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HomeMy WebLinkAboutCDC/2004-09 RESOLUTION NO. CDC/2004-9 2 3 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO EXECUTE AMENDMENT NO.2 TO OWNER PARTICIPATION AGREEMENT, DATED AS OF SEPTEMBER 17, 2001, BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND IN-N-OUT BURGERS AND TO EXECUTE A LICENSE BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND IN-N-OUT BURGERS PERMITTING LIMITED ENTRY FOR PUBLIC WORKS PROJECT PURPOSES. 4 5 6 7 8 9 10 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") 11 has previously entered into an agreement entitled Owner Participation Agreement ("Agreement"), dated as of September 17, 2001, by and between the Redevelopment Agency of the City of San Bernardino and In-N-Out Burgers. 12 13 14 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: 15 16 Section 1. The Commission hereby approves Amendment No.2 to the Agreement 17 attached hereto and incorporated herein by reference. 18 The Executive Director of the Agency is hereby authorized to execute Section 2. 19 Amendment No.2 on behalf of the Agency in the form attached hereto, together with such 20 nonsubstantive changes therein as may be approved by the Executive Director and the City 21 Attorney. 22 Section 3. The Executive Director of the Agency is hereby authorized to execute 23 License Permitting Limited Entry for Public Works Project Purposes on behalf of the Agency in the form attached hereto, together with such nonsubstantive changes therein as may be approved by the Executive Director and the City Attorney. 24 25 Section 4. The Resolution shall become effective immediately upon its adoption. -1- P:\Agendas\Resolutlons\Resolutlons\2004\04-05-03 INO Amend #I 2 CDC Reso.doc CDC/2004-9 2 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTIVE DIRECTOR OF THE AGENCY TO EXECUTE AMENDMENT NO.2 TO OWNER PARTICIPATION AGREEMENT, DATED AS OF SEPTEMBER 17, 2001, BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND IN-N-OUT BURGERS AND EXECUTE A LICENSE BETWEEN THE AGENCY AND IN-N-OUT BURGERS PERMITTING LIMITED ENTRY FOR PUBLIC WORKS PROJECT PURPOSES. 3 4 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 7 Community Development Commission of the City of San Bernardino at a it. reg. meeting 8 , 2004, by the following vote to wit: thereof, held on the 3rd day of May 9 Absent Commission Members: 10 ESTRADA 11 LONGVILLE 12 MCGINNIS 13 DERRY 14 KELLEY 15 JOHNSON 16 MC CAMMACK Ayes X Navs Abstain X X -1L ~ X X 17 18 19 ,2004. The foregoing resolution is hereby approved this 20 21 22 23 24 25 By: -2- P:\Agendas\ResoJutions\Resolutlons\2004\04-05-03 INO Amend # 2 CDC Reso.doc 2004 AMENDMENT NO.2 TO OWNER PARTICIPATION AGREEMENT BY AND BETWEEN REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND IN-N-OUT BURGERS, A CALIFORNIA CORPORATION THIS AMENDMENT NO.2 TO OWNER PARTICIPATION AGREEMENT (this "Amendment") is dated as of May 3, 2004, by and between In-N-Out Burgers, a California corporation ("Owner") and the Redevelopment Agency of the City of San Bernardino, a body corporate and politic (the "Agency"). The Owner and the Agency have previously entered into an agreement entitled "Owner Participation Agreement", dated as of September 17, 2001, as amended, by an agreement dated as of September 15,2003 (the "OPA") and the Owner and the Agency believe it is appropriate to approve a further amendment to various provisions of the OP A as set forth below in light of the facts set forth in the following recitals: RECITALS A. The Parties have previously initiated the redevelopment of the project described in the OPA as the "Development". B. The Agency has previously caused the Inland Valley Development Agency (the "IVDA") to initiate condemnation proceedings to complete the acquisition of a portion of the land described in the