HomeMy WebLinkAboutContract 33463 ' CITY SECRETARY
CONTRACT NO .
ROAD REPAIR AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
FOUR SEVENS OPERATING CO., LTD.
This Road Repair Agreement, (Agreement), is made and entered into on this the 22' day
of March_ _, 200A by and between the City of Fort Worth, Texas ("City"), a home rule
municipal corporation of the State of Texas, located within Tarrant, Denton, Wise Counties, Texas
(Hereinafter referred to as the "City") and FOUR SEVENS OPERATING CO., LTD. ("Operator")
for the repair of certain streets and/or roadways within the City of Fort Worth,Texas as more fully
described herein.
WHEREAS, Operator is in the business of drilling gas wells and, in connection therewith,
shall be engaged in drilling and production activities on property known generally as
820/30 Interchange, LP , which abuts, is adjacent to, and/or is
accessed by roadways within the City of Fort Worth; and
WHEREAS, use of the roadways by the Operator for the purpose of performing the
activities described hereinabove may cause damage to the roadways; and
WHEREAS, the City and Operator, for the mutual consideration hereinafter stated, desire to
enter into this Agreement for Operator to repair said roadways for the duration of the term of this
Agreement in consideration of Operator's use of said roadways for the purpose of the activities
described hereinabove;
IT IS NOW THEREFORE AGREED THAT;
ARTICLE 1.
REPAIR OBLIGATION
I. Operator shall repair damages caused by Operator or its contractors, subcontractors,
employees, and agents, excluding ordinary wear and tear, if any, to roadways that abut the above-
described property being used by Operator for the drilling and production of gas wells pursuant to a
Gas Well Permit issued to Operator. The repair obligation shall continue even if the Gas Well
Permit is amended to allow for the drilling of additional gas wells. This obligation shall continue
during the term of this Agreement, and Operator shall, prior to the termination of this Agreement,
as provided herein, repair such damages to such roadways, excluding ordinary wear and tear, if
any, to the condition in which such roadways existed prior to the execution of this Agreement.
Operator shall make a videotape of such roadways prior to the start of Operator drilling and
operation of its gas wells and shall provide a copy of the videotape to the Director of
Transportation and Public Works. Operator shall notify the Director of Transportation and Public
Works when drilling or fracing operations are complete so that the Director of Transportation and
Public Works can determine if repairs are required.
2. In connection with its obligation to repair said roadways, Operator shall use
materials of the same or better quality than those utilized to surface and/or rep '- tile roadways
Exhibit " "
Four Sevens Operating Co., Ltd.
Sienna Hills #1
prior to execution of this Agreement and in accordance with the current standards specifications of
the City. Deviation from the materials described herein shall not be permitted without the prior
written consent of the Director of Transportation and Public Works. Repairs shall be completed in
accordance with standard engineering practices acceptable to the City.
3. Operator shall repair the damage to the roadways at its sole cost and expense.
4. During the term of this Agreement, Operator shall periodically inspect the roadways
during drilling, fracture stimulation or reworking of the gas well to determine whether or not any
damage has occurred as a result of Operator's activities. Immediately upon discovering the
existence of any such damage to the roadways, Operator shall undertake to repair and/or remedy
same. Upon discovery of damage by the Operator, the Operator will have 48 hours to contact the
Director of Transportation and Public Works to work out a schedule of repairs. Repairs shall take
place within 30 days or immediately if the damage affects the immediate health and safety of
individuals.
ARTICLE 2.
TERM OF AGREEMENT
This Agreement shall commence upon the date indicated above and shall continue in full
force and effect until Operator has completed and/or permanently discontinued the activities upon
the roadways, as described hereinabove.
ARTICLE 3.
INSURANCE AND INDEMNITY
The Operator shall provide or cause to be provided the insurance described below for
each well unless a Gas Well Permit has been issued wherein such insurance has been provided for
the issuance of the Gas Well Permit under the terms and conditions described in the,Fort Worth
"Gas Drilling and Production" Ordinance and such insurance to continue until the well is
abandoned and the site restored.
