HomeMy WebLinkAboutMACARTHUR FAIRVIEW PARK 1 - 2006
INSURANCE NOT REQUIRED -THE CITY OF SANTA ANA, CALIFORNIA
WORK MAY PROCEED
CLERK OF COUNCIL AGREEMENT FOR ACQUISITION OF
DATE: -::r/l6/<fX:J:::,(P REAL PROPERTY AND ESCROW INSTRUCTIONS
t THIS AGREEMENT, entered into this I~day of ~e; ,2006, by and between the CITY OF
SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the
State of California (hereinafter referred to as the"City"), MacArthur Fairview Park, LLC (hereinafter called
"Seller"), regardless of number or gender;
A-2006-153
WITNESSETH
For and in consideration of their promises, covenants and agreements hereinafter set forth, and subject to the
terms, conditions and provisions hereinafter set forth, Seller agrees to sell to City, and City agrees to purchase
from Seller, all that certain real property (hereinafter referred to as "said real property") described as follows:
All that certain real property located in the State of California, County of Orange, City of Santa Ana, described
as follows:
SEE EXHffiIT "A" ATTACHED HERETO
AND BY THIS REFERENCE MADE A PART HEREOF
(Commonly known as a portion of 2961 MacArthur Blvd, Santa Ana, CA)
Said sale and purchase of said real property shall be in accordance with and subject to all ofthe following terms,
conditions, promises, covenants, agreements and provisions, to wit:
1. Convevance bv Seller. Seller agrees to convey said real property to City, by Grant Deed, at the office of
First American Title Insurance Company, 2 First American Way, Santa Ana, California, within thirty (30) days
from and after the date on which the City has approved this Agreement.
2. Title to be Conveved. (a) Seller agrees that, except as may hereinafter be otherwise expressly provided,
said real property shall be conveyed by Seller to City, as aforesaid, free and clear of any and all conditions,
restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances, liens, leases,
clouds or defects in title except those exceptions shown in Paragraph 14 below. Seller hereby warrants that the
title to said real property to be conveyed by Seller to City shall be free and clear as above provided. Seller
further agrees that acceptance by City of any deed to said real property, with or without knowledge of any
condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance, lien, lease,
cloud or defect in title, shall not constitute a waiver by City of its right to the full and clear title hereinabove
agreed to be conveyed by Seller to City, nor of any right which might accrue to City because of the failure of
Seller to convey title as hereinabove provided.
(b) Seller does hereby convey to City a temporary construction easement as described in greater detail in
Exhibit "B" attached hereto and by this reference made a part hereof.
3. Title Insurance. Seller agrees to deliver to City, concurrently with the conveyance of said real property
to City, within the time and at the place hereinabove specified for said conveyance of said real property, a policy
of title insurance to be issued by the above mentioned title company, with the City therein named as the insured,
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in the amount SIXTY THREE THOUSAND NINE HUNDRED SEVENTY THOUSAND AND Noll 00 ($63,970.00) insuring
the title of the City to said real property is free and clear of any and all conditions, restrictions, reservations,
exceptions, easements, assessments, profits, limitations, encumbrances, liens, teases, clouds or defects in title,
excepting such specific ones as city may hereinafter expressly agree to take subject to. Acceptance by City of
any such policy of insurance, whether such insurance complies with the requirements of this paragraph or not,
shall not constitute a waiver by City of its right to such insurance as is herein required of Seller, nor a waiver by
the City of any rights of action for damages or any other rights which may accrue to City by reason of the failure
of Seller to convey title or to provide title insurance as required in this Agreement.
4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, 2 First
American Way, Santa Ana, California, (the Escrow Agent) within five (5) days from and after the date on which
the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and
the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of
the escrow.
The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this
Section 4 and of the General Provisions described in Exhibit "C" attached hereto and incorporated herein by this
reference, in writing, delivered to the City and to the Seller within five (5) days after delivery of this Agreement,
shall carry out its duties as Escrow Agent hereunder.
City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any transfer taxes,
recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other
closing costs incidental to the conveying of said real property to City. Penalties for prepayment of bona fide
obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures
Section 1265.240.
The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed
upon it under Section 4, Section 6, Section 11 and Exhibit "C" of the General Provisions of this Agreement.
5. Property Taxes. Such real property taxes, if any, on said real property for the fiscal year within which
said real property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in
accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California.
Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of
California for that portion of property taxes on said real property for said fiscal year which have been paid prior
to the date the deed conveying said real property to City is recorded which is allocable to that portion of the
fiscal year which begins on the date the deed conveying said real property to City is recorded and made
uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California.
All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance
is made shall be paid by Seller before conveyance of said real property to City.
6. Pavrnent of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from City, as and for
the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty),
goodwill (if any), severance damages pursuant to Government Code ~7260 et seq., the total sum of SIXTY THREE
THOUSAND NINE HUNDRED SEVENTY THOUSAND AND NoII00 ($63,970.00). City agrees to deposit said
purchase price in escrow with the Escrow Agent within THIRTY (30) days from and after the date on which the
City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Seller upon
and after:
(a) Conveyance of said real property by Seller to City as hereinabove provided;
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(b) Acceptance by City of a Grant Deed conveying said real property to City;
(c) Delivery to City of the policy of title insurance as hereinabove provided;
(d) Recordation of the Deed conveying said real property to City.
7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is
recorded, quiet and peaceful possession of said real property, which shall be made free by Seller of all personal
property.
8. Waivers. The waiver by City of any breach of any covenant or agreement herein contained on the part of
Seller shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or
agreement nor a waiver of any breach of any other covenants or agreements contained herein.
9. Heirs. Assigns. Etc. This Agreement, and all the terms, covenants and conditions hereof, shall apply to
and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto.
10. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to
be made, time is and shall be of the essence.
11. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents, permission to
enter upon said real property at all reasonable times prior to close of escrow for the purpose of making necessary
inspections.
12. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair
market value for said real property and includes any and all fixtures and equipment, goodwill (if any) and
severance.
13. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988,
in the City of Santa Ana 92702, County of Orange, State of California. The mailing address of the Seller is:
MacArthur Fairview Park, LLC
Attn: John Spencer
15375 Barranca Pkwy, Ste. E. 102
Irvine, CA 92618
14. Exceptions. City agrees to accept title to said real property subject to the following: NONE.
15. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their
Agreement. Performance of this Agreement by City shall lay at rest, each, every and all issue(s) that were raised
or could have been raised in connection with the acquisition of said real property by City.
16. Hazardous Waste. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant,
occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous
waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about the Property, or
transported any Hazardous Materials to or from the Property. Seller shall not cause or permit the presence, use,
generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the
transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean
any substance, material, or waste which is or becomes regulated by any local governmental authority, the State
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of California, or the United States Government, including, but not limited to, any material or substance which is
(i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section
25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code,
Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section
25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous
Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste"
under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials
Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances),
(v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as
"hazardous" or "extremely hazardous" pursuant to Article II of Title 22 of the California Administrative Code,
Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water
Act, (33 U.S.C. S 1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. S6901 et seq. (42 U.S.C. S6903) or (xi) defined as a "hazardous
substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as
amended by Liability Act, 42. U.S.C. S9601 et seq. (42 U.S.C. S9601).
17. Compliance With Environmental Laws. To the best of Seller's knowledge the Property complies with all
applicable laws and governmental regulations including, without limitation, all applicable federal, state, and
local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters,
including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste
Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and
Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city
within which the subject property is located, the California Department of Health Services, the Regional Water
Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all
applicable federal, state, and local agencies and bureaus.
18. Indemnitv. Seller agrees to indemnify, defend and hold the City harmless from and against any claim,
action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense
(including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence,
release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in or about, or the
transportation of any such materials to or from, the Property, or (ii) the violation, or alleged violation, of any
statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release,
discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, the
Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage,
cost, or expense arising from or out of any claim, action, suit or proceeding for personal injury (including
sickness, disease, or death, tangible or intangible property damage, compensation for lost wages, business
income, profits or other economic loss, damage to the natural resource or the environment, nuisance, pollution,
contamination, leak, spill, release, or other adverse effect on the environment). This indemnity extends only to
liability created prior to or up to the date this escrow shall close. Seller shall not be responsible for acts or
omissions to act post close ofthis escrow.
19. Contingencv. It is understood and agreed between the parties hereto that the completion of this
transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City
herein. The execution of these documents and the delivery of same to Escrow Agent constitutes said acceptance
and approval.
20. Modification and Amendment. This Agreement may not be modified or amended except in writing
signed by the Seller and City.
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21. Partial Invaliditv. Any provision of this Agreement that is unenforceable or invalid or the conclusion of
which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but
all the remaining provisions of this Agreement shall remain in full force.
22. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for
convenience only and are not to be considered in construing this Agreement.
