HomeMy WebLinkAboutContract 48865�
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1:NCROACHMEIYT AGREFMEN"T
(('O,ifAfl;'RC'Li f,)
7'1IIS ACI2CEMEN'I' is madc ai�ci entereci into by and between the City of f'ort
Wortl�, a 1ic�»lc rule municipal corporati��n of Tarrant County, Te;�as ("C.'ity"j, actinb
herein by and throt��h its duly authori�ed City Mana�er, its duly authoriz�d Assistant
City Manaber or Planning and De�.�elopment Depariment Director, and Woodbranc;h
Cawtc��vn Parking, LLC, a I.LC "Licensee", acting herein by and thra�t�;h its duly
authorized repi•esentative, l'hilip Schneidau, the awner of the real praperty locateci at 7f)2
fiouston St., Fort Wortil, Texas 76102 ("Property").
RECITALS
WHrREAS, License;e is the awner oicertain real property situated in the City of
Fort Worth, 'I'arrant County, Texas, mare particlilarly descril�ed in the attached Legal
Description af the Property; and
WHEREAS, the City has a street, alley, sidewalk, and/or other public right-of-
way (individually nr collectively, the "Publie Right-af-Way") adjacent to th� Property as
shown on the map attached to this Agreement as Exhibit "A" and incorporated herein for
all purposes; and
WHEREAS, Licensee desires to construct/place and maintain certain
improvements which will encroach onto the Public Right-of-Way; and
WHEREAS, City will allow the encroachment under the terms and conditions as
set forth in this Agreement to accommodate the needs of the Licensee,
NOW, THEREFOI2E, the City and Licensee agree as follows:
AGREEMENT
1.
City, in consideration of the payment by Licensee of the fe� set out below and
covenants and agreements hereinafter contained, to be kept and performed by Licensee,
hereby grants permission to Licensee to eneroach upon, use andCor occupy portions of the
space under, on, and/or above the City's Public Right-of-Way to constructlinstall and/�r
allow ta remain, certai'n improvements for the purpose of installin� canvas awnings
above windows as required by the DDRB (whether one or more, the "Improvements")
a� described in and at the location shnwn on Eshibit "A" but only t� the extent shown
thereon. Upon completion of the Irnprovements, Licensee agrees to be responsible for
maint�ining the Improvements. Licensee shall not expand or otherwise cause the
Improvements to ti.irther ir.fringe in or on City's Public Right-of-Way beyond what is
specificaily describzd in the Exhibit(sj attached hereto.
201 � RO�i�' Encroachment A�reement -Commercial
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All construction, maintenance and operation in connection with such
Improvements, use and occupancy shall be performed in strict compliance with this
Agreement and the City's Charter, Ordinances and Codes, and in accordance with the
directions of the City's Director of Transportation and Public Works, or his or her duly
authorized representative. Licensee shall submit all plans and specifications to the
applicable Director or his or her duly authorized representative prior to the construction
of the Improvements. Licensee shall not commence construction of the Improvements
u.ntil receiving written approval by the Director, but such approval shall not relieve
Licensee of responsibility and liability for concept, design arid computation in the
preparation of such plans and specifications.
3.
Upon completion of the constxuction and installation of the Improvements, there
shall be no other encroachments in, under, on ox above the surface area of the Public
Right-of-Way, except as described herein and depicted on Exhibit "A".
4.
Licensee, at no expense to the City, shall make proper provisions for the
relocation and installation of any e�sting or future utilities affected by such
encroachment, use and occupancy, including the securing of approval and consent from
any affected utility companies and the appropriate agencies of the State of Texas and its
political subdivisions. In the event that any installation, reinstallation, relocation or
repair of any exisiing or future utility or improvements owned by, constructed by or on
behalf of the public or at public expense is made more costlq by virtue of the
construction, maintenance or existence of such encroachment and use, Licensee shall pay
to City an additional amount equal to such additional cost as determined in the reasonable
discretion of the Director of Transportation and Public Works, or his or her duly
authorized representative.
5.
