CC Resolution No. 02-208 RESOLUTION NO. 02-208
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AMENDING THE CUPERTINO HOUSING
MITIGATION MANUAL
WHEREAS, the city of Cupertino General Plan authorized an inclusionary zoning
program; and
WHEREAS, the Housing Mitigation Manual is the framework for the inclusionary zoning
program (Cupertino Below Market Rate Program);
WHEREAS, the Cupertino Housing Commission is recommending amendments to the
City of Cupertino Housing Mitigation Manual;
NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Cupertino
hereby adopts the proposed amendments to the City of Cupertino Housing Mitigation Manual.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18th day of November 2002, by the following vote:
Vote
AYES:
NOES:
ABSENT:
ABSTAIN:
Members of the City Council
Lowenthal, Chang, James, Kwok, Sandoval
None
None
None
ATTEST:
City Clerk
APPROVED:
Mayor, City of Cupertino
R
CI 1 .
CUP'
Housing Mitigation
Procedural Manual
Amended by City Council
November 18, 2002
Resolution No. 02-208
City of Cupertino
Housing Division
Department of Community Development
10300 Torre Avenue
Cupertino, CA 95014
Voice: (408)777-3251
Fax: (408)777-3330
Revised 8/25104
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City of Cupertino
City Council
Dr. Michael S. Chang, Mayor
Sandra James,Vice Mayor
Sandra James
Patrick Kwok
Richard Lowenthal
Dolores Sandoval
Planning Commission
Charles Corr, Chairperson
Marc Auerbach,Vice Chairperson
Angela Chen
Gilbert Wong
Taghi Saadati
Housing Commission
Sarah Hathaway-Felt, Chairperson
Richard Abdalah,Vice-Chairperson
Julia Abdala
Richard Schuster.
Frances Seward •
Community Development Department Staff
Steve Piasecki,AICP, Director of Community Development
Ciddy Wordell,AICP, City Planner
Colin Jung,AICP, Senior Planner
Gary Chao,Assistant Planner
Vera Gil, Senior Planner
Peter Gilli,Associate Planner
Aarti Shrivastava, Senior Planner
Nancy Czosek,Administrative Secretary
Kiersa Witt,Administrative Clerk
City of Cupertino Staff
David W. Knapp, City Manager
Carol Atwood, Director of Administrative Services
Charles Kilian, City Attorney
Therese Smith, Director of Parks and Recreation
Kimberly Smith, City Clerk
Ralph Qualls,Jr., Director of Public Works
INTRODUCTION
Assembly Bill No. 1600 (AB 1600, statutes of 1987, 1988 and 1989; California
Government Code, Section 66000-et seq.) establishes standards for cities imposing
development fees. ° To reiterate the standards, the City must show a relationship (nexus)
exists between the fee's use and the type of project, identify the purpose of the fee and
identify the use of the fee. The City of Cupertino has addressed these standards with the
nexus study that was commissioned in 1991.
The study, ("A Study to Examine the Relationship of Land Use and the Creation of
Additional Housing Needs", Planning Resource and Associates, January 1992) evaluated
the relationship between land use and affordable housing. The "nexus" study demonstrated
that all new developments create additional housing needs and place additional strain on
the City's Affordable Housing programs. However, the City Council believed that
requiring retail developers to provide affordable housing would negatively impact the
City's economy. Therefore, residential and office/industrial developers are required to
mitigate the need for additional housing units.
This document establishes procedures to implement housing mitigation as required by the
General Plan Housing Element. The City or its agent will administer the programs.
This procedural manual consists of two major components, Section One addressing the
office and industrial mitigation and Section Two addressing residential housing mitigation.
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Section One: Office and Industrial Mitigation
1.01 Objective
The purpose of Cupertino's Office and Industrial Housing Mitigation Program is to
acknowledge housing needs created by the development of office and industrial projects
and provide nominal fees to support the development of affordable housing for families and
individuals who work in Cupertino but live elsewhere. This policy will help alleviate
regional traffic congestion by reducing distances between residence and workplace.
