HomeMy WebLinkAboutPCDC Resolution 2008-09 12/08/2008 RESOLUTION NO. 2008-09
PETALUMA COMMUNITY DEVELOPMENT COMMISSION
APPROVING A DESIGN CHANGE FOR THE RIVERFRONT APARTMENTS,
.AUTHORIZING EXECUTION OF A MASTER AGREEMENT
TERMINATING THE THEATER DISTRICT DEVELOPMENT AGREEMENT
AND THE THEATER DISTRICT OWNER PARTICIPATION AGREEMENT
WITH BASIN STREET PROPERTIES AND APPROVING FIRST AMENDMENT TO
PARKING GARAGE EASEMENT AND OPERATING AGREEMENT
WHEREAS, the City of Petaluma ("City") and Basin Street Properties ("Basin Street')
entered into that certain Development Agreement ("Development Agreement") dated as of
February 27, 2004, in accordance with procedures established by applicable law for such
agreements; and,
WHEREAS, the Petaluma Community Development Commission ("Agency") and Basin
Street entered into that certain Owner Participation Agreement dated as of February 27, 2004 as
amended by that certain First Amendment to Owner Participation Agreement dated as of
January 23, 2006. Such Owner Participation Agreement and First Amendment to .Owner
Participation Agreement are hereinafter collectively referred to as "Participation Agreement";
and,
WHEREAS, by letter agreement between Basin Street and the City dated Janudry 21, 2004.
("Livery Stable Agreement") and by cultural resources mitigation measures required of Basin
Street by both the Development Agreement and the Participation Agreement, Basin Street
assumed certain obligations regarding the historic Livery Stable on the Project Property,
including relocation of the Livery Stable from the Project property to a permanent location on
City property, and negotiation with the City Manager to establish funding for ongoing restoration
and maintenance of the Livery Stable from revenue sources to be determined by Basin Street;
and,
WHEREAS, Basin Street has relocated the Livery Stable to a permanent location on City
property in accordance with the Livery Stdble Agreement; and,
WHEREAS, to satisfy its obligation under the Livery Stable Agreement to negotiate to
establish funding for ongoing restoration and maintenance of the Livery Stable, Basin Street has
proposed a Master Agreement with the City and the Agency, a copy of which is attached
hereto as Exhibit A and incorporated herein by reference, and described further below, which,
among other things, provides for extending by 40 additional years at no cost to the City the
present term of an existing 20 year Parking Garage Easement and Operating Agreement
recorded as Document No. 200709 2 1 34 in the Official Records of Sonoma County ("Garage
Easement") executed between Basin Street and the City, which provides public parking spaces
and public access to them in the 'D' Street Garage constructed as part of the Project; and,
WHEREAS, Basin Street has completed, and City has accepted, by Resolution No. 2008-
PCDC Resolution No. 2008-09 Page 1
220 N.C.S. adopted December 1 , 2008, the public improvements required by the Development
Agreement and Participation Agreement; and,
WHEREAS, Basin Street has completed, and City has issued Certificates of Occupancy for
all components of the private improvements required to be constructed by Basin Street except
for 15 of 105 total apartment units in the Riverfront Apartments and a parking structure to serve
the Riverfront Apartment, all as shown on the Construction Plans approved for the Theater
District project ("the Project"); and,
WHEREAS, City staff has determined that the existing parking available to serve the
Riverfront Apartments and its associated retail/commercial development is adequate and
meets th'e standards required within the Central Petaluma Specific Plan area without
construction of the Riverfront Apartments parking structure; and,
WHEREAS, the 15 residential units in the Riverfront Apartments which have not been
constructed pursuant to the originally approved Construction Plans forthe Project do not
constitute a material unfulfilled element of Basin Street's performance under the Development
Agreement and Participation Agreement, given the size and scope of the other private
residential, retail, office and commercial space that comprise the Project and which have been
constructed; and,
WHEREAS, Section 9.3 of the Development Agreement provides that amendments to the
Development Agreement which do not relate to (a) the term of the Development Agreement,
(b) the permitfied uses of the property involved in the Project, (c) provisions for "significant"
reservation or dedication of land, (d) conditions, terms, restrictions or requirements for
subsequent discretionary actions, (e) the density or intensity of use of the Project, (f) the