In addition to the bond or letter of credit required pursuant to this Agreement and the Fort
Worth "Gas Drilling and Production" ordinance, the Operator shall carry a policy or policies of
insurance issued by an insurance company or companies authorized to do business in Texas. In the
event such insurance policy or policies are cancelled, the Gas Well Permit shall be suspended on
such date of cancellation and the Operator's right to operate under such Gas Well Permit shall
immediately cease until the Operator files additional insurance as provided herein.
1. General Requirements applicable to all policies.
a. The City, its officials, employees, agents and officers shall be endorsed as an
"Additional Insured" to all policies except Employers Liability coverage under the
Operator's Workers Compensation policy.
b. All policies shall be written on an occurrence basis except for Environmental
Pollution Liability (Seepage and .Pollution coverage) and Excess or Umbrella
Liability, which may be on a claims-made basis.
C. All policies shall be written by an imiurer with an A-:VIII or better rating by the most
current version of the A. M. Best Key Rating Guide or with such other financially
sound insurance carriers acceptable to the City.
d. Deductibles shall be listed on the Certificate of Insurance and shall be on a "per
occurrence"basis unless otherwise stipulated herein.
e. Certificates of Insurance shall be delivered to the City of Fort Worth, Development
Department, 1000 Throckmorton Street, Fort worth, Texas 76102, evidencing all the
required coverages, including endorsements, prior to the issuance of a Gas Well
Permit.
f. All policies shall be endorsed with a waiver of subrogation providing rights of
recovery in favor of the City.
g. Any failure on part of the City to request required insurance documentation shall not
constitute a waiver of the insurance requirement specified herein.
h. Each policy shall be endorsed to provide the City a minimum thirty-day notice of
cancellation, non-renewal, and/or material change in policy terms or coverage. A ten
days notice shall be acceptable in the event of non-payment of premium.
i. During the term of the Gas Well Pennit,the Operator shall report, in a timely manner,
to the Gas Inspector any known loss occurrence which could give rise to a liability
claim or lawsuit or which could result in a property loss.
j. Upon request,certified copies of all insurance policies shall be furnished to the City.
2. Standard Commercial General Liability Policy.
This coverage must include premises, operations, blowout or explosion, products,
completed operations, sudden and accidental pollution, blanket contractual liability,
underground resources damage, broad form property damage, independent contractors
protective liability and personal injury. This coverage shall be a minimum Combined Single
Limit of$1,000,000 per occurrence for Bodily Injury and Property Damage.
3. Excess or Umbrella Liability
$ 5,000,000 Excess, if the Operator has a stand-alone Environmental Pollution
Liability (EPL)policy.
$10,000,000 Excess, if the Operator does not have a stand-alone EPL policy.
Coverage must include an endorsement for sudden or accidental
pollution. If Seepage and Pollution coverage is written on a "claims
made" basis, the Operator must maintain continuous coverage and
purchase Extended Coverage Period Insurance when necessary.
4. Workers Compensation and Employers Liability Insurance
a. Workers Compensation benefits shall be Texas Statutory Limits.
b. Employers Liability shall be a minimum of$500,000 per accident.
C. Such coverage shall include a waiver of subrogation in favor of the City and provide
coverage in accordance with applicable State and Federal laws.
5. Automobile Liability Insurance
a. Combined Single Limit of$1,000,000 per occurrence for Bodily Injury and Property
Damage.
b. Coverage must include all owned, hired and not-owned automobiles.
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6. Certificates of Insurance
a. The company must be admitted or approved to do business in the State of Texas,
unless the coverage is written by a Surplus Lines insurer.
b. The insurance set forth by the insurance company must be underwritten on forms
that have been approved by the Texas State Board of Insurance or ISO, or an
equivalent policy form acceptable to the City.
C. Sets forth all endorsements and insurance coverage according to requirements and
instructions contained herein.
d. Shall specifically set forth the notice of cancellation, termination, or change in
coverage provisions to the City. All policies shall be endorsed to read "THIS
POLICY WILL NOT BE CANCELLED OR NON-RENEWED WITHOUT 30
DAYS ADVANCED WRITTEN NOTICE TO THE OWNER AND THE CITY
EXCEPT WHEN THIS POLICY IS BEING CANCELLED FOR NONPAYMENT
OF PREMIUM, IN WHICH CASE 10 DAYS ADVANCE WRITTEN NOTICE IS
REQUIRED".
e. Original endorsements affecting coverage required by this section shall be furnished
with the certificates of insurance.
