HomeMy Public PortalAbout2010-07 Approving professional services between VKB and Estrada Hinojosa and Company, IncRESOLUTION NO. 2010-7
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, APPROVING
PROFESSIONAL SERVICES AGREEMENT BETWEEN THE
VILLAGE OF KEY BISCAYNE AND ESTRADA HINOJOSA
& COMPANY, INC., CONCERNING FINANCIAL ADVISORY
SERVICES; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Village Council desires to continue to obtain the professional services of
Estrada Hinojosa & Company, Inc. (the "Consultant") concerning the provision of specialized
financial advisory services to the Village; and
WHEREAS, the Village Council finds that approval of the attached Professional Services
Agreement between Consultant and the Village is in the best interest of the Village.
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE VILLAGE COUNCIL
OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. Recitals Adopted. That each of the recitals stated above is hereby adopted
and confirmed.
Section 2. Agreement Approved. That certain Village of Key Biscayne Agreement for
Professional Services (the "Agreement"), in substantially the form attached hereto, is hereby
approved, and the Village Manager and Village Clerk are authorized, in their respective capacities,
to execute the Agreement on behalf of the Village, once approved by the Village Attorney as to form
and legal sufficiency.
Section 3. Implementation. That the Village Manager and Village Attorney are hereby
authorized to take any necessary action to implement the Agreement and this Resolution.
Section 4. Effective Date. That this Resolution shall be effective immediately upon
adoption hereof.
PASSED AND ADOPTED this 23rd day of February, 2010.
MAYOR ROBERT L. VERNON
CONCHITA H. ALVAREZ, MMC, VILLAGE CLE
APPROVED AS TO FORM AND LEGAL SUFFICIEN
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VILLAGE ATTORNEY
C:\OFFICE\WPWIN\RESO\2010\Professional Services Agreement With Estrada Hinojosa 02-04-10.rtf
VILLAGE OF KEY BISCAYNE
AGREEMENT
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT, made and entered into as of theot day of February,
2010, by and between the VILLAGE OF KEY BISCAYNE (the "VILLAGE") and
ESTRADA HINOJOSA & COMPANY, INC., a Texas corporation which is
authorized to do business in Florida, (the "CONSULTANT").
RECITALS:
The VILLAGE wants to continue to engage the CONSULTANT to perform
certain professional services for the VILLAGE, consisting of the services described
herein and any necessary financial advisory services related to the potential
authorization and issuance of indebtedness as required by the VILLAGE as
specifically described below (the "Specified Services"). The CONSULTANT wants
to continue to provide such Specified Services.
In consideration of the mutual covenants set forth in this Agreement, the
parties agree as follows:
1. SCOPE OF SERVICES
A. The CONSULTANT agrees to provide the Specified Services upon
written request from the Village Manager. CONSULTANT shall provide the
Specified Services as an independent contractor for the VILLAGE.
B. The Specified Services to be provided by CONSULTANT shall
include, but not be limited to each of the financial advisory tasks, including both
planning and transactional services, as applicable, which are set forth in the
Specified Services list, a copy of which is attached hereto and incorporated herein as
Exhibit "A".
C. CONSULTANT shall regularly provide status reports to the
VILLAGE, as requested by the Village Manager.
2. FEES FOR SERVICES
A. The CONSULTANT agrees to charge the VILLAGE for the
performance of the Specified Services which are provided by CONSULTANT, in
accordance with the fee schedule which is set forth in Exhibit "B", a copy of which
is attached hereto and incorporated herein, plus reasonable and necessary costs as
approved by the Village Manager.
B. The Fifty Thousand ($50,000.00) Dollars annual retainer, which is
referenced in paragraph (B) of Exhibit "B", shall cover the fees applicable for the
financial planning and the Water, Sewer and Reclaimed Water Project Services
described as items 1-11 on Exhibit "A." The annual retainer shall be invoiced in
equal monthly installments.