maximum height or size of proposed buildings or (g) monetary contributions by the Developer
provided for in the Development Agreement shall not require. hearing before the Planning
Commission or City Council before the parties may execute an amendment to the
Development Agreement; and,
WHEREAS, the proposed design change, not being a material part of Basin Street's
performance under the Development Agreement, does not require formal action to amend the
Development Agreement; and,
WHEREAS, acceptance of the proposed design change, a copy of which is attached
hereto as Exhibit A and incorporated herein by reference, means that all Certificates of
Occupancy necessary for the Project have been issued, and the Development Agreement
therefore terminates by its own terms, as sefforth in Section 4.3 of the Development Agreement;
and,
WHEREAS, the Master Agreement proposed by Basin Street and attached hereto as
Exhibit A would, in addition to providing for extension of the Garage Easement, (i) accept the
Riverfront Apartments design change; (ii) terminate the Development Agreement and the
Participation Agreement such that future transferees of the property and/or the private
improvements in the Project would not be bound by the provisions, conditions, covenants
and/or warranties contained in the Development Agreementbr the Participation Agreement;
and (iii) satisfy all remaining obligations of Basin Street regarding the Livery Stable; and,
WHEREAS, as part of the Master Agreement, Basin Street as an entity would continue to
be bound by certain conditions, covenants and warranties expressly stated in Exhibit B to the
Master Agreement, despite termination of the Development Agreement and the Participation
PCDC Resolution No. 2008-09 Page 2
Agreement; and,
WHEREAS, the First Amendment to Parking Garage.Easement and Operating Agreement
extending the term of the Garage Easement is attached to the Master Agreement as Exhibit C
thereto; and,
WHEREAS, Basin Street has caused to be prepared by a retained consultant a Petaluma
Theatre District parking Garage Financial Analysis (Walker Parking Consultants, November, 2008,
"Walker Report") which values the cost to the City of replacing the 216 public spaces provided
under the Garage Easement at the end of its existing 20 year term at a sum between $3.0 million
dollars (surface parking) and $9.3 million dollars (parking structure); and,
WHEREAS, the Walker Report projects that institution of a paid parking program could
permit the City to realize "more than $7.1 million in new revenue" over the extended period of
the Garage Easement if the paid parking program were implemented; and,
WHEREAS,. this action is exempt from the California Environmental Quality Act ("CEQA")
pursuant to 14 California Code of Regulations, Section 15061 (b)(3) because it can be seen with
certainty that there is no possibility that this action may have a significant effect on the
environment as defined under CEQA.
NOW, THEREFORE, BE IT RESOLVED, by the Petaluma Community Development
Commission as follows:
l . The recitals stated above are adopted as true and correct and findings of the
Petaluma Community Development Commission.
2. The Petaluma Community Development Commission approves the.change to the
Theater District Construction Plans for the Riverfront Apartments to eliminate 15
unconstructed residential units and the parking structure originally proposed to serve
the Riverfront Apartments; as shown in Exhibit B attached hereto and incorporated
herein by reference.
3. The City Council authorizes and directs the Executive Director to execute on behalf
of the Petaluma Community Development Commission the Master Agreement
attached hereto as Exhibit A and incorporated herein by reference.
4. The Petaluma Community Development Commission acknowledges termination of
the Development Agreement and Owner Participation Agreement identified herein
and the fulfillment of Basin Street's obligdtions under the Livery Stable Agreement
upon execution and recordation of the Master Agreement attached hereto as
Exhibit A ,
S. The Petaluma Community Development Commission authorizes and directs the
Executive Director to execute and cause to be recorded, on behalf of the Petaluma
Community Development Commission, the First Amendment to Parking Easement
and Operating Agreement attached as Exhibit C to the Master Agreement.
ADOPTED this 8'h day of December, 2008, by the following vote:
PCDC Resolution No. 2008-09 Page 3
Commissioner Aye No Absent Abstain
Barrett X
Freitas X
Harris X
Npu X
O'Brien X
Vice Chair Rabbitt X
Chair Torliatt _ X
i ~
i~
Pamela Torliatt, Chair/
ATTEST:
1,~1~~~~~~~ ~ ~ .