Upon prior written notice to Licensee, except in the case of an emergency,
Licensee agrees that City may enter and utilize the referenced areas at any time for the
purpose of installing, repairing, replacing, or maintaining improvernents to its public
facilities or utilities necessary for the health, safety and welfare of the public or for any
other public purpose. City shall bear no responsibility or liability for any damage or
disruption or other adverse consequences resultitig from the Tmprovements installed by
Licensee, but City will make reasonable efforts to minimize such damage. In the event
that any installation, reinstallation, relocation or repair of any e�sting or future utility or
improvements owned by, constructed by or on behalf of the public or at public expense is
2015 ROW Encroachment A;reement -Commercial Page 2 of 12
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made more costly by virCue of the construction, maintenance or e�stence of the
Tmprovements and use, Licensee shall pay to City an additional amount equal to such
additional cost as reasonably determined by the Director of Transportation and Public
Works or the Director of the Water Departrnent, or said Director's duly authorized
representative.
6.
Licensee agrees to pay to City at the time this Agreement is requested an
application fee of �325.00 in order to defray all costs of inspection and supeivision which
City has incurred or will incur as a result of the construction, maintenance, inspection or
management of the encroachments and uses provided for by this Agreement. Licensee
agrees to pay a fee in the amount of �.56 per square/linear foot of the encroaclunent area
upon execution of this Agreement and annually thereafter.
7.
The term of this Agreement shall be for 30 years commencing on the date this
Agreement is executed by City. However, this Agreement shall terminate upon
Licensee's non-compliance with any of the terms of this Agreement. City shall notify
Licensee in writing of the non-compliance, and if not cured �within 30 days, this
Agreement shall be deemed terminated unless such non-compliance is not susceptible to
cure within 30 days, in which case this Ab eement shall be deemed terminated in the
event that Licensee fails to commence and take such steps as are necessary to remedy the
non-compliance vvithin 30 days after written notice specifying the same, or having so
commenced, thereafter fails to proceed diligently and with continuity to remedy same.
8.
Upon termination of this Agreement, Licensee shall at no expense to City remove
the Tmprovements encroaching into the Public Right-of Way, and restore the Public
Right-of-Way to a condition acceptable to the Director of Transportation and Public
Works, or his or her duly auihorized representatave, in accordance with then-existing City
specifications. Tt is understood and agreed by Licensee that if this Agreement terminates
and Licensee fails to remove the Improvements and restore the Public Right-of-VJay,
Owner hereby gives City permission to remove the Improvements along with any
supporting structures, restore the Public Right-of-Way, and assess a lien on the Property
for the costs expended by the City in taking such actions.
9.
It is further understood and agreed between the parties hereto that the Ptrblic
Right-of-Way to be used and encroached upon as described herein, is held by City as
irustee for the public; that City exercises such powers over the public right-of way as
have been delegated to it by the Constitution of the State of Texas or by the Texas
Legislature; and that City cannot contract away its duty and its legislative power to
2015 ROW Encroachment Agreement -Commercial Page 3 of 12
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control the Public Right-of-Way for the use and benefit of the public. It is accoxdingly
agreed that if the governing body of City may at any time during the term hereof
determine in its sole discretion to use or cause or permit the Public Right-of-Way to be
used for any other public purpose, including but not limited to, underground, surface or
overhead communication, drainage, sanitary sewerage, transmission of natural gas or
electricity, or any other public purpose, whether presently contemplated or not, that this
Agreemenf shall terminate upon 60 days' written notice to Licensee. In the event this
Agreement is terminated under this Section 9, Licensee shall perform the obligations
regarding removing the Improvements and restoring the Public Right-of-Way described
in Section 8.
10.
Licensee agrees and acknowledges that this Agreement is solely for the purpose
of permitting Licensee to construct, maintain and locate the Improveinents over or within
the described Public Right-of Way and is not a conveyance of any right, title or interest
in or to ihe Public Right-of-Way nor is it meant to convey any right to use or occupy any
property in which a third party may have an interest. Licensee agrees that it will obtain
all necessary permissions before occupying such property.
11.
Licensee agrees to comply fully with all applicable federal, state and local laws,
statutes, ordinances, codes or regulations in connection with the construction, operation
and maintenance of the Improvements, encroachment and uses.
12.
Licensee agrees to pay promptly when due all fees, taxes or rentals provided for
by this Agreetnent or by any federal, state or local statute, law or regulation.
13.
