music in the park san jose

.Home, Suite Home

After buying defective units from Wareham Development, some displaced condo-dwellers have spent nearly three years in an Emeryville hotel. It's no vacation.

music in the park san jose

When Donna Dennis swung her legs over the side of her bed, planted her feet on the carpet, and took a few steps on New Year’s Day 2004 — which just happened to be her birthday — she knew something was dreadfully awry.

Dennis had moved into her Emeryville condo a few months earlier. It was the first home she’d ever owned, and she still couldn’t quite believe she’d scored such a sweet place. At just under six hundred square feet, her studio was the smallest unit in the Terraces at EmeryStation, a development adjacent to the Amtrak station. Still, it suited her perfectly, and with the assistance of the city’s first-time homebuyer program, she’d managed to afford it. She loved her high ceilings, the deck that stretched beyond her sliding glass door, and the enormous windows that ushered in ample sunlight and sweeping views.

The love affair proved short-lived.

“I thought, ‘Why are my feet wet?'” she recalls in an interview last month. “I heard this: Schwwwek! Like stepping on wet mud, or wet grass.” It had rained the night before, and she quickly deduced that the water had seeped in beneath her sliding deck door. So Dennis borrowed a rug vacuum and spent her 36th birthday sucking ten gallons of water from a six-by-sixteen-foot patch of carpet.

Within a few days a subcontractor for Wareham Development, which built the complex, came knocking in response to her service request. He cut through a wall, located the leak — he said — and plugged it up. “You can see the caulk there,” notes Dennis, pointing to a pasty scar winding up her tawny-hued stucco wall.

Six weeks later, the bad weather returned. “It was wind, rain, just blowing, blowing, blowing,” Dennis recalls. She came home from work to find the same area soaked again. When she took a cautious step, water sprung up as though she’d hopped into a puddle: “As I was sucking up the water, again, I’m saying to myself, ‘Okay, there’s something seriously wrong here.'”

When Dennis bought the brand-new unit the previous July, she hadn’t thought to ask about leaks. But she knew damp carpets beget mold, so she sent another, more urgent complaint. This time, help never arrived, and so she dealt with the water herself until the rainy season dwindled. “It was around this time that I began to hear what I would call mutterings that there was something going on,” she says.

Something was indeed going on. In the one-bedroom unit overhead, Juanita Carroll Young’s family had discovered water dripping down the inside of their bedroom window. A wall heater shorted out. The kitchen sink sprang a leak, and black mold chewed through the particleboard cabinet underneath. They followed protocol and alerted Wareham. Next door to the family, Craig Winsor and Jerry Bannister also complained of leaking windows.

None of these things got fixed. But come spring, various consultants and experts hired by Wareham — and eventually those hired by the building’s Home Owners Association, which represents the condo owners — tromped through the building. They quizzed residents, searched for leaks, sampled mold spores, and tried to pinpoint the problem. Wareham paid for some minor fixes, but founder and president Richard Robbins decided it was time to bring in Clarendon, the company’s primary insurer. Clarendon determined that 20 of the building’s 101 units were uninhabitable.

“There is physical evidence that this building leaked before it was sold, at least in one unit,” HOA president Cynthia Truelove says. “And there may be other evidence that demonstrates more broadly that this building leaked, and that there might have been some presumption of some level of repairs that did not hold.”

Starting in July 2004, the affected residents were moved into the Woodfin Suites Hotel, a stone’s throw across the train tracks from the Terraces. They were told their room and board would be covered, and were assured they’d be home by Thanksgiving. In the meantime, their condos underwent mold remediation. Workers stripped some units down to the metal framing. They hacked away carpet to reveal stretches of concrete. They hung thick plastic sheeting to cordon off potentially toxic areas and donned HAZMAT gear as they tried to locate and eradicate the mold.

By October, the displaced owners were getting antsy to return home when a letter from Clarendon’s lawyer landed in their mailboxes back at the Terraces. The cause of the leaks had been determined, it explained, but repairs could not begin until spring 2005. In short, the owners were screwed. They could neither sell their uninhabitable units — who’d buy? — nor move back in.

That was more than two years ago. At one point in spring 2005, the insurer offered to move the Woodfin refugees into the nearby Courtyards at 65th Street apartment complex. There were a few takers, but others stayed put. Moving meant losing the weekly food allowance the insurer was doling out. And some, like Dennis, didn’t want to move because they figured it wouldn’t be much longer before their condos were fixed.

