Res 091-96 7/2/1996RESOLUTION NO. CI 1 -q (p
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA
FALLS, TEXAS, APPROVING THE COMMERCIAL LEASE FOR THE
FISHING BARGE AT LAKE KICKAPOO; FINDING AND
DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION
WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW.
SAS, the City Council finds that the fishing barge at Lake Kickapoo helps
provide recreation for those utilizing the lake; and,
WHEREAS, the City Council is of the opinion that these agreements serve the best
interests of the City and all those citizens who enjoy and use Lake Kickapoo.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WICHITA FALLS, TEXAS, THAT:
SECTION 1. That certain commercial lease for the fishing barge at Lake Kickapoo and
an agreement to include an additional lot, copies of which are attached hereto and made a part
hereof for all purposes, is hereby approved for execution by the City Manager.
SECTION 2. It is hereby found and determined that the meeting at which this
resolution was passed was open to the public as required by law.
PASSED AND APPROVED this the day of 1996.
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M A Y Off` R
ATTEST:
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City Clerk
LEASE AGREEMENT
FOR FISHING BARGE AT LAKE KICKAPOO
STATE OF TEXAS
COUNTY OF WICHITA §
This Agreement, made and entered into on the day of 199_,
by and between the City of Wichita Falls, a municipal corporation, acting through its City
Manager, hereafter called "Lessor," and Mitch Miller and wife, Kay Miller, hereinafter called
Lessee,"
WITNESSETH:
Lessor does hereby lease to Lessee the following described real property located in
Archer County, Texas, to-wit:
Tract 1. Lots 3, 4, 5, 9 and 10, Block S on the south side of
Lake Kickapoo, as shown by the plat on file in the office of the
Lake Lot Coordinator for the City of Wichita Falls.
Tract 2. That area as designated in addition to the above-
referenced lots by the plat attached hereto as prepared by Corlett,
1 Probst and Boyd, and which is made a part hereof for all
purposes.
The above-referenced tracts are hereinafter called "premises," upon which the terms
and conditions hereinafter are set out.
1. GENERAL PURPOSE. The parties hereto (Lessor and Lessee) recognize and
acknowledge that the primary purpose of Lake Kickapoo is to supply the City of Wichita Falls
with water for human consumption, and that a secondary use thereof is for the purpose of
recreation for the citizens of Wichita Falls and the public generally.
2. TERM. The term of this lease is for a period of ten (10) years beginning on
1996, and ending on 2006. Lessee shall have an
option to extend the term of this lease if the Lessee is in compliance with the terms and
provisions of the lease on the date of the option, to extend said lease for an additional ten (10)
years, beginning 2006. Lessee shall exercise this option by giving
notice thereof in writing to Lessor of their desire to do so not less than sixty (60) days prior to
2006.
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3. RENTAL. Lessee agrees to pay the City as rental under this Agreement the
sum of Six Hundred Sixty and No/100 ($660.00) Dollars, payable in monthly installments of
Fifty-Five and No/100 ($55.00) Dollars in advance, such monthly payments being due and
payable on the first day of each month during the term of this contract. All payments shall be
paid at the office of the Lake Lot Coordinator, 1300 Seventh Street, Wichita Falls, Texas, or
at such other place as may be designated in writing by the City. Commencing with the rental
due on or before 2001, and each five (5) year period thereafter during
the term of this lease, the Lessor may increase the annual rental by an amount which does not
exceed thirty (30%) percent of the rate in effect for the preceding five (5) year period, or less
if during the initial term, prior to 2001. The amount of the increase
shall be set by the Lessor by action of the City Council. Notification shall be given to Lessee
at least ninety (90) days prior to the effective date of the rental rate increase. Failure to notify
lessee shall not affect the validity of any rental increase.
