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RESOLUTION NO. CDCj2006-36
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO DECLARING THE PUBLIC
INTEREST AND NECESSITY OF ACQUISITION OF REAL PROPERTY
BY THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO FOR COMMUNITY REDEVELOPMENT PURPOSES
OVER THE PROPERTY LOCATED AT 770 WEST 5TH STREET, SAN
BERNARDINO, CALIFORNIA (NAJERA/CANTORAN - APN: 0134-054-26)
IN THE CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA
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WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency"),
a public entity created pursuant to the Community Redevelopment Law (Health and Safety
Code Section 33000, et seq.), is authorized to acquire and redevelop blighted properties located
in the City of San Bernardino (the "City"), in accordance with the Community Redevelopment
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Law; and
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WHEREAS, the Community Development Commission of the City of San Bernardino
(the "Commission"), as the governing board of the Agency, has authorized the Agency to
assemble and acquire real property for community redevelopment purposes in the Central City
North Redevelopment Project Area ("Project Area"); and
WHEREAS, the Project Area displays substantial and pervasive symptoms of blight that
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cannot be remedied by private parties acting alone without community redevelopment
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assistance; and
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WHEREAS, on March 24, 2005, the Agency sent a letter via certified mail to Raul M.
Najera and Catalina A. Barrera, owners of the Property, informing them that the Agency was
reviewing a plan for the redevelopment and reuse of certain properties in the downtown area
that included their Property and requested their submission of statement of interest to
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participate; and
WHEREAS, Raul M. Najera and Catalina A. Barrera did not respond nor return the
Statement of Interest to Participate; and
WHEREAS, the Agency has acquired other real property in the Project Area; and
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WHEREAS, on April 6, 2005, the Agency mailed a notice to the owners of record of the
real Property located within the Project Area as described and informed such persons that the
Agency intended to appraise the Property for possible acquisition; and
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WHEREAS, the Agency retained the services of an appraiser to appraise the Property
and the appraiser has reported an opinion of the fair market value of the improved property
located at 770 West 5th Street, San Bernardino, California 92410 (APN: 0134-054-26) (the
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"Property"); and
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WHEREAS, the Property is improved with a building that the Property Owners have
advised is used as a restaurant within the Project Area; and
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WHEREAS, due to the passage of time, the Agency obtained an updated appraisal for
the Property; and
WHEREAS, based upon such updated real property appraisal report, the Commission
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authorized the Agency to send a purchase offer to the owners of record, to attempt to purchase
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the Property at the appraised value in lieu of condemnation, and on May 19, 2006, the Agency
mailed a purchase offer to the owners ofrecord of the Property based on the updated appraised
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value of the Property described in this Resolution; and
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WHEREAS, the Agency transmitted the offer to purchase the Property situated within
the Project Area, based on the updated appraised value on May 19, 2006, to the owners of
record of the Property at the address on file with the office of the County Tax Assessor, as
shown on the last equalized county assessment roll and the owners of record, Raul M. Najera
and Catalina A. Barrera Cantoran ("Property Owners"), received the offer but does not agree
with the Agency's offer; and
WHEREAS, on June 14, 2006, the Property Owners returned the Agency Purchase
Offer and did not accept the Agency Purchase Offer based on the updated appraisal and instead
made a counter offer of $650,000; and
WHEREAS, on June 29, 2006, Agency Staff contacted the Property Owners and made a
counter offer of$585,000 for the purchase of the Property; and
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WHEREAS, on July 10, 2006, the Property Owners informed Agency Staff that they
could not accept the Agency's counter offer of $585,000 and reiterated that their position was
firm on the $650,000 for the purchase of the Property; and
WHEREAS, on July 11, 2006, Agency Staff informed the Property Owners that the
Commission agreed to their counter offer in the amount of $650,000 to purchase the Property
and that the Agency would send the Property Owners a letter stating the Commission's
acceptance and a new Purchase Agreement ("Purchase Agreement") for $650,000; and
WHEREAS, on July 14, 2006, the Agency mailed a letter and Purchase Agreement to
the Property Owners to purchase the Property at the mutually agreed price of $650,000; and