C. Except as otherwise provided in Exhibit "B" as to costs and fees for
specific debt issuance transactions, any additional fees and costs shall be invoiced in
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the month following performance of service and expenditure of costs by
CONSULTANT, pursuant to advance written work authorizations from the Village
Manager. The work authorizations shall describe the specific requested work tasks,
the applicable fees and the estimated costs. Other than the services covered by the
retainer, no work shall be undertaken by CONSULTANT unless authorized in
writing by the Village Manager pursuant to a work authorization.
D. Invoices shall also reflect a record of time expended by
CONSULTANT in providing the Specified Services, for VILLAGE's information
and for those services which are provided at hourly billing rates.
3. TERM
The duration of the term of this Agreement shall commence retroactively
from June 5, 2009 and shall terminate on June 4, 2010, unless further extended by
the mutual written consent of the CONSULTANT and Village Manager or earlier
terminated pursuant to Section 6. The Village Council shall be authorized to renew
the Agreement on behalf of the VILLAGE for successive additional one year
periods upon the same terms, subject to applicable Village budget appropriations.
4. ASSIGNMENT
This Agreement involves skilled professional services and shall not be
assignable by the CONSULTANT.
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5. PROHIBITION AGAINST CONTINGENT FEES; OTHER MATTERS
The CONSULTANT warrants that it has not employed or retained any
company or person, other than a bona fide employee working solely for the
CONSULTANT, to solicit or secure this Agreement, and that it has not paid or
agreed to pay any person(s), company, corporation, individual or firm, other than a
bona fide employee working solely for the CONSULTANT any fee, commission,
percentage, gift, or any other consideration, contingent upon or resulting from the
award or making of this Agreement.
6. TERMINATION
This Agreement may be terminated by the VILLAGE upon thirty (30) days
written notice with or without cause and by the CONSULTANT upon thirty (30)
days written notice with or without cause. If this Agreement is terminated, the
CONSULTANT shall be paid in accordance with the provisions of Paragraph 2
above, for all acceptable work performed up to the date of termination.
7. NONEXCLUSIVE AGREEMENT
The services to be provided by the CONSULTANT pursuant to this
Agreement shall be nonexclusive and nothing herein shall preclude the VILLAGE
from engaging other firms to perform the same or similar services for the benefit of
the VILLAGE within the VILLAGE'S sole and absolute discretion.
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8. RECORDS
All original reports, documents, analysis and materials (the "Materials") that
result from the CONSULTANT providing Specified Services shall be the property
of the VILLAGE. Upon termination of this Agreement or upon request of the
VILLAGE during the term of this Agreement, any and all such Materials shall be
delivered to the VILLAGE by the CONSULTANT.
9. ENTIRE AGREEMENT
The parties hereby agree that this is the entire agreement between the parties.
This Agreement cannot be amended or modified without the express written consent
of the parties. The Village Manager shall act for Village hereunder, subject to
review and approval of such written consent by the Village Attorney as to form and
legal sufficiency.
10. WARRANTIES OF CONSULTANT
The CONSULTANT hereby warrants and represents that at all times during
the term of this Agreement it shall maintain in good standing all required licenses,
certifications and permits required under Federal, State and local laws necessary to
perform the Specified Services and will timely file all required reports.
11. INSURANCE
A. The CONSULTANT shall at all times carry comprehensive general
liability and contractual liability insurance, workers' compensation insurance (if
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applicable), and automotive liability insurance, with minimum policy limits for
each coverage in the amount of at least Five Hundred Thousand ($500,000.00)
Dollars per occurrence, combined single limit, for property damage and bodily
injury, including death, except that the dollar amount of workers compensation
coverage (if applicable) shall be as provided by Chapter 440, Fla. Stat. The
VILLAGE shall be named as an additional insured on all of the above insurance
policies, to the extent permitted by law. Each insurance policy shall state that it is
not subject to cancellation or reduction in coverage without written notice to the
VILLAGE 30 days prior to the effective date of cancellation or reduction of
coverage.