4. ADDRESSES. The address listed below Lessee's signature on this Agreement
shall be used for all notices and/or correspondence required between Lessor and Lessee. The
Lessee shall notify the Lessor of any change of address of Lessee. Such notice shall be on a
change of address form provided by the Lake Lot Coordinator and executed by the Lessee and
the Lake Lot Coordinator or the Lessor. Such changes of addresses shall be maintained in the
files of the Lake Lot Coordinator. All notifications hereunder will be presumed to be correct if
sent to the Lessee's address as reflected by the records of the Lake Lot Coordinator. Notices to
the Lessor may be to the office of the Lake Lot Coordinator unless otherwise designated by
Lessor on a form provided by the Lake Lot Coordinator and receipt thereof acknowledged by
Lessee.
5. NOTIFICATION. Lessor shall not be required to send Lessee a notice that the
monthly rental payments due under this Agreement except for the rental increases as noted
above. If Lessee fails to timely pay a rental under this lease, a late notice will be sent by the
Lake Lot Coordinator's office by certified mail to the last address of Lessee on file with the
Lake Lot Coordinator. The Lessee will have thirty (30) days from the date of the mailing of
the delinquent notice to pay the delinquency, along with a late fee of One Hundred and No/100
100.00) Dollars. If payment of the delinquency and late fee are not received by the Lake
Lot Coordinator within thirty (30) days of the mailing of the notification, this lease shall be
deemed terminated without further action by Lessor.
6. CONSTRUCTION. Buildings, structures, and facilities installed or
constructed on the premises shall be of sound and substantial construction and be done in
accordance with plans and specifications approved by Lessor. Plans for buildings, structures,
and facilities shall meet the minimum standards provided for similar construction within the
City of Wichita Falls, and shall be approved by the Building Inspection Department of the City
of Wichita Falls prior to the construction or installation. Such plans and specifications shall be
furnished by lessee at Lessee's expense. All construction and improvements made to the
premises shall comply with all applicable City, State, and Federal building, health, and
sanitation rules and regulations. All buildings, structures, or facilities shall be constructed
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substantially in accordance with the plans and specifications previously approved by the Lessor
in good and workmanlike manner, and shall be properly maintained in good repair and
appearance by Lessee. During the term of this lease, Lessee agrees to correct any substandard
or otherwise undesirable conditions resulting from failure to properly maintain structures,
grounds or facilities. If on the date of this lease there are buildings, structures, and/or facilities
located on the premises, the Lessor shall have the Building Inspection Department or other
such departments as are appropriate to inspect the property to determine if the buildings,
structures, and facilities meet the minimum standards set by the City of Wichita Falls. If such
inspection reveals failure to meet such minimum standards, then a report shall be given to
Lessee of the need of repairs to meet such standards. Lessee shall have ninety (90) days after
receipt of such inspection to bring the premises up to minimum standards set forth in the
inspection report; provided that for good cause, the City Council or its designated
representative may extend such time period an additional ninety (90) days. Lessee shall pay the
appropriate City fees for all permits and inspections, save and except the initial inspection
provided for above. Failure to comply with these requirements shall be cause for termination
of the lease.
7. MAINTENANCE. Lessee shall keep the premises clean of trash, rubbish,
garbage and waste materials of all kind, and will provide such facilities for the disposal of this
matter as Lessor shall require. Lessee further agrees to maintain the shoreline, immediately
adjacent land and water free of garbage, trash, or other waste. Lessee shall not discharge nor
allow to be discharged any waste of any kind into the waters of Lake Kickapoo, and agrees to
abide by all rules, regulations, or other laws related to the maintenance of water quality in
Lake Kickapoo as established by Lessor and other local, State and Federal agencies with
jurisdiction over same. Lessee shall indemnify Lessor for any cost associated with the clean-up
of any pollution caused by Lessee's use of the premises. Lessee acknowledges that the Lessor
shall have no obligation to furnish any solid waste collection or disposal system. Lessee shall
keep the weeds on the premises mowed to a height not exceeding nine (9") inches, and shall
not allow or maintain on the premises any dangerous or dilapidated buildings, structures, or
facilities as determined by Lessor in applying the applicable City of Wichita Falls and State
rules and regulations. Lessee further agrees not to allow or permit to be accumulated on the
premises any abandoned or junked vehicles, household furniture or appliances or parts thereof.