OPA as the "Agency Sale Parcel" and such condemnation proceedings have not been completed as of the date of this Amendment. C. The Agency has caused a substantial portion of the public street improvements referred to in the OP A as the "Harriman Place Improvement Project" to be designed and installed and the City of San Bernardino now plans to install the final phase of improvement of the Harriman Place Improvement Project to be completed at the earliest feasible time. D. The Owner has completed the submission of its written materials in a connection with the Owner's obtaining from the City the appropriate "Land Use Approvals" for the Improvements to be constructed by the Owner following the "Close of Escrow" as set forth in the OPA. E. The Parties now believe it is appropriate to approve this Amendment. 1 P:\Agcndas\Agreements-Amendmenls\Agrmts~Amcnd 2004\04-05-03 In-N-Out OPA Amend 2.doc NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION THE OWNER AND THE AGENCY HEREBY AGREE AS FOLLOWS: Section 1. The text of the OP A is hereby incorporated by this reference into this Amendment. Unless the context of the usage of a particular term, word or phrase used in this Amendment may otherwise require, the meaning of defined terms, words or phrases used in this Amendment shall be the same as the definition of such terms, words or phrases as used in the OPA. Section 2. As of the date of this Amendment, the Parties mutually declare that no default exists under the OP A or the Escrow as thereby established, and that each remains in full force and effect. Section 3. reads as follows: The OPA is hereby further amended to add a new Section 7.9(c) which "(c) In addition to the obligations of the Agency which arise under Section 7.9(b)(i), the Agency hereby agrees to assume the obligation of the Owner, under City CUP No. 04-02 Condition No.4, by providing for the defense of the City, the Economic Development Agency of the City of San Bernardino, the Agency, any departments, agencies, divisions, boards or commissions of either the City or the Economic Development Agency, as well as predecessors, successors, assigns, agents, directors, elected officials, officers, employees, representatives and attorneys of either the City or the Economic Development Agency or the Agency from any claim, action, or proceeding against any of the foregoing persons or entities. The Owner hereby covenants and agrees to cooperate with the Agency and the lawyers retained by the Agency for such purposes, in the Agency's defense of any such challenge of City CUP No. 04-02. The Agency is not assuming the defense costs of the Owner in defending itself or any other person, other than the City and the Economic Development Agency of the city of San Bernardino, as enumerated previously herein in this section." Section 4. The form of the License Permitting Limited Entry for Public Works Project Purposes, as attached to this Amendment is hereby approved, and the Chairperson of the Community Development Commission is hereby authorized to execute the license agreement on behalf of the Agency together with technical and conforming changes as may be recommended by the Executive Director and Agency Counsel. Section 5. Except as modified by this Amendment, all other provisions of the OPA remain in full force and effect. 