For the purposes of Section One of this manual, the terms "developer", "company", and
"owner"shall be synonymous.
1 .02 Program Requirements
1.02. 01 Application of Program
Housing mitigation shall apply to new development of office and industrial space. Office
and industrial development, which has a valid use permit at the adoption of the General
Plan (June 1, 1993), shall be exempt.
•
1.02.02 Mitigation Fee
Developers shall pay a fee as determined by the City Council. The fee shall be adjusted
annually using the Consumer Price Index (all items index for the SanFrancisco Bay Area)
and shall only be used for the provision of affordable housing in Cupertino. The options
for use of the fee include, but are not limited to the following:
a. Development of new affordable units.
b. Conversion of existing market rate units to affordable units
c. Down payment assistance programs
d Second mortgage programs
In the event the funds are not used for affordable housing within five years fee will be
returned to the developer as per AB 1600.
1.02.03 Mitigation Fee Payment
Mitigation fee shall be due and payable at the issuance of any construction permits for the
office or industrial project.
•
• Section Two: Residential Mitigation
2.01 Objective
The purpose of the Residential Mitigation segment of the program is to provide the City of
Cupertino with a supply of affordable housing for households working and residing in
Cupertino. The main goal is to provide a safe, clean living environment for those families
and individuals making a contribution to.Cupertino and its residents.
Public service employees make especially high contributions to Cupertino and its residents
by ensuring public safety and providing other vital services. As such, they shall receive a
high priority in the placement system.
2.02 Program Requirements
2.02.01 Application of Program •
Housing mitigation shall apply to all new residential developments of one unit or greater.
In projects where units are being demolished, the net increase in units shall be used in
determining the number of BMR units to be constructed.
2.02.02 Mitigation Requirement
• Residential developers shall designate at least 15% of the units in a development as
"affordable". If the developer is constructing "for-sale" housing, the affordable units must
serve median and moderate-income families. Fifty percent of the ownership BMR units
shall serve median income and 50%. shall be made available to moderate income
households.
If the units being constructed are rental units, then they must serve very low income and
low-income families. Forty percent (40%) of the Below Market Rate (BMR) rental units
shall be affordable to low income households and sixty percent (60%) of the BMR rental
units must be affordable to very-low income households. For example, if the development
consists of 120 rental units, then 18 units shall be affordable (7 to low income and 11 to
very low income). In the case of ownership developments, when 50% of the BMR units
results in an odd number,the"extra unit"shall benefit the median income group.
When the computed housing mitigation for either rental or.ownership results in a fraction
of a unit, the developer's obligation shall be as follows:
0 - .49 of a unit: Round down
.50 - .99 of a unit: Round up.
For condominiums used as rental housing, the BMR.units shall be made available to low
and very low-income families using the above stated formula. Should the property owner
decide to sell the individual condominiums units, then said owner must allow the BMR
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residents one year to secure new housing. After the BMR units have been vacated (during
the conversion to condo use), the units will be sold to median and moderate-income
households and will be deed restricted by the City for the remainder of the term of
affordability.
In phased developments, the BMR requirement shall be assessed against the overall
development plan and not the individual phases of the proposed master plan.
In all cases, the BMR units should be developed in a time frame consistent with the overall
development.
2.02.03 Mitigation Options
In projects of one to six units, the developer may pay a fee in lieu of development of the
affordable units or meet the requirement with alternatives consistent with the. Housing
Element of the General Plan. Developments consisting of seven units or more must
develop the BMR units on-site using the standards set forth in this procedural manual.
2.02.04 In-Lieu Fee
Developers shall pay a fee as determined by the City Council for developments of one to
six units. The fee will be assessed on a per square foot basis (inclusive of garages)on all
new development and be adjusted annually using the Consumer Price Index (all items for
the San Francisco Bay Area). For the purposes of assessing the fee, new development shall
be defined as development on an existing vacant lot or redevelopment of a lot where an •
existing housing unit has been demolished.
The in-lieu fee (collected for projects of less than seven units) shall only be used for the
provision of affordable housing in Cupertino and will be collected at the building permit
stage of development. The in-lieu fee shall be paid prior to the.issuance of any
construction permits and prior to the commencement of any work on the site.