WHEREAS, on July 26,2006, the Agency received a letter from Louis E. Goebel of the
Law Offices of Louis E. Goebel ("Property Owners Counsel") stating 1) "This law firm
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represents Raul M. Najera and Catalina A. Barrero Cantoran in connection with the City's
attempts to acquire the property at 770 West 5th Street, San Bernardino, California (APN: 0134-
054-26)" and 2) "".the owners (our clients) respectfully decline to enter into your "agreement
to purchase real property", dated July 1 0, 2006."; and
WHEREAS, the Agency has not been able to satisfactorily complete a negotiated
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purchase with the Property Owners to acquire the Property for community redevelopment
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purposes; and
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WHEREAS, the Commission has served as the "lead agency" as defined in the
California Environmental Quality Act ("CEQA") for the purpose of conducting an
environmental review in connection with the acquisition of the Property; and
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WHEREAS, on November 7, 2005, the Commission adopted Resolution No.CDC/2005-
39 approving a Redevelopment Study Agreement and Exclusive Right to Negotiate (the
"Agreement") by and between the Agency and Watson and Associates Development Company,
Inc. (the "Developer"), and adopted the Mitigated Negative Declaration for the Downtown
Mixed Use Project Plan (the "Plan") and for the Project (the "Project") described in more detail
in the CEQA Initial Study dated October II, 2005; and
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WHEREAS, on or about September 7, 2004, the Agency considered and certified
Environmental Impact Report SCH#20030310n (the "EIR") in accordance with the CEQA for
the Project Area, and the acquisition of property contemplated within the Plan and for the
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Project is consistent with the EIR; and
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WHEREAS, the Property Owners never made a CEQA challenge and the time has
expired to do so; and
WHEREAS, Part I Crimes within the area of the Plan and Project were reported as 91
incidents of crime for the period January II through April II, 2006, 436 for 2005 and 426 for
2004; and
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WHEREAS, the Agreement contemplates the Agency acquiring or obtaining control of
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parcels necessary for the Plan either through purchase negotiations or alternatively, by eminent
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domain proceeding, if necessary; and
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WHEREAS, on August 2, 2006, Notice of Intent to adopt this Resolution was mailed to
the Property Owners at the address of record on file at the office of the County Tax Collector
and at the last known address for the owners of the Property; and
WHEREAS, on August 2, 2006, Notice of Intent to adopt this Resolution was mailed to
the Property Owners Counsel at the Law Offices of Louis E. Goebel, 110 West "A" Street,
Suite 600, San Diego, California 92101; and
WHEREAS, on August 14, 2006, Property Owners Counsel advised the Agency that
they intend to be present at this hearing to oppose the Resolution of Necessity action. The
Property Owners Counsel asked that his letter be placed in the record. The Property Owners
Counsel objected to the Resolution of Necessity on several grounds:
I. The public interest and necessity do not require the project.
2. The project is not plaffiled or located in a maffiler that will be most
compatible with the greatest public good and least private injury.
3. The property sought to be acquired is not necessary for the project.
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4. The Commission has made a predetermination to proceed with the project
regardless of the record.
5. The offer to acquire did not include compensation for all property rights and
interest taken or damaged.
6. The environmental processing was not accomplished according to law; and
WHEREAS, on August 21, 2006, after not less than fifteen (IS) days written notice to
the owners of the Property and the Property Owners Counsel, the Commission conducted a
hearing for the purpose of affording the owners of the Property and Property Owners Counsel a
reasonable opportunity to appear and be heard on the matters referred to in Code of Civil
Procedure Section 1240.030 and whether the Agency has met all other prerequisites for the
exercise of eminent domain to acquire the Property for the Plan and community redevelopment
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purposes; and
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WHEREAS, the Commission has determined as a result of such hearing on August 21,
2006, that the public health, safety and welfare require the Agency to acquire the subject
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Property for community redevelopment purposes and to facilitate the Project.
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NOW THEREFORE, BE IT RESOLVED THAT THE COMMISSION FINDS,
DETERMINES AND DECLARES AS FOLLOWS:
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Section 1.
The information set forth in the above recitals of this Resolution is true
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and correct.
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Section 2.