Licensee covenants and agrees that it shall operate hereunder as an independent
contractor as to all rights and privileges granted hereunder and not as an of�cer, aDent,
servarzt or employee of City, and Licensee shall have exclusive conn•ol of and the
exclusive right to control the details of its operations, and all persons performing same,
and shall be solely responsible for the acts and omissions of its officers, agents, servants,
employees, contractors, subcontractors, licensees and invitees. The doctrine of
respondeat superior shall not apply as between City and Licensee, its officers, agents,
servants, employees, contractors and subcontractors, and nothing herein shall be
aonstrued as creating a partnership or joint enterprise between City and Licensee.
14.
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LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES
HEREBY INDENINIFY, HOLD �TARMLESS AND DEFEND CITY, ITS
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND ELECTED OFFICIALS
FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY
DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO
ANY AND ALL PERSONS, OF WAATSOEVER KIND OR CHARACTER,
A RISING OUT OF OR IN CONNECTION WITH, THE CONSTRUCTION,
MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF THE
IMPROVEMENTS AND ENCROACHMENT AND US�S GRANTED
H�REUNDER, 'VVHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY
ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS,
EMPL�'YEES, CONTRACTORS, SYJSCONTRACT0�2S, LICENSE�S,
ELECTED OFFICIALS, OR INVITEES OF THE CITY; AND LICENSE�
HEREBY ASSUN�S ALL LIABTLITY AND RESPONSIBILITY FOR SUCH
CLAIMS OR SUITS. LICENSEE SAALL LIKEWISE ASSUME ALL LIABILITY
AND RESPONSIBILTTY AND SHALL INDEMNIFY CITY FOR ANY AND ALL
INJURY OR DAMAGE TO CITY PROPERTY ARISING OUT OF OR IN
CONNECTIOI� 'WITH THE IMPROVEMENTS AND ANY AND ALL ACTS OR
OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, CONTRA.CTORS, SUBCONTRACTORS, LICENSEES,
INVITEES, OR TRESPASSERS.
15.
While this Agreement is in effect, Licensee agrees to fuinish City with a
Certificate of Insurance natning City as certificate holder, as proof that it has secured and
paid for a policy of public liabiliry insurance covering all public risks related to the
proposed use and occupancy of public property as described or depicted in Exlubit "A".
The amounts of such insurance shall be not less than
$1,000,000 Commercial General Liability
with the understanding and agreennent by Licensee that such insurance amounts may be
revised upward at City's option and that Licensee shall so revise such amounts promptly
following notice to Licensee of such requirement. Such insurance policy shall not be
canceled or amended without at least 30 days prior written noiice to the Building Official
of the City of Fort Worth. A copy of such Certificate of Insurance is attached as Eahibit
"B" and incorporated herein for all purposes. Licensee agrees to submit a similar
Certificate of Insurance annually to City on the anniversary date of the execution of this
Agreement.
Licensee agrees, binds and obligates itself, its successors and assigns, to maintain
and keep in force such public liability insurance at all tirnes during the term of this
Agreement and until the removal of all encroachments and the cleaning and restozation of
the Public Right-of-Way. All insurance coverage required herein shall include coverage
of all Licensees' contractors and subcontractors.
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16.
Licensee agrees to deposit with the City when this Agreement is executed a
sufficient sum of money to be used to pay the fees to record this Agreement in the Real
Property Records of Tarrant County, Texas. After being recorded, the original shall be
returned to the City Secretary of the City of Fort Worth.
17.
In any action brought by the City for the enforcement of the obligations of the
Licensee, City shall be entitled to recover interest and reasonable attomey's fees.
18.
Licensee covenants and agrees that it will not assign all or any of its rights,
privileges or duties under this Agreement without the prior written approval of the City,
andany atteznpted assignment without such written approval shall be void. In the event
Licensee conveys the Property, Licensee may assign all of its rights and obligations under
this Agreennent to the new owner of the Property, and Licensee shall be deemed released
froin its duties and obligations hereunder upon City's approval in writing of such
assignment, which approval shall not be unxeasonably conditioned or withheld.
Foreclosure by a secured lender of Licensee or assigrunent to a secured lender by
Licensee in the event of default or otherwise shall not require City approval provided that
said lender notifies City in writing within GO days of such foreclosure or assignment and
assumes all of Licensees' rights and obligations hereunder. However, no change of
ownership due to foreclosure or assignment to any secured lender of Licensee shall be
effective as to City unless and until written notice of such #'oreclosure or assignment zs
provided to City.
19.