The options for use of the fee include,but are not limited to,the following:
a. Development of new affordable units
b. Conversion of existing market rate units to affordable units
c. Down payment assistance programs
d. Second mortgage programs
In the event the funds are not used for the purposes they were exacted or utilized within
five years from the date the fee was collected, the in-lieu fee will be returned to the
developer as per AB 1600.
2.02.05 Agreement between Developer and City
Developer shall enter into an agreement with the city of Cupertino to provide the affordable
units prior to the issuance of any construction permits and prior to the commencement of
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• any construction on the site. Said agreements shall indicate where the units will be located
on the site.
2.02.06 Annual Revision of Sale Prices and Rental Rates
Both the affordable selling prices and rents for the affordable units shall be updated on an
annual basis in conformance with the HUD Income Guidelines as established for the
County of Santa Clara by the United States Department of Housing and Urban
Development (HUD).
2.02.07 Project Conformance
Affordable units shall generally reflect the total project mix in terms of bedroom count and
size of unit. The units shall be scattered throughout the site and shall conform to the
exterior appearance of the other units in the project. Buyers should be permitted to upgrade
fit and finishes prior to the close of escrow. Low/very low-income units can be substituted
for market rate units at the developer's discretion.
2.03 City Contributions
•
2.03.01 Density Bonus
To maximize housing opportunity and partially assist the developer by reducing or
eliminating the development cost for the affordable units, a density bonus consistent with
• Ordinance No. 1569 ("An Ordinance of the City Council of the City of Cupertino Adopting
and Implementing the State Density Bonus Law") may be permitted. The bonus units shall
be..permitted providing they can reasonably be accommodated on the site and meet City
standards. Residential/housing mitigation requirements shall apply to the density bonus
units.
2.03.02 Alternate Interior Finishes in Affordable Units
The exterior design of the unit shall be consistent with other units in the project. Internally,
the affordable units may differ from other units in the development by using alternate
interior finishes that are approved by the Cupertino Housing Commission.
2.03.03 Financial Assistance
If the project qualifies,the City may choose to.utilize Affordable Housing Fund monies to
create a greater percentage of affordable units at the 50% (very-low income) and 80% (low
income) price levels.
2.03.04 Fee Waivers
The City shall waive park dedication and construction tax fees for affordable units.
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2.03.05 Priority Processing •
The city shall, wherever possible, expedite the processing of developments with affordable
units.
2.03.06 Management Agreement
The City shall enter into an agreement with a management agency to administer the buyer
selection process and manage the BMR rental program. To assist developers in separating
themselves from the management and sale of the BMR units, developers shall have their
affordable units managed and sold under the City agreement with the management agency.
2.03.07 Subordination Restrictions
The City agrees to subordinate this housing mitigation program to any construction lender
and to individual first deeds of trust to the extent of 90% of the below market rate value.
The City shall have the nonexclusive right to cure. a default to preserve the housing
mitigation program.
2.04 Applicant Qualifications
2.04.01 Solicitation of Applicants
Applications for BMR units shall be solicited as necessary to maintain adequate application
pools for each appropriate income level. The City's agent shall provide and distribute
program brochures that are culturally and linguistically appropriate to the community.
These brochures will be available at City Hall, the Cupertino Public Library, the Quinlan
Community Center, the Cupertino Senior Center and other appropriate locations.
Furthermore, the City's agent shall conduct outreach efforts through local media that are
culturally and linguistically appropriate to the community.
Applicants may use a "self-qualifying" eligibility application, which will be subject to
verification.
Applicants will receive a point for meeting each of the following descriptions:
One point=Cupertino resident;
Two points=Primary full-time employment in Cupertino;
One point=Public Service Employee.
Applicants receiving four points shall be considered the highest priority;
Applicants receiving three points shall be considered the second highest priority;
Applicants receiving two points shall be considered the third highest priority;
Applicants receiving one point shall be considered the fourth highest priority; and
Applicants receiving zero points shall be considered the lowest priority.
