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Contract 42010
CITY SECRETARY CONTRACT NO.L1 1 C� NATURAL GAS PIPELINE LICENSE AGREEMENT This PIPELINE LICENSE AGREEMENT entered into by and between the CITY OF FORT WORTH("Agreement") is hereby corporation organized under the laws of the State of Texas and actin b y made and ("City"), a home rule municipal Costa its duly authorized Assistant City Y and through Fernando SERVICES, L.L.0 Y Manager, and TEXAS MIDSTREAM GAS ("Company"), an Oklahoma limited liability company, actin b through David Johns as Manager,property Rights. g y and The following statements are true and correct and constitute the basis upon which City of Fort Worth has executed Agreement. the A. Texas Midstream Gas Services, L.L.C., an ("Company"), wishes to construct a Twelve (12") inch Onom nominal diameter iabileli company approximate total distance of 237.95 linear feet within a fifteen (15') foot wide right f corridor for the transportation of Natural Gas through the portion ') r p P ht for y Exhibit "A" � way hereinafter referred to as "City Property"- Properties described in utility, as that term is used in the City Charter and City Code, and because Company w' Y • Because Company is not a public Providing services to end user customers in the Cit ill not be franchise from the City, but is required to obtain the City's consent pursuant t y, Company is not required to obtain a agreement that sets forth the terms and conditions under which Company o a license Property. P y may use the City B. The City has reviewed Company's request and agrees to grant Company a license to use a portion of the surface and subsurface of the City Property as described in Section as further set out m Exhibit(s) "A" in order to construct, operate and maintain a o terms and conditions set forth herein, solely for the transportation of Natural 3 and accordance with the terms and conditions of this Agreement. f pipeline, el the al Gas and solely in temporary construction workspace as described in Exhibit(s) "A" is also initial construction, a agreement. granted as part of this Agreement 1• DEFINITIONS. Capitalized terms used in this Agreement and not otherwise defined within t Agreement shall have the following meanings: his Affiliate shall mean any individual, partnership, association,joint stock company, limit liability company, trust, corporation, or other person or entity who owns or controls limited owned or controlled by, or is under common ownership or control with, the entity n question. or is Natural Gas Pipeline License Agreement-E. Berry Libra v Y -OFFIGIA�. RECORD CITY- SECRETARY Page 1 of 20 FT. WORTH, TX d1,;�d,i` 'cr'erl�` M t.�� Agreement shall mean the authorization issued to Company hereunder to use a portion of the City Property in the location as set out in Exhibit(s) "A" for (i) the construction installation, maintenance and repair of Company's Pipeline; (ii) the use of such Pipeline for the transportation of Natural Gas; and (iii) any other directly related uses of the Cit Property,pursuant to and in accordance with this Agreement. y City shall mean the area within the corporate limits of the City of Fort Worth, Texas and the governing body of the City of Fort Worth, Texas. City Facility shall mean all incidental underground and aboveground attachments, equipment and appurtenances, including, but not limited to manholes, manhole vents, lateral line connections, valves,pipelines,junction boxes, fire hydrants, meter vaults, lift stations in, upon, under and across a portion of the City Property. City Property shall mean that property as limited to and described in Exhibit(s) "A" Commission shall mean the Railroad Commission of the State of Texas or other authority succeeding to the regulatory powers of the Commission. Company shall mean Texas Midstream Gas Services, an Oklahoma Limited Liabilit Company, only and shall not include any Affiliate or third party. y Customer shall mean any Person located, in whole or in part, within the City. Director shall mean the Director of the City's authorized representative. Planning and Development Department or Gas shall mean gaseous fuels, such as natural as natural gas,manufactured gas, or any mixture hereofificial gas, synthetic gas, liquefied Person shall mean, without limitation, an individual, a corporation, a limited liabilit y company, a general or limited partnership, a sole proprietorship, a joint venture, a business trust or any other form or business entity or association. Pipeline shall mean that certain Twelve inch nominal diameter steel pipeline for an approximate total distance of 237.95 total linear feet and other facility locations as approved by the Director that are installed by accordance with this Agreement and pursuant to the rules and regulatio seas Promulgated Property in by the U.S. Department of Transportation, Office of Pipeline Safety, as set out in the Code of Federal Regulations, Section 192 as adopted and modified by the Texas Railroad Commission. Natural Gas Pipeline License Agreement-E. Berry Library_ Page 2 of 20 tv a�xMd'...... .. 2. GRANT OF RIGHTS. 