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HomeMy WebLinkAboutResolution - 2018-R0067 - Lubbock Boys' & Girls' Club - 02/08/2018Resolution No. 2018-R0067 Item No. 6.13 February 8, 2018 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock ("City"), a License Agreement for the construction and maintenance of a Parking Area on portions of City property, by and between the City and Lubbock Boys' & Girls' Club, Inc., and all related documents. Said License Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on Fehni= 99 2019 DANIEL M. POPE, MA OR ATTEST: Reb ca Garza, City Secrettj APPROVED AS TO CONTE /\ cott Snider, Assistant City Manager APPROVED AS TO FORM: R an ooke, Assistant City Attorney RES.License Agreement Boys & Girls Club 1.24.18 Resolution No. 2018-R0067 LICENSE AGREEMENT THIS License Agreement (the "Agreement") is entered into on this 8th day of February , 2018, between the CITY OF LUBBOCK, TEXAS (the "City"), a Texas Home Rule Municipal Corporation, and the LUBBOCK BOYS' & GIRLS' CLUB, INC., ("Licensee"), a State of Texas Nonprofit Organization. RECITALS WHEREAS, the City owned a 9.246 acre tract of land as described in Volume 7211, Page 70, of the Real Property Records of Lubbock County, Texas, located in Section 44, Block AK, Lubbock County, Texas and being commonly referred to as Duran Park (the "Land"); and WHEREAS, on August 24, 2017, the City conveyed the northern 1.476 acre tract of the Land to Licensee, pursuant to Texas Local Government Code Section 253.011 to be used for the public purpose of providing access to a "fun, safe and constructive environment for kids and teens during out -of -school hours" at a local facility in West Lubbock; and a Parking Area that will provide public parking for Duran Park (Lubbock County Public Record 2017031815); and WHEREAS, the City and Licensee entered into a Shared Parking Lease Agreement on August 24, 2017, for the joint use of a parking area ("Parking Area") to be constructed and maintained by the Licensee on the 1.476 acres of land generally located on the northernmost portion of the area bordered by 26th Street on the north, Kewanee Avenue on the west, Juneau Avenue on the east, and 29th Street on the south, and Duran Park on the south; and WHEREAS, Duran Park does not currently have an off-street public parking lot; and WHEREAS, Licensee has expressed an interest and necessity in using a portion of the Land owned by the City for ingress and egress from the Parking Area; and License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 1 WHEREAS, Licensee has represented that they will comply with all laws, regulations, policies and permits required by the City for the use of City property, and have represented to the City that the proposed ingress and egress from the Parking Area use will not create any safety or traffic hazard, and will not interfere with the necessary periodic use of the Parking Area by the City or the public. ARTICLE I LICENSE Section 1.01. License. In consideration of the mutual covenants and agreements of this Agreement, and of other good and valuable consideration, the City hereby grants upon the terms and conditions set forth in this Agreement, a license on and over the Lands to Licensee, for the sole purpose of constructing, maintaining, repairing and replacing the Access Improvements (defined below) and providing ingress and egress to and from the Parking Area generally located on the northernmost portion of the area bordered by 26th Street on the north, Kewanee Avenue on the west, Juneau Avenue on the east, and 29th Street on the south, and Duran Park on the south. The License includes the Lands and Parking Area as described and depicted in Exhibit "A." Section 1.02. Term. This Agreement shall become binding on the Effective Date and shall remain in effect through December 31, 2037 ("Primary Term"). The Term may be extended with written authorization of the City Council. Upon termination, Licensee shall immediately vacate the Lands. Any holding over by Licensee after that term expires, except as provided otherwise in this Agreement, shall not constitute a renewal of this Agreement, or provide Licensee any rights whatsoever under this Agreement and/or to the Lands. License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 2 This Agreement shall terminate with ninety (90) days notice from the City should the City determine that the Lands are necessary for the location of governmental or proprietary development as provided for in Section 4.07. ARTICLE II RENTAL Licensee shall pay for all Access Improvements and for all maintenance on the Lands as compensation to the City of Lubbock for and in consideration of the granting of this License, and the public, subject to the grant of this license, shall have a right to use the Access Improvements for vehicular, bike and pedestrian purposes. Upon termination of the License for any reason, all improvements shall become the property of the City. ARTICLE III IMPROVEMENTS Licensee shall prepare plans (the "Access Improvement Plans") for a vehicular drive and a sidewalk and City required signage, if any, for ingress and egress from the Parking Area (the "Access Improvements") that will be beneficial for the Licensee