Deborah L. Padovan~CMC, Recording Secretary
I t
APPROVE `AS'TO FORM:
Eric Danly eneral Counsel
PCDC Resolution No..2008-09 Page 4
EXHIBIT A
MASTER AGREEMENT
THIS MASTER AGREEMENT ~"Agreement") is entered into as of the lst day of December,
2008, by and between the CITY OF PETALUMA ("City"), a municipal corporation, the PETALUMA
COMMUNITY DEVELOPMENT COMMISSION ("Agency"), and BASIN STREET PROPERTIES ("Bdsiri
Street"), a California corporation, and PETALUMA THEATRE DISTRICT PARKING, LLC ("Parking
Owner"), a California limited liability company.
THE PARTIES ENTER into this Agreement on the basis of the following facts, intentions and
understandings:
A. City and Basin Street entered into that certain Development Agreement ("Development
Agreement") dated as of February 27, 2004.
B. Agency and Basin Street have entered into that certain Owner Participation Agreement
dated as of February 27, 2004 as amended by that certain First Amendment to Owner
Participation Agreement dated as of January 23, 2006. Such Owner Participation
Agreement and First Amendment to Owner Participation Agreement are hereinafter
collectively referred to as "Participation Agreement."
C. City, Agency and Basin Street entered into that certain Parking Garage Easement and
Operating Agreement executed on February 27, 2004, ("Original Parking Agreement")
which was made a condition of development of the Petaluma Theater District project by
terms of the Owner Participation Agreement between Agency and Basin Street. The
Original Parking Agreement was modified to change the capacity of the easement
grantor and property owner from Basin Street to Parking Owner and permit recordation.
The modified Parking Garage Easement and Operating Agreement ("Modified Parking
Agreement") is dated as of June 30, 2007.
D. City and Basin Street have entered into that certain relocation of livery stable letter
agreement ("Livery Agreement") dated January 21, 2004.
E. The parties acknowledge that Basin Street, Parking Owner, City and Agency have
completed all of their respective obligations under the Development Agreement,
Participation Agreement, and Parking EasemenT (collectively "Existing Agreements"),
including, but not limited to, completion of all of the improvements anticipated under
the Existing Agreements, and City has issued Certificates of Occupancy to Basin Street
and Parking Owner with respect to all such improvements..
F. The parties further acknowledge that, although the improvements have been complete,
the parties still maintain certain contingent obligations and other obligations to one
another as further described in this Agreement.
G. The economy, as a result of the financial crisis, has become difficult and has caused
Basin Street, the City, and the Agency to have to curtail certain programs and reduce
staff in ways that limit the parties economic development and the provision of services to
PCDC Resolution No. 2008-09 Page 5
the community.
H. The parties desire to explore opportunities for economic development in the community
as more specifically set forth in this Agreement, and the parties desire to terminate the
Development Agreement, the Participation Agreement and the Livery Agreement
except as.specified herein and to possibly amend the Modified Parking Agreement as
specified herein.
NOW, THEREFORE, in consideration, and mutual promises and covenants of the parties,
the parties hereto agree as follows:
1. Amendment. The Development Agreement and Owner Participation Agreement
are hereby amended such that the original design for the Waterfront Apartment portion of the
Theater DistricYproject, which included 105 apartment units and a three story parking structure, is
hereby revised and replaced with the existing as-built design attached hereto as Exhibit A,
which includes 90 apartment units served by covered parking in lieu of the parking structure:
2. Development Agreement. The parties acknowledge that the Development
Agreement is, as of the date first above written, terminated immediately following the
amendment specified in Section 1, and the parties further acknowledge that the termination is
pursuant to Section 4.3 of the Development Agreement in that final Certificates of Occupancy
for the project have been granted by the City to Basin Street.
3. Owner Participation Agreement. The parties hereby terminate the Owner
Participation Agreement except for those obligations of the parties as specified in Exhibit B
attached hereto and incorporated herein by reference thereto, and City hereby accepts the
improvements pursuant to Section 2.6.6.2 and shall take all actions necessary to effectuate such
acceptance.