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• 2.04.02 Definition of Residency
Households applying under priority consideration for residency shall provide proof of
residency in Cupertino for at least one year from the date of application. Utility bills and
rental agreements shall be considered proof of residency. ,
2.04.03 Definition of Full-time Employment
Full-time employment is defined as 35 hours per week. Cupertino employees must show
proof of being employed at a primary full-time, permanent job within the city limits for at
least 25 of the 35 hours. A letter from the personnel department of the employer and one
year's paycheck stubs shall serve as sufficient proof
2.04.04 Definition of Public Service Employee
Public Service employees are defined as full-time employees from the Cupertino Union
School District, Fremont Union High School District, DeAnza College, the City of
Cupertino and Cupertino Library. Santa Clara County Fire Department and Santa Clara
County Sheriff Department employees must work within the city limits to be eligible for
housing assistance; reassignment to another city/county area is cause for removal from the
eligibility list. However, if the Fire or Sheriff employee has received housing assistance
and is reassigned,the employee will not need to relinquish the housing unit.
The public service position, as defined in the above paragraph, must be the applicant's
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primary wage earning job in order to qualify under the public service definition. Proof
shall be submitted in the form of paycheck stubs.
2.04.05 Applicant Waiting Lists
Within each priority group, waiting list numbers shall be assigned based upon the date the
application was verified and approved, or if a drawing is performed,the order drawn within
each priority group.
Waiting lists will be verified annually in accordance with the U.S. Department of Housing
and Urban'Development(HUD) income guidelines. The verification procedure will consist
of notifying the applicants on the waiting lists to complete a new "self-qualifying"
Eligibility Application form or supply-specific information to determine if they are still
qualified. The information will need to be supplied within 30 days of the request or the
date specified on the letter. Applicants will retain their priority number on the Priority
Waiting Lists from the previous year, if their qualification information is received within
the specified time period.
2.04.06 Applicant Submittals
All applicants remaining on the waiting list shall submit,when requested, proof of:
a. Residency
b. Place of Employment
c. Annual Gross Income
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d. Other Assets • •
2.04.07 Applicant's Right to Refusal of Unit
An applicant has one opportunity to refuse a development before being removed from the
current applicant pool.
Applicants who do not qualify for a particular development shall retain their eligibility.
2.04.08 Income Qualification
Household income is defined as the sum of all the income for every adult, 18 years or
older, living in the unit. Sources of income include all wages or salaries, overtime pay,
commissions, fees,tips, bonuses and other compensation, net income from a business or
profession or from the rental of real or personal property, interest and dividends,payments
received from social security, annuities, insurance policies,retirement funds, pensions,
disability or death benefits, payments in lieu of earnings, public assistance, alimony and
child support, and any other sources of income.
Net assets in excess of $60,000 will have imputed income at 5% or actual income,
whichever is larger, added to Household Income.
Each able-bodied adult included in the household, 18 years or older must be employed.
Exceptions will be reviewed by the City or its management agent (i.e. disabled, full-time
student, etc.) .
2.04.09 Appeal Process •
Any portion of this manual may be appealed. A written request is required from the
appellant. The request should be addressed.the Community Development Director. Any
appeal will be referred to the Cupertino Housing Commission for recommendation within
thirty(30) days of the date of the written request. The recommendation from the Cupertino
Housing Commission will then be forwarded to the City Council for final ruling. All City
Council rulings on the appeal are final.
2.05 Ownership Units
2.05.01 Applicant Qualifications for Ownership Units
The BMR program is designed to assist first-time homebuyers with incomes between 80%
and 120% of the median for the County of Santa Clara as established by HUD. Applicants
will be eligible according to the family size and income criteria indicated on Exhibit A.
2.05.02 Applicant Assets
Households with net assets over $100,000 held in the United States or foreign countries
will not be eligible. Excluded from net assets are all non-accessible funds; or any assets
that generate a penalty when withdrawn i.e. 401K, CALPERS, STRS and other pension
plans.