and the City. The Access Improvements shall comply with all City policies, regulations and ordinances related to such Access Improvements, and Licensee agrees to apply for and acquire any permits required by the City before constructing said Access Improvements (the "Permits"). License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 3 Section 3.01. Construction - Site Plan. On or before six (6) months after the effective date of this Agreement, Licensee shall submit to the City a detailed Site Plan of the Lands and Access Improvement Plans. The Site Plan is subject to review and approval by the City as required by law, ordinance, policy or practice, and any other parties or entities, designated by the City. Any such parties, after consultation with Licensee, may request any changes, amendments or corrections to the Site Plan. In the event the parties cannot mutually agree on such changes, such dispute may be appealed to the City Council of City. The City Council of City may direct whatever changes to the Site Plan it deems necessary or advisable. Except as stated otherwise, "Site Plan" as used in this Agreement shall mean and refer to the Site Plan, as approved as described herein. Section 3.02. Construction. Licensee shall construct, or cause to be constructed, and located upon the Lands, the Access Improvements on or before one (1) year after the later of (i) approval of the Site Plan, or (ii) issuance of all required Permits. Section 3.03. Approval of Construction. No construction of any type or kind, including without limitation, the Access Improvements and any additions or alterations to the completed Access Improvements shall be commenced unless the Site Plan and the Access Improvement Plans or plans for additional improvements or alterations to existing improvements have received the prior written approval of the City. This approval is required by the terms and conditions of this Agreement and does not take the place of or satisfy the requirements of or substitute for other permits and approvals that may be required by other laws, ordinances or policies. Licensee shall, at its own expense, engage a licensed engineer to prepare the Access Improvement Plans for the construction of Access Improvements, and for any alterations or License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 4 additions to the Access Improvements, and all plans and construction shall be completed in compliance with all applicable permits, ordinances, and statues. The City, and any other parties having the right of approval, as described herein, shall review the Access Improvement Plans submitted by Licensee and provide to Licensee, in writing, any required changes or corrections that must be made that the City and or other parties having the right of approval, as described herein, may deem necessary in their sole discretion. The failure to receive the approval described herein shall not excuse the performance by Licensee of any provision and/or activity described and/or required in this Agreement. The City, and other parties having the right of approval, as described herein, shall have the right at all times to observe any and all activities described in Article III and Article IV. Neither the City nor other parties having the right of approval as described herein shall have any liability or responsibility for the engineering design or for any defect in the Access Improvements or the Access Improvement Plans, nor shall such approval and/or observation relieve Licensee from any or all of its obligations provided herein. Minor repairs and/or alterations necessary to maintain the Access Improvements in a good state of repair does not require submission and approval as described herein. Section 3.04. Surety, Any and all contracts that Licensee may enter into with third parties to participate in the construction and/or location of improvement activities contemplated by this Agreement shall contain the requirement that such third parties adequately bond their performance under said contract, naming the City as a co -beneficiary or co -secured. The original of said bonds are to be suitable in form to the City and submitted to the City prior to the commencement of any activities of any kind by such third parties. License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 5 Section 3.05. Ownership of Improvements. The Access Improvements constructed, placed, located and/or maintained on any part of the Lands during the term to this Agreement shall be considered part of the real property and must remain on the Lands and, subject to the terms of this Agreement, become property of the City, from and after the termination of this. Agreement. The City may, at the City's sole option, require Licensee to remove at Licensee's sole expense any and all improvements from the Lands and repair any and all damage to the Lands resulting from such removal within ninety (90) days of the termination of this Agreement. Any and all of such improvements not removed by Licensee's on or before ninety (90) days after the termination of this Agreement, shall, at the option of the City, either (i) become the property of the City; or (ii) be removed and disposed of by the City at Licensee's sole cost