HomeMy WebLinkAboutResolution 32-13RECORD OF RESOLUTIONS
Dayton Legal Blank, Inc . Form No. 30045
32 -13
Resolution No.
Passed - 20
A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER
INTO AN ENVIRONMENTAL COVENANT WITH THE OHIO
ENVIRONMENTAL PROTECTION AGENCY AS PART OF THE
HYLAND -CROY AND BRAND ROAD INTERSECTION PROJECT.
WHEREAS, the City of Dublin intends to construct a project located at the intersection
of Hyland -Croy, Brand, and Mitchell -DeWitt Roads ("the Project Site "), which will impact
certain surface water features located on the Project Site and the approvals for which
project required that the Owner obtain a 401 water quality certification (WQC), pursuant
to Section 401 of the Clean Water Act, 33 U.S.C. § 1344 from Ohio EPA and Section 404
Nationwide Permit (404 NWP) from the United States Army Corps of Engineers ( USACE);
and
WHEREAS, Dublin is the owner in fee of certain real property, which contains the
Covenant Area and is situated in Union County, Ohio in the Scioto River watershed; and
WHEREAS, the City is entering into this environmental covenant pursuant to Ohio
Revised Code ("ORC'J §§ 5301.80 to 5301.92 by Dublin, and the Ohio Environmental
Protection Agency ("Ohio EPA'J, as a non - holder agency, for the purpose of subjecting
certain property ("the Covenant Area'I to the activity and use limitations; and
WHEREAS, in order to mitigate such impacts on the Project Site and as a condition of
being issued the 401 WQC, Ohio EPA ID No. 103657 and Section 404 NWP, USACE No.
LRH- 2010 - 743 -SCR and the Ohio EPA and USACE have required that Dublin obtain
mitigation property and to protect this property in perpetuity with an environmental
covenant; and
WHEREAS, to meet the conditions in the 401 WQC and 404 NWP, Owner will construct
and implement the mitigation requirements contained in the Owner's 401 WQC and 404
NWP on a specific area ("the Covenant Area'J of the Owner's property; and
WHEREAS, the Covenant Area is important in the protection of the existing or
designated use of the waters of the state, pursuant to § 303 of the Clean Water Act, 33
U.S.C. § 1313 and § 6111.041 of the Ohio Water Pollution Control Act. The specific
conservation values (hereinafter "Conservation Values ") of the Covenant Area have been
documented in a document entitled "Application for Section 401 Water Quality
Certification, dated August 3, 2010 "; and
WHEREAS, Dublin proposes to fulfill its obligation to ensure the Covenant Area and the
Covenant Area's Conservation Values are protected in perpetuity by this Environmental
Covenant attached hereto as Exhibit "A."
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Dublin, State of
Ohio, - 6 — of the elected members concurring, that:
Section 1 . The City Manager is hereby authorized to execute the attached
Environmental Covenant.
Section 2 . This Resolution shall take effect and be in force upon passage in accordance
with Section 4.04(a) of the Revised Charter.
Passed this A d4 day of 2013.
Mayor - Pre ' ng Officer
ATTEST:
Clerk of Council
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
City of Dublin Phone: 614 - 410 -4400 • Fax: 614 - 410 -4490
To: Members of Dublin City Council
From: Marsha I. Grigsby, City Manager
Date: June 6, 2013
Initiated By: Paul A. Hammersmith, P.E., Director of Engineering /City Engineer
Kenneth B. Richardson, P.E., P.S., Engineering Manager — Design
Memo
Re: Resolution No. 32 -13 - Authorizing the City Manager to Enter into an
Environmental Covenant with the Ohio Environmental Protection
Agency (EPA) as part of the Hyland -Croy and Brand Road Intersection
Project
Background
Improvements currently under construction at the intersection of Hyland -Croy Road, Brand Road,
and Mitchell -Dewitt Road, including a modern roundabout, require the replacement of the existing
bridge over the North Fork Indian Run stream and more than 200 feet of impact to the stream.
