HomeMy WebLinkAboutContract 33689 CITY SECRETARY
CONTRACT NO.
l
ROAD REPAIR AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
This Road Repair Agreement, (Agreement), is made and entered into on this the Z-day
ofj u M 2tl!�-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") andR.e-.5o u�(.-.e S. = t ("Operator")
for the repair of certain streets and/or roadways withinNhe 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
CtLair lktik+ 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
1. 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, Opera r'$hall use
materials of the same or better quality than those utilized to surface and/or repair i Ileohdways
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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 fall
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 o� ella -
Liability,which may be on a claims-made basis.
N S
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C. All policies shall be written by an insurer 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. A11 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 Permit,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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b. 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 NONPAYIu=
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 perfonnance 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 form 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, acceptable 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 the 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 's fora time period less than the life of the well as required
by Ordinance Number 14880, »le agrees to either renew the Letter of Credit or
•�. replace the Letter of Credit with a ba in the amount required by the City of Fort Worth
Ordinance Number 14850, on or before 45 days prior to the expiration date of the Letter of
Credit. If t% Wes fails to deliver to the City.of Fort Worth either the renewal Letter
of Credit or replae&ent 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
Dunt of the attached Letter of Credit to be held by the City of Fort Worth as security for
h 's performance of its obligations under Ordinance Number 14880.
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 unposed 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
.mok 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
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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 parry), fires, explosions, rain or other weather delays, floods, strikes, slowdowns
.m. or work stoppages.
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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 parry.
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,postageprepaid; to:
CITY: Office of the City Manager
City of Fort Worth, Texas
1000 Throckmorton Street
Fort Worth, Texas 76102
OPERATOR �(Lt Sotitw.c,�es,�a t
$ L $4u►%4Zoo
Uaj -21.
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 provisions 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 sh U1 be
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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 theUnited 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 parry 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 conditions 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 sante instrument.
Page 8
IN WITNESSREOF, the rties do hereby affix their signatures and enter into this
Agreement as of the day of T, 20
ATTEST: CITY OFF RT WORTH
By: , Z,
City Secretary Ass stant City` ger
ENLM!C' R1?a�i�lItl:Jl�
Director of D velopment
APPROVED AS TO FORM
AND LEGALITY:
By
)11
sistant Ci Attorney Opator
�7
STATE OF TEXAS §
COUNTY OF TARRANT §
Before me, the undersigned notary public, on this day personally appeared Dale Fisseler, the
Assistanf 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.
"v P` Y ' o fficethis= dayofC , 20�
h+ t
OTAFIit y STATE OF TEXAS
My f omm.Exp.12-14-2009 ,
Notary Public
w a ji"J :l ar ` )
Page 9
STATE OF ' jo-5 §
COUNTYOF lb CCODA §
Before me, the undersigned authority, a Notary Public in and for the State of Texas, on this
day personally appeared L. A-,& ►c2 ,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 F; 6Uf-Ce C. (the corporation) and that he executed the same
as the act of said ce5 (corporation) for the purposes and
consideration therein expressed and in the capacity therein stated.
Given under my hand and seal of office this;,54� day of , 20 0(.
a� V'•' � 'CRYSTAI WATKINS &/2&
NOTARY PUBLIC Notary Public
CO State of Texas
''fi of Comm. Exp. 04-04-2009
Page 10
BANK OF SCOTLAND 565 FIFTH AVENUE
NORTH AMERICA NEW YORK, NEW YORK 10017
Direct Line:212-450-0877
Fax: (212)479-2806
Swift:BOFSUS33
Email:KarenWeich@bankofscotlandusa.com
May 25, 2006
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
IRREVOCABLE STANDBY
LETTER OF CREDIT
Letter of Credit No. Issue Date Stated Expiration Date Stated Amount
SLC 06/11 May 25, 2006 May 25, 2007 $50,000.00
General. At the request of and for the account of our customer James D. Finley(the "Applicant"),on
behalf of Finley Resources,Inc., we hereby establish this Irrevocable Standby Letter of Credit
(hereinafter referred to as"this Letter of Credit") in your favor. This Letter of Credit is effective
immediately, and, unless it expires earlier as hereinafter provided, will expire at 5PM, prevailing Eastern
Time Zone time, on May 25, 2007 but will automatically extend, without amendment, for an additional
one year period from the expiration date unless at least 60 days prior to such expiration date we notify
you at the address above 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. SLC 06/11 and we have not received an acceptable replacement letter of credit as of the date of our
drawing." Upon expiration, this Letter of Credit must be surrendered to us either in person or by mailing
the letter of credit to our office located at 565 Fifth Avenue,New York,NY 10017,or any other office in
the United States of America which may be designated by us on at least five Business Days' prior written
notice to you (the"Issuer's Office").