23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the
State of California.
24. No Reliance Bv One Party On The Other. Each party has received independent legal advice from its
attorneys with respect to the divisibility of executing this Agreement and the meaning of the provisions hereof.
The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based
upon any attribution to such party as the source of the language in question.
25. No Third Party Beneficiary. This Agreement is intended to benefit only the parties hereto and no other
person or entity has or shall acquire any rights hereunder.
26. Dutv To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and
deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do
such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this
Agreement, without cost.
27. Applicabilitv of Agreement To Assignees. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties to this Agreement.
28. Authoritv to Execute Agreement. Each undersigned represents and warrants that its signature hereinbelow
has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall
indenmify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the
event that such authority or power is not, in fact, held by the signatory or is withdrawn.
29. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if
fully set forth in the body of this Agreement.
30. Release. The parties hereto hereby agree that all rights under Section 1542 of the Civil Code of the State
of California are hereby waived. Civil Code section 1542 provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
Notwithstanding the provisions of Civil Code section 1542, Seller hereby irrevocably and
unconditionally releases and forever discharges the City and each and all of its officers, agents, directors,
supervisors, employees, representatives, and its successors and assigns and all persons acting by, through, under,
or in concert with the City from any and all charges, complaints, claims, and liabilities of any kind or nature
whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as "claim" or "claims") which
Seller at any time heretofore had or claimed to have or which Seller at any time hereafter may have or claim to
have, including, without limitation, any and all claims related or in any manner incidental to this transaction.
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The parties have executed this Agreement as of the last date written below.
:: f!ir~~p,", LLC
Title' tIC":,, PII.,-=. - ,0,'3,,,i.
CITY OF :[22
BY: ?2~
David N. Ream
City Manager
Dated
ATTEST:
Patncia E. Healy
Clerk ofthe Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
BY:.~~ ~-J...
Lisa Storck
Assistant City Attorney
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LEGAL DESCRIPTION
EXHffiIT "A"
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
ORANGE, CITY OF SANTA ANA, AND IS DESCRffiED AS FOLLOWS:
A portion of Parcel 1 , in the City of Santa Ana, County of Orange, State of
California as shown on a parcel map filed in Book 168, Pages 35 and 36 of
Parcel Maps, in the Office of the County Recorder of said county and described
as follows:
Beginning on the south line of said parcel at the easterly terminus of that course
shown on said map as North 88047'41" East 147.52 feet; thence South 88047'41"
West 5.15 feet along said line; thence North 43058'17" East 35.46 feet to a line
64.00 feet west of the centerline of Fairview Street; thence North 00051 '08" West
150.43 feet along said line to the beginning of a curve concave southeasterly
having a radius of 108.00 feet; thence northerly and northeasterly along said
curve through a central angle of 17030'09" an arc length of 32.99 feet to a point
on the easterly line of said parcel; thence South 00051'08" East 183.03 feet along
said line to the beginning of a curve concave northwesterly having a radius of
25.00 feet; thence southerly, southwesterly and westerly along said curve
through a central angle of 89038'49" an arc length of 39.12 feet to the Point of
Beginning.
CONTAINING AN AREA OF 1166 SQUARE FEET, MORE OR LESS.
ALL AS SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART HEREOF.
PREPARED UNDER THE SUPERVISION OF:
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When recorded, please mail this I
instrument and tax statements to:
EXHIBIT "B"
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Exempt from Recording Fee
Pursuant to Government Code Section 6103
SPACE ABOVE THIS LINE FOR RECORDER'S
TEMPORARY CONSTRUCTION EASEMENT
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
MacArthur Fairview Park, LLC
HEREBY GRANTS TO THE GRANTEE:
THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and
laws of the State of California, a temporary easement for purposes incidental to construct the proposed improvements to
widen the intersection of Fariview Street and MacArthur Blvd, in, on, over and across that certain real property in the City
of Santa Ana, County of Orange, State of California, as described on Exhibit "A", which is attached hereto by reference
and made a part hereof.
It is understood that said temporary easement shall extend for a period of six (6) months commencing forty-eight
(48) hours after the Grantee provides written notification to the Grantor of its intent to commence construction. In the
event actual use by Grantee, its authorized agents, or contractors extends beyond the prescribed period of time, the Grantee
shall pay the Grantor at the same contract rate of$ 1,342 per month, prorated to the actual date said use is terminated.