They were wrong. Renovations have remained mostly at a standstill as the Home Owners Association and insurers do battle over how to fix the building and how much it should cost. Nine Terraces households are still at the Woodfin, according to Wareham’s lawyers. Others have scattered to parts unknown — Clarendon has dealt with the owners individually, and neither the HOA nor the other condo owners knew how the arrangements were made, or where their former neighbors ended up. “The way it was presented to us, it was everybody had to move to the Courtyards,” Young says. “They didn’t tell us we could move into an apartment of our choosing.”

As soon as things got sketchy back in the fall of 2004, the HOA hired Jeffrey Cereghino, a lawyer with Berding & Weil, an Alamo firm that specializes in real-estate law and construction defects. A first settlement conference took place in late 2005, followed by two equally fruitless sessions.

Wareham insists its settlement offers have been fair. “It is not a matter of Wareham or its insurers not stepping up to the plate, but a matter of the [HOA] board, through their attorney, not willing to engage in meaningful resolution talks,” attorneys for Wareham and its insurers wrote in a joint response to a reporter’s questions. “Wareham has done all it could do and more to help the Terraces residents as much as possible during this dispute.”

The HOA, however, insists Wareham has consistently offered tenants a raw deal. “Our goal is to set the clock back as if the building had been built as it should have been, and there had been no displaced folks, no lawsuits, no nothing,” Cereghino explains. “Our goal is to make owners 100 percent whole. This is not about getting them trips to Bermuda.”

In March 2006, the HOA filed a construction-defect lawsuit against Wareham. A trial is slated for November, though Cereghino is optimistic that the case will settle before then. Best-case scenario: The dozens of people who’ve lived in limbo for nearly three years could indeed all be home by Thanksgiving.

That’d be Thanksgiving 2008.


The Hotel Refugees

Clarendon pays more than $40,000 per year per condo to house displaced tenants at the Woodfin, which touts its “home away from home” atmosphere. The “away from home” part is accurate, anyway. For normal people, coming home in the evening doesn’t involve driving past picketers — labor activists alleging unfair treatment of hotel housekeepers. Or having their nostrils assaulted by the unmistakable mix of disinfectant and air-conditioned air as they walk through the front door. Or weaving through briefcase-toting travelers and tourists in the lobby.

The views are great, at least. From their suites, these long-term guests can see the Bay Bridge, Marin County, and — no, don’t look at it! — the sprawling brick-red building that serves as a daily reminder of their bitterness.

The refugees have to swallow their envy as they look over and see former neighbors going about their lives at the Terraces. It makes them wonder when a settlement might arrive, and whether they’ll move back or simply sell and wash their hands of the fiasco. They fret over rumors that Wareham’s secondary insurer — which will take over in the fall, when Wareham’s $5 million policy with Clarendon is spent — will stop paying their hotel bill. And what would happen then.

“It’s difficult to want to complain because we are in such a weird, bizarrely luxurious situation,” says Young, who, like Dennis, bought her home through Emeryville’s affordable-housing program. “Somebody is paying for us to live in a hotel and gee, ain’t that great. And you get your meals out. For a brief period of time that would be my dream come true. … For three years, it really does get sickening.”

It’s not just the ample closet space and high ceilings they miss. The displaced residents interviewed for this story say hotel life is bad for their health. Most have gained considerable weight since moving in, they say. Young has developed high cholesterol. Bannister was prescribed antidepressants for the first time in his life. Winsor experienced panic attacks, and has been diagnosed with diabetes. “I’ve become a basket case,” he says.

They blame these things, in part, on the lack of a proper kitchen. In the suites, they make do with a two-burner stove, a microwave, and a few shallow cabinets. Clarendon reimburses each person up to $190 per week for food. “We eat out every frickin’ night,” Young says.

The refugees insist they don’t want pity. They know they’re responsible for their own behavior — and that things could be worse: They could be paying room and board in addition to the mortgage, HOA fees, and property taxes on their defective condos.