and expense. In the event the City shall elect to remove such property, the City shall owe no duty to protect such Access Improvements, and shall in no event be liable to Licensee for loss, damage or destruction of same. The City may dispose of any such property in any manner it desires in its sole discretion and retain any proceeds received therefore. ARTICLE IV OPERATIONS OF LICENSEE Section 4.01. Access of Public. The Lands and the Access Improvements shall be open to the public for the purpose of ingress and egress, on, over and across the Lands to the Parking Area. Section 4.02. Utilities. Licensee shall be responsible for providing, furnishing and connecting all utilities necessary to operate the Access Improvements, if any, and shall bear any License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 6 and all expenses of any kind or nature for the providing of same to the Access Improvements and the utilization of same. Section 4.03. Taxes. Licensee shall pay and discharge all charges, including without limitation, personal property taxes, gross receipt taxes, general and special assessments, and other charges of similar nature which may be levied or assessed against the Lands owned or occupied by Licensee, if any. Section 4.04. Fees and Concessions. The license granted herein does not include the grant of any right to charge a fee for ingress or egress or other use of the Lands. Section 4.05. Prohibition of Encumbrance. Licensee shall not encumber any interest in the license granted herein, the Lands, and the Access Improvements described herein, and/or this Agreement, in any way, manner or form, including, but not limited to, by deed of trust, mortgage or any other security instrument. Further, Licensee shall not cause or permit any mechanic's liens or any other liens to be filed against the license granted herein, the Lands, and the Access Improvements described herein, and/or this Agreement by reason of any work, labor, services or materials supplied and/or performed or claimed to have been supplied and/or performed to, by or for Licensee or any contractor or subcontractors of Licensee. Section 4.06. Right of Entry and Use — City. Nothing contained in this Agreement shall be construed to prohibit the City's right of entry and use, and the City expressly reserves the right of entry and use, in, on, over and/or across the Lands, at any and all times, and for any and all purposes. Licensee agrees that the City may block, close down or otherwise temporarily suspend the use of the Lands for the construction, maintenance, and or repair of any City improvements located in or adjacent to the Lands. The City maintains the right to block, close License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 7 down or otherwise temporarily suspend the use of the Lands for the purposes of construction, maintenance and repair of City improvements in or adjacent to the Lands, and Licensee agrees to not contest any such suspension of use of the Lands to any third party, including but not limited to any regulatory agency or court -of -law. Section 4.07. Control of City. The City shall retain all authority placed in it which is non -delegable. No provision of this Agreement shall be construed as delegating any non - delegable right, power or duty of the City. Licensee and City acknowledge that the City may develop the Lands for future City projects. Licensee agrees that it will coordinate with the City, its agents and representatives and will design any and all improvements in such a manner that they will not conflict with any existing City infrastructure, or with any planned City projects identified by the City prior to design of the Access Improvements. In the event City infrastructure or a City project does conflict with a portion of the Access Improvement made by Licensee, the Licensee will remove the portion of the Access Improvement at Licensee's sole cost. Licensee's also acknowledges that the City may develop the Lands for other governmental or proprietary projects. Licensee's agrees that their improvements must not interfere with existing City improvements in any way, or with the City's access to and from City improvements located in and adjacent to the Lands, and Licensee forever waives any claims of any kind whatsoever, should the City proceed with governmental or proprietary projects. If the City does develop a City project or other governmental or proprietary projects, the parties may negotiate in good faith for a license of reduced acreage if, in the City's sole determination, sucli arrangement is not inconsistent with any City project or purpose. In the event the City develops the Lands for a City project or any other governmental or proprietary License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 8 project, Licensee agrees to not contest any such project to any third party, including but not limited to any regulatory agency or court -of -law. If the City does develop a City project or other governmental or proprietary projects that requires the termination of this agreement, the City shall provide ninety (90) days notice in writing stating the City's intent to use the property for such purposes. In the event the City requires the termination