THE PARTIES AGREE THAT THE DUTI�S AND OBLIGATIONS
CONTAINED IN PARAGRAPH 8 SI3ALL SURVIV� THE TERD�IINATION OF
THIS AGREEMENT.
20.
Any cause of action for breach of this Agreement shall be brought in Tarrant
County, Texas. This Agreernent shall be governed by the laws of the State of Texas.
21.
This Agreement shall be binding upon the parties hereto, their successors and
assigns.
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[SIGNATURES APPEAR ON FOLLOWING PAGE]
2015 ROW Encroachment A�reement -Commercial Page 7 of 12
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THIS AGREEMENT may be executed in multiple counterparts, each of which
shall be considered an original, but all of which shall constitute one instrument.
City: Licensee: Woodbranch Cowtown Developer, LLC
CITY OF FORT WORTH,
:
, RANDLE HARWOOD
DIRECTOR
PLANNING & DEVELOPMENT
Date: 20 f]
.`
ATTEST:
City S
3Vame: Phillip Schneidau
Title: �� ;.;s c�� 2.
�� o��� Approved As To Form and Legality
o� ���
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.� ?E��S Assistant City Attorney
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��'�'ICIAL R��O�
CI'!"1( �I�C�EiA�tY
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2b 15 ROW Encroachment A;reeinent -Commercial Page 8 of 12
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STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before
by Randall Harwood, Director of the Plannin
of Fort Worth, on behalf the City of Fort Wor�'
_2:�a4�, ��°',S"sr,iUut2H F. i:,�?R"elviAiV
'°� = NOtary Public:, State of Texas '
Pc My Comrriission Expires
��'';,,°;,;;:''�� April 25, '1017 '°
After Recording Return to:
Cassandra Foreman
Pla.iuiing and Developnnent Department
1000 Throckmorton Street
Fort Worth TX, 76102
��, 201
rtment o� the City
Notary Public, S�iate of Texas
(�FF��I�A1. RE�'�RD
CI'i'i� �����TARY
�1'. �V��t'�6�, TX
2015 ROVJ Encroachment Agreement -Commercial Pa�e 9 of 12
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STATE OF 1-'F � n-� §
COUNTY OF �Q � �Yz � §
BEFORE ME, the undersigned authoriry, a Notary Public in and for the State of
Texas, on this day personally appeared i=�„( n Jc N���Ei c�c -� ,
Ma;,��� ;,. _(title), known to me to be the person whose name is
subscribed to the foregoing instrument; and ackno��vledged to me that he/she executed the
same for the purposes and consideration therein expressed, as the act and deed of
L L �,
'v„�,-,t��,�,� C�,,.�-3,,,,, 1��zK �. �, a ���a.-..�. �< � � L , ar�d in the capacity therein
stated.
�
GIVEN LTNDER MY HAND AND SEAL OF OFFICE this � day of
� � , 20�.
Notary Public in a for the
.�, ��� CHRISTY L. COBB State of
�1�4'; MY COMMISSION EXPIRES
•,,,,f � �,," July 17, 2017
�F6'ICIAL RECQ��
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6��". I�l�ll�'I�W; '�X
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LEGAL DESCRIPTION OF THE PROPERTY
2015 ROW Encroachment Agreement -Commercia] Page 11 of 12
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EXHISIT "A"
Location and Description of Encroachment and Improvements
2015 ROW Encroaclunent Agreement -Commercial Page 12 of 12
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XTO GARAGE
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ATTACHMENT A
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GRAPHIC SCALE:1"= 40 Feef
PRo�E�r: ENCROACHMENT EXHIBIT
��� BAIRD, HAMPTON 8t BROWN, INC. XTO Parking Garage
� ENGINEERING &SURVEYING Houston Street, Fort Worth, TX 76102 SCALE: 1�=na�-o' SHEET
G300 Rldglea Placa, SIe 700 Forl Worth, TX 76116 Tel: 017-338-7277 Fax: 817-338-9245 DATE: 11/B/16 EX C-1
TBPE Firm 000044 E-Mail: mail@bhbinc.com Wab Silo: vr�rn.bhbinc.com TBPLS FIRM 10011300 Dft4WN BY: AB
BHB PROJECT No: 2016.900.000 CHECKED BY: AB
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��� � ' e DATE(MM/OD/YYYY)
' � � �' ILI �' �.J 3/24/2016
THIS CERTIFICATE IS ISSUED AS A MAT�ER OF INFORMATION ONLY AND CONFERS NO RIGNTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFIGATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER 7NE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEHN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, ANp THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate hoider Is an ADDITIONAL INSURED, tha pollcy((es) must be endorsed. If SUBROGATION 15 WAIVED, subject to
the terms and conditlons of the policy, cartain pol(cfes may requfre an endorsement. A statement on this certlficate does not confer rlghts to the
certiflcate holde� In Ifeu of such endorsement(s).