2 P:\Agendas\Agreemcnls-Amendments\Agrmts-Amend 2004\04-0S~03 In-N-Out OPA Amend 2.doc IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the date first above written. AGENCY Redevelopment Agency of the City of San Bernardino, a body corporate and politic By: Gary Van Osdel, Executive Director OWNER In-N-Out Burgers, a California corporation By: 3 P:\Agendas\Agreements-Amendments\Agrmts-Amend 2004\04-05-031n-N-Out OPA Amend 2.doc 2004 LICENSE PERMITTING LIMITED ENTRY FOR PUBLIC WORKS PROJECT PURPOSES (HUB Project: In-N-Out Burgers Relocation) THIS LICENSE PERMITTING LIMITED ENTRY FOR PUBLIC WORKS PROJECT PURPOSES (this "License") is granted by In-N-Out Burgers, a California corporation (the "Owner"), to the Redevelopment Agency of the City of San Bernardino, a public body corporate and politic (the "Agency"). IN CONSIDERA nON OF THE AGENCY CAUSING THE PUBLIC WORKS PROJECT DESCRIBED HEREIN TO BE UNDERTAKEN AT THE EARLIEST FEASIBLE TIME, THE OWNER GRANTS A LICENSE TO THE AGENCY, AS FOLLOWS: Section I. Effective Date of License. This License shall take effect on the date when the parties have executed this License as evidenced by the signatures of their authorized representatives (the "Effective Date"). Section 2. Term of License. This License shall commence on the Effective Date and expire at the end of the day on which the "Escrow", as this term is defined in that certain Owner Participation Agreement, dated as of September 17, 2001, as amended (the "OPA") by and between the Owner and the Agency, is deemed to be closed (the "Expiration Date"). Section 3. Grant of License and Close of Owner Drivewav. (a) Subject to the terms and conditions of this License, the Owner hereby grants to the Agency the right to enter upon, use and allow the public to use that certain real property referred to herein as the "Tippecanoe Avenue Sidewalk Strip" and more specifically described in the legal description attached to this License as Exhibit "A". The Agency is authorized to use the Tippecanoe A venue Sidewalk Strip for public street purposes during the term of this License. By entering onto the Tippecanoe A venue Sidewalk Strip or by directing others to enter onto the Tippecanoe Avenue Sidewalk Strip after the Effective Date, including the permitted sublicensees of the Agency identified in Section 4, and members of the general public who may travel upon Tippecanoe Avenue as a public street, the Agency shall be deemed to have accepted the use of the Tippecanoe Avenue Sidewalk Strip in its "AS-IS" and "WHERE IS" condition and subject to the terms of this License. The Owner makes no representation or warranty to the Agency regarding the condition of the Tippecanoe Avenue Sidewalk Strip or its fitness for any particular use. (b) As of the Effective Date, the Owner shall discontinue its use of the existing driveways within the Tippecanoe Avenue Sidewalk Strip and the Owner shall allow the Agency and its permitted sublicensees to terminate motor vehicle ingress and egress by customers and invitees of the Owner between Tippecanoe Avenue and the Owner's property across the Tippecanoe Avenue Sidewalk Strip through such driveways. The Agency and its permitted sublicensees may cause the installation of certain new public street improvements within the Tippecanoe Avenue Sidewalk Strip in accordance with the public works project plan of improvement of Tippecanoe Avenue under the City's public I P:\Agendas\Agrecmcnts-Amendmcnts\Agrmls-Amend 2004\04-05-03 INQ License AgreemenLdoc work contract by and between the City and Elite Bobcat Services, dated as of March 1, 2004. A copy of such public works contract is on file in the Office of the City Clerk of the City. Section 4. Al!ency May Permit Certain Others to Use the Tippecanoe Ayenue Sidewalk Strip as Permitted Licensees of the Al!ency. The Agency may permit or authorize the City of San Bernardino (the "City"), and the public works contractors and subcontractors of the City, to enter the Tippecanoe Avenue Sidewalk Strip, for the purpose of installing and maintaining public street improvements on the Tippecanoe Avenue Sidewalk Strip in accordance with the public works contract referenced in Section 3 of this License. The City and its public works contractors are referred to herein as the permitted sublicensees of the Agency. Section 5. No