Design efforts were undertaken by the City's design consultant to minimize stream impact during
the design process, thereby avoiding the need for environmental permitting by the Ohio EPA.
However, due to a 16 -inch gas transmission main in close proximity to the existing bridge and
proposed bridge, the stream impacts could not be reduced to less than 200 feet — the threshold for
required environmental stream mitigation action. The 16 -inch gas main is located in a private
easement, and the cost of relocating the gas main would have exceeded several hundred thousand
dollars.
Summary
A very practical way for the City of Dublin to meet the Ohio EPA requirements for stream impact
mitigation is establish a perpetual environmental covenant on 2. 56 acres of City -owned property
located adjacent to the stream. The amount of land was determined by Ohio EPA regulations on
stream mitigation and how much this project impacted the land. The covenant limits the use and
activity that may occur on the 2.056 acres. The covenant acreage is totally contained within
Reserve "E" of "Oak Park" -- a subdivision located in the southwest quadrant of the Hyland -Croy
Road /Brand Road /Mitchell -DeWitt Road intersection. Most of Reserve " "E" is located within the
100 -year flood plain of the North Fork Indian Run. As part of the covenant agreement, the City
will be required to plant several species of trees and shrubs approved by the Ohio EPA in the
covenant area. These plants will be monitored by the Ohio EPA for five years after the
construction is complete on the intersection.
Recommendation
Staff recommends approval of Resolution No. 32 -13, authorizing the City Manager to enter into the
Environmental Covenant with the Ohio EPA on 2.056 acres of City -owned property located in the
southwest quadrant of the Hyland -Croy Road /Brand Road /Mitchell -Dewitt Road intersection.
To be recorded with Deed
Records = R.C. , 317.08
ENVIRONMENTAL COVENANT
This Environmental Covenant is entered into pursuant to Ohio Revised Code
( "ORC ") §§ 5301.80 to 5301.92 by the City of Dublin, a municipality ( "Owner "), having an
address of 5200 Emerald Parkway, Dublin, Ohio 43017 and the Ohio Environmental
Protection Agency ( "Ohio EPA "), as a non - holder agency, for the purpose of subjecting
certain property ( "the Covenant Area ") to the activity and use limitations set forth herein.
WHEREAS, the Owner is the owner in fee of certain real property, which contains
the Covenant Area and is situated in Union County, Ohio, in the Scioto River watershed;
WHEREAS, the Owner intends to construct a project located at the intersection of
Hyland -Croy, Brand, and Mitchell- DeWitt Roads ( "the Project Site "), which will impact
certain surface water features located on the Project Site and the approvals for which
project required that the Owner obtain a 401 water quality certification (WQC) pursuant to
Section 401 of the Clean Water Act, 33 U.S.C. § 1344 from Ohio EPA and Section 404
Nationwide Permit (404 NWP) from the United States Army Corps of Engineers ( USACE);
WHEREAS, in order to mitigate such impacts on the Project Site and as a condition
of being issued the 401 WQC, Ohio EPA ID No. 103657 and Section 404 NWP, USACE
No. LRH- 2010- 743 -SCR and the Ohio EPA and USACE have required that Owner obtain
mitigation property and to protect this property in perpetuity with an environmental
covenant;
WHEREAS, to meet the conditions in the 401 WQC and 404 NWP, Owner will
construct and implement the mitigation requirements contained in the Owner's 401 WQC
and 404 NWP on a specific area ( "the Covenant Area ") of the Owner's property;
WHEREAS, the Covenant Area is important in the protection of the existing or
designated use of the waters of the state pursuant to § 303 of the Clean Water Act, 33
U.S.C. § 1313 and § 6111.041 of the Ohio Water Pollution Control Act. The specific
conservation values (hereinafter "Conservation Values ") of the Covenant Area have
been documented in a document entitled "Application for Section 401 Water Quality
Certification, dated August 3, 2010 ".
WHEREAS, Owner proposes to fulfill its obligation to ensure the Covenant Area and
the Covenant Area's Conservation Values are protected in perpetuity by this Environmental
Covenant.