And yet hotel living requires other sacrifices. No dinner parties. Noisy neighbors. Little privacy. Perhaps, Dennis notes, she’d like “to be able to walk around naked in my own place without” — she raps on a coffee table in her hotel living room — “Maintenance!” She knocks again, and laughs wryly: “Housekeeping!” Young’s daughter, Larissa Campaña, now eleven, learned to ride her bike in the Woodfin parking lot.

Bannister and Winsor even had to give up one of their dogs. Poe was naturally high-strung, but she’d grown mellower at the Terraces. She’d lie in the sun for hours and expend energy running up and down their staircase. At the hotel, Poe took a turn for the worse. She couldn’t exercise indoors and became aggressive. Walking her became a challenge with all the strangers in the lobby. They finally took her to a rescue center near Sacramento. “It was really hard,” Winsor says. They cried a lot. A pair of paintings hangs over the loveseat in their hotel living room — giant red Xs and Os marching across textured black backdrops. It’s one of the few personal touches they’ve added to the suite’s run-of-the-mill decor. “Craig painted those, to get our feelings out about losing Poe,” Bannister explains.

Some of the things the condo owners have given up, it seems, they will never get back.


The Developer

Wareham president Rich Robbins, 57, is no stranger to Emeryville. In fact, his admirers view him as a pioneer for recognizing three decades ago the city’s potential to grow from a burnt-out blip of a city into a major biotech hub. At a 2005 Stanford Business School conference, Robbins sat on a panel entitled “Emeryville: A Bay Area Redevelopment Success Story.”

His own story is a redevelopment fairy tale: In 1975, soon after collecting his MBA from the University of Pennsylvania’s Wharton School of Business, the New York native bought a paper recycling plant in Albany, California, and made good money by converting it to a mixed-use space. Two years later he founded Wareham and tackled the first of a dozen projects he has undertaken to date in Emeryville. He currently serves on the board of the city’s chamber of commerce, and Wareham is among Berkeley’s largest commercial landlords, with fourteen buildings in the city’s Aquatic Park Center alone. He also has left his mark on Richmond. The bulk of his properties are devoted to the life sciences. Tenants include Bayer, Chiron, Lawrence Berkeley National Laboratory, and the Department of Justice’s DNA lab.

Although Robbins is infamous for proposing plans that challenge municipal codes — his proposed Emeryville Transit Center would soar nearly three times higher than current zoning allows — he also is known for innovative complexes drenched in natural light and filled with decks and green spaces.

The Terraces at EmeryStation is the residential component of a twenty-acre project that includes the Amtrak Station and two office buildings, EmeryStation North and the future EmeryStation East, slated to open in May. In the past, Robbins had merely dabbled in residential housing — he’d converted a few former factories in Emeryville and Berkeley into live/work spaces. Nor was he eager to expand Wareham’s residential portfolio, sources say. But the city demanded housing to go with the commercial space he proposed. The condos sold quickly, bringing in a cool $50 million in revenues.

Sales may not be quite so brisk for future Wareham condo projects. Google “Wareham Development” or “Rich Robbins,” after all, and one of the top search results is a link to WarehamSux.com. The site, which Craig Winsor created in February, has given thousands of visitors access to photos of the couple’s gutted walls, the HOA’s lawsuit, and, for those so inclined, WarehamSux.com T-shirts in human or doggie sizes.

When Winsor shared the URL with Terraces owners, he created no small amount of controversy, but he views the site as a way for him to vent. To promote it, he posts regular links to various Craigslist boards. Under Housing Swap: “Our Leaking Condo for Rich Robbins San Rafael Home: Seeing that Rich Robbins of Wareham Development created our condo with construction defects, we are more than willing to swap our leaking loft for his 3,755 sq. ft. home in San Rafael. We will promise to take better care of it than his company did in building our loft.” (Here Winsor is mistaken: Robbins’ $3 million-plus home is in Mill Valley, and actually measures more than 6,000 square feet.)

Under Lost and Found: “Lost 2 years, 7 months, and counting: We have lived in a hotel for 2 years, 7 months and counting thanks to Wareham Development. They built our condo with construction defects.”

Then there’s the banner. In February, Winsor dipped a brush in red paint and stenciled “WarehamSux.com” in a window of the 1,100-square-foot condo he and Bannister share. The next day, the Homeowners Association admonished him that the banner violated the building’s bylaws, which forbid window signs visible from another condo. If he didn’t remove it within ten days, he was told, he would face disciplinary action.

