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CR 12-009 Approve Nine Mile Creek Regional Trail Cooperative AgreementCITY op N0PKINS January 11, 2012 Council Report 2012-009 Approve Nine Mile Creek Regional Trail Cooperative Agreement Proposed Action. Staff recommends adoption of the following motion: Move that Council authorize the Mayor and City Manager to sign a cooperative agreement with the Three Rivers Park District, Nine Mile Creek Watershed District and City of Minnetonka regarding the implementation of the Nine Mile Creek Regional Trail within Hopkins. Overview. This cooperative agreement lays out the details between the parties regarding the land acquisition, funding, design, construction, maintenance and operations of the new Nine Mile Creek Regional Trail within the City of Hopkins. The Hopkins/Minnetonka segments are the first • segments to be constructed and are located within the Valley Park area going south into Minnetonka and to the Highway 169 bridge — see attached drawing. The creekside portions of the new trail and the segment along Westbrooke Way will be constructed in 2012. A connecting segment from 11th Ave S to Valley Park is anticipated to be constructed in 2014 as part of our street improvement project. This connecting segment will be constructed as an off-street trail along the south side of 7th St S and the west side of 9th Ave S. The Edina portion of the trail project is planned for 2015 provided Nine Mile Creek Watershed District proceeds with creek improvements and that Federal grant funds are awarded to the Park District. Primary Issues to Consider • Specifics of the agreement Supporting Information • Cooperative Agreement • Nine Mile Cr k Regional Trail map Steven J. Stadler Public Works Director is Council Report 2012-009 Page 2 Primary Issues to Consider: Specifics of the aareement Easements: The Park District requires a permanent easement for trail purposes prior to accepting responsibilities under the agreement or funding trail construction. The City of Hopkins intends to provide easements to the Park District for the trail segments within Valley Park and, as required, for the trail segments within public right-of-way. Design/construction: The agreement states that the Park District will reimburse the City for all design & construction costs for work on the trail between the Minnesota River Bluffs LRT Regional Trail (11th Ave just south of Excelsior Blvd) and Valley Park. Further, the Park District reimburses the Nine Mile Creek Watershed District for its design and construction costs for the trail section from 9th Ave S to Highway 169. Design and construction must meet the Park District trail standards. • Trail uses/purpose: The same as the other trails in the regional system. Motorized vehicles and equestrian uses are prohibited. Winter use: The Park District policy in regards to winter use has changed slightly. They now will leave trails open in the winter vs, closing them at their discretion but will do no winter maintenance. Cities may continue to apply for a permit to operate and maintain the trails in the winter. It is the City's understanding that the Park District Board is studying the impacts of taking on winter maintenance of the metro -wide regional trail system and will make a decision about providing winter maintenance within 6 months. Maintenance: Three Rivers Park District is responsible for trail maintenance and trail signage Law enforcement: Hopkins may patrol and police the trail as necessary. Park District has the right to enforce its rules & regulations on the trail. U • NINE MILE CREEK REGIONAL TRAIL COOPERATIVE AGREEMENT CITY OF HOPKINS CITY OF MINNETONKA NINE MILE CREEK WATERSHED DISTRICT, AND THREE RIVERS PARK DISTRICT WHEREAS, Three Rivers Park District ("Park District") is a political subdivision of the State of Minnesota authorized by statute to acquire, establish, operate and maintain trail systems; and WHEREAS, the Park District promulgates master plans for the development of park facilities including trail systems; and WHEREAS, the Park District's First Tier Trails, Greenways, and Parks Master Plan includes Nine Mile Creek Regional Trail ("trail") along Nine Mile Creek through the Cities of Hopkins ("Hopkins") and Minnetonka ("Minnetonka") and; WHEREAS, the Park District is preparing an independent master plan for the trail and will submit to the Metropolitan Council for approval upon completion of the planning efforts in the City of Edina; and WHEREAS, the Park District has requested that Hopkins and Minnetonka participate • in the implementation of the regional trail system within Hopkins and Minnetonka; and WHEREAS, Hopkins and Minnetonka own lands suitable for development as a regional trail corridor; and • WHEREAS, the Nine Mile Creek Watershed District ("NMCWD") is engaged in a creek stabilization project for Nine Mile Creek within Hopkins and Minnetonka; and WHEREAS, Park District, Hopkins, Minnetonka and NMCWD desire to cooperate to develop a regional trail located in Hopkins and Minnetonka along Nine Mile Creek in conjunction