Offer of Dedication of the Tippecanoe Avenue Sidewalk Strip for Public Use. The Owner intends that this License is not and shall not be construed as an offer of dedication by the Owner of the Tippecanoe A venue Sidewalk Strip for public use. Further, the rights granted to the Agency in this License are by permission of and subject to the control of the Owner for so long as this License Agreement is in effect. Section 6. No Intent to Create Third Party Beneficiaries. The Owner intends that the rights granted under this License shall benefit and burden only the Owner and the Agency, and the Owner does not intend to create any rights in, or right of action to or for the use or benefit of any third party, including any member or members of the public or any permitted sublicensee or governmental agency, other than the Agency. Section 7. Owner Consent to Enforcement of Traffic Laws on the Tippecanoe Avenue Sidewalk Strip. The Owner requests that the City of San Bernardino as the permitted sublicensee of the Agency enforce and consents to the City enforcing the provisions of the California Vehicle Code and all local ordinances, resolutions and regulations applicable to pedestrian, vehicular, bicycle and other traffic on public streets within the City (collectively, "Traffic Laws"), to the same extent and in the same manner as the City enforces such Traffic Laws on public streets within the City, regarding any similar activity on the Tippecanoe Avenue Sidewalk Strip during the term of this License. Section 8. Installation of Traffic Control Devices. The Owner consents to the City as the permitted sublicensee of the Agency, installing any and all traffic control devices, including, but not limited to, signs and barriers, on the Tippecanoe Avenue Sidewalk Strip during the term of this License. Design, review and approval of the aforementioned Traffic Control Devices are the sole responsibility of the City or its designee. The Owner is not responsible for installation, maintenance, or the lack thereof, of City Traffic Control Devices. Section 9. Owner Covenant Not to Revoke License. The Owner covenants to the Agency that the Owner will not revoke this License prior to the Expiration Date. Section 10. Al!ency Indemnity in Favor of the Owner. From and after the Effective Date, the Agency hereby agrees to indemnify, defend and hold the Owner, its officers, employees and agents and each of them, harmless from and against any claim, demand, loss, damage to property, lien, liability for injury or death to any person arising from the use by the Agency or any of the Agency's permitted licensees, or any member of the general public, of the Tippecanoe Avenue Sidewalk Strip. 2 P:\Agendas\Agrecmcnts-Amcndmcnls\Agrmts-Amend 2004\04-05-03 INO License Agrccmenl.doc The indemnity obligation of the Agency under this Section 10, shall apply only to those events which occur during the time that the License is in effect. Section 11. Owner Cancellation Ril!:ht. Notwithstanding any other provIsIOn in this License, the Owner shall have the right to cancel and terminate this License, at any time after June I, 2004, upon thirty (30) days written notice to the Agency, in the event that either party to the OP A may in the sole discretion of either of them, exercise its election to terminate the OP A prior to the close of the Escrow after such date. Section 12. Notice to the Parties. For the purpose of this License, communications and notices among the Owner and the Agency shall be in writing and shall be deemed to have been given when actually delivered, if delivered by courier or overnight courier service, or if mailed, three (3) days following the date of deposit in the United States Mail, First Class, postage prepaid, return receipt requested and addressed to the applicable party as follows: To the Agency: To Owner: Redevelopment Agency of the City of San Bernardino 201 N. "E" Street, Suite 301 San Bernardino, California 9240 I Attention: Executive Director Phone: (909) 663-1044 FAX: (909) 888-9413 Phone: ~ FAX: ~ Section 13. Governinl!: Law. This License is granted and the subject Tippecanoe Avenue Sidewalk Strip is located in California. This License shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California. Any legal actions between the Owner and the Agency arising from this License shall be filed in the Superior Court of the State of California in and for the County of San Bernardino, Central District. Section 14. Partial Invaliditv. If any term or provision or portion of this License or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this License, or the application of such term or provision or portion thereof to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this License shall be valid and enforced to the fullest extent permitted by law. Section 15. Waivers. No waiver of any breach of any covenant or provision contained in this License shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision herein contained. No extension of the time for performance of any obligation or act to be performed herein shall not be deemed to be an extension of the time for performance of any other obligation or act to be performed under this License. Section 16. Professional Fees. If any action or suit among the Owner and the Agency is brought by reason of any breach of any of the covenants or provisions of this License, the prevailing party shall be entitled to have and recover of and from the other party all costs and expenses of the 3 P:\Agendas\Agrccmcnts-Amendments\Agrmts-Amcnd 2004\04-05-03 INO License Agreement.doc action or suit, any appeals therefrom, and enforcement of any judgment in connection therewith, including reasonable attorneys' fees, accounting and engineering fees, and any other professional fees resulting therefrom. For the purposes of this Section 16, the phrase "reasonable attorneys' fees" shall mean and include the salaries, costs, benefits and overhead of the City Attorney for the City of San Bernardino and the attorneys employed in such office who perform work in connection with any such action or proceeding. Section 17. Entire Aereement. This License (including all Exhibits attached hereto) is the final expression of, and contains the entire agreement with respect to the subject matter hereof and supersedes all prior understandings with respect thereto. This License may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing or as otherwise expressly permitted herein. Section 18. Construction. Headings at the beginning of each section, paragraph or subparagraph are solely for the convenience of the parties and are not a part of this License. Whenever required by the context of this License, the singular shall include the plural and the masculine shall include the feminine and vice versa. This License shall not be construed as if it had been prepared by one of the parties, but rather as if both parties had prepared the same. Unless otherwise indicated, all references to sections are to this License. All exhibits referred to in this License are attached hereto and incorporated herein by this reference. If the date on which any action is required to be performed under the terms of this License is not a business day, the action shall be taken on the next succeeding business day. 4 P:\Agendas\Agreements-Amendments\Agrmls-Amend 2004\04.05-03 INO License Agreement.doc IN WITNESS WHEREOF, the parties execute this License Permitting Limited Entry for Public W orles Project Purposes by and through the signatures of their duly authorized representatives, as appear below: OWNER In-N-Out Burgers, a California corporation Date: By: AGENCY Redevelopment Agency of the City of San Bernardino, a public body corporate and politic Date: By: Executive Director 5 P:\Agendas\Agreements--Amendments\Agnnts-Amend 2004\04-05-03 mo License Agreement.doc EXHIBIT "A" Lel!al Description of the Tippecanoe Avenue Sidewalk Strip "A" -1 EXHIBIT "A" .. .