Although Winsor didn’t believe his neighbors could see the sign, he complied. In its place he strung a banner bearing the same message across his living room and added a string of large Christmas lights across the top. “This definitely cannot be seen by another condo,” he says. “And you know what? If people can see it, well, that’s because I don’t have any drywall to hang my curtains from!”

The sign is clearly visible to anyone driving past on the Powell Street Bridge. To the Terraces resident who has complained that Winsor is thumbing his nose at his neighbors, Winsor responds: “We’re not your neighbors! We’ve paid almost $15,000 in HOA dues and have gotten nothing.” Well, that’s not quite true, Bannister intercedes. They do use their mailbox.

Even Jason Crouch, a Terraces owner and real-estate agent whose active listings include nondefective Terraces units, can relate to Winsor’s position. Crouch sold one unit back in October, but attracting buyers with litigation looming hasn’t been easy. “I’d probably be whacked out of my mind if I was out of my house for two and a half years,” he says. “I don’t blame him for being upset.”

Robbins, however, is clearly irked. In early March, according to its lawyers, Wareham distributed a “fact sheet” in an attempt to “reconcile the incorrect facts and contentions that the Terraces residents have been told.” Among other things, the memo stated that “Wareham has been repeatedly attacked with libelous accusations and misinformation.” Asked what the company was referring to, the lawyers cite Winsor. They are taking his “publications” seriously, they say, because they are “harmful and false and serve no purpose other than to exacerbate the existing dispute, cause unneeded tension between the parties, and damage Wareham’s reputation.” Cereghino, the HOA’s attorney, believes Winsor is legally in the clear: “There is no state or federal law that he has violated. If Wareham thinks the sign is defamatory, then Wareham has the right to pursue. Not us.” HOA president Truelove says she hasn’t seen Winsor’s site, and that she refuses to engage personally, or on the board’s behalf, in attacks on Wareham. “It is not how I would have handled it, but that’s their right,” she says of Winsor. “Should others choose to create awareness of Wareham’s somewhat lack of responsible actions, that’s their choice.”

Winsor doesn’t quite get why more residents aren’t trying to draw attention to the chain of events that has kept them in limbo for so long. It’s not hard to figure out: They’re anxious and fearful. One condo owner refused to go on the record, even anonymously, for fear Wareham would retaliate. Indeed, several owners claim the first attorney Clarendon hired to work with them warned that they might be cut off if they explored taking legal action or spoke out publicly against Wareham. (The company has denied this claim.) “People are afraid, like, we should be careful about getting it out too much to the press because then we’ll be labeled as a mold building,” Winsor says. “I’m like, ‘You’re already labeled! Most of the community knows. They see cardboard up on the wall. They see scaffolding.'”

Part of the concern is that the property values will tank and owners won’t be able to sell their units. But Winsor, along with many of the other owners interviewed, dismisses this. “My feeling is, once it’s fixed, we’re going to have a clean bill of health,” he says. “You can buy a new piece of property and it could be the same situation. So here, at least people will know we’ve rectified the situation.”

Facing His Accusers

Robbins has succeeded in spite of having to swim against an antidevelopment tide for much of the three decades he’s been in business. Particularly in Berkeley; Winsor’s signs and Web site are but a drop in a bucket of muck the developer has had to swallow. One of his earliest clashes came in 1985 when he bought the former Durkee Foods plant, where many artists had set up shop. He handed out eviction notices, sparking a ferocious fight with arts and preservation organizers over landmarking issues that dragged on for several years and resulted in Wareham making a number of concessions.

“He had numerous opportunities to resolve the situation, but he chose to continue fighting and lose money,” recalls Rick Auerbach, a West Berkeley artist and resident who’d helped rally the bohemian troops. “It became clear that his goal was really to crush the people he was opposing instead of just getting on with it and making his money.”

Robbins’ latest hiccup began in January, when Wareham slapped down more than $20 million for the Saul Zaentz Media Center in West Berkeley and, arbitrarily, it seemed, jacked up rents by as much as 100 percent. His tenants, mostly documentary filmmakers who insist they are already paying market rates, were incensed. Some had found refuge at the center after getting the boot from Durkee two decades earlier.