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2.05.03 Definition of First-time Homebuyer
An applicant must be a first-time homebuyer to be considered for ownership. An applicant
shall be considered a first-time homebuyer if their name has not appeared on a residential
property title for a principal residence in at least three years from the date of application.
This definition applies to properties owned in foreign countries as well as the United States.
2.05.04 Price Determination
The income range of the buyers shall determine the unit type and sale price as indicated in
Exhibit B.
2.05.05 Lending Institutions
The prospective buyer, when seeking financing, may choose to contact lending institutions
that have been briefed by the City or its agent.
2.05.06 Insurance Requirements
Prior to the sale of any unit,the City shall require that each purchaser execute a subrogation
agreement whereby the City shall be,named the additional insured party to any policy of
fire or casualty insurance and will be entitled to any such policy proceeds in excess.of the
affordable unit purchase price.
41111 2.05.07 Qualification Period
Applicants must verify qualifications and qualify to purchase a unit within 30 days of
notice that they are eligible apply to purchase.
2.05.08 Occupancy Conditions
Units must be owner-occupied verification of owner shall be on an annual basis.
2.05.09 Lease, Rent, or Sublet of Units
Owner is not permitted to lease, rent, sublet the unit, or otherwise assign their interests in.
the property without the express written, permission from the City or its property
management agency. The lessee must meet the same requirements imposed on the owner.
The lease shall be subject to review by the City or its agent.
Example:
The owner of an affordable unit is being transferred to a
d fferent state for a nine-month period. In order to lessen
the burden of the owner paying a mortgage on the BMR unit
as well as rent in the new state, the owner may lease the
BMR unit with prior written approval from the City or its
agent.
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2.05.10 Resale Price
The resale price will be established based on the following:
a. Original Purchase Price.
b. Cumulative increases or decreases during the period of ownership, as indicated by
the Consumer Price Index for the Bay Area.
c. The value of any substantial improvements or damage to the unit. Values of
improvements, if any, are to be established by a property appraisal at the owner's
expense.
d. Administrative costs incurred by the property management agency or other selling
agent to sell the unit.
2.05.11 Right of First Refusal
During the period that an affordable unit is maintained at an affordable price the City has
the right of first refusal on the sale of any of those units. Within sixty (60) days of notice
from homeowner,the City must decide whether it will exercise this option.
2.05.12 Condition of Units
Units shall be kept in good repair and resale price shall reflect the condition of the unit.
Cost of termite reports and any required repairs are considered out of pocket expenses for
the sellers.
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Terms of Affordability
y
The deed restrictions imposed on each affordable unit pursuant to the program shall remain
in effect for a period of 99 years from the date of original sale of that unit. Furthermore,the
resale restrictions shall renew at each change of title.
2.05.14 Resale of Unit- Owner's Responsibility
If the owner elects to sell his unit, the City and/or its agent must be notified in writing.
2.05:15 Purchaser
As units become available for resale, the next qualified buyer in the application pool will
be notified.
2.05.16 Fees
In addition to any fees noted, the City or their Agency may charge an administrative fee for
services in qualifying a purchaser and maintenance of waiting lists. The fee will be the
responsibility of the Purchaser.
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• 2.06 Rental Units
2.06.01 Applicant Qualifications for Rental Units
The program is designed to assist low and very low-income families, which are defined as
families with an income equal to or less than 80% of the median income for the County of
Santa Clara as established by HUD. Applicants will be eligible according to the family
size and income criteria indicated in Exhibit B. Individual complexes may impose a
minimum income not to exceed two times the monthly rent.
2.06.02 Applicant Assets
Households with net assets exceeding one year of the maximum income allowed will not
be eligible. Excluded from net assets are all non-accessible funds; or any assets that
generate a penalty when withdrawn i.e. 401K, CALPERS, STRS and other pension plans.
2.06.03 Rental Rate Determination
The income range and household size of the tenant shall determine the unit type (and
therefore the maximum rental rate of the unit) by using Exhibit B.
2.06.04 Availability of Units
. An affordable unit shall not be available for lease until the City formally accepts the units.