Lessor shall notify Lessee in writing of Lessee's failure to comply with any of the above
provisions as to the maintenance of the premises. Lessee shall have thirty (30) days in which to
correct the situation set forth in the notice from Lessor (or a longer period set by Lessor if
such default is of a nature that it cannot be corrected within such period) and if Lessee fails to
make any necessary corrective action within said time period, then Lessor may make such
corrections. Lessor shall be entitled to recover its costs of labor, materials, equipment and
administration in correcting such situation, and payment shall be made within thirty (30) days
of receipt of statement of such cost by Lessee. Any inspections after the initial inspection by
Lessor shall be paid for by Lessee at the rates provided for by the appropriate department of
Lessor. In the alternative, Lessor may terminate this lease or choose other remedies available
herein or by law.
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8. SEWAGE DISPOSAL. Lessee shall be required to adhere to all City, State,
and Federal environmental rules and regulations as to the sanitary disposal of sewage or any
revisions or successors to these requirements thereto. As of the date of this lease, septic tanks
shall be the only sewage disposal facility used on the premises, and such facilities shall be in
accordance with the applicable, City, State, and Federal requirements, and be maintained in
proper operation conditions at all times. All sewage disposal systems shall be inspected at the
beginning of the lease, when the lease is transferred or renewed, or whenever there is cause to
believe that the sewage disposal system is in non-compliance with applicable City, State, or
Federal environmental rules and regulations as to sanitary disposal of sewage. Fees shall be
assessed and paid by the Lessee to the Health Department or such other agency as is
appropriate for conducting such inspections.
9. ROADS AND RIGHTS-OF-WAY. Lessor shall provide maintenance for the
primary roads serving the premises; however, Lessor shall not be obligated to any higher
standard of maintenance than it currently provides. Lessor shall have the right to sublet the
maintenance of such roads to Archer County or other responsible authorities. Lessee is granted
a non-exclusive right-of-way over the roads, and if the leased premises do not adjoin to the
primary roads, the Lessee is granted the right-of-way from said primary roads to the leased
premises. The Lessee shall be responsible for the maintenance of any such right-of-way from
the primary road to the Leased premises. If the leased premises are adjacent to the waters of
Lake Kickapoo, then Lessee is granted a non-exclusive right-of-way, easement and right of use
of the lands between the Leased premises and the waters of Lake Kickapoo. Such right-of-
way, easement, and usage shall be in accordance with the rules and regulations adopted by the
Lessor, and shall provide for the safety and non-pollution of the waters of Lake Kickapoo.
Lessee expressly understands and agrees that if the Lessor decides to expend funds to improve
the roads, that Lessor may, but is under no obligation to, expend funds to improve the roads,
that Lessor may, but is under no obligation to, expend funds in excess of those realized from
the rental received from Lake Kickapoo lease lot rentals on a per annum basis, less any amount
expended to provide other services hereunder, and under similar leases. Any decision as to
improving the roads shall be within the sole discretion of the City Council.
10. WATER LEVEL. It is further agreed and understood by and between the
Lessor and Lessee that in the event, through appropriate action by the City Council of Wichita
Falls, a determination is made to raise the water level in Lake Kickapoo by raising the dam
thereof to a level that would cause flooding of the leasehold rights of Lessee, then Lessor shall
give Lessee notice in writing by certified letter to the address of Lessee as reflected by the
records of the Lake Lot Coordinator set forth herein. The notice shall advise Lessee of the
actions of the City Council and set a date for the removal of the improvements at Lessee's
expense on the premises owned by Lessee which will be necessary as a result of the proposed
action of the City Council. In the event Lessee fails to remove Lessee's property as provided
for in said notice within one hundred twenty (120) days or such additional time period as set
by said notice, Lessor may remove the same and Lessee agrees to pay, Lessor for the cost
thereof, including the reasonable cost of supervision.