with the creek stabilization project; WHEREAS, in the spirit of collaboration the NMCWD will act as the agent for the Park District, Hopkins, and Minnetonka for trail and trail related structures design, construction, and construction observation for those portions of trail located between Stn Avenue and Trunk Highway 169 (TH 169) in Hopkins and Minnetonka. NOW THEREFORE, in consideration of the mutual covenants herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows: Printed 20121115 1 1. Land Acquisition. Hopkins and Minnetonka shall convey to Park District permanent non-exclusive easements for trail purposes in the form of the Public Trailway Easement and Agreement attached hereto as Exhibit A (hereinafter "Easement") for those portions of the trail in their respective jurisdictional boundaries. Said Easements shall follow the route for the trail designated on the Nine Mile Creek Regional Trail map dated August 31, 2011 attached hereto as Exhibit B. Said Easements shall provide a continuous and contiguous corridor for the trail and shall be conveyed to Park District upon execution of this Agreement. Said Easement shall not be recorded by Park District until completion of construction of the trail. If this Agreement is terminated, and no trail is constructed, Park District shall return the unrecorded Easement to City and take such other measures as may be necessary to cancel the Easement. In the event Hopkins and Minnetonka cannot convey an Easement which provides a continuous and contiguous corridor for a trail, Hopkins and Minnetonka shall acquire such rights to additional lands as may be necessary to complete the trail corridor within their respective jurisdiction. Park District shall not be obligated to proceed with any obligation under this Agreement until Hopkins and Minnetonka have conveyed their respective Easements to the Park District sufficient to create a continuous and contiguous trail corridor. If Hopkins and Minnetonka cannot acquire and convey their respective Easements to the Park District which provide a continuous and contiguous trail corridor within eighteen (18) months following execution of this Agreement, the Agreement shall be terminated and Hopkins and Minnetonka and Park District shall have no obligation hereunder, except that Park District shall return unrecorded Easements to Hopkins and Minnetonka and take such other measures as may be necessary to cancel the Easements. 2. Financing. No design or construction work under this Agreement shall commence until the trail project to be located on the Easement is funded in the Park District's Capital Improvement Program approved by the Park District's Board of Commissioners. 3. Design of Trail. Design by Park District. The Park District will coordinate and fund design of trail and trail related structures along 11th Avenue, 7th Street, and 9th Avenue between the Minnesota River Bluffs LRT Regional Trail and Valley Park in Hopkins. Park District shall submit all trail plans to Hopkins for review and approval, provided however, that approval shall not be unreasonably withheld. Design by Hopkins. In the alternate, Hopkins may seek Park District approval to design the trail and trail related structures along 11th Avenue, 7th Street, and 91h Avenue between the Minnesota River Bluffs LRT Regional Trail and Valley Park in Hopkins. If such a request is approved by the Park District, in its sole discretion, Hopkins may contract with consultants for design services and shall be eligible for reimbursement for such services upon prior approval of the Park District. Approved design costs will be reimbursed by Park District within thirty days (30) days following presentation of verified invoices by Hopkins. Trail and trail related structures shall be designed in accordance with standards adopted by the Park District. Hopkins shall submit all trail plans to Park District for review and approval, provided however, that • approval shall not be unreasonably withheld. Printed 20121115 2 CJ Design by NMCWD. NMCWD shall contract with consultants to provide design services for trail and trail related structures, including, but not limited to design development, bidding documents, construction plans and specifications, and contract document preparation construction administration and project closeout for trail segments between 9th Avenue and TH 169 in Hopkins and Minnetonka. Design of the trail and related trail structures shall be in accordance with standards adopted by Park District. NMCWD may do no work on the trail or trail related structures until Park District, Hopkins, and Minnetonka have reviewed and approved the plans, provided however, that approval shall not be unreasonably withheld. Fifty (50) percent of the total cost of design services for the trail shall be reimbursed by Park District, up to a maximum reimbursement of $20,000, in accordance with Paragraph 4 of this agreement. Design reimbursement shall not include indirect costs and staff time. The balance of trail related design costs shall be the responsibility of NMCWD. NMCWD shall not seek reimbursement for design costs related to the creek stabilization project from the Park District. Approved design costs will be reimbursed by Park District within thirty (30) days following presentation of verified invoices by NMCWD. 