7. The cancellation of any insurance for the sole purpose of the repair of roadways will not
release the obligation of the Operator to meet all requirements of insurance and bonding
under the Fort Worth"Gas Drilling and Production' Ordinance.
8. Operator shall and hereby does indemnify, defend and save harmless the City, its officers,
agents and employees from all suits, actions or claims of any character, name and
description brought for or on account of any injuries or damages received as sustained by
any person, persons or property on account of the operations of the Operator, its agents,
employees, contractors or subcontractors; or on account of any negligent act of fault of the
Operator, its agents, employees, contractors or subcontractors in connection with the
obligations under this Road Repair Agreement; and shall pay any judgment, with costs,
which may be obtained against the City growing out of such injury or damage.
ARTICLE 4.
PERFORMANCE BONDS
1. Operator shall provide a performance bond, unless a performance bond has been
,provided for the issuance of a Gas Well Permit under the terms and conditions described in Fort
Worth "Gas Drilling and Production" ordinance, in an amount not less than the amount necessary
to repair the roadways, as determined by the City Director of Transportation and Public Works.
2. Prior to the beginning of any activity pursuant to the issuance of a Gas Well Permit,
unless a performance bond has been provided for the issuance of a Gas Well Permit under the
terms and conditions described in the Fort Worth "Gas Drilling and Production' Ordinance,
Operator shall provide the Gas Inspector with a security instrument in the farm of a bond or an
irrevocable letter of credit as follows:
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a. Bond. A bond shall be executed by a reliable bonding or insurance institution
authorized to do business in Texas, accepUtble to the City. The bond shall become effective
on or before the date the Gas Well Permit is issued and shall remain in force and effect for
at least a period of six (6) months after this expiration of the Gas Well Permit term or until
the well is plugged and abandoned and the site is restored, whichever occurs first. The
Operator shall be listed as principal and the instrument shall run to the City, as obligee, and
shall be conditioned that the Operator will comply with the terms and regulations of this
Ordinance and the City. The original bond shall be submitted to the Director of
Transportation and Public Works with a copy of the same provided to the City Secretary
and the Gas Inspector.
b. Letter of Credit. A letter of credit shall be issued by a reliable bank authorized to do
business in Texas and shall become effective on or before the date the Gas Well Permit is
issued. The letter of credit shall remain in force and effect for at least a period of six (6)
months after the expiration of the Gas Well Permit term. The City shall be authorized to
draw upon such letter of credit to recover any fines or penalties assessed under this
ordinance. Evidence of the execution of a letter of credit shall be submitted to the Director
of Transportation and Public Works submitting an original signed letter of credit from the
banking institution, with a copy of the same provided to the City Secretary and the.Gas
Inspector. If the Letter of Credit is for a time period less than the life of the well as required
by Ordinance Number 14880, OPERATOR agrees to either renew the Letter of Credit or
replace the Letter of Credit with a bond in the amount required by the City of Fort Worth
Ordinance Number 14880, on or before 45 days prior to the expiration date of the Letter of
Credit. if OPERATOR fails to deliver to the City of Fort Worth either the renewal Letter
of Credit or replacement bond in the appropriate amount on or before 45 days prior to the
expiration date of the Letter of Credit, the City of Fort Worth may draw the entire face
amount of the attached Letter of Credit to be held by the City of Fort Worth as security for
OPERATOR 's performance of its obligations under Ordinance Number 14880.