The real Property to be acquired under the authority of this Resolution is
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located in the Project Area in the City of San Bernardino, California, and is also known as 770
West 5th Street, San Bernardino, California 92410 (San Bernardino County Assessor's Parcel
Number 0134-054-26). The Property is more particularly described in the legal description
attached as Exhibit "A." The interest in the Property to be acquired consists of all of the fee
simple absolute title interest in the Property, and all of the right, title and interest of each person
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and owners of the Property including the acquisition of each and every possessory interest and
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all easements and appurtenances to the Property.
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Section 3. On August 2, 2006, the Agency transmitted a notice of hearing to the
known owners of record (Raul M. Najera and Catalina A. Barrera Cantoran) at 770 West 5th
Street, San Bernardino, California 92410.
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Section 4. On August 2, 2006, the Agency transmitted a notice of hearing to the
Property Owners Counsel at the Law Offices of Louis E. Goebel, II 0 West "A" Street, Suite
600, San Diego, California 9210 I.
Section 5. The Commission acknowledges receipt of the written reports and
information relating to the Project Area, including the Staff Report and Agreement between the
Agency and Developer concerning the Plan, and the appraisal of the Property, staff reports, and
oral reports and information submitted to the Commission during the course of the hearing
conducted on August 21, 2006 or as may be on file with the Agency Secretary.
Section 6. The Commission, on behalf of the Agency, finds and determines that the
hearing conducted by the Commission on this matter on August 21, 2006, was full and fair, and
that each interested person has been afforded a full and fair opportunity to present evidence and
testimony relating to assembly of land for the Plan, and the matters described in Code of Civil
Procedure Section 1240.030, and the acquisition of the Property, and all interests in it, by the
Commission for community redevelopment purposes by the exercise of eminent domain and
other relevant matters.
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Section 7. The Commission declares its intent to acquire the Property for the Plan
and in furtherance of community redevelopment purposes in the name of the Agency in
accordance with the laws of the State of California including the Community Redevelopment
Law and Health and Safety Code Sections 33391 and 33492.40. The Commission further finds
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and determines that all of the prerequisites to the exercise of eminent domain by the Agency
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with respect to such acquisition of the Property for the Plan have been met.
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Section 8. The Commission has found and determined that the acquisition of the
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Property for the Plan is an activity, which is covered under a Mitigated Negative Declaration
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adopted by the Commission on November 7,2005 and a Notice of Determination was filed with
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the Clerk of the County on November 10, 2005.
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Section 9.
The Commission has found and determined that:
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I. The public interest and necessity requires the Project;
2. The Project is planned or located in a manner that will be most compatible with
the greatest public good and least private injury;
3. The Property sought to be acquired is necessary for the Project;
4. The Commission has not made a predetermination to proceed with the Project,
regardless of the record;
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5. The offer to acquire did include compensation for all property rights and interest
taken or damaged;
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6. The environmental processing was accomplished according to law;
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7. Notice of this hearing was adequate.
15 Section 10. In accordance with the provisions of Code of Civil Procedure Section
16 1245.230, the Commission finds, determines, and declares as follows:
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(a)
The public interest, convenience and necessity require the acquisition of the
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Property for the Project, as necessary to alleviate conditions of blight in the Project Area, which
are documented and described in more detail in the 2004 EIR and CEQA Initial Study dated
October II, 2005, which Initial Study and Mitigated Negative Declaration was approved on
November 7, 2005, and to provide for the orderly redevelopment of the Property and other real
property included in the Project Area. The assembly and redevelopment of the Property is
necessary as the Project Area displays a number of conditions of blight, including, without
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limitation, prevalence of absentee owners, high volume of code compliance cases, crime
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statistics substantially higher than the City rate, the presence of old structures that show signs of
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dilapidation and deterioration and small or substandard lot sizes within the Project Area,
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including the subject Property, and a diverse pattern of land ownership which prevent or
substantially hinder the economically viable use of such real property in its present condition.