2.1. General Use of The Ci Pro e for Provision of Gas. Subject to the terms and conditions set forth in this Agreement and the City Charter and ordinances, the City hereby grants Company a license to (i) erect, construct install and maintain the Pipeline consisting in, over, under, alon Property at a depth of no less than 36" g and across the City and (ii) transport Gas through the portions of its Pipeline in, over, under, along and across City Property as depicted in Exhibit "A". Company hereby acknowledges and agrees that this Agreement allows only the transportation of Gas through the City and does not allo otherwise provide Gas to any Customer. w Company to distribute, sell or 2.2. Nonexclusive. This Agreement and all rights nonexclusive. The City reserves the right to entanerea Company herein are strictly to and and other authorizations for use of the City Property grant other and future licenses accordance with applicable law and as the City deems appropriate; provided, however, in that as to the grant of subsequent licenses for use of the Ci Pro e en the discretion of the City, h' p rtY that is solely within the City tY, if a dispute arises as to priority of the use of the City Property, ty will resolve such dispute in a manner that does not result in unreasonable interference with Company's operation of the Pipeline for the purposes provided for herein. This Agreement does not establish an Company orb an Y priority for the use of the City Property by Y y present or future licensees or other permit holders. In the event of any dispute as to the priority of use of the City Property, the first priority shall be to the Public generally, the second priority to the City in the performance of its various functions, and thereafter, as between licensees and other permit holders, as determined b the City in the exercise of its powers, including the police power and other powers reserved to and conferred on it by the State of Texas. 2.3. Other Permits. This Agreement does not relieve Company of any obligation to obtain permits, licenses and other approvals from the City or other regulatory agency necessary for the construction, installation, maintenance or repair of Company's transportation of Natural Gas through such Pipeline. Pipeline or the 2.4. Bonds. Prior to the commencement of any construction work in the City Prope , that requires a cut, opening or other excavation, Company shall deliver to the City rty bonds executed by a corporate surety authorized to do business in the State of Texas and acceptable to the City in the proportional amount of the cost of work under the construction contract or construction project that will be performed in the City Property. Natural Gas pipeline License Agreement-l;. Berry Library Page 3 of 20 a The bonds shall guarantee (i) satisfactory compliance by Company with all requirements terms and conditions of this Agreement and ii full payments to all persons, firms, corporations or other entities with whom Company has a direct relationshi for th ' performance of such construction,maintenance or repairs. p e If any such construction, maintenance and repair work is undertaken by a contractor of Company, Company shall also require such contractor to deliver to Company bonds executed by a corporate surety authorized to do business in the State of Texas and acceptable to the City in the proportional amount of the cost of work under the construction contract or construction project that will be performed by the contractor in the City Property. The bonds shall of all construction, maintenance or repair work)in accordance ewith the contract between Company and the contractor and(ii)full payment for all wages for labor and services and of all bills for materials, supplies and equipment used in the performance of that contract. Such bonds shall name both the City and Company as dual obligees. 3. TERM This Agreement shall become effective on the date as of which both parties have executed it (`Effective Date")and shall expire at 11:59 P.M. CST twenty(20)years from the last date of notarial acknowledgement unless terminated earlier as provided herein. 4• FEES AND PAYMENTS TO CITY. 4.1. License Use Fee. On or prior to the Effective Date, Company shall pay the City as compensation for its use of the City Property for the Term of this Agreement the sum of Eleven Thousand Two Hundred Forty-three dollars Fourteen cents ($11,243.14) ("License Fee"). Company hereby acknowledges and agrees that the amount of this License Fee is non-refundable and constitutes just and reasonable compensation to the City for Company's use of the City Property. 4.2. Other Paym . In addition to the License Fee, Company shall pay the City all sums which may be due the City for property taxes, license fees, permit fees, or other taxes, charges or fees that the City may from time to time impose on all the City. other similarly situated entities within 4.3. Inter, All sums not paid when due shall bear interest at the rate of ten percent 0 0%) per annum or the maximum amount allowed by law Natural Gas pipeline license Agreement-L. Berry Libras , Whichever is less, computed monthly. if Page 4 of 20 such outstanding sums are paid with interest within thirty respective due dates, Company's failure to pay such sums by their days respective due dates shall not, in and of itself, constitute an Event of Default under Section 9 of this Agreement. 5• REGULATORY AUTHORITY OF THE CITY. Company's property and operations hereunder shall be subject to such regulation by the City as may be reasonably necessary for the protection or benefit of the general public. In this connection, Company shall be subject to, governed by and shall eom 1 with all applicable federal, state and local laws, including all ordinanc p y regulations of the City, as same may be adopted and amended from time to tie rules and 6• USE OF THE CITY PROPERTY. 6.1. Com Aiance with Laws Ordinances Rules and Re lations. The City has the right to control and regulate the use of the City Property, Public Rights of Way, public places and other Ci beneath them. Company shall comply with all applicable w, o di spaces ances,arules and regulations, including, but not limited to, City ordinances and construction permits, construction bonds, permissible hours f construction,soperations ding peak traffic hours, barricading requirements and any other construction rules or regulations that may be promulgated from time to time. 6.2. No Undue Burden. The Pipeline shall not be erected, installed, constructed, repaired, replaced or maintained in any manner that places an undue burden on the present or future use of the City Property by the City and the public. If the City reasonably determines that he Pipeline does place an undue burden on an Company's sole cost and expense and within aorea reasonable time Period rspecifi d b the Company, at City, shall modify the Pipeline or take other actions determined by the City to be in the public interest to remove or alleviate the burden. 