ANNEXATION AGREEMENT FOR PROPERTY
COMMONLY KNOWN AS WONDER LAKE

THIS AGREEMENT, made and entered into this ______ day of __________________, 2002, by and among the Village of Wonder Lake, an Illinois municipal corporation (hereinafter “Village”), and Wonder Lake Master Property Owners Association, Inc., Highland Shores Property Owners Association, and Thomas P. Mathews and Lois M. Mathews (hereinafter “Owners”):

W I T N E S S E T H

WHEREAS, the Owners are the record owners of the property legally described on Exhibit A attached hereto and incorporated herein (hereinafter referred to as the “Subject Property”); and

WHEREAS, the Subject Property consists of numerous separate parcels together comprising a substantial portion of the lake bottom of Wonder Lake, a manmade lake constituting the Subject Property (which lake shall be hereinafter referred to as “Lake”), all as identified by legal description in Exhibit A, attached hereto and incorporated herein by reference, and references herein to parcels shall mean any or all of those separate parcels; and

WHEREAS, the Subject Property is adjacent to and contiguous to the existing corporate boundary of the Village but is not situated within the limits of any municipality; and

WHEREAS, the Subject Property is located within the Rural Woodstock Public Library District and the McHenry Public Library District and is located within the Wonder Lake Fire Protection District and McHenry and Greenwood Township Districts; and

WHEREAS, Owners desire to have the Subject Property annexed to the Village and desire to have the Subject Property zoned as Open Space/Recreational-Private Lake Zoning District which would permit the Lake to be used for recreational purposes and other purposes as set forth herein; and

WHEREAS, the Subject Property is approximately 830 acres, and no electors reside thereon; and

WHEREAS, pursuant to and in accordance with the provisions of Section 7-1-8 of the Illinois Municipal Code, a petition for annexation executed by the Owners and all electors, if any, residing on the Subject Property requesting the annexation of the Subject Property has been filed with the Village Clerk of the Village of Wonder Lake; and

WHEREAS, proper applications have been filed with the Village for approval of the annexation, rezoning to the Village’s Open Space/Recreational-Private Lake Zoning District and conditional uses as may be required for the Subject Property; and

WHEREAS, the Village and the Owners desire to enter into this Agreement pursuant to the provisions of Division 15.1 of Article 11 of the Illinois Municipal Code to regulate the annexation, zoning, use and development of the Subject Property upon the terms and conditions contained in this Annexation Agreement (hereinafter “Agreement”); and

WHEREAS, the statutorily required public hearings were held on January 2 and   January 16, 2001, before the Plan Commission and Zoning Board of Appeals and before the corporate authorities of the Village of Wonder Lake to consider approval of the Annexation Agreement, annexation, rezoning, and conditional uses; and

WHEREAS, the corporate authorities have listened to Owners’ request, allowed for public comment thereon, considered the findings of fact and recommendations of the Plan Commission and the Zoning Board of Appeals, and taken all such information into account; and

WHEREAS, the corporate authorities have considered the community need for the proposed use, the existing use and zoning of nearby property, the public health, safety and welfare, the gain to the public as compared to the potential hardship, if any, of individual owners of adjacent property and the suitability of the Subject Property for annexation and for the proposed zoning and uses; and

WHEREAS, all notices, publications, procedures, public hearings and other matters attendant to the consideration, approval and execution of this Agreement have been given, made, held and performed as required by Section 7-1-8 and Division 15.1 of Article 11 and all other applicable statutes and as required by the Zoning Ordinance of the Village of Wonder Lake and all other applicable ordinances, regulations and procedures of the Village; and

WHEREAS, although no changes will occur to the Fire Protection District, and the Subject Property is adjacent only to a Greenwood Township road or highway, the Owners have served upon the Board of Trustees of the Wonder Lake Fire Protection District, the McHenry and Greenwood Township Supervisors, and all members of the Boards of Trustees of McHenry and Greenwood Townships and the McHenry and Greenwood Townships Road Commissioners notice of the proposed annexation of the Subject Property to the Village of Wonder Lake by certified mail at least ten (10) days in advance of any action taken with respect to the Annexation of the Subject Property, and an Affidavit as to service of said Notice was filed with the Village and has been filed with the Recorder of Deeds of McHenry County; and