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11. TAXES. Lessee agrees to pay and discharge all taxes and assessments which
now or hereafter may be taxed, assessed, levied, or imposed upon the premises or any
improvements placed thereon.
12. INSURANCE. Lessee shall provide general liability insurance in the aggregate
amount of Three Hundred Thousand and No/100 ($300,000.00) Dollars, with One Hundred
Fifty Thousand and No/100 ($150,000.00) Dollars per each personal individual injury, and a
minimum of Fifty Thousand and No/100 ($50,000.00) Dollars per each personal property
damage occurrence on the leased premises for the operation of the commercial lease.
13. LIEN FOR RENTALS. Lessee agrees that all buildings or other improvements
erected on the premises are charged with a lien in favor of the Lessor for payment of all
rentals and/or fees provided for hereunder that may be owed by Lessee to the Lessor under this
lease. Said lien shall be subject to any Deed of Trust or Mechanic's Lien for the purchase price
or construction of such buildings or improvements.
14. MISCELLANEOUS RULES AND REGULATIONS. Lessee agrees to obey
the following rules and regulations.
a.No farm stock shall be kept on said premises except as may be
sanctioned in writing by a health officer of the City of Wichita
Falls.
b.Fishing and hunting shall be subject to State laws and regulations.
c. Said premises shall not at any time be used in any manner or for
any purpose in conflict with or contrary to the penal statutes of
the State or Federal g overnment.
d.Lessee shall not make use of the Premises which would constitute
a nuisance.
e. Lessee is under the absolute obligation to use the leased premises
in a manner that shall prevent the pollution of the waters of Lake
Kickapoo in any manner.
f. Lessee may use water from Lake Kickapoo on the premises only
for the watering of trees, shrubs, and grass, but no water will be
used off the premises by Lessee. Lessee shall not use any of the
water from Lake Kickapoo for domestic purposes. Lessor in no
way guarantees the accessibility of water to the Leased premises
or the level of water in Lake Kickapoo.
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15. ASSIGNMENT. Lessee shall have the right to assign, convey or sublease
Lessee's leasehold rights hereunder as to the premises, provided that such assignment,
conveyance, or sublease shall be filed in the office of the Lake Lot Coordinator. No
assignment, conveyance or sublease shall be effective until such time as the premises have
been inspected and found to be in compliance with the terms and provisions of this lease, and
payment has been made of a transfer fee of $200, and all inspection fees as appropriate
hereunder. All assignments, conveyances or subleases must be approved by the City Manager.
Lessee shall remain primarily responsible for the terms and provisions hereunder until such
time as the assignment, conveyance or sublease has been approved as provided for herein for
the payment of the appropriate charges. The party assuming the rights and responsibilities of
Lessee hereunder by such assignment, conveyance, or sublease shall execute an
acknowledgment of such assumption under the terms of this lease on a form as provided by the
Lake Lot Coordinator. Any transfer of ownership occurring as a result of the death of Lessee
under his or her Will, or the statutes of descent of distribution of the State of Texas, shall not
be considered as assignment hereunder, and any such person taking ownership by virtue of the
death of Lessee shall be bound by the obligations of this lease and the rights hereunder, insure
to the benefit of any such person the heirs and assigns as permitted. Any party acceding to the
rights of Lessee as a result of the death of the Lessee shall file with the Lake Lot Coordinator
within one year of the Lessee's death, notice of such ownership and assume responsibilities
and rights under the lease on a form as provided by the Lake Lot Coordinator. Permission is
granted for the continued sublease of the mobile home spaces which are in place at the time of
the execution of the Agreement. The City Manager's approval to assign, convey or sublease
these spaces is not required nor is the $200 transfer fee applicable. Approval is also granted
for the development of no more than six (6) spaces for parking recreational vehicles suitable
for temporary, short-term usage of no more than seven (7) continuous days. Said recreational
vehicle spaces must meet all applicable City and State regulations and are not subject to the
City Manager's approval or transfer fees stated herein.