4. Construction of Trail. Construction by Park District. Park District shall be responsible for bidding and construction of the trail and trail related structures along 11th Avenue, 7th Street, and 9th Avenue between the Minnesota River Bluffs LRT Regional Trail and Valley Park in Hopkins in accordance with construction plans and specifications developed pursuant • to Paragraph 3 of this agreement. Construction shall commence following (1) conveyance to Park District of Easements creating a continuous and contiguous trail corridor, (2) Park District approval of plans and specifications for trail, and (3) funding for the project in Park District's Capital Improvement Program by Park District Board of Commissioners. Construction by Hopkins. In the alternative, Hopkins may seek approval to construct trail and trail related structures along 11th Avenue, 7th Street, and 9th Avenue between the Minnesota River Bluffs LRT Regional Trail and Valley Park in Hopkins in accordance with construction plans and specifications developed pursuant to Paragraph 3 of this agreement. Construction shall commence when Park District issues a Notice to Proceed to Hopkins. The Notice to Proceed will issue following (1) conveyance to Park District of Easements creating a continuous and contiguous trail corridor, (2) Park District approval of plans and specifications for trail, and (3) funding for the project in Park District's Capital Improvement Program by Park District Board of Commissioners. If Park District does not issue a Notice to Proceed within forty eight (48) months following conveyance of the Easements to Park District, either party may terminate this Agreement and the parties hereto shall have no obligation, except that Park District shall return unrecorded Easements to Hopkins and take such measures as may be necessary to cancel the Easements. Upon award of contract and after completion of trail and trail related structures, Park District shall reimburse Hopkins for all direct costs of construction paid or owed to the contractor engaged by Hopkins to build the trail and trail related structures. Park District will not reimburse Hopkins for indirect costs incurred by Hopkins including, but not limited, staff costs, costs of consultants and advisors, legal fees, filing fees, permit fees, or any other expense, which does not represent direct construction • costs or approved design costs as defined in Paragraph 3 of this Agreement. Printed 201211/5 Hopkins shall provide all records necessary for audit of costs. Park District shall reimburse Hopkins within thirty (30) days following receipt of verified statement of direct construction costs for all costs authorized by this Paragraph. Construction by NMCWD. NMCWD shall be responsible for bidding and construction of the trail and trail related structures between 9th Avenue and TH 169 in Hopkins and Minnetonka and in accordance with construction plans and specifications developed pursuant to Paragraph 3 of this Agreement. Bids shall segregate trail and creek stabilization costs and shall utilize unit costs where possible. NMCWD will not issue a Notice to Proceed to its contractor until Park District issues a Construction Readiness Notification to NMCWD. Park District will issue a Construction Readiness Notification following (1) conveyance to Park District of Easements creating a continuous and contiguous trail corridor, (2) approval of plans and specifications for construction of the trail from Park District, Hopkins, and Minnetonka, and (3) funding of the project in Park District's Capital Improvement Program by the Park District's Board of Commissioners. If Park District does not issue a Construction Readiness Notification within thirty-six (36) months following execution of this Agreement, either NMCWD or Park District may terminate this Agreement and the parties hereto shall have no further obligation, except that Park District shall return unrecorded Easements to Hopkins and Minnetonka and take such other measures as may be necessary to cancel the Easements. Upon award of the contract and after completion of project or trail work, Park District shall reimburse NMCWD fifty percent (50%) of all direct costs of construction paid or owed to the contractor engaged by NMCWD to design and build the trail and trail related structures up to a maximum reimbursement of four -hundred thousand dollars ($400,000). The balance of trail related construction costs shall be the responsibility of NMCWD. Park District will not reimburse NMCWD for indirect costs incurred by NMCWD including, but not limited to, staff costs, costs of consultants and advisors, legal fees, filing fees, permit fees, or any other expense, which does not represent direct construction costs or approved design costs as defined in Paragraph 3 of this Agreement. NMCWD shall provide all records necessary for audit of costs. Park District shall reimburse NMCWD within thirty (30) days following receipt of verified statement of direct construction costs for all costs authorized by this Paragraph. 