Page 1 of 12
4358575x2
Now therefore, Owner and Ohio EPA agree to the following:
1. Environmental Covenant This instrument is an environmental covenant
developed and executed pursuant to ORC §§ 5301.80 to 5301.92.
2. Covenant Area The Covenant Area is an approximately 2.056 acre tract of
real property located at the Project Site, in Union County, Ohio, and more particularly
described in Exhibit A and Exhibit B attached hereto and hereby incorporated by reference
herein the "Covenant Area ".
3, The City of Dublin is the fee simple owner of the Covenant Area..
4. The City of Dublin is the holder of this Environmental Covenant.
5. Activity and Use Limitations. As part of the conditions set forth in the 401
WQC and 404 NWP issued to Owner and given the conservation values of the Covenant
Area, the Owner hereby imposes and agrees to comply with the following activity and use
limitations on the Covenant Area:
a. Division Any division or subdivision of the Covenant Area is
prohibited;
b. Commercial, Industrial, or Agricultural Activities Commercial
development or industrial activity on the Covenant Area is prohibited.
Included in this prohibition are any agricultural activities, including, but
not limited to row cropping, grazing, and drainage improvement
projects;
C. Construction The placement or construction of any man -made
modifications such as buildings, structures, fences, roads and parking
lots on the Covenant Area is prohibited, other than construction
activities that are authorized by the 401 WQC and 404 NWP
approved by the Ohio EPA and USACE;
d. Cutting and Other Control of Vegetation Any cutting of trees, ground
cover or vegetation, or destroying by means of herbicides or
pesticides on the Covenant Area is prohibited, other than the removal
or control of invasive and noxious species and control activities that
are authorized by the 401 WQC and 404 NWP approved by the Ohio
EPA and USACE;
e. Land Surface Alteration: The removal of soil, sand, gravel, rock,
minerals or other materials from the Covenant Area, or doing any act
Page 2 of 12
4358575v2
that would alter the topography of the Property shall be prohibited;
Dumping Waste, garbage and unsightly or offensive materials are not
permitted and may not be accumulated on the Covenant Area; and
g. Recreational Uses The use of ATVs or other recreational use off -
road vehicles, as well as the construction of horse trails within the
Covenant Area is prohibited. Other than unpaved walking trails and
pedestrian crossings, recreational uses that disturb or compact the
soils or destroy or inhibit the growth of vegetation are prohibited within
the Covenant Area.
h. Utilities The Owner shall not construct, or permit others to construct
utilities within the Covenant Area, except as approved by Ohio EPA.
Water Courses Natural water courses and streams and adjacent
riparian buffers may not be dredged, straightened, filled, channelized,
impeded, diverted or otherwise altered on the Covenant Area, other
than as part of activities that are authorized by the 401 WQC and the
404 NWP approved by the Ohio EPA and USACE.
Other Activities: Each and every other activity or construction project
which might endanger the natural, scenic, biological, ecological
integrity of the Covenant Area shall be prohibited.
6. Running with the Land This Environmental Covenant shall be binding upon
the Owner and all assigns and successors in interest, including any Transferee, and shall
run with the land, pursuant to ORC § 5301.85, subject to amendment or termination as set
forth herein. The term "Transferee" as used in this Environmental Covenant, shall mean
any future owner of any interest in the Covenant Area or any portion thereof, including, but
not limited to, owners of an interest in fee simple, mortgagees, easement holders, and /or
lessees.
7. Compliance Enforcement Compliance with this Environmental Covenant
may be enforced pursuant to ORC § 5301.91 or other applicable law. Failure to timely
enforce compliance with this Environmental Covenant or the use limitations contained
herein by any party shall not bar subsequent enforcement by such party and shall not be
deemed a waiver of the party's right to take action to enforce any provision of this
Covenant. Nothing in this Environmental Covenant shall restrict the Director of Ohio EPA
from exercising any authority under applicable law in order to protect public health or safety
or the environment.