B. CONSULTANT shall indemnify and hold harmless the VILLAGE, its
officers and employees, from liabilities, damages, losses and costs, including,
but not limited to, reasonable attorneys' fees, to the extent caused by the
negligence, recklessness or intentional wrongful conduct of the CONSULTANT
and persons employed or utilized by the CONSULTANT in the performance of
the Agreement, except that neither the CONSULTANT nor persons employed or
utilized by the CONSULTANT will be liable under this paragraph for liabilities,
damages, losses, or costs resulting from negligent acts, errors, or omissions by
the VILLAGE or any of Village's officers, agents, or employees during the
performance of this Agreement.
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12. NOTICES
All notices and communications to the VILLAGE or CONSULTANT shall be
in writing and shall be deemed to have been properly given if transmitted by
registered or certified mail or hand delivery. All notices and communications shall
be effective upon receipt. Notices shall be addressed as follows:
Village:
With a copy to:
Consultant:
Village Manager
Village of Key Biscayne
88 West McIntyre Street
Key Biscayne, FL 33149
Stephen J. Helfman, Esq. and
David M. Wolpin, Esq.
Village Attorneys
Weiss Serota Helfman Pastoriza
Cole & Boniske, P.L.
2525 Ponce De Leon Blvd., Suite 700
Coral Gables, Florida 33134
Estrada Hinojosa & Company, Inc.
201 South Biscayne Blvd., Suite 2826
Miami, FL 33131
Attention: Lourdes Reyes Abadin
Estrada Hinojosa & Company, Inc.
1717 Main Street, 47th Floor
Dallas, TX 75201
Attention: Robert A. Estrada
13. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State of
Florida. Venue for litigation hereunder shall be in Miami -Dade County, Florida.
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EXHIBIT "A"
SPECIFIED SERVICES TO BE PROVIDED BY CONSULTANT
A. Financial Planning.
1. Consultant will attend any and all meetings of governing body of the Village, its staff,
representatives or committees as requested by the Village, at all times when Consultant may be of
assistance or service and the subject of financing is to be discussed.
2. Consultant will advise the Village and its staff of changes, proposed or enacted, in
Federal and State laws and regulations which would affect the municipal bond market.
3. Consultant will work with the Village, its staff and any consultants employed by the
Village in developing financial feasibility studies and analyzing alternative financing plans.
4. Consultant will conduct a survey of the financial resources of the Village to determine
the extent of its capacity to authorize, issue and service debt. This survey will include an analysis
of existing debt structure as compared with the existing and projected sources of revenues which
may be pledged to secure payment of debt service and, where appropriate, will include a study of
the trend of the assessed valuation, taxing power and present and future taxing requirements of the
Village. In the event revenues of existing or projected facilities operated by the Village are to be
pledged to repayment of the Debt Instruments then under consideration, the survey will take into
account any outstanding indebtedness payable from the revenues thereof, additional revenues, as
projected by consulting engineers employed by the Village, resulting from improvements to be
financed by the Debt Instruments under consideration. Consultant will also take into account future
financing needs and operations as projected by the Village's staff and consulting engineers or other
experts, if any, employed by the Village.
5. On the basis of the information developed by the survey described above, and other
information and experience available to Consultant, Consultant will submit to the Village its
recommendations on the Debt Instruments under consideration including such elements as the date
of issue, interest payment dates, schedule of principal maturities, portions of prior payment, security
provisions, and any other additional provisions designed to make the issue attractive to investors.
All recommendations will be based upon its professional judgment with the goal of designing Debt
Instruments which can be sold under terms most advantageous to the Village and at the lowest
interest cost consistent with all other considerations.
6. Consultant will advise the Village of current bond market conditions, forthcoming bond
issues and other general information and economic data which might normally be expected to
influence interest rates or bidding conditions so that the date of sale of the Debt Instruments may be
set at a time which, in Consultant's opinion, will be favorable.