Stated Amount. We hereby irrevocably authorize you to draw on us in accordance with the terms and
conditions hereinafter set forth,by sight drafts, an amount not exceeding in the aggregate Fifty Thousand
Dollars ($50,000.00)(the"Stated Amount").
Demands for Payment. Subject to the foregoing and the further provisions of this Letter of Credit, a
demand for payment may be made by you by presentation to us, at the Issuer's Office, of:
(a) your sight draft, appropriately completed, in the form of Annex A and signed by an
Authorized Signatory of Beneficiary, and
(b) a Certificate For Drawing, appropriately completed, in the form of Annex B and signed
by an Authorized Signatory of Beneficiary.
Part of HBOS plc
A separate sight draft shall be presented pursuant to this Letter of Credit for each drawing. In lieu of
delivery to us of any sight draft drawn under this Letter of Credit, together with the certificate described
above and required to be presented with the sight draft, you may present to us, by means of facsimile
transmission, such draft and certificate;provided that if a drawing is made by facsimile, it must contain
an additional certification by you manually signed by an Authorized Signatory that originals of the sight
draft and certificate for drawing are being sent to us concurrently by same day or next business morning
delivery service. Any such faxed draft and certificate shall be directed to us at facsimile number(212)
479-2807, Attn: Loans Admin. (or at such other facsimile number as we shall have advised you in
writing).
Partial drawing and partial shipments are permitted under this Letter of Credit.
Invoice(s)totaling in excess of the Stated Amount of this Letter of Credit is (are) acceptable. However,
payment is not to exceed in the aggregate the Stated Amount of this Letter of Credit.
All bank charges including but not limited to fees or commissions shall be for the Applicant's Account.
Payment. If we receive your sight draft and certificate for drawing according to the terms and conditions
of this letter of credit, at or prior to 12:00 noon on a business day, we will honor the same in accordance
with your payment instructions by 12:00 noon on the following business day. If we receive your sight
draft and certificate for drawing according to the terms and conditions of this letter of credit, after 12:00
noon on a business day, we will honor the same in accordance with your payment instructions by 12:00
noon two business days following the business day we receive your sight draft and certificate for drawing.
Entire Agreement. This Letter of Credit sets forth in full the terms of our undertaking, and this
undertaking shall not in any way be modified, amended, amplified or limited by reference to any
document, instrument or agreement referred to herein or in which this Letter of Credit is referred to or to
which this Letter of Credit relates, except for the exhibits attached hereto and any amendment to which
you consent.
Transfer. This Letter of Credit is not transferable. Only you may make a drawing under this Letter of
Credit.
Governing Law. This Letter of Credit shall be subject to the provisions (to the extent that such
provisions are consistent with this Letter of Credit) of ISP98. This Letter of Credit shall be deemed to be
issued under the laws of the State of New York and shall be governed and construed in accordance with
the laws of the State of New York with respect to matters not governed by ISP98 and matters on which
ISP98 and the laws of the State of New York are inconsistent.
Communications. Communications with respect to this Letter of Credit shall be in writing and shall be
addressed to us at the Issuer's Office, specifically referring to the number of this Letter of Credit.
Very truly yours,
BANK OF SCOTLAND
By: 4�t�
G(./ 6
Name: Karen Welch
Title: Assistant Vice President
I