Robbins missed the special city council meeting March 27, where dozens of tenants urged the council to help save the collaborative film community they’ve nurtured for decades. Speaking on his behalf was Berkeley development consultant Darrell de Tienne, who, with his tailored gray suit, mustache, and shiny pate resembled one of those silent-movie villains who ties the heroine to the train tracks. He admonished the renters to stop thinking en masse. “Being an artist, you still have the responsibility to stand up and talk for yourself and do what you need to do,” de Tienne said.

When a councilmember brought up the inexplicable rent discrepancies, de Tienne’s interjection came fast and hot: “This life is not egalitarian. I’m sorry. … Nothing is protected in life overall.”

That’s remarkably similar to what Robbins told the Express in June 1985: “I [still] have a lot of artists. They’re not forced out. But you can’t stop change. You have to deal with it.”

One way Robbins deals, it seems, is by sending de Tienne or his Wareham colleagues to represent the company whenever possible. Robbins has never held a meeting to hear the concerns of Terraces condo owners, nor responded directly when they’ve contacted him. His lawyers would not let him be interviewed for this story.

Robbins doesn’t stay behind the scenes because he’s shy or inarticulate — if anything, it’s likely because his abrupt style rubs some people the wrong way. “I’m not going to hide the fact that I’m not a fan of Pulte and that cheap-shit housing,” he remarked in a February interview with the East Bay Business Times, referring to the mammoth developer behind Emeryville’s new Glashaus condos. Not, perhaps, the savviest thing to say when you’re a defendant in a construction-defect lawsuit.

“My wife no longer allows me to go to public hearings, because it gets so ugly,” Robbins told The New York Times in 2003. He added that his presence “tends to raise the temperature in the room.”

Perhaps that’s why the air-conditioning was blasting on a Thursday night last month when Robbins hosted a community meeting in Wareham’s office building directly opposite the Terraces. A guard greeted guests the moment they stepped inside the soaring, tree-filled atrium. Another guard escorted them to a meeting room on the second floor, where a police officer sat near the entrance, looking bored.

“Hi, Rich,” a man greeted Robbins, who stood at the front of the room. “I love what you’ve been doing in Emeryville.” Robbins thanked him and smiled. Many Terraces residents had never seen Robbins, and they may have found his appearance anticlimactic. Clad in a pale blue button-down shirt, faded green khakis, and hiking boots, brown flyaway curls skirting his head, he’s neither tall nor imposing, nor some caricature of corporate greed.

Although Wareham had notified Terraces owners of the meeting, the plight of the displaced wasn’t on the agenda. Rather, the company planned to reveal its third and latest proposal to build a transit center replete with lab space next to the post office down the street.

Displaced condo dweller Betty Burri wasn’t interested in the agenda. She shook her head as an architect displayed an illustration of the proposed building, and described how a wall of glowing ivy would cloak one side of a five-level parking garage. “It would naturally be irrigated and maintained by the Wareham Corporation,” he added, whereupon Burri let out a sharp peal of laughter. Fabric swished against seats.

“The slide projected of the ivy wall reminds me of the mold in my Wareham condo,” Burri remarked when Robbins opened the floor for comments. She explained in a shrill voice that she’d been displaced for nearly three years. “Wareham built a bad building and hasn’t fixed it.”

Robbins replied that his company has been hamstrung since its insurer took the reins in 2004. His voice, still tinged with an East Coast edge, sounded equal parts apologetic and frank. Still, he said, he felt sympathetic. Empathetic. Responsible. He had a hard time sleeping at night.

He invited Burri to speak to his attorneys, and motioned to a young man in a dark suit and a stylish older woman wearing bright lipstick. Neither had anything to do with the transit center project. “There is no incentive for us to allow what’s going on over there,” Robbins said. “We would much rather see you all in your units. And I can’t say any more because I’m not permitted.”

Burri wasn’t about to be shut down so easily. She noted that the transit center design had several elevated decks, which she said led to some of the leaks at the Terraces. “What sort of safeguards, how many inspections are there going to be to make sure this doesn’t happen again?” she asked.

“Well, I can’t answer that — the city can,” Robbins replied, his voice bordering on indignant. “But I’ll tell you, this building and that building and most every building we have ever built has had terraces, and they don’t leak.” He took a small breath. “Please — comments and questions?”