of this agreement for the development of the Lands or any other governmental or proprietary project, Licensee agrees to not contest any such project to any third party, including but not limited to any regulatory agency or court -of -law. ARTICLE V MAINTENANCE AND REPAIR At all times during the term of this Agreement, Licensee shall keep and maintain, or cause to be kept and maintained, the Access Improvements, located on the Lands, and any landscaping, if any, in a good state of appearance and repair. Licensee shall also cause that any litter or accumulation of litter be regularly removed from the Access Improvements and disposed of in a lawful manner. ARTICLE VI INDEMNITY AND RELEASE LICENSEE SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST EXTENT PERMITTED BY LAW, THE CITY, AND CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, REPRESENTATIVES, AND/OR AGENTS FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS OR LIABILITIES, OF License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 9 ANY KIND OR NATURE, WHICH ARISE DIRECTLY OR INDIRECTLY, OR ARE RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACTIVITIES CONTEMPLATED HEREUNDER, LICENSEE'S OCCUPATION OF THE LANDS OR OTHER CITY OWNED LANDS, OR THE OMISSION OF THE ACTIVITIES CONTEMPLATED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOSSES, DAMAGES, CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OR FORM, THE ACT OR OMISSION OF THIRD PARTIES AND/OR CAUSED OR CONTRIBUTED TO, IN ANY WAY, MANNER OR FORM, BY THE NEGLIGENCE, OF ANY TYPE OR DEGREE, OR FAULT OF CITY, ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, REPRESENTATIVES, AND/OR AGENTS. LICENSEE FURTHER COVENANTS AND AGREES TO DEFEND ANY SUITS OR ADMINISTRATIVE PROCEEDINGS BROUGHT AGAINST THE CITY AND/OR THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, REPRESENTATIVES, AND/OR AGENTS ON ACCOUNT OF ANY SUCH CLAIM, AND, WITHOUT LIMITING THE INDEMNITY PROVIDED HEREIN, TO PAY OR DISCHARGE THE FULL AMOUNT OR OBLIGATION OF ANY SUCH CLAIM INCURRED BY, ACCRUING TO, OR IMPOSED ON THE CITY, OR THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, REPRESENTATIVES, AND/OR AGENTS, AS APPLICABLE, RESULTING FROM ANY SUCH SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS OR ANY MATTERS RESULTING FROM THE SETTLEMENT OR RESOLUTION OF SAID SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS. IN ADDITION, LICENSEE SHALL PAY TO THE CITY, THE CITY'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, REPRESENTATIVES, AND/OR AGENTS, AS APPLICABLE, REASONABLE AND License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 10 NECESSARY ATTORNEY'S FEES INCURRED BY SUCH PARTIES IN ENFORCING LICENSEE'S INDEMNITY OR OTHER OBLIGATIONS CONTAINED IN THIS SECTION. THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, REPRESENTATIVES, AND AGENTS, SHALL NOT BE LIABLE, AND LICENSEE HEREBY RELEASES THE CITY, AND ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, REPRESENTATIVES, AND AGENTS, FOR, FROM AND/OR AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS OR LIABILITIES TO LICENSEE, ON ANY THEORY OF LEGAL LIABILITY, INCLUDING, BUT NOT LIMITED TO THE NEGLIGENCE, OF ANY TYPE OR DEGREE, OR FAULT, OF THE CITY, AND/OR ARISING FROM OR RELATED TO, IN ANY WAY, MANNER OR FORM, THE UNENFORCEABILITY OR VOIDANCE, FOR ANY REASON, OF ALL OR ANY PART OF THIS AGREEMENT. THE INDEMNITY AND RELEASE PROVIDED HEREIN SHALL SURVIVE THE TERMINATION OR VOIDANCE OF THIS AGREEMENT. ARTICLE VII INSURANCE Licensee, and any contractor or subcontractor of Licensee, shall obtain and maintain all insurance coverage required by the City at all times while this Agreement is in effect. License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 11 ARTICLE VIII WARRANTIES, COVENANTS AND REPRESENTATIONS OF LICENSEE Section 8.01. Power. Licensee has the authority to enter into and perform this Agreement and all activities contemplated hereby. Section 8.02. State Law Requirements. Licensee warrants that it is in compliance and will remain in compliance with the following State law during the term of the License: (a) The Licensee warrants that it complies with Chapter 2270, Subtitle F, Title 10 of the Texas Government Code by verifying that: 1. The Licensee does not boycott Israel; and 2. The Licensee will not boycott Israel during the tenn of the Lease. (b) Texas Senate Bill 252 prohibits the Licensee from entering into an agreement with a Licensee that is identified by The Comptroller as a company known to have contracts with or provide supplies or service with Iran, Sudan or a foreign terrorist organization. ARTICLE IV Miscellaneous Section 9.01. Notice. Any notice required or permitted to be given herein must be given in writing and must be personally delivered, delivered by telephone facsimile, or mailed by prepaid certified or registered mail to the party to whom such notice or communication is directed at the address of such party as follows: City: Licensee: City Secretary Tom Vermillion, Executive Director City of Lubbock Lubbock Boys and Girls Club, Inc. P.O. Box 2000 P.O. Box 94163 Lubbock, Texas 79457 Lubbock, Texas 79493 (806) 775-2016 (806) 792-2880 License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 12 Any such notice or