16. BREACH OF COVENANTS. If Lessee breaches any express or implied
covenant of this lease, the Lessor shall have the right to terminate this lease, giving the
appropriate notices to Lessee as provided for herein. After the appropriate notices as provided
for herein and the time periods have expired for late payment, lease reinstatement, or the time
to cure breaches set forth by Lessor, then Lessor shall proceed to dispose of Lessee's interest
in the premises in the following manner: Lessee shall have sixty (60) days from the date of
termination of the lease by Lessor in which to dispose of Lessee's leasehold rights by
assignment or conveyance to person or persons acceptable to Lessor and provided that said
person or persons shall satisfy the obligations of Lessee as set forth in the notice of
termination. Or the Lessee may, at Lessee's election upon receipt of notice of termination,
within sixty (60) days of the date of said notice, remove all improvements placed on the
premises by Lessee, but in removing such improvements the Lessee will not damage to any
extent any of the property belonging to Lessor or any other person. If Lessor has not made an
assignment or conveyance, or elected to remove Lessee's improvements as provided for above
within the stated time period, then Lessor shall have the right to enter upon the premises and
take possession thereof or at Lessor's option, sell to the highest bidder at either public or
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private sale, all of Lessee's interest in this lease and the improvements placed thereon. The
receipts from the sale shall be applied first to the expense of holding the sale; second to any
Deed of Trust or Mechanic's Lien outstanding against any buildings or improvements placed
on the Leased premises; third to any indebtedness owed by Lessee to Lessor; and the
remainder, if any, shall be paid to Lessee and shall be received by Lessee as full payment of
all rights, title and interest of Lessee in and to the Leased premises and improvements thereon.
Provided, however, that the time periods stated above shall not prevent Lessor's right to
immediate action to abate any nuisance on the premises.
17. LIABILITY FOR TERMINATION. In no event shall Lessor, its agents,
servants, or employees be liable for any damages, breach of contract or any action in the
nature of trespass of any kind or character for terminating this lease as provided for herein.
18. INDEMNITY. Lessee represents and agrees that Lessee has thoroughly
inspected the premises covered by this lease prior to execution of the Agreement, and has
found no hazardous conditions which may cause injury to persons or damage to the property,
and Lessee accepts the premises in such condition. Lessor makes no warranties, express or
implied, concerning the condition of the premises. Lessee also agrees that Lessor shall not be
liable in any manner for bodily injury or death to any person or damage to any property
including the person and property of Lessee) caused in whole or in part by any latent or patent
condition or defect on the Leased premises or as a result of flooding or high water or as a
result of any act or omission of Lessee or Lessee's family members, guests, or licensees, and
Lessee specifically agrees to indemnify and hold Lessor harmless from any such claims,
demands, or suits for injuries or death to persons or damage to property, regardless of whether
such injury, death, or damage was caused or contributed to in part by some act or omission by
the Lessor, its officers, agents, or employees.
19. RIGHT OF ENTRY. Lessor, its agents, employees, or representatives may
enter the Leased premises at any reasonable time, on reasonable notice to Lessee (except that
no notice need be given in a case of emergency) for the purpose of inspection to determine that
the conditions or provisions of this lease are being fulfilled.
20. APPLICABLE LAW AND VENUE. This agreement and all transactions made
hereunder shall be construed and governed according to the laws of the State of Texas. Venue
for any legal proceedings shall be in Wichita County, Texas.
21. LESSOR'S SERVICES. The Lessor may designate other parties to perform the
services provided for herein, including those to be performed by the Lake Lot Coordinator.
The Lessor, through the City Council, may adopt such additional rules and regulations as are
appropriate and necessary to carry out the intent of this lease and Lessor's duties hereunder,
and the adoption of any such rules and regulations shall be made by certified mail to the last
known address of Lessee, as provided for herein.