[ ,~ TIPPECANOE AVENUE STREET DEDICATION LEGAL DESCRIPTION THOSE PORTIONS OF LOTS 23, 24, 25 AND 79 OF TRACT NO. 2743, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 38, PAGE 47 OF MAPS, RECORDS OF SAID COUNlY, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 23; THENCE NORTH 890 48' 36" WEST 20.00 FEET ALONG THE NORTHERLY LINE OF SAID LOT 23 AND THE EASTERLY PROLONGATION OF THE SOUTIIERL Y LINE OF PARCEL 2 OF PARCEL MAP NO. 16154 AS PER MAP FILED IN BOOK 200, PAGES 62 THROUGH 66 INCLUSIVE OF PARCEL MAPS, RECORDS OF SAID COUNTY, TO A POINT OF INTERSECTION WlTII A LINE THAT IS PARALLEL WITH AND DISTANT WESTERLY 50.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE CENTERLINE OF TIPPECANOE AVENUE, 60.00 FEET WIDE, AS SHOWN ON SAID TRACT MAP, SAID POINT OF INTERSECTJONBEING THE TRUE pdINT OF BEGlNNlNG; THENCE SOUTII 000 OS' 00" EAST 155.03 FEET ALONG S~PARALLEL LINE, ALSO BEING THE WESTERLY LINE OF THOSE PORTIONS OF SAID L01'1~3, 2-1, 25 AND 79, AS CONVEYED TO '!'HE COUNTY OF SAN BERNARDINO IN A GRANT DEED RECORDED IN BOOK 7126, PAGE 422 OF OFFICIAL RECORDS OF SAID COUNTY, TO THE BEGINNING OF A CURVE CONCAVE NORTHWESTERLY, HAVING A RADillS OF 20.00.FEETj THENCE SOUTHWESTERLY 23.04 FEET ALONG SAID CURVE AND TaB NORTHWESTERLY LINE OF SAID PORTION OF LOTS 25 AND 79 CONVEYED TO 1ltE COUNTY OF SAN BERNARDINO, THROUGH A CENTRAL ANGLE OF 660 00' 04" TO A LINE THAT IS THE SOUTHERLY PROLONGATION OF THE MOST EASTERLY LINE OF SAID PARCEL 2 AND TIIE NORTHERLY PROLONGATION OF THE MOST EASTERLY LINE OF PARCEL 3 OF SAID PARCEL MAP NO. 16154; THENCE LEAVING SAID CURVE AT ITS POINT OF NON-TANGENCY NORTH 000 SO' 44" WllST ALONG SAID SOUTHERLY AND NORTHERLY PROLONGATIONS 173-39 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL 2; THENCE SOUTH 890 48' 36" EAST 14.02 FEET ALONG THE NORTHERLY LINE OF SAID LOT 23 AND TIm EASTERLY PROLONGATION OF THE SOUTHERLY LINE OF SAID PARCEL 2 TO THE TRUEPOINT OF BEGINNING. TI-TIi AREA OF TIDS LEGAL DESCRIPTION IS APPROXlMA'f:CL Y 2183 SQUARE FEET OR 0.050 ACRES. . TIDS LEGAL DESCRIPTION WAS PREPARED UNDER THE DrRECT SUPERVISION OF THE FOLLOWING LICENSED LAND SURVEYOR OF THE sTAmqp' CALIFORNIA: EXHIBIT "A" Page 1 of 1 r1,.U 1/. ~ t.' ..... ,.'. . ....., . . " , .... '. . _. .>..~ 01-07-04 MSL ENGINEERING, INC. DATE MARK S. LAMOUREUX, PRESIDENT, P.E., P.L.S. n94 REGISTRATION EXPIRES JUNE 30, 2004 MSL IN 96059 EXHIBIT "B" DEPlCTlON OF llPrECANOE AVENUE smEET DEDlCAllON {HARRIMAN PLACE PER PARCEL !lAP NO. 18154, P.IIA 2llO-llZ-ll4l r I I 20 19 16 17 16 15 14 13 ___~~J!!!LVf;.___ 42 41 40 10 9 . "~8.i. 7 ?)~ l() ". 1 "\ ~ WlY AND SW'LY UNES 01' PARCEl. 2 OF' PARCEL MAP ". NO. 101~ "M.II. r"; V ~O '200-82-1111 'V ,; 3 <y'v 9,0 <l..~ <9' ~. <<' F/7lINOlCATES SUB.ECT PAACEl. ~ AREA - 2.183 S.F. DR 0.060 ACRES TInE: TI-iE HUB EXHIBIT "B" TIPPECANOE AVENUE STREET DEDICATION .1vJ 8 I ~NEERING. INe. CML elClINEEflEl >>IJ LAtoD SUfM:\'OAS Sf'ECIAlJZNl III 9TE 0EVELa'UENT 402 WEST N<<JW HWY. SU1E 4, SAN 0IMA9. CA. 91773 19000 305-2395 FAX CIXlVl 305-2397 rJu~U&E~ 01-01-04 DATE I ROSEWOOD ORNE 00 (SlREET 10 BE ABAHDONED) '() lot05T E1.V UNE OF- PARQl1. ;:j OF pARCf:L Wi> NO. 181S+. P.W.&. 200-111-88 ,..r; ~ 'If (). '( ~~V' '10 COURSE DATA 1.1 ~'3lnt 14.02' l2 ~44"W 1~.W L3 NIIII1IItlKt'W l!15o.ll::iI' L4 NlIIl'4lI';slI"w 1za.lI8' 1.5 NOO'SO'44"W 78.51' US N~'44.W y.'78' L7 NOO'5O''''"W 13.31' CURVE DATA CI o-ell"OO'04" R-20.00' ~o+' T-1Z.09' N . o I S I ;; 1-~200' ~ C\ llPPEC.AHO[ Al/ENUE StREET D[!llCA lION Ii ~N9.0:I9-l1li=~pY-S1Of;ll-EX1'T...JNO-".!lx1'A.."9 ti.