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C. Whenever the Gas Inspector or the Director of Transportation and Public Works
Department finds that a default has occurred in the performance of any requirement or
condition imposed by this Agreement, a written notice shall be given to Operator. Such
notice shall specify the work to be done, the estimated cost and the period of time deemed
by the Gas Inspector or the Director of Transportation and Public works Department to be
reasonably necessary for the completion of such work. After receipt of such notice, the
Operator shall, within the time therein specified, either cause or require the work to be
performed, or failing to do so, shall pay over to the City one hundred twenty-five percent
(125%) of the estimated cost of doing the work as set forth in the notice.
d. The City shall be authorized to draw against any irrevocable letter of credit or bond
to recover such amount due from Operator. Upon receipt of such monies, the City shall
proceed by such mode as deemed convenient to cause the required work to be performed
and completed, but no liability shall be incurred other than for the expenditure of said sum
in hand..
e. In the event Operator does not cause the work to be performed and fails or refuses to
pay over to the City the estimated cost of the work to be done as set forth in the notice, or
Page 5
the issuer of the security instrument refuses to honor any draft by the City against the
applicable irrevocable letter of credit or bond the City may proceed to obtain compliance
and abate the default by way of civil action against Operator, or by criminal action against
the Operator, or by both such methods.
f. The cancellation of any bond or letter of credit for the sole purpose of the repair of
roadways will not release the obligation of the Operator to meet all requirements of
insurance and bonding under the Fort Worth"Gas Drilling and Production" Ordinance. Any
bond required by the Fort Worth"Gas Drilling and Production" Ordinance shall stay in full
force and effect until the terms and conditions set out in the Ordinance are met.
3. If the cost of the completing the repair is an amount of $15,000 or less, as
determined by the Director of Transportation and Public Works, cash in the amount necessary to
complete the repairs, as determined by the Director of Transportation and Public Works, may be
deposited with a bank or escrow agent pursuant to an escrow agreement acceptable and approved
by the City ensuring completion of the repair.
ARTICLE 5
MISCELLANEOUS PROVISIONS
1. Operator understands and agrees that Operator, its employees, servants, agents, and
representatives shall at no time represent themselves to be employees, servants, agents, and/or
representatives of the City. The City shall not have any control over the means or methods by
which Operator shall perform its obligations hereunder. Operator shall furnish all equipment and
materials necessary to perform hereunder and shall at all times be acting as an independent
Operator.
2. By entering into this Agreement, the City does not waive, nor shall it be deemed to
waive, any immunity or defense that would otherwise be available to it against claims arising by
third parties.
3. This Agreement represents the entire agreement between Operator and City for
repair of roadways and supersedes all prior negotiations,representations, and/or agreements, either
written or oral. This Agreement may be amended only by written instrument signed by the
governing body of the City or those authorized to sign on behalf of the City's governing body.
ARTICLE 6.
FORCE MAJEURE
Events of Force Majeure shall mean any contingency or cause beyond the reasonable
control of a party including, without limitation, acts of God or the public enemy, war, riot, civil
commotion, insurrection, government or de facto government action (unless caused by acts or
omissions of the party), fires, explosions, rain or other weather delays, floods, strikes, slowdowns
or work stoppages.
Page 6
ARTICLE 7.
ASSIGNABILITY/CONSENT
Except as otherwise provided herein, or except as may be hereafter determined by the
parties, no party to this Agreement may sell, assign, or transfer its interest in this Agreement,or any
of its right, duties, or obligations hereunder, without the prior written consent of the other party.
Whenever the consent or the approval of a party is required herein, such party shall not
unreasonably withhold, delay, or deny such consent or approval. Operator may assign this
Agreement to any successor entity to whom the applicable Gas Well Permit has been assigned upon
written notice to the City of said assignment.
ARTICLE 8.
NOTICE
Any notice given by one party to the other in connection with this Agreement shall be in
writing and shall be by personal delivery; sent by registered mail or certified mail; or by United
States Mail,return receipt requested,postage prepaid;to:
CITY: Office of the City Manager
City of Fort Worth,Texas
1000 Throckmorton Street
Fort Worth,Texas 76102
OPERATOR FOUR SEVE_FS OPERATING CO., LTD.
777 TAYLOR STREET, STE 1090
FORT VGRTu- TY 7.6in?
Notice shall be deemed to have been received on the date of receipt as shown on the return receipt
or other written evidence of receipt.
ARTICLE 9.