WHEREAS, the Village acknowledges that execution of this Agreement with the Owners providing for the annexation of the Subject Property to the Village will extend the corporate limits and jurisdiction of the Village, will permit orderly growth, planning and development of the Village, and will promote and enhance the general welfare of the Village, and that the approval of rezoning and conditional uses for the subject property as proposed by the Owners will be compatible with the adjacent land uses and the planning and zoning objectives of the Village, and will reflect the desire of the Owners to continue managing and utilizing the Lake as a private recreational resource for the term of this Agreement and enable the Owners to undertake a project for the dredging and restoration of the Lake, subject to applicable regulations of the Village; and

WHEREAS, the corporate authorities of the Village, by the requisite statutory vote, have approved this Agreement and directed the President to execute and the Village Clerk to attest said Agreement on behalf of the Village; and

WHEREAS, Owners have expended substantial sums of money and have materially altered and will materially alter their positions in reliance upon the execution of this Agreement and the performance of its terms and provisions by the Village.

NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, the Village and the Owners hereby agree as follows:


1. RECITALS: The foregoing recitals are incorporated herein as if fully set forth in this Section.

2. ANNEXATION/DISCONNECTION:

a. The Village will enact an ordinance annexing the Subject Property to the Village within 60 days following the receipt of a petition for annexation from Owner at any time during the term of this Agreement.
b. At any time during the first two (2) years of this Agreement, as long as the Owners’ property has not been annexed, the Owners may rescind this Agreement by serving written notice of such rescission upon the Village no less than 60 days prior to the effective date of the rescission, which date shall be stated in the notice.  Upon the occurrence of the effective date, this Agreement shall automatically terminate and be of no further force and effect. If the notice is not given, then during the last ten years of this Agreement, the Owners agree that it will not annex to any other municipality.
c. During the first two (2) years after the Subject Property is annexed to the Village, the Owners shall have the right to disconnect the Subject Property from the Village if the Village fails or refuses by acts or omissions to cooperate in good faith with Owners in Owners’ efforts to implement the Lake restoration project and/or mining contract, which acts or omissions may include but are not limited to refusing to issue necessary permits, repealing the conditional uses authorized herein, or failing to execute required documents, in which case(s) Owners shall serve written notice upon Village of the occurrence of an event described above, provided, however, that Owners may not disconnect if the Village has annexed property following execution of this Agreement which property was dependent upon the Subject Property for its contiguity to the Village.  The Village shall have sixty (60) days following its receipt of notice to remedy such act or omission. Upon the delivery of such notice, and provided that no property has been annexed to the Village since the annexation of the Subject Property that would lose its contiguity to the Village by virtue of the disconnection of the Subject Property, the Village shall immediately proceed to take such actions as are required by law to disconnect the Subject Property from the Village, and upon any such disconnection, this Agreement and all ordinances passed by the Village pursuant hereto shall be null and void and of no further force or effect.  If the MPOA enters into a binding contract for the removal of aggregate materials from the Lake or for the dredging of the Lake, or receives funding for a lake restoration project, then this paragraph 2(c) shall become null and void and be of no further force and effect.
d. Owners agree to submit and diligently pursue applications for annexation to the applicable library districts and other taxing districts, unless the Subject Property is already within the boundaries of each district.

3. ZONING: At the same meeting at which the ordinance annexing the Subject Property is passed and approved, the Village shall take or will previously have taken the following actions:

