main improvements master planned to serve the subject property, including those
installed with the Valley West annexation, under the City's Water Facilities Plan Update.
Landowner has executed a Waiver of Right-to-Protest Creation of Special Improvement
Districts for:
a) A city-wide Park Maintenance District.
Said Waiver is attached hereto as Exhibit A
11. Right-of-Wav/Easement for Future Roadwavs.
Landowner has dedicated, by written easement, the following land to the City of Bozeman
for right-of-way purposes, which represent Landowner's 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 along the north property line of the D&WBW Almexation Tract and
continuing to the east for 545 feet past the brass cap set at the quarter corner of Section 10,
Township 2 South, Range 5 East for West Babcock Street.
b) One hundred (100) feet centered along the existing roadway along the east property line
of the D&WBW Almexation Tract for Ferguson Avenue.
12. Utilitv Easements.
Landowner understands and agrees that utility easements, a minimum 000 feet in width, will
be necessary for the installation and maintenance of water and sewer utility services to the annexed
parcel. The Landowner shall create such easements in locations agreeable to the City during the
appropriate development 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.
IJ. 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 D& WBW ANNEXATION. The
parties further agree that the City may file these documents at any time.
14. Governine Law and Venue.
This Agreement shall be construed under and governed by the laws of the state of Montana.
In the event oflitigation concerning this Agreement, venue is in the Eighteenth Judicial District Court,
Gallatin County, State of Montana_
15. 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.
16. Waiver.
No waiver by either party of any breach of any term, covenant or agreement shall be deemed
a waiver ofthe same or any subsequent breach ofthis same or any other term, covenant or agreement.
No covenant, term or agreement shall be deemed waived by either party unless waived in writing.
DELANEY AND WBW, LLC ANNEXATION AGREEMENT
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17. 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.
] 8. Modifications or Alterations.
No modification or amendment of this Agreement shall be valid unless evidenced by a writing
signed by the parties hereto.
19. 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.
20. 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.
21. 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 affirms that they have authority to enter into this Agreement on behalf of themselves
and/or the corporation, and to bind themselves and/or their corporation to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
WBW LLC
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By: #11-t.R-i~~/7%ct.
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Its: ./"?4?q /7.
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STATE OF W(LS\-". )
:ss
County of K i (\CJ )
On this \ 0',g. day of ~--:SC',-" \.A.C\...\y , d. DDO, before me, a Notary Public for the
State Of~~~1Clr\ personally appeared Me.\\'i\f'\ 6. '-'e_\l.\ e , known to me
to the \""0...r\(l~~ [ ofWBW, LLC, the corporation that executed the foregoing
Almexation Agr ment, and acknowledged to me that he/she executed the same for and on behalf of
said corporation.
TN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the
day and year :first above written.
DELANEY AND WBW, LLC ANNEXATION AGREEMENT
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Sh.l1.y V~no.-Gallatln Co MT MISC 78.00
.~.<O r\l ",,-) k _ J::\(Ln(~~. KAREN L GANGI
Notary Pub.li~ for the State of \ l.. )Q~\\3 r~~Cf\ STATE OF WASHINGTON
(Seal) Resldmg: -,,-\,':-:::,:""Q~~~(LX\ NOTARY-.-PUBLlC
Commission Expires: p)--O ,Dc:), MY COMMISSION EXPIRES '-o4~02
DELANEY & CO., INC.
By: ~ \J..J...::) ~
Its: pre~. _~
STATE OF~~)
:ss
County of~ )
On this ~ day of JClV\UCl ~ ' ~, before me, a Notary Public for the
State of ~taV\t\.. , personally appeare ~ld1ael 1)-e \ CV'1;t , known to me to
the 1>1'I'~lc..OU'-:C of Delaney & Co. Inc., the corporation tha: executed the foregoing
Almexation Agreement, and acknowledged to me that he/she executed the same for and on behalf of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the
day and year first above written.
Not Public for the State ~+aVla...-
(Seal) Residing: ~~
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<",<~\~~',r~~~~.S~~-,Expires: ) CYL
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S TATE OF1Y1orlnVla)
:ss
County of ~)
On the ~ day of , ~, before me, a Notary Public for the State of
'iY\ (J(\ , V\C< _, personally ap red Michael W. Delaney and Ileana Indreland, known to me
to be the person(s) whose name(s) is/are subscribed to the above instrument and acknowledged to
me that he/she/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.
Not Public for the State of ~
(Seal)"Rl;siding ~~
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DELANEY AND WBW, LLC ANNEXATION AGREEMENT
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CITY OF BOZEMAN
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By: Clark V. Johnson, City Manager
ATTEST:
~J~-
Clerk of the City Commission
ST A TE OF MONT ANA )
:ss
County of Gallatin )
On the 1# day of ~ 4/Jdd, before me, a Notary Public for the State of
Montana, personally appeared C V. JOHNSON AND ROBIN L. SULLIVAN, known to me
to be the City Manager and Clerk of the City Commission 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.