8. Rights of Access Owner hereby grants to Ohio EPA, its agents, contractors,
Page 3 of 12.
and employees and the Holder or its agents the right of access to the Covenant Area in
connection with the implementation or Enforcement of this Environmental Covenant.
9. Compliance Reporting. Owner and any Transferee shall submit to Ohio EPA,
upon request by the Ohio EPA, written documentation verifying that the activity and use
limitations remain in place and are being complied with.
10. Notice upon Conveyance Each instrument hereafter conveying any interest
in the Covenant Area or any portion of the Covenant Area shall contain a notice of the
activity and use limitations set forth in this Environmental Covenant, and provide the
recorded location of this Environmental Covenant. The notice shall be substantially in the
following form:
THE INTEREST CONVEYED HEREBY IS SUBJECT TO AN
ENVIRONMENTAL COVENANT, DATED , 20_, RECORDED IN
THE DEED OR OFFICIAL RECORDS OF THE UNION COUNTY
RECORDER ON , 20 , IN [DOCUMENT , or BOOK
PAGE J. THE ENVIRONMENTAL COVENANT CONTAINS THE
FOLLOWING ACTIVITY AND USE LIMITATIONS:
a. Division Any division or subdivision of the Covenant Area is
prohibited;
b. Commercial Industrial. or Agricultural Activities: Commercial
development or industrial activity on the Covenant Area is prohibited.
Included in this prohibition are any agricultural activities, but not
limited to row cropping, grazing, and drainage improvement projects;
C. Construction The placement or construction of any man -made
modifications such as buildings, structures, fences, roads and parking
lots on the Covenant Area is prohibited, other than construction
activities that are authorized by the 401 WQC and the 404 NWP
approved by the Ohio EPA and USACE;
d. Cutting and Other Control of Vegetation Any cutting of trees, ground
cover or vegetation, or destroying by means of herbicides or
pesticides on the Covenant Area is prohibited, other than the removal
or control of invasive and noxious species and control activities that
are authorized by the 401 WQC and 404 NWP approved by the Ohio
EPA and USACE;
e. Dumping Waste, garbage and unsightly or offensive materials are not
permitted and may not be accumulated on the Covenant Area; and
Page 4 of 12.
Recreational Uses The use of ATVs or other recreational use off -
road vehicles, as well as the construction of horse trails within the
Covenant Area is prohibited. Other than unpaved walking trails and
pedestrian crossings, recreational uses that disturb or compact the
soils or destroy or inhibit the growth of vegetation are prohibited within
the Covenant Area.
g. Utilities The Owner shall not construct, or permit others to construct
utilities within the Covenant Area, except as approved by Ohio EPA.
h. Water Courses Natural water courses and streams and adjacent
riparian buffers may not be dredged, straightened, filled, channelized,
impeded, diverted or otherwise altered on the Covenant Area, other
than as part of activities that are authorized by the 401 WQC and the
404 NWP approved by the Ohio EPA and USACE.
Owner shall notify Ohio EPA within ten (10) days after each conveyance of an interest in
any portion of the Covenant Area. Owner's notice shall include the name, address and
telephone number of the Transferee, and a copy of the original document that imposed
restrictions on the Covenant Area.
11. Representations and Warranti Owner hereby represents and warrants to
the other signatories hereto:
a. that the Owner is the sole owner of the Covenant Area;
b. that the Owner holds fee simple title to the Covenant Area that is free,
clear and unencumbered
C. the Owner has the power and authority to enter into this Environmental
Covenant, to grant the rights and interests herein provided and to carry out all obligations
hereunder; and
d. that this Environmental Covenant will not materially violate or
contravene or constitute a material default under any other agreement, document or
instrument to which Owner is a party or by which Owner may be bound or affected.
12. Amendment or Termination This Environmental Covenant may be amended
or terminated only by consent of all of the following: the Owner or a Transferee, the Holder,
and the Ohio EPA, pursuant to R.C. §§ 5301.89 or 5301.90 and other applicable law.