a. Adopt an Ordinance rezoning the Subject Property to the Village’s newly created Open Space/Recreational-Private Lake Zoning District Classification (OS/R-PL); granting and incorporating into the Village Zoning Ordinance the conditional use provisions identical or substantially equivalent to those pertaining to Earth Extraction, Mining and Site Reclamation as set forth in Article 5, §508 of the McHenry County Zoning Ordinance and granting necessary permits to Owners for such conditional uses.
b. The Ordinance, or an Ordinance subsequently enacted by the Village within 60 days following Owners’ application for the conditional use described herein, shall further establish a conditional use for any recreational Lake uses that are allowed pursuant to the By-laws of the MPOA, unless such activities are permitted uses in the OS/R-PL Zoning District.
c. Conditional use permits issued to Owners or their agent in accordance with the conditional uses approved pursuant to §3a of this Agreement shall be deemed as one comprehensive mining and manufacturing permit or dredging permit rather than a number of individual permits for each of the various uses and processes undertaken by Owners.  Accordingly, the entire conditional use shall be deemed “established” within the meaning of the Wonder Lake Zoning Ordinance on the first date when any one of the several enumerated permitted activities is “established”.
d. Permits issued by the Village pursuant to Section 3a may be suspended where the activities engaged in by Owners or their agent are determined by the Village to be unreasonably hazardous to the public’s health and safety following (1) written notice to Owners of the Village’s intent to suspend the permit which states in detail the reasons for the proposed suspension; (2) an opportunity for Owners to be heard; and (3) an opportunity provided to Owners to eliminate or remedy the alleged hazard.
e. The Village shall take no action to amend, modify or repeal any of the ordinances referenced in Section 3 during the term of this Agreement without the prior written consent of Owners.
f. It is understood that the Village’s performance of its obligations under §§3a, b, c and g of this Agreement with regard to the zoning of the Subject Property and the grant of conditional uses and permits is an explicit condition precedent of this Annexation Agreement, the annexation contemplated hereunder, and Owners’ obligations to perform.
g. With regard to parcels located upland from the Lake, which property is legally described on Exhibit B attached hereto and incorporated herein by reference and hereinafter referred to as the “upland property,” the Village acknowledges that the use of such property may be essential to implementation of the Lake Renewal Project or a mining project.  Accordingly, and provided that the upland property is within the Village’s boundaries and complies with the Wonder Lake Zoning Ordinance and related permit requirements and any applicable state and federal regulations, the Village shall, upon application from Owners of the upland property and the required public hearings, grant a conditional use to such property and issue the appropriate permits consistent with the zoning and conditional uses granted under this Agreement to allow the necessary dredging and mining activities related to Owners’ Project or a mining contract to take place on the upland property, it being understood that upon completion of the Project or the contract, the conditional use permit shall expire.

4. UTILITIES: The Village agrees to authorize Owners to obtain any necessary utility services from the current private utility or utilities, or, if the Village installs its own water and sewer system, to permit the Owners to connect to the Village operated watermain and sanitary sewer lines in the right-of-way adjacent to the Subject Property if such connections are necessary.

5. SIGNAGE: The Owners agree to forbear from erecting or constructing or allowing another to erect or construct any sign of any kind or nature at any location on the Subject Property except those signs which comply with the Village Code or those which have been approved pursuant to this Agreement or variation procedures of the Village Code, provided that existing signs, even if non-conforming, shall be permitted to remain and may also be repaired or restored as necessary without any loss of their legal non-conforming status.

6. EXISTING ORDINANCES: During the term of this Agreement, the amendment of any existing zoning or other ordinance or code of the Village shall not be effective against the Subject Property if it adversely affects the management, uses and development of the Subject Property as expressed in this Agreement.  This provision shall not apply to amendments required by other governmental bodies whose jurisdiction supersedes that of the Village, nor shall it apply to fee increases which are uniformly applied in the Village.

7. FEES AND TAXES: For the term of this Agreement, Owners shall not be required to pay permit or other fees or taxes of any kind, such as but not limited to tipping, mining or extraction fees, related to work performed in, on, under or around the Lake, whether such work is performed by Owners or any person, corporation or other entity which the Owners permit to utilize the Lake for commercial or other ventures, except that reasonable permit fees may be assessed against a commercial entity acting under contract with the MPOA.  The Village may provide for a sales tax on materials taken from the Lake by a commercial mining/dredging operator acting under contract with the MPOA, provided that the MPOA shall be entitled to share in such taxes assessed and collected in a percentage agreed to by the parties through good faith negotiation, which share allocated to the MPOA shall be placed in a separate account by the Village for uses related to the repair, replacement or restoration of the Lake dam.  Moreover, the Village agrees to waive all acreage or annexation fees, and planning and zoning fees, including public hearing fees, due or payable by Owners pursuant to ordinances of the Village. No park or school donations shall be required by reason of the annexation of the Subject Property.