6.3. Notice Prior to the undertaking of any kind of construction, installation, maintenance, repairs or other work that requires the excavation, lane closure or other physical use of the City Property, Company shall, except for work required to address an emergency, provide at least twenty-four(24)hours' advance written notice to the City and the owners of property adjacent to the City Property that will be affected. In the case of emergencies Company shall provide notice to the affected landowners within twenty-four (24) hours after commencement of work. In addition, during any such work, Company shall provide Natural Gas Pipeline License Agreement-L.Rem Library Page 5 of 20 fi, construction and maintenance signs and sufficient barricades at work sites to protect the public. 6.4 Minimal Interference. Company will take all reasonable planning to minimize harm to the City Property and shall comply with conditions as set forth below: 6.4.1. Company agrees to provide the following to the attention of Gas Lease Program Land Agent, Planning and Development Department, 1000 Throckmorton Fort Worth, Texas 76102-6302; a• "Before Pictures" of the Premises Premises; rior to access and use of the b• "After Pictures" of the Premises wi of operations outlined herein. thin 30 days after conclusion 6.4.2. Company shall coordinate and participate in a Preconstruction Meeting With City of Fort Worth staff to evaluate and address any issues or concerns at least seven calendar days prior to the start of construction. 6.4.3 Company shall not have the right to place permanent above ground facilities on City Property. 6.4.4. Company shall have the right to bore and open trench as shown in Exhibit"A 6.4.5. Appropriate erosion control measures must be implemented during construction. 6.4.6. Company shall have right from time to time to cut undergrowth and other obstruction on City Property. Company shall also have the ability to remove the City Property tract with the written approval of the City. any trees in 6.4.7. The use of traffic control devices shall be consistent with the standards and provisions of Part VI of the Texas Manual on Uniform Company shall utilize appropriate warning lights at all Traffic Control Devices. Traffic and maintenance sites where one or more traffic lanes are closed or obstructed during nighttime conditions. 6.4.8 No use of the Property is permitted for storage or any other purpose. 6.5. "As-Built"Plans and Ma s. Company, at Company's sole cost and expense, shall provide the City with as- built plans of all portions of the Pipeline located in the City and the City's extraterritorial Natural Gas Pipeline License Agreement-G.Berry Libram Page 6 of 20 jurisdiction and maps showing such Pipeline within ninety (90) calendar days following the completion of such Pipeline. Company such as-built plans and maps in computer format shall as requested sted in writing by he city and of shall otherwise fully cooperate with the City in ensuring that the Pipeline is ace ateld reflected in the City's mapping system. y 6.6. Saecifications of the P_pe The Company shall erect, install, construct, repair, replace and maintain the Pipeline pursuant to this Agreement, Chapter 15 of the City Code and all other state and federal laws. The Pipeline shall not exceed the size and specifications stated herein and further set out in Exhibit "A" and be placed at a depth of no less than 36 inches throughout the entire length of the City Prope Property will be crossin an rtY, however, if the Pipeline within City Facility at a not less than a 70 degree gangle and be buried at ea Pipeline cross the City below the bottom of the lowest City Facili mum of 60 inches should Company require v �'- Notwithstanding the foregoing statements, q varying from the above requirements, such variance shall require City evaluation of the respective variance to depth or proposed angle of crossing to determine the practicability of such request.City Property q Furthermore, if the Pipeline within h tY p crosses a 16-inch or greater water or sanitary response plan must be included. The emergency response lan shall be submitted to the facility, an emergency City of Fort Worth Water Department prior to the commencement of the installation of the Pipeline and shall establish written procedures subject to the approval of the Ci ty of Fort Worth Water Department to minimize any hazard resulting to any City Facility. 6.7. Ma=king of Pineline. ty The Pipeline shall be marked, in a manner that is acceptable to the Director and in compliance with Federal Regulations, to show conspicuously Company's name and a toll-free telephone number of Company that a Person may call for assistance. 6.8• Surface Excavation. The City shall have the right to coordinate all excavation work in the City Property in a manner that is consistent with and convenient for the implementation of the City's program for property management in order to preserve the integrity of the City ty 6.9. Relocation of Pi`, Within forty-five (45) calendar days following written Company, at Company's sole cost and expense, shall protect, support,request is the City, relocate to another portion of the City Property ll or any support, disconnect or street or other public excavation, construction, repair,y portion of its Pipeline due to conditions; the installation of sewers, drains, water pipes or municipal ly-odwned facilit es Natural Gas Pipeline License Agreement+. Berry Library Page 7 of 20 EId r Tx If any kind; the vacation, construction or relocation of streets or any other e of structure or improvement of a public agency; any public work; or an o type improvement necessary, in the Ci y Cher type of welfare. If Company