7. Consultant understands the Village has retained, or will retain, firms of municipal bond
attorneys (the "Bond Counsel") whose fees will be paid by the Village. In the event it is necessary
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to hold an election to authorize the Debt Instruments then under consideration, Consultant will
assist in coordinating the assembly and transmittal to Bond Counsel of such data as may be required
for the preparation of necessary petitions, orders, resolutions, ordinances, notices, and certificates in
connection with the election.
8. Consultant will recommend the method of sale of the Debt Instruments that, in its
opinion, is in the best interest of the Village and will proceed, as directed by the Village, with one
of the following methods:
a. Advertised Sale: Consultant will supervise the sale of the Debt Instrument at a
public sale in accordance with procedures set out herein. Consultant reserves the right, alone or in
conjunction with others, to submit a bid for any Debt Instruments issued under this Agreement
which the Village advertises for competitive bids. In compliance with Rule G-23 of the Municipal
Securities Rulemaking Board, Consultant will request consent to bid in writing, in any instance
wherein Consultant elect to bid, prior to submitting a bid for each installment of Debt Instruments.
b. Negotiated Sale: Consultant will recommend one or more investment banking
firms as managers of an underwriting syndicate for the purposes of negotiating the purchase of Debt
Instruments and in no event will Consultant participate either directly or indirectly in the
underwriting of the Debt Instruments. Consultant will collaborate with any senior managing
underwriter selected and Counsel to the underwriters in the preparation of the Official Statement or
Offering Memorandum. Consultant will cooperate with the underwriters in obtaining any Blue Sky
Memorandum and Legal Investment Survey, preparing the Bond Purchase Contract, Underwriters'
Agreement and any other related documents. The costs thereof, including the printing of the
documents, will be paid by the underwriters.
c. Private Placement: Upon authorization by the Village and acting in its behalf,
Consultant will place privately the Debt Instruments directly with institutional investors.
Consultant will prepare and provide to the prospective purchasers a Limited Offering Memorandum
and other related documents.
9. Consultant will, after consulting the Village, arrange for such reports and opinions of
recognized independent consultants Consultant deems necessary and required for the successful
marketing of the Debt Instruments.
10. Subject to the approval of the Village, Consultant will organize and make
arrangements for such information meetings as, in its judgment, may be necessary.
11. Consultant shall perform the following tasks as pertaining to the Village's Water,
Sewer and Reclaimed Water Project:
(a) Consultant will assist with consultations and negotiations with various
entities as part of the funding mechanism for the Water, Sewer, Reclaimed
Water Project;
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(b) Consultant will assist with the review and monitoring of the various
agreements necessary for securing funding of the Water, Sewer and
Reclaimed Water Projects of the Village;
(c)
Consultant will assist the Village in preparing the request and obtaining
payment for continuous State funding of the Water, Sewer, Reclaimed
Water Project;
(d) Consultant will assist the Village in obtaining payment from the EPA grant
for the pertinent part of the Water, Sewer, Reclaimed Water Project;
(e) Consultant will assist the Village with design and documentation of
procedures for obtaining reimbursement from the various entities for the
Water, Sewer, Reclaimed Water Project;
(f) Consultant will work with the Village CFO to monitor funding of the Water,
Sewer and Reclaimed Water projects of the Village.
B. Transactions.
12. When appropriate, Consultant will advise financial publications of the forthcoming
sale of the Debt Instruments and provide them with all pertinent information.
13. Consultant will coordinate the preparation of the Notice of Sale and Bidding
Instructions, Official Statement, Official Bid Form and such other documents as may be required.
Consultant will submit to the Village all such documents for examinations, approval and
certification. After such examination, approval and certification, Consultant will provide the
Village with a supply of all such documents sufficient to its needs and will distribute by mail sets of
the same to prospective bidders and to banks, life, fire and casualty insurance companies,
investment counselors and other prospective purchasers of the Debt Instruments. Consultant also
provides sufficient copies of the Official Statement to the purchaser of the debt Instruments in
accordance with the Notice of Sale and Bidding Instructions. The expenses associated with printing
and distribution of these documents will be paid by the Village.