8. LAKE GOVERNANCE: The Village acknowledges that the Lake is currently and has been continuously since its creation in 1929 a private lake controlled and managed by the Wonder Lake Master Property Owners Association (hereinafter “MPOA”) pursuant to its corporate mission and available solely for the benefit of MPOA members and permitted guests, and that it is in the best interest of the MPOA and the community, as well as a condition of the Owners entering into this Agreement, that such status be maintained.  Accordingly, the Village agrees that it will not require public access to the Lake, nor will it take any action, nor approve of any action, including but not limited to the purchase, lease of or other interest in property, acceptance of a dedication of property, or annexation of property that has lake access or deeded lake rights that would result in or provide an opportunity for public access to the Lake, or interfere with or encroach upon the private nature of the Lake or the MPOA’s control and management of the Lake, except where public access may be required in the event a special service area is established, and in such case, the access shall be limited to the extent permitted by law.  The Village further acknowledges and the parties agree that:

a. The MPOA shall retain the exclusive right, in its discretion, to raise and lower the Lake level in compliance with and subject to applicable regulatory agency approvals.
b. The MPOA shall retain its right to allow and regulate recreational and related Lake activities such as fishing, hunting and boating, and recreational entertainment such as water ski shows and sailing regattas in, on, over, under and around the Lake, and Village ordinances and regulations which may ordinarily govern such activities will not be enforced by the Village against the MPOA or its membership except upon Owners’ request, provided, however, that once the Subject Property is annexed to the Village, the MPOA, its agent or other entity desiring to display fireworks shall be required to obtain from the Village a permit to conduct or display or cause to be conducted or displayed on the Lake any fireworks.
c. The MPOA shall be solely responsible for the monitoring of the Lake and may contract with any one or more policing agencies for the patrol of the Lake and the enforcement thereon of the MPOA regulations and any applicable local, state and federal laws.
d. During the term of this Agreement, the MPOA shall maintain in effect its comprehensive liability insurance policy and shall add the Village as an additional insured to the limits of the coverage, excepting claims resulting from the Village’s gross negligence.

9. LAKE RENEWAL PROJECT: The parties recognize that the use, enjoyment and long-term survival of the Lake would be considerably improved and its benefit as a stormwater detention facility significantly enhanced by the dredging of the Lake through removal of silt and other intrusive sediments and by additional interventions, and the Village acknowledges that the MPOA has developed an engineering feasibility study and proposal for such restoration, which is known as the Lake Renewal Project.  Following annexation, and at such time as the MPOA identifies or obtains resources to fund the Renewal Project, and advises the Village that it is prepared to implement all or part of the Project, the Village agrees to issue to Owners or the MPOA’s designee all necessary Village permits and approvals for such Project, subject to compliance with the Village’s regulations, provided such regulations are not more restrictive than those of the County, and further to assist Owners or the MPOA in obtaining necessary permits from other government agencies for the work required to complete the Project.  In no event, shall the Village be required to pay any costs of such Project.

10. FUTURE ANNEXATIONS:
a. The Village and Owners acknowledge that a portion of the lake bed is owned by persons or entities other than Owners, and that some if not all of such other owners are not members of the Wonder Lake Master Property Owners Association.  The Village acknowledges the benefit to Owners and to the unified management and protection of the Lake of having all lake bed property owners, and owners of property contiguous to the Lake or with Lake access, become MPOA members.  Accordingly, the Village agrees that it will not annex lake bed parcels or property which is both contiguous to the Lake and to the Village, whether or not petitions are submitted by owners of the said properties, unless and until the said owners agree to incorporate into the deed of title and other appropriate title documents the deed covenants required of MPOA members with deeded lake access pursuant to the MPOA By-laws, or to otherwise comply with any amended rules and regulations applicable to such owners as a separate class of members, particularly with regard to limiting public access to the Lake.  The Village further agrees to notify the MPOA upon receipt of any petition(s) for annexation from owners of the aforementioned properties and to obtain the MPOA’s consent prior to taking any action to annex the additional lake bed or contiguous parcels.
b. The parties recognize the right of the Village to force annexation of territory that is wholly surrounded in accordance with §7-1-13 of the Illinois Municipal Code, and that the Village has discretion in its exercise of such right.  Notwithstanding the Village’s authority, the Village agrees that it will take no action to annex property known as White Oaks Bay Subdivision, Unit 3, commonly referred to as 12-acre island, unless and until the White Oaks Bay Subdivision petitions for annexation to the Village.