reasonably requires more than forty-five (45)Public s talth, safety or the City's written request, it shall notify the director of the City's Planning y comply with Development Department in writing and the City will work in good faith with Com d an to negotiate a workable time frame. Comp and 6.10. Restoration of the Ci Drove D:o veirty. Public Ri hts-of-Wa and Public/Private Pro e Company, at Company's sole cost and expense, and in a manner approved by the City, shall promptly restore an City-owned roe Y ivat Portion of the City Property, Public Rights of Way, other Property rty or other privately-owned property that are in an damaged by the construction, operation, maintenance or removal a y way disturbed or to, at Company's option, as good or better a condition as such f property Pipeline was in immediately prior to the disturbance or damage. Company shall diligently commence such restoration within thirty (30) calendar days following the date that Company first became aware of the disturbance or damage or, if the Pipeline is being removed, within thirty(30)calendar days following such removal. 6.11. Emergency Procedures 6.11.1. For purposes of this Section, a public emergency shall be any condition which, in the opinion of the officials specified herein, poses an immediate threat to life, health or property and is caused by an including, but not limited to, storms, floods, fires accidents,lexplosion,1 water main breaks and hazardous materials spills. In the event of a public emergency, the City shall have the right to take whatever action is deemed appropriate by the City Manager, Mayor, Police Chief or Fire Chief, or their authorized representatives, including, but not limited to, action that may result in damage to the Pipeline, and Company hereby (i) releases the City, its officers, agents, servants, employees and subcontractors from liability or responsibility for any Damages, as defined in this Agreement, that may occur to the Pipeline or that Company may otherwise incur as a result of such a response, and (ii) agrees that Company, at Company's sole cost and expense, shall be responsible for the repair, relocation or reconstruction of all or any of its Pipeline that >s affected by such action of the City. In responding to a public emergency, the City agrees to comply with all local, state and federal laws, including any requirements to notify the Texas One Call System, to the extent that they apply at the time and under the circumstances. In addition, if the City takes any action that it believes will affect the Pipeline, the Natural Gas Pipeline License Agreement-F;. Berry Library I'age 8 ot'20 City will notify Company as soon as practicable so that Company may advise and work with the City with respect to such action. 6.11.2. The Company shall maintain written procedures to minimize the hazards resulting from an emergency. These procedures shall at a minimum provide for the prompt and effective response to emergencies, including, but not limited to, leaks or releases that can impact public health safety or welfare; fire or explosions at or in the vicinity of the Pipeline, natural disaster, effective means to notify and communicate required and pertinent information to local fire, police and public officials during an emergency; the availability of personnel, equipment, materials as necessary at the scene o tools and reduce public exposure f an emergency; measures to be taken to to injury and probability of accidental death or dismemberment; emergency shut down and pressure reduction of a Pipeline; the safe restoration of service following an emergency or incident; and follow-up incident investigation to determine the cause of the incident and require the implementation of corrective measures. 6.11.3. Upon the discovery of an emergency, communicate to the City's 911 system and the e Pl Planning shall immediately Department designee the following information: arming and Development a• A general description of the emergency; b• The location of the emergency or incident; C. The name and telephone number of the person reporting the emergency; d• Whether or not any hazardous material is involved and identification of the hazardous material so involved; and e• Any other information as requested by the emergency dispatcher or other such official at the time of reporting the emergency or incident 6.12. Removal of Pipeline. Upon the revocation, termination or expiration without extension or renewal of this Agreement, Company's right to use the City Property cease and Company shall immediately discontinue the transportation of Gas in orethrough the City. Within six (6) months following such revocation, termination or expiration and if the City requests, Company, at Company's sole cost and expense, shall remove the Pipeline from the City Property (or cap the Pipeline, if consented to by the City), accordance with applicable laws and regulations. If Company ty)' Pipeline from the City Property, Y has not removed all of the within six 6 rtY (or capped the Pipeline, if consented to by the City) Omonths following revocation, termination or expiration of this Agreement, the City may deem any portion of the Pipeline remaining in the Cit Pro e rty abandoned and, at the City's sole option, (i) take possession of and title to such property or (ii take Y p any and all legal action necessary to compel Com an ) provided, however, that Company may p Y to remove such property; Y nOt abandon Natural Gas Pipeline Liccnse Agreement-E. Herr,l.ihrary ndon its facilities Or discontinue its Page 9 of 20 BMW services within the City without the approval of the Commission or successor agency or any other regulatory authority with such jurisdiction. Within six (6) months following revocation, termination or expiration of this Agreement and in accordance with Section 6.9 of this Agreement, Company shall also restore any property, public or private, that is disturbed or damaged by removal (or, if consented to by the City, capping) of the Pipeline. If Company has not restored all such Property within this time, the City, at the City's sole option, may performed any necessary restoration work, in which case Company shall immediately reimburse the City for any and all costs incurred in performing or having performed such restoration work. 7. LIABILITY AND INDEMNIFICATION. 