PRODUCER NANEACT Pete C3PTUCC].LI
Foa & Son Corporation PHONE ,(516) 228-1239 FAx .(516)22H-1235
68 South Service Road 'Ma�� Pete Carrucciu@FoaSon.aom
AooRess: ___ •
Melville
INSUR6D
Pan Am Equi.ties, Inc
18 East 50th Street
lOth Floor
New York
NY 11747-2357
NY 10022
1
COVERAGES CERTIFICA7E NUMBER:Cr,1563033275 REVISION NUMBER:
7HIS IS 70 CERTIFY TNAT THE PaLICIES OF INSURANCE LIS7ED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED A80VE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CON7RACT OR OTHER OOCUMENT WI7H RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANC£ AFFORDE� BY THE POLICIES OE5CRIBED HEREIN IS SUBJECT TO ALl THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR 7ypg OF INSURANCE A B POIICY NUMBHR MMIDDY EFF Mh�11�OD/Y11'Y LIMITS
LTft
GENERAL L�ABILITY � F1+CH OCCURRENCE S 1� ODO � O00
X COMMERCIAL GENER4L LIA6ILIN REI Ea xwrren e 5 1, 000 � 000
A CLAIMS•MADE � OCCUR 993-88-99 6/28/2015 6/26/2017 MED EXP (My one person) S 5, 000
PERSONAI SADV INJURY 5 1� 000 � 000
X Terroriam Included GENERALAGGREGATE S 2,000�000
GEN'L AGGREGATE UMIT APPUES PER: PRQDUCTS - COMP/OP AGG S 1, 000 � 000
POLICY PRp X LOC 5
AUTOMOBILE LIA8ILITY GO eBI�N�EDtSINGLE LI I $
ANY AUTO BODILY INJURY (Per person) S
ALL OWh1ED SCHEDULED BODILY INJURY (Per accidenq S
AUTOS AUTOS
HIRED AUTOS AUTOS�ED PROPERTY DAMAGE s
Per accident
S
X U�dBRELLA UAB X OCCUR 993-99-00 6/28/2015 6/28/2016 EpCH OCCURRENCH g 10 , 000 � 000
A EXCESS LIAB CLAIMS-MADE AGGREGATE 5 10 , 000 , 000
DED X RETENTIONS 10,00 erroriem Included S
WORKERS COMPENSATION WC STATU- OTH• -
AND EMPLOYERS' LIA6ILITY
ANY PROPRIETORIPARTNER/EXECUTIVE Y� N � A E L... EACH ACCIDENT S
OFFICER/MEMBEft EXCLUDED7
(Mandatory In NH} E L, DISEASE - EA EMPLOYE 5
Ifyes, desuibe under
DESCRIPTION OF OPER.4TION5 below E L DISEASE - POLICY LIMIT S
DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach pCOR� 101, Additional Remarks Schedule, it more spece Is requlred)
Re: Named Insured: Woodbranch Cowtown Parkinq, LLC
Certificate holder is included as Additional Insured as respeets to the above named insured.
CERTIFtCA7E HOLDER CAPICELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILI. BE DELtVEREO IN
ACCORDANCE WITH THE POLICY PROVISIONS.
The City oP Fort Worth
Department of Development
Attn : David 5ehroeder, P13riri@T AUTHORIZE� REPRESENTATIVE
1000 Throckmorton Street
Fort Worth, TX 76102 -
Justa.n Foa/DEM �ntc�osur� EGp70A
ACORD 25 (2010105) O 1988-201 U ACORD CORPORATION. All rights reserved.
INS02S mm�nF�m Thc ACl1Rf1 nama anrl Innn aro rnnictarorl mar4c nf ACCIRII
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
a . �,�.`.� -� 7' -J � ��,�,�
ame of Employee
1--` ti �1-,� �
T�tle �
,31 � ll"