other communication shall be deemed to have been given (whether actually received or not) on the date it is personally delivered or delivered by telephonic facsimile, or, if mailed, on the third day, after it is mailed as aforesaid. Any party may change its address for purposes of this Agreement by giving notice of such change to all other parties pursuant to this Section 9.02. Section 9.03. Assignment/Sublet. This license is personal to Licensee. Licensee shall not assign or sublet this license. Any attempt to assign or sublet this license shall terminate the license granted herein. Section 9.04. Cam. Unless otherwise provided herein or required by law and/or local ordinance, charter or code, any action required or permitted to be taken by "the City", shall be taken by the City Manager of the City of Lubbock or any party designated by him or her. Section 9.05. Relationship to Parties. The relationship between the City and Licensee is at all times solely that of license and licensee, and may not be deemed, in any event, a partnership or a joint venture. Section 9.06. Compliance with Applicable Law. Licensee shall comply with all applicable federal, state and local rules, regulations, statutes, laws and ordinances governing, in any way, manner or form the construction activities contemplated herein, the operation of the ingress and egress improvements, and/or any other aspect of the activities described in or contemplated by this Agreement. Section 9.07. Order of Priority. Licensee acknowledges that this License is subject to and is subordinate to the Shared Parking Lease Agreement, entered August 24, 2017, by and between the City of Lubbock and the Lubbock Boys' & Girls' Club, Inc. It is expressly agreed and understood by Licensee that in the event of a conflict between a City project or project of a License Agreement —City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 13 governmental or proprietary nature and for purposes of this license, the City will give priority to the requirements of the City project or governmental or proprietary projects. Section 9.08. Texas LawNenue. This Agreement is to be construed under Texas law and applicable federal law, without regard to conflict of law rules that would direct application of the laws of any other jurisdiction, and all obligations of the parties created by this Agreement are performable in Lubbock County, Texas. Venue for any action brought pursuant to this Agreement, or any activity contemplated hereby, shall lie exclusively in Lubbock County, Texas. Section 9.09. Partial Invalidity. Except as otherwise provided herein, if any one or more of the provisions contained in this Agreement are for any reason held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceability will not affect any other provision of this Agreement, which shall be construed as if it had not included the invalid, illegal or unenforceable provision. Section 9.10. Agreements Superseded. This Agreement constitutes the parties' sole agreement and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter hereof. Section 9.11. Amendment. No amendment, modification, or alteration of this Agreement is binding, unless in writing, dated subsequent to the date of this Agreement, and duly executed by the parties. Section 9.12. Exhibits. The Exhibits which are referenced in, and attached to this Agreement, are incorporated in and made a part of this Agreement for all purposes. Section 9.13. Captions. Section captions are for convenience only and shall in no way affect the interpretation of this Agreement. License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 14 Section 9.14. License Agreement. The intent of this Agreement is to grant a license to Licensee to utilize the Lands solely for the purposes described herein. This license is terminable per the terms of this Agreement, at will or for failure to comply with any term or condition herein. This Agreement shall not be construed, in any way, manner or form, as a lease of the Lands or as conveying to Licensee any interest in the real property comprising the Lands. Section 9.15. Rights and Remedies Reserved. City and Licensee reserve the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, neither City nor Licensee shall be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. EXECUTED and effective as of the date of the execution by the City of Lubbock. CITY OF LUBBOCK, TEXAS DANIEL M. POPE, MAYOR ATTEST: Reb cca Garza, City ec etar LICENSEE: LUBBOCK BOYS' & GIRLS' CLUB, INC. T,- � —,, Tom Vermillion, Executive Director License Agreement — City of Lubbock and Lubbock Boys' & Girls' Club, Inc. — 2018 Page 15 APPROVED AS TO CONTENT: V� Scott Snider, Assistant City Manager APPROVED AS TO FORM: 4=v�� - -1-1 Rya B ooke, Assistant City Attorney License Agreement - City of Lubbock and Lubbock Boys' & Girls' Club, Inc. - 2018 Page 16 I 26th STREET ,—•• —----.._.._..o.._.._.._.._.._.._.._.._.._.._.. o ❑ FUTURE Z CONSTRUCTION - w I — - ° ❑ =❑ ❑ i, -- - w N _�- w o 0 p'' ❑ ❑ ❑ i - ® _ ARCHITECTS PC 11111-11Ts 12/08/17 COX DIRKS 1710 15TH STREET LUBBOCK, TEXAS 79401 0 w N E S a NOT a AND I EGFNn� �- vN9wfim eDxrnET 9uwN% A VA _ wx rxox sT.0 me. 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