4. Modified Parking Agreement. The parties hereby agree to explore amending the
Modified Parking Agreement on the following terms:
a. Consultant. Basin Street, at its sole cost and expense, shall spend up to $10,000
on a parking consultant mutually acceptable to City and Basin Street to explore
developing income streams from-the existing parking structure ~"Structure"). The
parties shall select a parking consultant within thirty (30) days of execution of this
Agreement, and the City designates City Manager, on City's behalf, as having
the right to make a decision on the parking consultant.
b. Existing Commitments. During such thirty X30) day period, the City, Agency; Basin
Street and Parking Owner shall explore and catalog all of the existing parking
commitments in the. Structure the parties have made to third parties, and they
shall jointly prepare a statement of existing parking conditions for the parking
consultant.
c. Task. The parking consultant shall be requested to recommend methodologies
for developing income from the.Structure consistent with the existing parking
conditions.
d. Profit Sharing. The parties agree that should they find a mutually acceptable
parking program that can develop profit from the Structure, the parties shall
share the net profits 50% each. From time to time, the parties may amend the
parking program and alter the same as they deem mutually acceptable, but
PCDC Resolution No. 200&-09 Page b
with no change in the profit split. Net profits shall be all profits calculated
arinudlly from the Structure diter [epayment to Basin Street of expenditures for the
parking,consultanf and payment of all expensesin connection with the
develdpment qnd implementation of`any parking fee prpgram, including, but not.
limited to, gdfes,.mefers, enforcement, security and accounting expenses of the
Structure directly related tdafVie pdrkingprdgram, but hot pre-existing taxes,
insurance, maintenance and any existing debt'on the Structure. The City's share
of annual net profits frdm the parking program will be disbursed by or before
each 'year. •In;cohsidering whether td institute a parkirig progrdm the
parties shall endeavor to avdid instituting;a parking program that negatively
affects;the revenue received by any of the parties from the downtown Tenants
and dwne~s.
e. Term, The parties agree that the term of the Modified Parking Agreement shall be
extended to a term pf sixty (60) years.
f. Amendment. The. parties agree that they shall amend the Modified.Parking
Agreemerit.to take Into accdunt any mutually aaceptdbte amendmenfs tp the
Modified Parking AgreemeriYas a result of theiFdetermindtion regdrding lhcome
streams from the Sfrue#ure by executing, acknowledging and recording
contemporaneously with fhe execution hereof'jle=First Amendment to Modified
Pdrking Agreement dtidched hereto as Exhibit C.,
g. Liverv Adreement. The Livery Agreement is hereby-)ermihated, and Basin Street
specifically acknowledges that City may use profitsiCity derives from the Structure
forsueh uses astlie City determines in City's sole discretion.
l . Bdrid.Reauiremehts. 'The City, Agency, Basin, Street and Parking Owner
ackndwledge that 8dsin Street"discovered one bond obligation'thdt Basin Street had not
fulfilled, but-all parties now acknowledge that Basin Street hds delivered a bond for the public
improvemeriis io'Cty and all bond'dbligations have been met by Basin Street and Parking
Owner.
2.. Economic Development. Given the economy, the partiesshall work in good faith
to determihe,mutually acceptable methods for increasing the economic benefits that the
parties derive from the developments referenced iri the Existing Agreements.
IN WITNESS WHEREOF, the parties have executed this Agreement: as of the day and year first
above written.
Dated`.. CITY OF PETALUMA
By:
_ John Browh, City'Mdridgef
Attest;
By.
;Claire Copper; City Clerk
PCDG Resolution No. 2008-09 Page 7
Approved As to Form:
By:
Eric Danly, City Attorney
Dated: BASIN. STREET PROPERTIES,
a California-corporation
By:
Matthew T. White, President
Dated: PETALUMA COMMUNITY DEVELOPMENT
COMMISSION
By:
John Brown, Executive Director
Approved As to Form:
By:
Eric Danly, Agency Counsel
Dated: PETALUMA THEATRE DISTRICT PARKING LLC,
a California limited lidbilitycompany
By: G&W Ventures, LLC,
a California limited liability company
By:
Matthew T. White, Manager
PCDC Resolution No. 2008-09 Ppge 8
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EXHIBIT B fto Master Acareementl
The parties acknowledge that the following provisions contained in the Participation
Agreement shall remain in full force and effect for the term provided in the Owner Participation
Agreement.