5. Permits and Assessments. Hopkins, Minnetonka, and NMCWD shall not unreasonably withhold permits and other official permissions necessary to construct the trail. The agency responsible for trail construction is responsible for securing all required permits. In consideration of the Park District's performance under this Agreement including its maintenance obligations, Hopkins, Minnetonka, and NMCWD hereby agree that the lands included in the Easement shall not be subject to assessment by Hopkins, Minnetonka and NMCWD. 6. Construction Supervision. Construction Supervision by Hopkins. If Hopkins assumes the responsibility for construction of trail and trail related facilities along 11th Avenue, 7th Street, and 9th Avenue between the Minnesota River Bluffs LRT Regional Trail and Valley Park in Hopkins, Hopkins shall be responsible for construction supervision for this trail segment. Hopkins shall provide notice to Park District of the commencement of trail and trail related structures construction. Park District may observe construction and may consult with Hopkins regarding construction issues. Hopkins shall inform the Park District of final construction and shall schedule inspection by all parties and Printed 2012/1/5 4 other appropriate agencies prior to closing the construction contract. Upon correction of any concerns identified in the inspections, Hopkins shall notify Park District in writing indicating completion of the project. Upon completion, Park District shall record the Easement and assume Park District responsibilities under this Agreement. Construction Supervision by NMCWD. NMCWD shall be responsible for construction supervision of trail, trail related structures and all work associated with the creek restoration improvements from 91h Avenue to TH 169 in Hopkins and Minnetonka. NMCWD shall provide notice to Park District, Hopkins, and Minnetonka of the commencement of trail and trail related structures construction. Park District, Hopkins, and Minnetonka may observe trail and trail related structures construction and may consult with NMCWD regarding construction issues. NMCWD shall inform the Park District, Hopkins, and Minnetonka of final trail and trail related structures construction and shall schedule inspection by all parties and other appropriate agencies prior to closing the construction contract. Upon correction of any concerns identified in the inspections, NMCWD shall notify Park District, Hopkins, and Minnetonka in writing indicating completion of the trail project. Upon completion, Park District shall record the Easement and assume Park District responsibilities under this Agreement. 7. Trail Uses and Purposes. Trail shall be open to the general public and be used exclusively for outdoor recreation and commuter activities, including but not limited to non -motorized uses such as walking, jogging, skating, and biking (except the use of electric -assisted bicycles as defined in Minnesota State Law and Other Power • Limited Mobility Devices as permitted under the American with Disabilities Act and Park District Policy are permitted.) Equestrian uses are prohibited. In addition, motor vehicles used by the Hopkins, Minnetonka, NMCWD or Park District for maintenance, law enforcement or other public uses will be permitted on the trail in emergency situations, when pertinent to the specific maintenance or patrol activity, when the motor vehicle cannot legally operate on the street, and/or when an adjacent roadway does not exist. Routine maintenance and patrol with motor vehicles will be conducted from adjacent roadways where feasible. 8. Winter Use. As of the date of this agreement Park District policy is leave the trail open during the winter but perform no winter trail maintenance. Hopkins and Minnetonka may apply to Park District for a permit to operate the trail during the winter period. If application is made, the Park District shall grant the requesting city a yearly permit to operate the trail during the winter period for its respective trail segments. Such permit will require the requesting city, among other standard provisions, to assume responsibility for trail maintenance, operation, and liabilities associated with winter use. 9. Maintenance of Trail. Park District will be responsible for all decisions regarding renovation, replacement, repair, maintenance, and upkeep of the trail and any trail related structures including but not limited to stormwater management facilities required by the NMCWD permit except as provided in Paragraph 8. Park District shall be solely responsible for establishing maintenance standards for the trail. 