SS WHEREOF, I have hereunto set my hand and affixed my seal on the day and year first
ve.
Notary Public for the State of Montana
(Seal) Residing at Bozeman, Montana
.". ~
My Comm~ssion Expires: ~ -..() -/3-
DELANEY AND WBW, LLC ANNEXATION AGREEMENT
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EXHIBIT "A"
WAIVER OF RIGHT TO PROTEST
CREA TION OF SPECIAL IMPROVEMENT DISTRICTS
DELANEY AND WBW. LLC ANNEXATION
The undersigned owner of the real property situated in the County of Gallatin, State of
Montana, and more particularly described as follows:
Tract A of Certificate of Survey No. 1872 containing 20.35 acres, Tract B of
Certificate of Survey No. 1872 containing 96.92 acres, and Tract 2 of Certificate of
Survey No. 1846 containing 19.58 acres for a total of 136.85 acres aU located in the
Southwest Quarter of Section 10, Township Two South, Range Five East, PMM,
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 ofthe impact to_West
Babcock Street and Ferguson Avenue, and the intersections of Ferguson Avenue and Huffine Lane
(US 191) which will be caused by the development of the above-described property, and in
recognition of the impact to the sanitary sewer system, and in recognition of the impact of
development to the park system, the owner has waived and do hereby waive for itself, its successors
and assigns, the right to protest the creation of one or more special improvement districts for:
1) paving, curb, gutter, sidewalk, and drainage improvements to:
a) West Babcock Street;
b) Ferguson Ave; and
c) Cottonwood Ave; and
d) Durston Road; and
c) for signalization improvements to the intersections of Ferguson Avenue and Huffine Lane
(US 191); and
2) a Special Improvement Maintenance District for a City-wide Park Maintenance District;
and
3) the owner has waived and do hereby waive for itself, its successors and assigns, the right
to protest the creation of one or more special improvement districts for planning, engineering, or
installation of trunk water and sanitary sewer improvements master planned to serve the subject
property, including those installed with the Valley West annexation, under the City's Water and
Wastewater Facilities Plan as updated 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.
DELANEY AND WBW, LLC ANNEXATION AGREEMENT
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This waiver shall be a covenant running with the land and shall not expire.
The terms, covenants and provisions ofthe Waiver shall extend to, and be binding upon the
successors-in-interest and assigns of the parties hereto,
DA TED this ~ day of --::::r(}..J, \l..,/~r'-.\. , .2Dl)U
\
WBW,~ ~ ~ r~
By: tL :.----z
Its: ~;'~ J, f
'.~~
STATE OF\A.\CI.S.h. )
:ss
County of K \. ~ )
On this IIr:'\~ day of-'-.-~(~_J'\'^ (\{-q , ~t;l{), before me, a Notary Public for the
State Of~C~\\::S\ff\, personally appeareb Me\\\ \\\ 6, \-\e\ C\Q.... , known to me to be
the \'-1\(.\,0.(\1 ofWBW, LLC, the corporation that executed the foregoing
document, an acknowledged to me that he/she executed the same for and on behalf of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the
day and year first above written,
KAREN L GANGI
- .J;:' (\.l(\(. . STATE OF WASHINGTON
) NOTARY-.- PUBLIC
Notary Pub.li~ for the State 0 V'- ~\..sh\ I\~ ~
(Seal) Resldmg: ~=:r:.c-:>o;:~q,.tt u(\ \'\ MY COMMISSION EXPIRES e (l-C2
Commission Expires: B-OL\ ::)D~
DELANEY & CO., INC.
By: ~~~
Its: ? 0{ d::>.
STATEOF~
:ss
County of~ )
On this 11 day of \JCNYU.t~ ' before me, a Notary Public for the
State of ~~Ul , personally appear d 'D, known to me to the
*t....M~~ ~ of Delaney & Co. Inc., the corporation that ecuted the foregoing
document, and acknowledged to me that he/she executed the same for and on behalf of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the
day and year first above written.
nCc
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LANDOWNER
~~~
~~ ~tdu~
STATE OF ~~
:ss
County of 6liJ.Ja...hU )
On the ~ day of ~(\UQ.~ ' &;i), before me, a Notary Public for the State of
LfY\0\i"L-b '(\LJ
~ -- ' personally ppeared MIchael W. Delaney and Ileana Indreland, known to me
to be the person(s) whose name(s) is/are subscribed to the above instrument and acknowledged to
me that he/she/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.
a
Not ublic for the State of '-fYiNt1-anec
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DELANEY AND WBW, LLC ANNEXATION AGREEMENT
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