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22. INVALID PROVISIONS. In the event any covenant, condition, or provision
herein contained is held to be invalid by a court of competent jurisdiction, the validity of any
such covenant, condition, or provision shall in no way affect any other covenant, condition, or
provision.
23. ENTIRE AGREEMENT. This written contract and the agreement titled
Contract Conferring an Option to Incorporate Lot 8, Block S on the South Side of Lake
Kickapoo into the Lease Agreement for the Fishing Barge at Lake Kickapoo" constitutes the
entire agreement between the parties.
City of Wichita Falls, Texas
By:
James Berzina, City Manager
Attest:
City Clerk
Lessee:
Address
City State Zip
Approved as to Form:
Assistant City Attorney
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STATE OF TEXAS
COUNTY OF WICHITA §
CONTRACT CONFERRING AN OPTION TO INCORPORATE LOT 81
BLOCK S ON THE SOUTH SIDE OF LAKE KICKAPOO INTO
THE LEASE AGREEMENT FOR THE FISHING BARGE AT LAKE KICKAPOO
This Agreement, made and entered into on the day of 199_,
by and between the City of Wichita Falls, a municipal corporation, acting through its City
Manager, hereafter called "Lessor," and Mitch Miller and wife, Kay Miller, hereinafter called
Lessee,"
WITNESSETH:
The said City of Wichita Falls agrees to grant, and the said Mitch and Kay Miller to
take, a lease of all those certain premises situated in Archer County, Texas, and more
particularly described as follows, to-wit:
Lot 8, Block S on the South side of Lake Kickapoo, as shown
by the plat on file in the office of the Lake Lot Coordinator of
the City of Wichita Falls.
I.
The parties hereto (Lessor and Lessee) recognize and acknowledge that this option to
lease is in conjunction with the lease agreement entered into on the day of
1996, for the fishing barge at Lake Kickapoo. All covenants, both implied
and expressed, of the lease for the fishing barge at Lake Kickapoo are incorporated herein and
made a part of this option contract. In and for the consideration of Mitch and Kay Miller to
clean the lot of all debris, demolish all substandard structures, and provide restroom facilities,
the City of Wichita Falls agrees to include Lot 8, Block S, south side of Lake Kickapoo into
the Lease Agreement for Fishing Barge at Lake Kickapoo entered into on the _ day of
1996. The following conditions shall be performed by Mitch and Kay Miller
within one (1) year after the execution of the Lake Kickapoo fishing barge lease:
1. Removal of all sub-standard structures as designated by the Lake Lot
Coordinator from the premises on Lot 8, Block S, south side of Lake Kickapoo.
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2. Provide for sanitary public restrooms on Lot 8, Block S, south side of Lake
Kickapoo. Such facilities shall be in accordance with all applicable City, State and Federal
requirements, and be maintained in a clean and proper operating condition at all times.
3. Provide for a community building or pavilion on Lot 8, Block S, south side
Lake Kickapoo with all construction requirements as set out in the Lake Kickapoo fishing
barge lease being met.
If said conditions are not fulfilled by Mitch and Kay Miller within one (1) year after
execution of the Lease Agreement for Fishing Barge at Lake Kickapoo, then Lot 8, Block S,
south side of Lake Kickapoo will not be included in the tracts and/or lots leased to the Lessee
under the Lake Kickapoo Fishing Barge Lease executed on the day of
1996.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed on this day of 1996.
City of Wichita Falls, Texas
By:
James Berzina, City ManagerII
Attest:
City Clerk
Mitch Miller
Kay Miller
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STATE OF TEXAS
COUNTY OF WICHITA §
BEFORE ME, the undersigned authority, on this day personally appeared James
Berzina, City Manager for the City of Wichita Falls, a municipal corporation, known to me to
be the person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the said City of Wichita Falls, a municipal
corporation, for the purposes and consideration therein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
1996.
Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF WICHITA §
This instrument was acknowledged before me on the day of
1996, by Mitch Miller.
Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF WICHITA §
This instrument was acknowledged before me on the day of
1996, by Kay Miller.
Notary Public, State of Texas
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