11. VILLAGE PLAN COMMISSION: To assure that the Lake is taken into account as a valuable resource which, among other things, contributes to the Nippersink Watershed and area stormwater management, the corporate authorities of the Village, to the extent permitted by law, shall designate one permanent position on the Village Plan Commission to an officer of the MPOA who need not be a resident of the Village.  The corporate authorities shall amend the City Code as appropriate and take other steps as necessary in order to effectuate said objective.

12. MPOA LAKE USE AND SAFETY COMMISSION: To assure that the Village of Wonder Lake has input into the effect of the Lake on the community, the MPOA, to the extent permitted by its By-laws, shall designate one permanent position on its Lake Use and Safety Commission to a Village representative, which representative shall be a member of the Plan Commission or Zoning Board of Appeals, a Village employee who is a planner or has planning experience, or a Village Trustee.  The MPOA shall amend any by-laws or rules and regulations as appropriate and take other steps as necessary in order to effectuate said objective.

13. REMEDIES: Upon a breach of this Agreement, any of the parties, in any court of competent jurisdiction, by an action or proceeding in equity, may secure a writ of mandamus, declaratory judgment or the specific performance of the covenants and agreements herein contained. These shall be the sole remedies available to the parties.  Monetary damage remedies are hereby expressly excluded.  Before any failure of any party to this Agreement to perform its obligations under this Agreement shall be deemed to be a breach of this Agreement, the party claiming such failure shall notify, in writing, the party alleged to have failed to perform the alleged failure and shall demand performance.  No breach of this Agreement may be found to have occurred if performance has commenced to the reasonable satisfaction of the non-breaching party within thirty (30) days of receipt of such notice and is being continuously and diligently pursued.

14. MUTUAL ASSISTANCE: The parties shall do all things reasonably necessary or appropriate to carry out and to expedite the terms and provisions of this Agreement and to aid and assist each other in carrying out the terms and objectives of this Agreement and the intentions of the parties as reflected by said terms including, without limitation, the giving of such notices, the holding of such public hearings, the enactment by the Village of such resolutions and ordinances and the taking of such other actions as may be necessary to enable the parties’ compliance with the terms and provisions of this Agreement and as may be necessary to give effect to the terms and objectives of this Agreement and the intentions of the parties as reflected by said terms.

Owners and Village agree to promptly execute all permit applications needed by Owner for permits from any applicable sanitary district, the Illinois Environmental Protection Agency, the U.S. Army Corps of Engineers, McHenry County, the McHenry County Division of Transportation, the Illinois Department of Transportation or any other public or private agencies from whom a permit is required for work in, over, under and adjacent to Wonder Lake, provided that such permit applications are prepared in accordance with applicable requirements, and the parties each further agree to cooperate in the securing of such permits from such agencies.

15. ADDRESS FOR NOTICES: All notices and other communications in connection with the Agreement shall be in writing, and any notice, communication or payment hereunder shall be deemed delivered to the addresses thereof two (2) days after deposit in any main or branch United States Post Office, certified or registered mail, postage prepaid, or one (1) day after deposit thereof with any nationally known and reputable overnight courier service, delivery charges prepaid, or on the date of delivery, if personally delivered, in any case, addressed to the parties respectively as follows:

IF TO MPOA:
(Other owners to be added)
Wonder Lake Master Property Owners Association
7516 Hancock Drive
Wonder Lake, Illinois 60097
Attn: Richard Hilton, President
COPY TO: Sharon L. Eiseman, Esq.
Hodges, Loizzi, Eisenhammer, Rodick & Kohn
3030 Salt Creek Lane, Suite 202
Arlington Heights, Illinois  60005
IF TO VILLAGE: Village of Wonder Lake
4200 Thompson Road
Wonder Lake, Illinois 60097
Attn: Susan Weir, Village Clerk
COPY TO: Richard J. Curran, Jr., Esq.
Cowlin, Curran & Coppedge, P.C.
20 Grant Street
P.O. Box 188
Crystal Lake, Illinois 60039

By notice complying with the requirement of this paragraph, each party shall have the right to change the address or addresses for all further notices, other communications and payment to such party; provided, however, that notice of a change of address, addressee or both shall not be effective until actually received.