14. Consultant will make recommendations to the Village as to the advisability of
obtaining a credit rating, or ratings, for the Debt Instruments as, in its opinion, is required for
submission to the appropriate company, institution or institutions. In those cases where the
advisability of personal presentation of information to the rating agency, or agencies, may be
indicated, Consultant will arrange for such personal presentations. The expenses associated with
the preparation of information and personal presentations will be paid by the Village.
15. Consultant will make recommendations to the Village as to the advisability of
obtaining municipal bond insurance or other credit enhancement, or qualifications for same, for the
Debt Instruments and, when directed by the Village, Consultant will coordinate the preparation of
such information as, in its opinion, is required for submission to the appropriate company,
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institution or institutions. In those cases where the advisability of personal presentation of
information to the appropriate company, institution or institutions may be indicated, Consultant will
arrange for such personal presentations. The expenses associated with the preparation of
information and personal presentations will be paid by the Village.
16. Consultant will assist the staff of the Village at any advertised sale of Debt
Instruments in coordinating the receipt, tabulation and comparison of bids and Consultant will
advise the Village as to the best bid. Consultant will provide the Village with its recommendations
as to acceptance or rejection of such bid.
17. As soon as a bid for the Debt Instruments is accepted by the Village, Consultant will
proceed to coordinate the efforts of all concerned to the end that the Debt Instruments may be
delivered and paid for as expeditiously as possible. Consultant will assist the Village in the
preparation or verification of final closing figures incident to the delivery of the Debt Instruments.
18. Consultant will maintain liaison with Bond Counsel in the preparation of all legal
documents pertaining to the authorization, sale and issuance of the Debt Instruments. Bond
Counsel will provide an unqualified legal opinion as to the legality of the issuance of the Debt
Instruments at the time of delivery.
19. If requested, Consultant will counsel with the Village in the selection of a Paying
Agent/Registrar for the Debt Instruments, and will assist in the preparation of agreements pertinent
to these services and the fees incident thereto.
20. In the event formal verification by an independent auditor or any calculations
incident to the Debt Instruments is required, Consultant will make arrangements for such services.
21. Consultant agrees to do, or cause to be done, all work pertaining to the Debt
Instruments, obtaining approval, as may be required by law, registration, and delivery to the
purchaser. The expenses associated with the printing of the debt instruments will be paid by the
Village.
22. After the closing of the sale and delivery of the Debt Instruments, Consultant will
deliver to the Village a schedule of annual debt service requirements on the Debt Instruments. In
coordination with Bond Counsel, Consultant will assure that the Paying Agent/Registrar has been
provided with a copy of the authorizing ordinance, order or resolution.
23. As soon as a bid for the Debt Instruments is accepted by the Issuer, Consultant will
proceed to coordinate the efforts of all concerned to the end that the Debt Instruments may be
delivered and paid for as expeditiously as possible. Consultant will assist the Issuer in the
preparation or verification of final closing figures incident to the delivery of the Debt Instruments.
24. Consultant will maintain liaison with Bond Counsel in the preparation of all legal
documents pertaining to the authorization, sale and issuance of the Debt Instruments. Bond
Counsel will provide an unqualified legal opinion as to the legality of the issuance of the Debt
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Instruments at the time of delivery.
25. If requested, Consultant will counsel with the Issuer in the selection of a Paying
Agent/Registrar for the Debt Instruments, and will assist in the preparation of agreements pertinent
to these services and the fees incident thereto.
26. In the event formal verification by an independent auditor or any calculations
incident to the Debt Instruments is required, Consultant will make arrangements for such services.
27. Consultant agrees to do, or cause to be done, all work pertaining to the Debt
Instruments, obtaining approval, as may be required by the Attorney General, registration by the
Comptroller of Public Accounts and delivery to the purchaser. The expenses associated with the
printing of the debt instruments will be paid by the Issuer.