10. Signage. Park District shall be responsible for providing signage for the trail. Signage will indicate that the trail is a regional trail of Park District, and acknowledge the funding and/or cooperation of NMCWD, Hopkins, and Minnetonka. Hopkins, • Minnetonka, and NMCWD may provide additional signage within the regional trail Printed 2012/115 5 corridor, provided however, that Park District shall approve additional signage, and that Hopkins, Minnetonka, and NMCWD shall be responsible for providing and maintaining respective signage. 11. Utilities. Hopkins and Minnetonka shall at all times retain the right to maintain, repair or replace any utilities and related facilities in, on or under the trail and install such utilities and related facilities. If any such activities shall or may damage or limit the use of the trail, Hopkins and/or Minnetonka will give the Park District thirty (30) days prior written notice (except in cases of emergency), and upon completion of such activities so affecting the trail or any portion thereof, restore the trail as near as possible to its condition existing before such maintenance, repair, replacement or other activities. 12. Law Enforcement. Hopkins and Minnetonka will patrol and police the trail in such manner and by such persons as Hopkins and Minnetonka shall deem necessary, and may enforce all rules and ordinances of Hopkins and Minnetonka except as provided herein. Notwithstanding anything herein to the contrary, the Park District shall have the right to enforce its rules, regulations and ordinances with respect to the trail. Hopkins and Minnetonka shall not promulgate any ordinance, rule or regulation which contravenes any ordinance, rule or regulation of the Park District with respect to the Trail or which contravenes this Agreement. 13. Indemnification. Hopkins, Minnetonka, NMCWD and the Park District each shall • indemnify, defend and hold harmless the others from any loss, liability, cost, damage and claim arising from any act or omission on the part of its officers, employees, agents, contractor or representatives in connection with the design, construction, use, occupancy, development, operation, maintenance and repair of the trail, including any attorney fees and expenses incurred in defending any such claim. Nothing herein shall change or otherwise affect the liability limits established under Minn. Stat. § 466.04, as amended. The liability limitations established in Minn. Stat. § 466.04 shall apply to undertakings pursuant to this Agreement, and no individual or entity may seek to increase recovery beyond the statutory amounts set forth in Minn. Stat. § 466.04 by attempting to aggregate the statutory amounts applicable to the Park District or Hopkins and Minnetonka. No party is obligated to pay an amount in excess of the amount that one party would be obligated to pay under the provisions and limitations of Minn. Stat. Chap 466 notwithstanding this indemnification agreement. 14. Successor and Assigns. The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided, however, that the parties shall not have the right to assign rights, obligations and interests in or under this Agreement to any other party without the prior written consent of the other party hereto. 15. Amendment, Modification or Waiver. No amendment, modification or waiver of any condition, provision or term of this Agreement shall be valid or of any effect unless made in writing and signed by the party or parties to be bound, or its duly authorized representative. Any waiver by either party shall be effective only with respect to the subject matter thereof and the particular occurrence described therein, and shall not affect the rights of either party with respect to any similar or is dissimilar occurrences in the future. Printed 20121115 6 r1 U • 16. Saving Provision. If any provision of the Agreement shall be found invalid or unenforceable with respect to any entity or in any jurisdiction, remaining provisions of the Agreement shall not be affected thereby, and such provisions found to be unlawful or unenforceable shall not be affected as to their enforcement or lawfulness as to any other entity or in any other jurisdiction, and to such extent the terms and provisions of this Agreement are intended to be severable. 17. Notices. Any notice given under this Agreement shall be deemed given on the first business day following the date the same is deposited in the United States Mail (registered or certified) postage prepaid, addressed as follows: If to the Park District: If to Hopkins: If to Minnetonka: If to Watershed District Printed 20121115 7 Superintendent Three Rivers Park District 3000 Xenium Lane North Plymouth, Minnesota 55441 City Manager City of Hopkins 1010 1s� Street South Hopkins, MN 55343 City Manager City of Minnetonka 14600 Minnetonka Boulevard Minnetonka, MN 55345 Administrator Nine Mile Creek Watershed District 7710 Computer Avenue, Suite 135 Edina, MN 55435 IN WITNESS WHEREOF, Hopkins, Minnetonka, Watershed District and Park District have entered into this agreement as of the date and year first above written. CITY OF HOPKINS Date Its Mayor Date Its City Manager CITY OF MINNETONKA Date Its Mayor ^-- Date Its Citj Manager • THREE RIV RS PARK DISTRICT Date Larry ackstad, and Chair tf ^ Date �— Cris