Another man declared that he, too, had been displaced from the Terraces. He liked the transit center proposal, he said, and had long been a Wareham supporter. Still, he said, “I don’t think you should be building anything until the Terraces is fixed. It’s a huge sore on your reputation.” (Councilman Ken Bukowski had expressed a similar sentiment in a memo to planning commissioners. “Do you think Wareham should be given approval for another project while we have people who are suffering from the last project they built?” he wrote. “We must show developers the city is not going to tolerate this kind of situation.”)

Robbins looked frustrated. “There’s nobody that cares more about this issue than me,” he replied.

Burri left before the meeting adjourned. She didn’t want to talk to the lawyers. She didn’t want a copy of Wareham’s double-sided memo. She simply wanted to move back to her condo. “Rich Robbins can blame the insurance company,” she said, still enraged a week later. “He can blame our HOA. He can blame his mommy and his daddy and his sisters and his daughters and his wives and his girlfriends and his dog. But he’s responsible. The only reason these condos haven’t gotten fixed is because Rich Robbins doesn’t want to spend the money. He’s gotten away scot-free — he hasn’t spent a dime.”

Burri and her husband have been instrumental in alerting city officials to the situation. They’ve hosted four tours of their deconstructed condo for city officials, and invited everyone they could think of to an open house this past July. She counts herself lucky. Unlike most, she and her husband own another home, in San Francisco. Still, she spends the better part of the week at the Woodfin. Her poor vision keeps her from driving, and the couple bought the condo to ease her daily trek after her job as a university research chemist moved from San Francisco to Davis in 2003. The trip from Emeryville via Amtrak is an hour shorter than the SF-to-Davis commute.

Donna Dennis attended the meeting, too. It was there, in fact, that she resolved to speak to the Express. “I was hemming and hawing,'” she says. “But after I saw Wareham’s attitude at this community meeting and just the rudeness that they showed to our people, I thought, how dare you! I have to give Betty kudos because she stood up, and he just tried to bulldoze her.”

Dennis doesn’t believe that Robbins feels sympathetic. “He’s throwing out all the buzzwords in describing the transit center project — ‘sustainable,’ ‘global warming,'” she says. “He’s just trying to fool the sheeple, but I don’t buy it. If what he did to our condos is any indication, I don’t hold out much hope for this transit center.”

Light in the Tunnel

A week after the community meeting, HOA members voted 61-10 to take out a $4.5 million loan. Repairs to half of the Terraces building — which will enable the displaced owners to return will begin within a few months and take about a year. After the lawsuit is resolved, the HOA will pay back the loan and use what remains to see that the entire building gets fixed. Cereghino, who has represented hundreds of associations in similar litigation, says such a sizable loan is rare, but that the risk to individual owners is low. He’s never lost a case, after all. “If what I told the bank about the outcome isn’t accurate, you can reach me in Brazil,” he jokes.

One defective unit is now under repair as a test case, and has helped the HOA devise its latest estimate of what the owners will require from Wareham. “To accept, and to release Wareham from all claims, past, present, and future, there has to be certainty on the HOA’s side that they are in fact getting enough money to cover that risk,” Cereghino explains. He adds that the contractors have discovered some conditions the HOA wasn’t aware of previously. He expects the full amount will be “very close to eight figures.”

The combatants are planning another round of settlement talks in May. Cereghino, and certainly the condo owners, hope it will be the last. Wareham’s attorneys report that the company wants nothing more than to put this chapter behind it as well.

If Donna Dennis’ neighbors decide to pursue a class-action suit to recoup the cash they’ve put into mortgage payments, HOA fees, and property taxes — a possibility they’ve back-burnered until the current case settles — she says she may well join in. Ultimately, though, she doubts she’ll stick around. “I look at my condo from the Woodfin and I just kind of sigh,” she says. “I feel no sense of connection. I think I’m going to be selling and moving on.”

Dennis has a hard time remembering what her place even looked like before half of it was partitioned off with plastic she has to unzip to walk through. She’s not sure where her floor lamp was, or what piece of furniture had been on the spot where a massive blue dehumidifier now stands. The machine is really the only reason she enters her condo anymore. When rain is forecast, she switches it on, because her home still leaks. After it rains, she returns to check for flooding and turn it off. The insurance company pays the electric bill. “I love my vaulted ceilings. I love my loft feel,” she says. “But I’m just very disenchanted with that building, with the developer, and with the city of Emeryville.”

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