7.1• Liabih_mpanv. Company shall be liable and responsible for an liabilities (joint or several), payments, obligations, y and all damages, losses, defenses,judgments, lawsuits, proceedings, costs, disbursements or�expenses n(inc(including, without limitation, fees, disbursements and reasonable expenses of attorneys, accountantts and other professional advisors and of expert witnesses and costs of investigation and preparation) of any kind or nature whatsoever (collectively "Dams arise out of or be in any way connected with (i) the construction, in gestionwhich may ion, maintenance or condition of the Pipeline or any related facilities or appurtenances it the transportation of Gas through the Pipeline; (iii) any claim or lien arising out of work, labor, materials or supplies provided or supplied to Company, its contrac subcontractors; or (iv) Company's failure tors or to comply with any federal, state or local law, ordinance, rule or regulation, except to the extent directly caused by the negligent or grossly negligent act(s)or omission(s)or intentional misconduct of the City. COMPANY DEREB y ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, TO ANY OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF O KIND R I CONNECTION WITH ITS USE OF THE N PREMISES UNDER THIS AGREEMENT OR WITH THE USE, MAINTENANCE, OCCUPANCY, EXISTENCE OR LOCATION THE PREMISES BY THE NEGLIGENCE OR , EXCEPT TO THE EXTENT CAUSED SOLELY INTENTIONAL MISCONDUCT OF THE CITY. 7.2 Indemnification. COMPANY, AT COMPANY'S SOLE COST AND INDEMNIFY AND HOLD HARMLESS THE CITY EXPENSE, SHALL , ITS OFFICERS, BOARDS, COMMISSIONS, AGENTS, EMPLOYEES ( INDEMNITEES'), FROM AND A GAINST ANY AND ALL DAMAGESNWH CH MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH (I) THE Natural Gas Pipeline License Agreement-F,. f3cm Library Page W of 20 CONSTRUCTION, INSTALLATION, OPERATION, CONDITION OF THE PIPELINE OR1INTENANCE OR APPURTENANCES; (II) THE TRANSPORT TIONE F GAS THROUGH TH PIPELINE; (III) ANY CLAIM OR LIEN E MATERL4LS OR SUPPLIES PROVIDED OR SUPPLIED OF Tp COMPANY,B�T' CONTRACTORS OR SUBCONTRACTORS; OR S COMPLY WITH (I>� COMPANY'S FAILURE TO ANY FEDERAL, STATE OR LOCAL LAW, ORDINANCE, RULE E OR REGULATION, EXCEPT TO THE EXTENT DIRECTLY CAUSED BY THE NEGLIGENT ACTS) OR THE OR INTENTIONAL MISCONDUCT H OF THE CITY. 73 Assum Lion of Risk and Environmental Remediation. COMPANY HEREBY REPRESENTS TO THE CITY THAT (z) COMPANY HAS FULLY INSPECTED THE PREMISES; (ii) COMPANY IS SATISFIED WITH THE CONDITION OF THE PREMISES• ADVISED OF ITS O AND (iii) COMPANY HAS BEEN FULLY REPRESENTATION Wl�' RIGHTS WITHOUT RELIANCE UPON ANy SERVANTS, MADE BY THE CITY, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, COMMISSIONS, BOARDS OR VOLUNTEERS. SUBCONTRACTORS, UNDERTAKES AND ASSUMES, FOR AND ON BEHALFOOFPC MpANY IT OFFICERS,AGENTS ND ONTRACTO HEREBY ALL RISK OF DANGEROUS CONDITIONS IF RS 4ND EMPLOYEES, PREMISES. ANY, ON OR ABOUT THE ALTHOUGH, TO THE BEST OF TIH C'ITY,,S PREMISES COMPLY WITH ALL APPLICABLE FEDERAL, THE LOCAL ENVIRONMENTAL LA WS AND RAL, STATE AND "ENT'IRONMENTAL LAWS'), THE CI DDESANOT (COLLECT IVEL y COMPANY HEREBY COVENANTSAND AGREES THAT COMPANY,�IRRANT SUCH. COST AND EXPENSE, SHALL BE FULLY RESPONSIBLE FOR THE VIOLATION OF ANY ENVIRONMENTAL LAWS CAUSED, IN COMPANY,ITS OFFICERS,AGENTS,SERVANTS,EMPLOY EE CONTRAC PART, BY SUBCONTRACTORS OR I�'T'ITEES, AND REQUIRED AS A R REMEDIATION THAT MAY BE RESULT OF SUCH VIOLATION, EXCEPT TO THE EXTENT CAUSED BYTHE CITY. 7.4. Defense of Indemnitees. In the event any action, lawsuit or other proceeding is brought against an Indemnitee by reason of any matter for which the Indemnitees are indemnified hereunder, the City shall give Company Y commencement of an p y prompt written notice of the making of any claim or Company's sole cost and e pense, shall resist and hdefend cth s ding, and Company, at participation by the City and with legal counsel selected by Company and specificall Y e Natural Gas Pipeline License Agreement-I-;.Rcm Library m Page I I of 20 approved by the City. In such an event, Company shall not admit liability in any matter on behalf of any Indemnitee without the advance written consent of the City. 8. INSURANCE. Company shall procure and maintain at all times,policies of insurance to provide coverages as specified eS' in full force and effect, a policy n or ng the C' additional insured and covering all public risks rated hothe 1 se, occupancy, condition, maintenance, existence or location of the City Property Operation, maintenance or condition of the Pipeline, including ethe transportation installation, through the Pipeline. The insurance required hereunder may be met by a combination as self-insurance, primary and excess policies. of 8.1. Primary Liability incn.•�., ce CoyerauP • Commercial General Liabili $1,000,000 per occurrence, including coverage for the following: (i) Premises Liability; (ii) independent contractors ui Personal in , ( ) products/completed operations; (iv) injury; ty contractual liability; (vi) explosion, collapse and underground property damage. • Pro�erty Damage Liah�ty. $10,000,000 per occurrence • Automobile Liabilih $1,000,000 per accident,including, but not limited to, all owned, leased,hired or non-owned motor vehicles used in conjunction with the rights granted under this Agreement • Worker's Com ensation: As required by law; and,Employer's Liability as follows: $1,000,000 per accident. 