It is further understood that when the construction project is completed and said temporary easement is no longer
required, said real property shall be restored to the same general conditions as existed prior to the beginning of
construction.
Dated
FOR: MacArthur Fairview Park, LLC
}
STATE OF CALIFORNIA
COUNTY OF
BY:
TITLE:
}ss.
On
before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that helshe/they executed
the same in hislher/their authorized capacity(ies), and that by his/herl
their signatures) on the instrument the person(s) or the entity upon be-
half of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(This area for official notary
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EXHffiIT "B"
LEGAL DESCRIPTION
TEMPORARARY CONSTRUCTION EASEMENT
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
ORANGE, CITY OF SANTA ANA, AND IS DESCRffiED AS FOLLOWS:
A portion of Parcel 1, in the City of Santa Ana, County of Orange, State of California
as shown on a parcel map filed in Book 168, Pages 35 and 36 of Parcel Maps, in the
Office of the County Recorder of said county and described as follows:
Beginning on the south line of said parcel distant South 88047' 41 West 5.15 feet
from the easterly terminus of that course shown on said map as North 88047' 41
East 147.52 feet; thence South 88047' 41 West 21,28 feet along said line; thence
North 43058'17" East 44.37 feet to a line 79.00 feet west of the centerline of Fairview
Street; thence North 00051 '08" West 144.24 feet along said line to the beginning of a
curve concave southeasterly having a radius of 123.00 feet; thence northerly and
northeasterly along said curve through a central angle of 18011 '42" an arc length of
39.06 feet to the beginning of a reverse curve concave northwesterly having a radius
of 77.00 feet; thence northeasterly and northerly along said curve through a central
angle of 18011 '42" an arc length of 24.45 feet; thence North 89008'52" East 10.00
feet to a point on the easterly line of said parcel; thence South 00051 '08" East 29.97
feet along said line to a point on a curve concave southeasterly having a radius of
108.00 feet, a radial line through said point bears North 73020'59" West; thence
southwesterly and southerly along said curve through a central angle of 17030'09" an
arc length of 32.99 feet to a line 64.00 feet west of the centerline of Fairview Street;
thence South 00051'08" East 150.43 feet along said line; thence South 43058'17"
West 35.46 feet to the Point of Beginning.
CONTAINING AN AREA OF 3661 SQUARE FEET, MORE OR LESS.
ALL AS SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART
HEREOF.
PREPARED UNDER THE SUPERVISION OF:
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MACARTHUR BLVD.
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EXHffiIT "c"
GENERAL ESCROW PROVISIONS
All disbursements shall be made by Escrow's check. All funds received in this escrow shall be deposited in one
or more of your general escrow accounts with any bank doing business in the State of California and may be
transferred to any other general escrow account or accounts. The expression "close of escrow" means the date
on which instruments referred to herein are filed for record. All adjustments are to be made on the basis of a 30-
day month. Recordation of any instruments delivered through this escrow, if necessary or proper in the issuance
of a policy oftitle insurance called for, is hereby authorized.
There shall be no prorations of any existing insurance policies in this escrow.
You are to furnish a copy of these instructions, amendments thereto, closing statements and/or any other
documents deposited in this escrow to the lender or lenders, the real estate broker or brokers and/or the attorney
or attorneys involved in this transaction upon request of such lenders, brokers or attorneys.
Should you before or after close of escrow receive or become aware of any conflicting demands or claims with
respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein
affected hereby, you shall have the right to discontinue any or all further acts on your part until such conflict is
resolved to your satisfaction, and you shall have the further right to commence or defend any action or
proceedings for the determination of such conflict. The parties hereto jointly and severally agree to pay all
costs, damages, judgments and expenses, including reasonable attorney's fees, suffered or incurred by you in
connection with, or arising out of this escrow, including, but without limiting the generality of the foregoing, a
suit in interpleader brought by you. In the event you file a suit in interpleader, you shall ipso facto be fully
released and discharged from all obligations imposed upon you in this escrow.
If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable monthly
charge as custodian thereof of not less than $10.00 per month.
Time is declared to be the essence of these instructions. If you are unable to comply within the time specified
herein and such additional time as is required to make an examination of the official records, you will return all
documents, money or property to the party entitled thereto upon satisfactory written demand and authorization.
Any amendment of and/or supplement to any instructions must be in writing. The seller agrees to sell and the
buyer agrees to buy the property herein described upon the terms hereof.
These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each of which
independently shall have the same effect as if it were the original, and all of which taken together shall
constitute one and the same instruction.
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