1. Section 2.6.5 (Warranty Provisions)
2. Section 3.8 (Indemnity Provisions)
3. Section 4.2 (Obligation to Refrain from Discrimination Provisions)
4, Sections 7.1 and 7.2 (Hazardous Material Provisions)
5. Section 8.1 (Relocation.Holds Harmless and Indemnity Provisions)
6. Section 10.1 (Indemnity Provisions)
PCDC Resolviion No. 2008-09 Page 10
EXHIBIT C fto Master Agreementl
Recording Requested by
And Return To:
City Clerk's Office
City of Petaluma
1 1 English Street
Petaluma, CA 94952
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
FIRST AMENDMENT TO
PARKING GARAGE EASEMENT AND OPERATING AGREEMENT
Petaluma Theatre District
(Petaluma, California)
THIS FIRST AMENDMENT TO PARKING GARAGE EASEMENT AND OPERATING AGREEMENT
(the "First Amendment") is made and entered into as of the _ day of December, 2008, by and
among the City of Petaluma, a municipal corporation ("City"), the Petaluma Community
Development Commission ("Agency"), Basin Street Properties, a Califdmia corporation ("Basin
Street"J, and Petaluma Theatre District Parking, LLC, a California limited liability company
("Parking LLC"). City, Agency, Basin Street and Parking LLC are individually referred to in this First
Amendment asa "Party" and collectively as the "Parties".
RECITALS
A. The Parties entered into-that certain Parking Garage Easement and Operating
Agreement dated as of June 30, 2007 (the "Agreement"). The Agreement was recorded in the
Official Records of Sonoma County on August 20, 2007 as Instrument No. 2007092134.
B. The First Amendment is being entered into pursuant to that certain Master
Agreement between the Parties of even date herewith.
C. The Parties wish to amend the Agreement as set forth in more detail below.
AGREEMENT
NOW, for good and valuable consideration and other mutual covenants, the Parties
hereby agree as follows:
Extension of Term. The 20-year term of the easement granted in Section 3(d) of the
Agreement, and the 20-year term of the Agreement as set forth in Section 29 of the Agreement,
are hereby extended foran additional period of forty (40) years, for a total term of sixty (60)
years.
PCDC Resolution No. 2008-09 Page 1 1
Maintenance. Notwithstanding Section 7 of The Agreement, expenses incurred by
Parking LLC in connection with the generation or collection of parking revenue from the Parking
Garage shall be subject to reimbursement out of revenue generated from the Parking Garage,
as more fully set forth in the Master Agreement.
Parking Fees. Without limiting Parking LLC's existing rights to charge for parking in the
Parking Garage, Parking LLC shall have the right to charge for parking in the Parking Garage in
accordance with any shared revenue parking program established pursuant to the Master
Agreement.
Counterbdrts. This .First Amendment may be executed in two or more counterparts,
which when taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the day and
year first above written:
Dated: CITY OF PETALUMA
By:
John Brown
City Manager
Attest:
By:
City Clerk
Approved As to Form.
By:
City Attorney
PCDC Resolution No. 2ooa-09 Page 12
Dated: BASIN STREET PROPERTIES,
a California corporation
By:
Matthew T. White, President
Dated: PETALUMA COMMUNITY DEVELOPMENT
COMMISSION
By:
John Brown, Executive Director
Approved As to form:
By:
Agency Counsel
Dated: PETALUMA THEATRE DISTRICT PARKING, LLC,
California limited liability company
By: G&W Ventures, LLC,
a California limited liability company
By:
Matthew T. White, Manager
PCDC Resolution No.2008-09 Page 13
STATE OF CALIFORNIA )
COUNTY OF )
On 2008 before me, ,Notary Public,
personally appeared ,who proved to me on the
basis of satisfactory evidence to be the persons) whose riame~s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity~ies), and that by his/her/their signafure~s) on the instrument the persons), or
the enfityupon behalf of which the persons) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature' (seal)
PWC Resoletion No. 2008-09 Page 14
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