"Amendment" means any changes to the Environmental Covenant, including the activity
and use limitations set forth herein, or the elimination of one or more activity and use
Page 5 of 12.
limitations when there is at least one limitation remaining. "Termination" means the
elimination of all activity and use limitations set forth herein and all other obligations under
this Environmental Covenant. Amendment or termination shall not affect Owner's
obligations pursuant to the 401 WQC and 404 NWP.
This Environmental Covenant may be amended or terminated only by a written
instrument duly executed by the Director of Ohio EPA, the Owner, and the Holder. Within
thirty (30) days of signature by all requisite parties on any amendment or termination of this
Environmental Covenant, the Owner or Transferee shall file such instrument for recording
with the Union County Recorder's Office, and shall provide a true copy of the recorded
instrument to Ohio EPA and USACE.
13. Severability If any provision of this Environmental Covenant is found to be
unenforceable in any respect, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired.
14. Governing Law This Environmental Covenant shall be governed by and
interpreted in accordance with the laws of the State of Ohio.
15. Recordation Within thirty (30) days after the date of the final required
signature upon this Environmental Covenant, the Owner shall file this Environmental
Covenant for recording, in the same manner as a deed to the property, with the Union
County Recorder's Office.
16. Effective Date The effective date of this Environmental Covenant shall be
the date upon which the fully executed Environmental Covenant has been recorded as a
deed record for the Covenant Area with the Union County Recorder.
17. Distribution of Environmental Covenant The Owner shall distribute a file -
and date - stamped copy of the recorded Environmental Covenant to: Ohio EPA, USACE,
the Holder, any lessee, any other person who signed the Environmental Covenant, each
person holding a recorded interest in the Property, and any other person designated by
Ohio EPA.
18. Notice Unless otherwise notified in writing by or on behalf of the current owner
or Ohio EPA, any document or communication required by this Environmental Covenant
shall be submitted to:
Environmental Manager
Environmental Mitigation and Special Permitting Section
Division of Surface Water
Ohio EPA
Page 6 of 12.
P.O. Box 1049
Columbus, Ohio 43216 -1049
19. Counterparts. This Covenant may be executed in several counterparts, each
of which may be deemed an original, and all of such counterparts together shall constitute
one and the same Covenant.
The undersigned representatives of the Owner and Holder represent and certify that
they are authorized to execute this Environmental Covenant.
IT IS SO AGREED:
CITY OF DUBLIN
By:
Its:
Date:
State of Ohio
County of Union
ss:
Before me, a notary public, in and for said county and state, personally appeared
, a duly authorized representative of the City of Dublin, who acknowledged to
me that [he /she] did execute the foregoing instrument on behalf of the City of Dublin.
IN TESTIMONY WHEREOF, I have subscribed my name and affixed my official seal
this day of , 201_.
Notary Public
Page 7 of 12.
OHIO ENVIRONMENTAL PROTECTION AGENCY
Scott J. Nally, Director
State of Ohio
County of Franklin
SS:
Date
Before me, a notary public, in and for said county and state, personally appeared
Scott J. Nally, the Director of Ohio EPA, who acknowledged to me that he did execute the
foregoing instrument on behalf of Ohio EPA.
IN TESTIMONY WHEREOF, I have subscribed my name and affixed my official seal
this day of , 201_.
Notary Public
This instrument prepared by:
Philip K. Hartmann, Esq.
Ice Miller, LLP
250 West Street
Columbus, Ohio 43215
Page 8 of 12.