MODIFICATION
No waiver or modification of this Agreement or of any covenant, condition, limitation
herein contained shall be valid unless in writing and duly executed by the party to be charged
therewith. No evidence of any waiver or modification shall be offered or received in evidence in
any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights
or obligations of the parties hereunder, unless such waiver or modification is in writing, duly
executed. The parties further agree that the provi:iions of this Article will not be waived unless as
herein set forth.
ARTICLE 10.
SAVINGS/SEVERABILITY
In the event that any one or more of the provisions hereof contained in this Agreement shall
for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not effect the other provisions, and the Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been contained in this
Agreement.
ARTICLE 11.
GOVERNING LAW AND VENUE
This Agreement shall be construed under and governed by, and in accordance with the laws of the
State of Texas, and venue for any action arising under the terms and conditions of this Agreement
shall lie in the state courts located in Tarrant County,Texas or the United States District Court for
the Northern District of Texas, Fort Worth Division.
ARTICLE 12.
ENTIRE AGREEMENT
This Agreement and the exhibits attached hereto, constitute the entire agreement among the
parties hereto with respect to the subject matter hereof, and supersede any prior understandings or
written or oral agreements between the parties with respect to the subject matter of this Agreement.
No amendment, modification, cancellation or alteration of the terms of this Agreement shall be
binding on any party hereto unless the same is in writing, dated subsequent to the date hereof, and
is duly authorized and executed by the parties hereto.
ARTICLE 13.
WAIVER OF TERMS AND CONDITIONS
The failure of either party to enforce or insist upon compliance with any of the terms or
conditions of this Agreement shall not constitute a general waiver or relinquishment of any such
terms,or conditions,but the same shall be and remain at all times in full force and effect.
ARTICLE 14.
CAPTIONS
The captions contained in this Agreement are for informational purposes only and shall not
in any way affect the substantive terms or condition- of this Agreement.
ARTICLE 15.
COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, and constitute one and the same instrument.
Page 8
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IN WITNESS =F, the ieg do hereby affix their signatures and enter into this
Agreement as of the of .20
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ATTEST: CITY OF FORT WORTH
B
y: i
City SecretaryO Assistant City M26ager
I NO M&C REQUIRED
f Director of D elopment
APPROVED AS TO FORM FOUR SEVENS OPERATING CO., LTD
AND L LITY:
By: BY
Assistant City ttomey Operator
HLINTEB ENIS — PARTNER
STATE OF TEXAS §
COUNTY OF TARRANT §
Before me,the undersigned notary public,on this day personally appeared Dale,Fisseler,the
Assistant City Manager of the City of Fort Worth, Texas, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the
instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office this a 7 day of 20. ` .
JONI R JACOBS
�*.���*� NQTARY PUBLIC
State of Texas Notary Pub iC
Comm. Exp. 05-27-2007
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STATE OF Texas §
COUNTYOF Tarrant §
Before me, the undersigned authority, a Notary Public in and for the State of Texas, on this
day personally appeared Hunter Euis ,known to me to be the person
whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was
the act of Four Sevens Operating Co., Ltd(the corporation) and that he executed the same
as the act of said Four Sevens Operating Co., Ltd. (corporation) for the purposes and
consideration therein expressed and in the capacity therein stated.
Given under my hand and seal of office this 21 ay of Ph 44j, ,20_&.