16. AMENDMENT: The parties agree that this Agreement, the ordinances and resolutions adopted pursuant hereto and any exhibits attached hereto may be amended only by the mutual consent of the parties, and by adoption of an ordinance or resolution by the Village approving said amendment as provided by law, and the execution of said amendment by the parties or their successors in interest.  Notwithstanding the foregoing, where the subject matter of an amendment to this Agreement affects an unrelated portion of the Subject Property only, such amendment need only be executed by the Village and by then-owner of such portion of the Subject Property.

17. SEVERABILITY: If any provision, covenant or portion of this Agreement or its application to any person, entity, property or portion of property is held invalid, or if any ordinance or resolution adopted pursuant to this Agreement or its application to any person, entity, property or portion of property is held invalid, such invalidity shall not affect the application or validity of any other provisions, covenants or portions of this Agreement or other ordinances or resolutions passed pursuant hereto, and to that end, all provisions, covenants, and portions of this Agreement and of the ordinances and resolutions adopted pursuant hereto are declared to be severable.

18. LEGAL PROCEEDINGS: In any event that any third party or parties institute any legal proceedings against the owner and/or the Village, which relate to the terms of this Agreement, or any relief granted pursuant hereto, then the parties hereto agree to share the costs and expenses of the entire defense of such lawsuit and all expenses of whatever nature relating thereto, provided, however, that if the Village is unable to pay such expenses, then the Owners may pay the Village’s share of the expenses, or the Village may elect not to participate in the defense but will not oppose the Owners defense.

19. NO WAIVER OF RIGHT TO ENFORCE AGREEMENT: Failure of any party to this Agreement to insist upon the strict and prompt performance of the terms, covenants, agreements and conditions herein contained, or any of them, upon any other party imposed, shall not constitute or be construed as a waiver or relinquishment of any party’s right thereafter to enforce any such term, covenant, agreement or condition, but the same shall continue in full force and effect.

20. ENTIRE AGREEMENT: This Agreement supersedes all prior agreements, negotiations and exhibits and is a full integration of the entire agreement of the parties relating to the subject matter hereof.  The parties shall have no obligations other than specifically stated in this Agreement except those of general applicability.

21. SURVIVAL: The provisions contained in this Agreement shall survive the annexation of the property and shall not be merged or expunged by the annexation of the property or any part thereof to the Village.

22. SUCCESSORS AND ASSIGNS: This Agreement shall run with the land described on Exhibit A and inure to the benefit of, and be binding upon, the successors in title of the Owners and their respective successors, grantees, lessees, and assigns, and upon successor corporate authorities of the Village and successor municipalities.

23. TERM OF AGREEMENT: This Agreement shall be binding upon the parties and their respective successors and assigns for the full statutory term of twenty (20) years, commencing as of the date hereof, and for such further term as may hereinafter be authorized by statute or by ordinance of the Village which will then automatically be extended if the statutes permit a longer term, but only upon the election of the Owners by means of notice served upon the Village in accordance with Section 17 of this Agreement.

24. COUNTERPARTS: This Agreement may be executed in any number of counterparts each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

IN WITNESS WHEREOF the parties hereto have executed this Agreement on the date first above written.


Village of Wonder Lake, an Illinois Municipal Corporation
______________________________
      William Madeja, President
ATTEST:
______________________________
      Susan Weir, Village Clerk
OWNER: Wonder Lake Master Property Owners Association
BY:__________________________
           Richard Hilton, President
ATTEST:
BY:___________________________

     ___________________________
                 Secretary

SUBSCRIBED and SWORN to
before me this _______ day of
_________________________, 2002.

______________________________
                 Notary Public
Highland Shores Property Owners Association

BY: __________________________
           Clifford Mason, President
SUBSCRIBED and SWORN to
before me this _______ day of
_________________________, 2002.

______________________________
                 Notary Public
______________________________
           Thomas P. Matthews

______________________________
              Lois M. Matthews
SUBSCRIBED and SWORN to
before me this _______ day of
_________________________, 2002.

______________________________
                 Notary Public


DISCLAIMER: This document has been been posted on this site for informational purposes only. It has been reformatted from it's orignal format. Lakes, Waters and Wonders is not responsible for this information and makes no claim of ownership or claims of interpretation of content in any manner or form. Questions regarding this information can be sent to via email to Dick Hilton, MPOA President.

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