• 2.06.05 City Contractor's Role in Leasing of Units
The developer shall utilize the services of the City's management agency to assist in the
selection of tenants. The services of this agency shall be funded out of the in-lieu or
Community Development Block Grant(CDBG) funds and shall be monitored by the City.
2.06.06 Previewing of Unit
It is the applicant's responsibility to contact the management agency to preview the unit.
2.06.07 Occupancy Conditions
It is the intent of this policy that the original lessee shall occupy the unit during the term of
the lease. However, if special conditions require that the unit be sublet, the applicant/tenant
is only permitted to sublet the unit to qualified households with the express written
permission from the City of Cupertino and its agent.
If an additional occupant (roommate, family member, etc.) moves into the unit, he/she will
be considered part of the existing household. In such cases, the BMR tenant must notify
the City and/or it's agent prior to the move in date for reevaluation. At which time, the
entire household (including the new occupant) will be reevaluated to determine eligibility,
including household income requirements. All household members must reside in the unit
for at least six months each year.
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2.06.08 Annual Re-qualification11110
On an annual basis, the city or its agent shall requalify tenants to verify they are eligible to
remain in the below market rate rental units. Requalification shall be based upon the
tenant's income, as determined by the three most recent pay stubs, prior year tax forms and
family size. If no longer eligible for the below market rate rental unit, the tenant will have
three months to locate alternate housing and vacate the.BMR rental unit. A three month
extension may be granted in cases of extreme hardship.
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2.06.09 Annual Rental Rate Increases
The annual rental rate increase shall be established from a formula provided by the City
based on the following:
a. Previous rental rate
b. HUD income guidelines
c. Household size
d. Units size
e. Annual Utility Allowance
No annual increase shall exceed 5%.
2.06.10 Evictions
Any falsification or knowingly withholding documents and information will result in an
immediate 30-day notice to vacate. Tenants are subject to apartment management
regulations.
2.06.11 Condition of Units/Complex
The units/complex shall be kept in good repair. Tenants are subject to apartment
management regulations, which may result in termination of tenancy.
2.06.12 Terms of Affordability
• Deed restrictions placed on each unit/complex pursuant to the program shall remain in
effect for a period of 99 years from the date of first occupancy of the unit/complex and
shall become null and void upon the expiration of that period, unless it is extended by the
developer in order to take advantage of incentives resulting from changes in public policy
and programs. These deed restrictions shall run with the property and not be affected by
the sale of the complex, or the individual units within the complex, prior to the completion
of the term of affordability.
In the event the program is terminated prior to the 99-year period through formal action by
the City Council, deed restrictions shall be null and void. Full ownership rights of the
units/complex shall revert to the owner at the time of termination.
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Exhibit A •
Income Gategoryand
.;Range 1:_ :•'� 211. 3 . • °4' � 5 •r� 7'. 8
Very-low 0%-50% 37,150 42,450 47,750 53,050 57,300 61,550 65,800 70,050
Low 51%-80% 59,400 67,900 76,400 84,900 91,650 98,450 105,250 112,050
Median 81%-100% 73,850 84,400 94,950 105,500 113,950 122,400 130,800 139,250
Moderate 101%- 120% 88,600 101,300 113,950 126,600 136,750 146,850 157,000 167,100
Department of Housing and Urban Development on an annual basis. Revised 2/04.
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6
a
i Exhibit B
e' `p ' Media IV1o{lerate
BMR Sale Paces Ho�rsehold Plumber of llrcome la men
She „ Bedr oms S 1e,I?rice ,pu, Sale Pace...
2 1 178,000 232,000
3 2 208,000 269,000
4 3 238,000 306,000
5 4 263,000 335,000
6 5 287,000 365,000
Rental
a Houe - . .w.,Rat'ese aonfd A Nfuomrdbaebrleo fU BnVeitdse rrboyyo LmHos
u sehod Size , :, : ., , „a $
i.
L1co,o2wm10s IncaN hods 3 r ,Bgmssl' dro $1,100 $1,350size . , 1 $1,120 $1,5002 2 $1,2303 34
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