C. Additional Services.
In addition to the services set out above, Consultant agrees to provide the following services
when so requested:
1. Consultant will provide its advice as to the investment of certain funds of the Village.
Consultant will, when so directed, purchase those investments authorized to be purchased and
Consultant will charge a normal and customary commission for each such transaction.
2. Consultant will provide its advice and assistance with regard to exercising any call
and/or refunding of any outstanding Debt Instruments.
3. Consultant will provide its advice and assistance in the development of, and financing
for, any capital improvement programs of the Village.
4. Consultant will provide its advice and assistance in the development of the long-range
financing plan of the Village.
5. Consultant will provide any other financial planning services as may be requested by the
Village.
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EXHIBIT "B"
FEE SCHEDULE
A. In General. With the exception of retainer fees for the financial planning
services, as described in Section A, paragraphs 1-11, inclusive, of Exhibit "A" and in Section B of
this Exhibit, and the proposed hourly fees, as described in Section C of this Exhibit, the fees due
Consultant for transaction related services in accordance with Section D below of this Exhibit and
any related costs as may be mutually agreed upon for which Consultant is entitled to
reimbursement, shall become due and payable concurrently with the delivery of the Debt
Instruments to the purchaser.
B. Retainer. Consultant shall receive a total annual retainer fee of Fifty Thousand
($50,000) Dollars (payable in equal monthly installments of $4,166.66) plus reimbursement of
reasonable out of pocket expenses, which are payable monthly. This fee covers all ongoing
financial planning services described in items (1-11) of Exhibit "A" of the Agreement.
C. Hourly Fees:
Principal/Senior Bankers $200 per hour
Associates $175 per hour
Administrative $ 65 per hour
The Hourly Fees would be in addition to the retainer described in Section B above and would be for
special and specific projects authorized in advance by the Village. Further, for any investment
banking services provided by Consultant, the fees to be charged shall be disclosed and agreed to up
front.
D. Transactions. In consideration for the services rendered by Consultant to the
Village, as related to transaction services (items 12-27 of Exhibit "A") (bond issues, etc.), it is
understood and agreed that the fee payable to Consultant for each issue of Debt Instruments or other
specified financing will be, as follows:
Base Fee.
(i) Any Issue - $5000 plus an agreed upon "per bond" fee amount based on the
size of the transaction. Consultant's base fee and expenses related to bond
issues or other sources of financing are contingent on the issuance of debt and
payable solely from bond proceeds. Expenses are borne by the Consultant
until a fee statement and expense reimbursement are submitted at the closing
in accordance with the Agreement between the Village and Consultant.
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(ii) As to fees for Advanced Refunding Bonds and/or other Debt Instruments
involving Escrow Agreements, it is understood and agreed that Consultant
will charge, in addition to its Financial Advisory fee, a computer fee to be
negotiated in advance on a case by case basis.
(iii) Consultant may serve as the Paying Agent and will bill the Village at Closing
for each issue of Debt Instruments a Net Amount which will include a fee
calculated on the above schedule as well as costs and expenses, where
applicable, incurred on behalf of the Village, provided the Village has
requested that Consultant serve as its Paying Agent in the payment of Bond
Counsel fee, preparation, printing and distribution of the Notice of Sale,
Official Statement, Uniform Bid Form or Private Placement Memorandum,
independent consultants, computer fees, information meetings, if any,
presentations to rating agencies, rating fees and travel expenses of Village
representatives, if any, printing of the Debt Instruments, and all appropriate
costs and expenses associated with closing and delivery of the Debt
Instruments.
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IN WITNESS WHEREOF, the parties hereto have accepted, made and
executed this Agreement upon the terms and conditions above stated on the day and
year first above written.
CONSULTANT:
ESTRADA HINOJOSA &
COMPANY, INC.
By:
Robert A. Estrada
Title: Chairman
Attest:
Corporate Secretary
VILLAGE:
VILLAGE OF KEY BISCAYNE
88 West ► cIntyre treet
Key Bis• yne, FL ' 149
B
illage Clerk
proved as to Form and Legal
Sufficiency:
By:
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