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For the period of January 11 through April 11, 2006, the number of Part I Crimes within the
area of the Plan and Project were 91. For the 2005 period, there were 436 Part I Crimes. For
the 2004 period, there were 426 Part I Crimes. For the period ofJanuary 11 through April 11,
2006, this equates to 312.69 Part I Crimes per 1,000 people. Part I Crimes include murder,
rape, assault, robbery, burglary, grand theft auto and other theft. Crimes such as drug
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use/possession/sale, panhandling, prostitution, etc., are not included in the figures. Acquisition
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and assembly of the Property for community redevelopment purposes, the Plan and the Project,
together with other lands already owned by the Agency in the Project Area, will foster the
elimination of blight and assist with the redevelopment of the Project Area, and assist with
elimination of blight in other lands in proximity to the Project Area. The Plan and the Project
include without limitation mixed income and mixed commercial and residential uses.
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(b)
The Plan and the Project are plarmed or located in the marmer that will be most
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compatible with the greatest public good and the least private injury in light of the fact that the
real property included in the Project Area displays a number of symptoms of blight. The Plan
and Project shall also facilitate the completion of a land assembly program previously initiated
by the Agency and foster the reuse of a developed urban area that has stagnated in recent years
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under the burdens of economic obsolescence, small lot size, diverse ownership, absentee
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owners, tenant occupancy, high crime and code compliance cases, property tax liens and
inadequate public improvements.
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(c)
The Property described in this Resolution is necessary for the Plan and the
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Project, as its acquisition and reuse for the Plan and the Project is part of a neighborhood plan to
eliminate blight and provide for the redevelopment and improvement of the other lands owned
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by the Agency within the Project Area.
(d) The purchase offer required by Govermnent Code Section 7267.2 has been
mailed to the owners of record of the Property by the Agency, and the Agency has not been
successful in acquiring the Property based upon the conditions contained within the offer. The
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Commission deems it appropriate and necessary to approve the Agency acquisition of the
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Property for assembly for the Plan and the Project.
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Section 11. (a)
The law firm of Lewis Brisbois Bisgaard & Smith, LLP, as legal
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counsel to the Agency ("Agency Counsel"), is authorized and directed to prepare, institute and
prosecute in the name of the Agency such proceedings in the court having jurisdiction, as may
be necessary for the acquisition of the Property.
(b) The sum payable by the Agency as probable compensation for the acquisition of
the Property by eminent domain, as determined by the appraisal, may, in the discretion of
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Agency Counsel, accompany the filing of the complaint and may be deposited as follows: (i)
with the State of California in the manner provided by law, or upon the recommendation of
Agency Counsel to the County Treasury or (ii) at the election of the person(s) who may claim
an interest in the Property to be acquired by such condemnation proceedings, in such other
manner as such interested person(s) may request in writing, subject to the approval of the
Executive Director and Agency Counsel.
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(c)
Agency Counsel is also authorized, subject to the approval of the Executive
16 Director, to engage in settlement negotiations and, if possible, arrange for purchase of the
17 Property in lieu of condemnation at the appraisal price prior to or subsequent to filing a
18 condemnation complaint to commence acquisition of the Property by eminent domain.
19 Section 12. The Secretary of the Commission is authorized and directed to certify the
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adoption of this Resolution. This Resolution shall take affect upon adoption.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO DECLARING THE PUBLIC
INTEREST AND NECESSITY OF ACQUISITION OF REAL PROPERTY
BY THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO FOR COMMUNITY REDEVELOPMENT PURPOSES
OVER THE PROPERTY LOCATED AT 770 WEST 5TH STREET, SAN
BERNARDINO, CALIFORNIA (NAJERAlCANTORAN - APN: 0134-054-26)
IN THE CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA
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PASSED, APPROVED AND ADOPTED this 21stdayof August 2006.
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I CERTIFY that the foregoing Resolution was duly adopted by the Community
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Development Commission of the City of San Bernardino at its i oint regular
meeting
10 held on August 21
11 Commission Members:
12 ESTRADA
13 BAXTER
14 VACANT
15 DERRY
16 KELLEY
17 JOHNSON
, 2006 by the following vote, to wit:
Abstain
Absent
Ayes
1L-
Navs
1L-
x
x
1L-
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MC CAMMACK
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-X-~2;:;~/
Secretary
The foregoing resolution is hereby approved this ~ay of August
,2006.
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~~
atTIc Moms, a1 n
Community Development Commission
of the City of San Bernardino
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Approved as to Form and Legal Content:
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r;~y}1:
Agency Coun I
By:
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