'Rotary Public
TED E. FAY
Notary Public,state of Texas
€ MY Commission Expires
July 22,2007
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Compass Bank
Houston, Texas 77213-4444
www.compassbark c.,-
713 499-8645-Fax 7'3 99-8659
Toil Free 888 627-8860-'ax 888 6_,--9861
International Trade Services
IRREVOCABLE STANDBY LETTER OF CREDIT NO.A27768T
PLACE AND DATE OF ISSUE: DATE AND PLACE OF EXPIRY:
HOUSTON,TEXAS.APRIL 20,2006 APRIL 20,2007 HOUSTON,TEXAS
OR ANY EXTENDED DATE
APPLICANT: ADVISING BANK:
FOUR SEVENS OPERATING CO.,LTD. NOT APPLICABLE
777 TAYLOR STREET,SUITE 1090
FORT WORTH,TEXAS 76102
BENEFICIARY: AMOUNT: USD50,000.00
CITY OF FORT WORTH (FIFTY THOUSAND AND NO/100 U.S.DOLLARS)
1000 THROCKMORTON
FORT WORTH,TEXAS 76102
GENTLEMEN,
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT IN YOUR FAVOR AVAILABLE BY BENEFICIARY'S
SIGHT DRAFT(S)DRAWN ON COMPASS BANK ACCOMPANIED BY THE FOLLOWING DOCUMENT(S):
• ORIGINAL OF BENEFICIARY'S STATEMENTON COMPANY LETTERHEAD,SIGNED BY AN AUTHORIZED REPRESENTATIVE OF
THE CITY OF FORT WORTS{STATING THAT:
QUOTE
FOUR SEVENS OPERATING CO-,LTD.("FOUR SEVENS")HAS FAILED TO HONOR THEIR CONTRACTUAL AGREEMENT WITH
THE CITY OF FORT WORTH,TEXAS WITH REGARD TO THE SIENNA HILLS#I WELL AS REQUIRED BY ORDINANCE NUMBER
14880 OR THE CITY OF FORT WORTH ROAD MAINTENANCE AGREEMENT TO WHICH FOUR SEVENS IS A PARTY.
UNQUOTE
SPECIAL CONDITIONS:
PARTIAL AND MULTIPLE DRAWINGS ARE PERMITTED.
DRAFT(S)MUST BE MARKED:"DRAWN UNDER COMPASS BANK LETTER OF CREDIT NO. A27768T."
THIS LETTER OF CREDIT EXPIRES ON APRIL 20, 2007, BUT WILL AUTOMATICALLY EXTEND, WITHOUT AMENDMENT, FOR
ADDITIONAL ONE YEAR PERIODS FROM THE EXPIRATION DATE,OR ANY FUTURE EXPIRATION DATE UNLESS AT LEAST SIXTY
(60)DAYS PRIOR TO SUCH EXPIRATION DATE WE NOTIFY YOU BY OVERNIGHT COURIER AT THE ABOVE ADDRESS,THAT THIS
LETTER OF CREDIT WILL NOT BE EXTENDED. UPON RECEIPT BY YOU OF SUCH NOTICE,YOU MAY DRAW ON US HEREUNDER
BY MEANS OF YOUR SIGHT DRAFT FOR AN AMOUNT OUTSTANDING AT THE TIME OF DRAWING, ACCOMPANIED BY YOUR
WRITTEN STATEMENT SIGNED BY ONE OF YOUR AUTHORIZED REPRESENTATIVES STATING:"WE ARE IN RECEIPT OF WRITTEN
NOTICE FROM YOU OF YOUR ELECTION NOT TO EXTEND YOUR LETTER OF CREDIT NO.A27768T,AND WE HAVE NOT RECEIVED
AN ACCEPTABLE REPLACEMENT LETTER OF CREDIT AS OF THE DATE OF OUR DRAWING."
WE HEREBY ENGAGE WITH YOU THAT ALL DRAFT(S) DRAWN UNDER AND IN COMPLIANCE WITH ALL THE TERMS AND
CONDITIONS OF THIS CREDIT WILL BE DULY HONORED IF DRAWN AND PRESENTED,BY TRACEABLE COURIER OR IN PERSON,
FOR PAYMENT BETWEEN THE HOURS OF 8:00 A.M. AND 4:00 P.M. MONDAY THROUGH FRIDAY ON A DAY WHEN THE
INTERNATIONAL TRADE SERVICES IS OPEN FOR BUSINESS AT24 GREEN-WAY PLAZA,INTERNATIONAL TRADE SERVICES,SUITE
1601,-HOUSTON,TEXAS 77046 ON OR BEFORE THE EXPIRATION DATE OF THIS LETTER OF CREDIT.
THIS CREDIT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS TO THE EXTENTNOT GOVERNED BY THE UNIFORM
CUSTOMSAND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE
P1,IBL CATION NO.500,AND TO THE EXTENT SUCH LAWS ARE NOT INCONSISTENT WITH THE TERMS OF THIS CR-EDIT-
AUTHORIZED AUTHORIZED SIGNATURE -rD