Gears, Superintendent • NINE MILE CREEK WATERSHED. DISTRICT Date LuAnn Tolliver, President Kevin Bigalke, Administrator J:\PROJECTS\Regional Trails\TNM 0801 Nine Mile Creek RT Hopkins -Edina West Segment\F-J\2012-01-05 Coop Agreement Nine Mile Creek Reg Trail.docx Printed 2012/1/5 8 • EXHIBIT A PUBLIC TRAILWAY EASEMENT AND AGREEMENT This Standard Trailway Easement (hereinafter "Easement"), made this day of , 20_, by and between , a public corporation, ("Grantor"); and Three Rivers Park District, a political subdivision of the State of Minnesota, Hennepin county, Minnesota ("Grantee"). RECITALS WHEREAS, Grantor and Grantee entered into a Trailway Cooperative Agreement dated as of 20_, (the "Trailway Agreement"); and WHEREAS, pursuant to the Trailway Agreement, Grantor agreed to convey to Grantee an easement as further described herein and Grantee agreed to accept Easement according to the terms and conditions contained herein; and WHEREAS, Grantor is the fee owner of certain real property in Hennepin County, Minnesota, legally described on the attached Exhibit A ("Property"); and WHEREAS, said Easement provided by the Grantor does not convey ownership of lands within the easement area to the Grantee; and TERMS OF EASEMENTS • 1.) Grant of Easements. Grantor grants and conveys to the Grantee the Easement legally described on the attached Exhibit A and depicted on the attached Exhibit B. 2.) Scope of Easements. The perpetual non-exclusive trailway Easement granted herein includes the right of the Grantee, its contractor, agents, and employees to locate, install, construct, reconstruct, operate, maintain, inspect, alter and repair within the described easement area any of the following facilities and amenities: public sidewalk or trail, trail signage, informational kiosks, benches, bike racks, trail bridges/tunnels, and any other trail related structure. This Easement, for the use and the maintenance of the trail, shall be limited in width to a 20 foot wide strip of land. The Easement shall be centered on the trail centerline. The general location and width of trail are depicted on the attached Exhibit B. Any alteration to the current horizontal or vertical location of the this trail which affects the trail center line and location of the Easement must be approved by the Grantor. Trail Use and Purposes. This easement is for public trailway purposes only. All regional trails within the City Boundaries shall be open to the general public, and be used exclusively for outdoor recreation and commuting including but not limited to walking, jogging, skating, biking, and uses allowed under State and Federal law including, but not limited to, other personal driven mobility devices (OPDMD's) and electric personal assistive devices. In addition, motor vehicles used for maintenance, law enforcement or other public uses will be permitted within the Easement in emergency situations, when pertinent to the specific maintenance or patrol activity, when motor vehicles cannot legally operate on the street, and/or when an adjacent roadway does not exist. 4.) Warranty of Title. The Grantor warrants it is the owner of the Property and has the right, title, and capacity to convey it the Grantee the easements herein. 5.) Environmental Matters. Grantor shall provide Grantee written documentation of any and all previously and/or currently present hazardous materials, pollutants, or other containments within the Property. Grantee shall not be responsible for any costs, expenses, damages, obligations, including penalties and reasonable attorney's fees, or losses resulting from any claims, actions, suits or proceedings based upon the release or threat of release of any hazardous substances, pollutants, or contaminants which may have existed on, or which relate to, the easement area or Property prior to the date of this instrument. 6.) Binding Effect. The terms and conditions of this instrument shall run with the land and be binding on the Grantor, its successors and assigns. In witness whereof, the said parties have caused this instrument to be executed on the date and year first written above. • CITY OF By. Its By Its State of Minnesota ) ) S.S. County of Hennepin ) The foregoing instrument was acknowledge before me this day of , 2011, by and , the mayor and city manager, respectively of the City of , a Minnesota municipal corporation, Grantor. Notary Stamp or Seal This instrument drafted by: Three Rivers Park District 3000 Xenium Lane North Plymouth, MN 55441 LJ Notary Public L_J Owner: City of Hopkins PIN: Description of Property: Description of Easement: • Exhibit A • • Exhibit B • 7W reeRivers kJkK DFSCAICT This GIS Data is provided "as Is" without warranty of any representation of accuracy, timeliness, or completeness. The user acknowledges and accepts the limitations of the Data, Including the fact that the Data Is dynamic and is in a constant state of maintenance, correction, and update. Map prepared by Three Rivers Park District Planning Section - KKG 08-31-2011 —.'.--�-J LO -. 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