8.2. Revisions to Re uired Coyera e. At the reasonable recommendation of the City's time revise insurance coverage requirements and limits k required City may at any Company agrees that within thirty this Agreement. Company will implement all such�revis0ionsarequested by the City.wntten notice from the City or policies of insurance shall be endorsed to provide that no material char es in vera e, o g but Natural Gas pipeline License Agreement-F,. Rcm Lihrary g including, Page 12 of 20 a not limited to, cancellation, termination, non-renewal or amendment, shall be made without thirty(3 0)days'prior written notice to the City. 8.3• Underwriters and Certificates. Company shall procure and maintain its insurance with underwriters authorized to do business in the State of Texas and who are acceptable to the City in terms of solvency and financial strength. Wit] 3 y City Council, Company shall ( 0) days following adoption of this Agreement by the respective companies as proof nth has b acefcateess OOfl insurance signed by the coverage required herein. In addition, Company shall, on demand, Provide the Cisu�ce p ty evidence that it has maintained such coverage in full force and effect. � 8.4. Deductibles. Deductible or self-insured retention limits on any line of coverage required herein shall not exceed $1,000,000 in the annual aggregate unless the limit per occurrence, or per aggregate is otherwise approved by the City. 8.5. No Limitation of Liabili . The insurance requirements set forth in this S of any sum by reason of any insurance policy required ender this Agreement recovery ment shally the City in no be construed or effected to limit or in any way affect Company's persons as provided by this Agreement or law. liability to the City or other 9. DEFT. The occurrence at any time during the term of this Agreement of one or more of the following events shall constitute an "Event of Default"under this Agreement: 9.1. Failure to Pav License Fee An Event of Default shall occur if Company fails to pay any License Fee on or before the respective due date. 9.2• Breach. An Event of Default shall occur if Company materially of the terms, covenants, representations or warranties set forth in thins Agreem nt or fails to perform any obligation required by this Agreement. Natural Gas Pipeline License Agreement-r I3CrrV Library Page 13 of 20 122 w: d 9.3. Bankrulitey Insolvency or i3eceiverchip, An Event of Default shall occur if Company bankruptcy; (ii) is adjudicated insolvent (iii) iles any(pe petition or fails to contest any petition filed against it seeking ( ) readjustment, liquidation, dissolution or similar relief fo�tself der any laws relating ition, bankruptcy, insolvency or other relief for debtors; (iv) seeks, consents to or acquiesces in the appointment of any trustee, receiver,master, custodian or liquidator of Company, an of Company's property or any revenues, issues, earnings or profits thereof, v y n assignment for the benefit of creditors; or (vi) fails to a Omakes an they become due. Pay Company's debts generally as 9.4. Violations of the Law. An Event of Default shall occur if Comp ture federal, any violates any existing or fu state or local laws or any existing or future ordinances,rules and regulations of the City. 9.5 Failure to Co fete Construction An Event of Default shall occur if Company fails to complete construction of the Pipeline within one(1)calendar year from the execution of this Agreement. 10. UNCURED DEFAULTS AND REMEDIES. 10-1. Notice of Default and O ortuni to Cure. If an Event of Default occurs on account of Company's failure to pay the License Fee in accordance with Section 9.1 accordance with Section 9.5, or failure to complete construction of the Pipeline in such Event of Default shall be deemed an Uncured Default and the City shall have the right to terminate this Agreement immediately upon provision Of written notice to Company. If an Event of Default occurs for a reason other than for failure to pay the License Fee the Ci shall give Com an tY shall provide Company with written notice and P y the opportunity to cure such Event of Default. For an Event of Default which can be cured by the immediate payment of money to the City, company shall have thirty (30) days from the date it receives written notice from the City to cure the Event of Default. For any other Event of Default, Company days from the date it receives written notice from the City to ce the Event of Default.6 if any Event of Default is not cured within the time period specified herein, such Event of Default shall, without further notice from the City, become an "Uncured Default,, the City immediately may exercise the remedies provided in Section 10.2. and Natural Gas Pipeline License Agreement-r. Rem Lihrary ['age 14 0120 10.2. Remedies for Uncured Defaults. Upon the occurrence of an Uncured Default, the City shall be entitled to exercise, at the same time or at different times, any of the following remedies, all of which shall be cumulative of and without limitation to any other rights or remedies the City may have: 10.2.1. Termination of At_rpement. Upon the occurrence of an Uncured Default, the City may terminate this Agreement. Upon such termination, Company shall forfeit all rights granted to it under this Agreement, and, except as to Company's unperformed obligations and existing liabilities as of the date of termination, this Agreement shall automatically be deemed null and void and shall have no further force or effect. Company shall remain obligated to pay and the City shall retain the right to receive License Fees and any other payments due up to the date of termination. Company shall remove the Pipeline from and restore the City Property as and when requested by the City. The City's right to terminate this Agreement under this Section 10.2.1 does not and shall not be construed to constitute any kind of limitation on the City's right to terminate this Agreement for other reasons as provided by and in accordance with this Agreement; provided, however, that Company may not abandon the Pipeline without the approval of the Commission or successor agency or other regulatory authority with jurisdiction, if such action without such approval is prohibited at the time by applicable federal or state law or regulation. 