EXHIBIT A (1 of 3)
Legal Description of the Covenant Area
ENVIRONMENTAL COVENANT
2.056 ACRES
Situated in the State of Ohio, County of Union, City of Dublin, Jerome Township, lying
in Virginia Military Survey Number 6595, being on, over, and across Reserve "E" of "Oak
Park", a subdivision of record in Plat Book 5, Page 260 (all references are to the records of the
Recorder's Office, Union County, Ohio) and being more particularly described as follows:
Beginning, for reference, at the northeasterly comer of Lot 33 of said "Oak Park";
thence South 05° 18' 59" East, with the easterly line of said Lot 33, a distance of 18.36
feet to a point in the southeasterly perimeter of said Reserve "E";
thence South 68 07' 26" East, with said southeasterly perimeter, a distance of 39.81 feet
to the TRUE POINT OF BEGINNING;
thence across said Reserve "E ", the following courses and distances:
North 24 12' 08" West, a distance of 98.45 feet to a point;
North 64 21' 16" West, a distance of 341.34 feet to a point;
North 23 27' 05" East, a distance of 162.68 feet to a point;
South 65 10' 01" East, a distance of 410.03 feet to a point;
South 27° 19' 04" East, a distance of 34.70 feet to a point of curvature;
with the arc to the right, having a central angle of 22° 01' 50 ", a radius of 200.00 feet, an
arc length of 76.90 feet, a chord bearing of South 16° 18' 09" East and a chord distance of 76.43
feet to a point of tangency;
South 05° 17' 14" East, a distance of 138.08 feet to a point in said southeasterly
perimeter;
thence with said southeasterly perimeter, the following courses and distances:
North 85° 33' 54" West, a distance of 88.70 feet to a point;
North 68 07' 26" West, a distance of 54.36 feet to the TRUE POINT OF BEGINNING
and containing 2.056 acres of land, more or less.
EVANS, MECHWART, HAMBLETON & TILTON, INC.
Daniel A. Neer 4" 813
Professional Surveyor No. 8533 Date
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ENVIRONMENTAL COVENANT
VIRGINIA MILITARY SURVEY NUMBER 6595
CITY OF DUBLIN, COUNTY OF UNION, STATE OF OHIO
MITC -DEWITT ROAD ^
Jerome Townshi H.C A SSO CIA TES D.B. 307, P. 713 _ — . . _ , ..
of Dui3ii� — — /
S65 `E 410.03'
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RESERVE "E"
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OAK ARK
Existing P.B. 5 P. 260
Easement
25 � 26 27
1
2.056 AC.
Existing
Stream Contidor -[
Protection Zone and
Drainage Easement
1 7 16 - W 341.34'
�— — � 33
32
28 31
NOTE: EASEMENTS WITHOUT RECORDED
30
INFORMATION ARE DEDICATED BY'OAK
PARK OF RECORD IN P.9.5, P. 60.
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Date:
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Scale:
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Job No.
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Line Table
Line
Number
Direction
Length
L1
S05'18'59'E
18.36'
L2
S68'07'26"E
39.81'
L3
N2412'08"W
98.45'
L4
S27' 19'04"E
34.70'
L5
NW33'54"W
88.70'
L6
N6907'26 W
54.36'
ENVIRONMENTAL COVENANT
VIRGINIA MILITARY SURVEY NUMBER 6595
CITY OF DUBLIN, COUNTY OF UNION, STATE OF OHIO
Curve Table
Curve
Number
Delta
Radius
Length
g
Chord
Bearing
Chord
Distance
C1
2701'50'
200.00
S16 - E
1 76.43'
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Job No. 2013 -0236
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ENVIRONMENTAL COVENANT
Date: 02/21/2013
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VIRGINIA MILITARY SURVEY NUMBER 6595
Seale: 1" - 100'
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Phone, e14.775.45W Tol Free: BBe.773.36e
CITY OF DUBLIN, COUNTY OF UNION, STATE OF OHIO
Job No. 2013 -0236
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MITCHEL DEWITT ROAD
Jerome Townshi H.C A SSO CIA TES D.B 307, P. 713
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RESERVE "E" "' Stream Corridor
Protection Zane and
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OA ARK — 33
Existing P.B. 5 P. 260
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27
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NOTE: EASEMENTS WITHOUT RECORDED 30 100 0 100 200
INFORMATION ARE DEDICATED BY "OAK
PARK" OF RECORD IN P.B. 5, P. 60.
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