10.2.2.Leal Action A ainet r.. mnanv. Upon the occurrence of an Uncured Default, the City may commence against Company an action at law for monetary injunctive relief or specific performance of damages or in equity, for Agreement which, as a matter of equity, y °f the provisions of this q ty, are specifically enforceable. 11. PROVISION OF INFORMATION 11.1. F><•lin�s with the Comm, Company shall provide upon request copies to the City of all documents which Company files with or sends to the Commission concerning or related to its transportation of Gas through or other operations in the Ci to, filings related to (i) tariffs; (ii) h', including, but not limited consideration or approved by the Commission and (ioii ) appca>ionseand re ganested, under y supporting pre-filed testimony and exhibits filed by Company or third parties on behalf of Company, on the same date as such filings are made with the Commission. In addition, Company shall provide the City upon request with copies of records, documents and other filings that Company is required to maintain or su Natural Gas Pipeline License Agreement-F,. [3erry Library pply to the Commission under any applicable Page 15 of20 state or federal law, rule or regulation concerning or related to its transportation of Gas through or other operations in the City. 11.2. Lawsuits. Company shall provide the City with copies of all pleadings in all lawsuits to which Company is a party and that pertain to the granting of this Agreement and/or the transportation of Gas through the City within thirty (30) days of Company's receipt of same. 12. COMPANY AS INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Company shall operate as an independent contractor as to all rights and privileges granted by this Agreement, and not as an agent, representative or employee of the City. Company shall have the exclusive right to control the details of its business and other operations necessary or appurtenant to the transportation of Gas in accordance with the terms and conditions of this Agreement, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Company acknowledges that the doctrine of respondeat superior shall not apply as between the City and Company, its officers, agents, employees, contractors and subcontractors. Company further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Company. 13. ASSIGNMENT PROHIBITED. Company may not assign or otherwise transfer any of its rights or obligations under this Agreement unless specifically authorized in writing by the City, which authorization shall not be unreasonably withheld; provided, however, that Company may make such lo assignment of its rights to an affiliated company without the consent of City,provided, that upon such assignment, Company shall notify City within sixty (60) days of said assignment. An `affiliated company' shall mean any parent, subsidiary or sister company or other legal entity that controls, is controlled by, or is under common control with Company. For purposes of this clause, `control' means direct or indirect ownership of fifty percent (50%) or more of the voting rights of the subject entity. Notwithstanding such an assignment to an affiliated company, Company shall remain liable to City for any failure to perform hereunder by the affiliated assignee,and this provision shall thereafter be applicable to Company and such affiliated assignee. 14. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (i) hand-delivered to the other party, its agents, employees, servants or representatives, or a received by the other party by United States Mail,postage prepaid,return receipt requested,addressed as follows: Natural Gas Pipeline License Agreement-I:.Berry Library Page 16 of 20 b ' To THE CITY: To THE COMPANY: City of Fort Worth Texas Midstream Gas Services,L.L.C. D.J.Harrell, Gas Lease Program, Land Agent Dave Johns 1000 Throckmorton Manager-Property Rights Fort Worth, TX 76102 100 Energy Way Fort Worth, Texas 76102 with a copy to: with a copy to: City of Fort Worth Texas Midstream Gas Services,L.L.C. Department of Law c/o CT Corporation Attn:Attorney for Real Property 350 North St. Paul Street, Suite 2900 1000 Throckmorton Dallas, TX 75201 15. NON-DISCRIMINATION COVENANT. Company shall not discriminate against any person on the basis of race, color, national origin, religion, handicap, sex, sexual orientation or familial status in the receipt of benefits from Company's business operations, in any opportunities for employment with Company or in the construction or installation of the Pipeline. 16. NO WAIVER The failure of the City to insist upon the performance of any term or provision of this Agreement or to exercise any rights that the City may have, either under this Agreement or the law, shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW AND VENUE, This Agreement shall be construed pursuant to and in accordance with the laws of the United States of America and the State of Texas. If any action,whether real or asserted, at law or in equity, arise out of the terms of this Agreement, Company's transportation of Natural Gas or Company's use of the City Property, venue for such action shall lie exclusively in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas,Fort Worth Division. 18. CONFERENCES. At the request of either the City or Company, the City and Company shall meet at reasonable times and upon reasonable notice to discuss any aspect of this Agreement, Natural Gas Pipeline License Agreement-F,. Rem Library Page 17 of 20 f Company's Pipeline, Company's operations in the City, Company's transportation of Natural Gas or Company's use of the City Property. 19. SEVERABILITY. If any provision of this Agreement is held to be invalid,illegal or unenforceable by a final order entered by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. For purposes of this Agreement, a court order shall be final only to the extent that all available legal rights and remedies pertaining to such order, including,without limitation all available appeals,have been exhausted. In such an event, the City and Company agree that they shall amend or have amended this Agreement to comply with such final order entered by a court of competent jurisdiction. 20. FORCE MAJEURE. In the event Company's performance of any of the terms, conditions or obligations required by this Agreement is prevented by a cause or event that is not within Company's reasonable control, Company's non-performance shall be deemed excused for the period of such inability. Causes or events that are not within the Company's control shall include, but not be limited to, acts of God, strikes, sabotage, riots or civil disturbances, failure or loss of utilities, explosions and natural disasters. 21. HEADINGS NOT CONTROLLING. Headings and titles, other than those captions in Section 1, that are used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 22. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Company as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with the terms and conditions of this Agreement. This Agreement shall not be amended unless agreed to in writing by both parties and approved by the City Council of the City. [INTENTIONALLY LEFT BLANK; SIGNATURES ON FOLLOWING PAGE1 Natural Gas Pipeline license Agreement-F,.Berry Library Page 18 of 20 EXECUTED as of the later date below: CITY OF FORT WORTH: TEXAS MIDSTREAM GAS SERVICES, L.L.C. By: eGs�-sve �.l By: __Assistant City Manager 1 J� D e Jo ,M ger—Property Rights Date: Z� / Date: Z" APPROVED AS TO FORM AND LEGALITY: By: OS164"�Inlvo — Assistant City Attorney Attested by: M&C: G 2� S O. ACKNOWLEDGEMENTS THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME,the undersigned,a Notary Public, on this day personally appeared Fernando Costa, Assistant City Manager of the City of Fort Worth, a home-rule municipal corporation of the State of Texas,known to me to be the person whose name is subscribed to the foregoing instrument and,that(s)he has executed the same for the purposes and consideration therein ex ressed. GIVEN UNDER MY IIAND AND SEAL OF OFFICE this day o 2011. Notary Public in and for the State of Texas =? `k= VY EV�A��WECS My Commission Expires: '?;�;?;' o miss�13 PIKES Print Name of Notary Public Here y'0' Natural Gas Pipeline License Agreement-F..Rem Library OFFICIAL RECORI) ��� � Pagc 19 ol'20 SEC t wT. 1yOfMi,TX THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned, a Notary Public, on this day personally appeared Dave Johns, Manager — Property Rights, on behalf of Texas Midstream Gas Services, L.L.C., an Oklahoma limited liability company, known to me to be the person whose name is subscribed to the foregoing instrument and, that (s)he has executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of MCL, 2011 ..� y JEANETTE MICHELLE HILL Notary Public in and for the ?' Notary Public,State of Texas State of Texas j• My Commission Expires ti February 21, 2015 _ \ My Commission Expires: 1 Print Name of Notary Public Here LiaFFICIAL RECORD SECRETAR WoaTH� TX Natural Gas Pipeline License Agreement-E. Clem,Library Page 20 of 20 M&C Review Page 1 of 2 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA F°R- TH COUNCIL ACTION: Approved on 6/7/2011 DATE: 6/7/2011 REFERENCE NO.: C-24940 LOG NAME: 062050PATE ST CODE: C TYPE: NON-CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Execution of an Underground Pipeline License Agreement with Texas Midstream Gas Services, LLC, in the Amount of$11,243.14 for a Natural Gas Pipeline Across City- Owned Properties Located at 3201 Pate Street and 4300 East Berry Street, Fort Worth, Texas, Also Known as the East Berry Library, for a Term of 20 Years (COUNCIL DISTRICT 5) RECOMMENDATION: It is recommended that the City Council authorize execution of an Underground Pipeline License Agreement with Texas Midstream Gas Services, LLC, in the amount of$11,243.14 for a Natural Gas Pipeline across City-owned property located at 3201 Pate Street and 4300 East Berry Street, Fort Worth, Texas, also known as the East Berry Library, for a Term of 20 years. DISCUSSION: The City has been approached by representatives of Texas Midstream Gas Services, LLC, (TMGS) requesting an underground pipeline license agreement across a portion City-owned property located at 3201 Pate Street and 4300 East Berry Street, Fort Worth, Texas, also known as the East Berry Library for the installation of a natural gas pipeline. The proposed alignment will allow for a total of 237.95 linear feet of 12-inch diameter natural gas pipeline within a 15-foot wide strip of land across the properties(0.024 acres more or less)for a term of 20 years. TMGS has agreed to pay the City the standard fee of$47.25 per linear foot of pipeline for the use of the property for a term of 20 years for a total cost of$11,243.14. Revenues received from this project will be administered in accordance with the current Financial Management Policy. TMGS will be responsible for repairing and restoring any damage to the strip of land or surrounding property resulting from the construction of the pipeline. The property is located on COUNICL DISTRICT 5, Mapsco 78V. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that the Planning and Development Department is responsible for the collection and deposit of funds due the City under this agreement. TO Fund/Account/Centers FROM Fund/Account/Centers GC10 446300 006060001000 $5,621.57 T127 446300 006127099901 $5,621.57 Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head: Randle Harwood (6101) http:/,'apps.cfwnet.org/council_packet/mc_review.asp?I D—152 54&counci I date=6/7/2011 7/7/2011 ,.,,., .?r.✓.ie r '',W. 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