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01.14.2010 CC PacketCITY OF KEIV/VE04LE 405 Municipal Drive, Kennedale, Texas 76060 www.cityolkennedale.com AGENDA KENNEDALE CITY COUNCIL REGULAR MEETING — JANUARY 14, 2010 COUNCIL CHAMBERS WORK SESSION — 5:30 PM REGULAR SESSION — 7:00 PM 1. CALL TO ORDER II. ROLL CALL III. WORK SESSION — 5:30 PM A. Discussion on planning regulations in the ETJ. B. Planning and Zoning presentation regarding form -based zoning. C. Discuss and review any item on the agenda, if needed. IV. REGULAR SESSION — 7:00 PM V. INVOCATION VL US PLEDGE OF ALLEGIANCE VII. TEXAS PLEDGE OF ALLEGIANCE "Honor the Texas Flag; I Pledge Allegiance to Thee, "Texas, One State under God; One and Indivisible." VIll. VISITOR/CITIZENS FORUM At this time, any person with business before the Council not scheduled on the agenda may speak to the Council. No formal action can be taken on these items at this meeting. IX. REPORTS /ANNOUNCEMENTS In addition to any specific matters listed below, the city council may receive a report about items of community interest, including but not limited to recognition of individual officials, citizens or departments, information regarding holiday schedules, upcoming or attended events, etc Page] of 4 IX. REPORTS /ANNOUNCEMENTS CONTINUED Em A. Mayor B. City Council C. City Manager 1. Award Medal of Valor to Forest Hill Fire Department. X. CONSENT AGENDA All matters listed under consent agenda have been previously discussed, require little or no deliberation, or are considered to be routine by the council. If discussion is desired, then an item will be removed from the consent agenda and considered separately. A. Approval of regular meeting minutes dated December 10, 2009. B. Approval to award bid to Jackson Construction Ltd., for Tarrant County Bond Street Reconstruction - Bowman Springs Road Project. D. Approval to award bid for Sonora Park Spray Park and Playground Equipment. E. Approval to authorize City Manager to execute Union Pacific Railroad Company Agreement for relocation and construction of Bowman Springs Road At -Grade Public Road Crossing. F. Approval of Resolution No. 309, dedicating 4.152 acres of parkland as open space for perpetuity as required by the Texas Parks and Wildlife Department. G. Approval of Resolution No. 310, authorizing award of low bid, contract, and funding participation with Tarrant County Community Development and Housing for the 35 °i Year Community Development Block Grant Project for sanitary sewer replacement to include building approximately 840 LF of pipe bursting enlargement and open -cnt replacement of existing sanitary sewer pipe and manhole replacement to serve Spiller Street located within the Original Town of Kennedale, Texas, Tarrant County. XL REGULARITEMS H. Review and consider action to approve Resolution No. 311, of the City of Kennedale, Texas approving a Project Agreement with the Kennedale Economic Development Corporation with respect to the Issuance of the City's Combination Tax and Revenue Certificates of Obligation, Series 2010. 1. Review and consider action to approve Ordinance No. 449, authorizing the Issuance, Sale and Delivery of "City of Kennedale, Texas Combination Tax and Revenue Certificates of Obligation, Series 2010 ", securing the payment thereof by authorizing the levy of an annual Ad Valorem tax and a pledge of surplus revenues of the City's Waterworks and Sanitary Sewer System; approving and authorizing the execution of all instruments and procedures related thereto including a Purchase w Contract, an Official Statement, and a Paying Agent/Registrar Agreement, and providing for an immediate effective date. Page 2 of 4 J. Review and consider action to authorize the Mayor to execute Interlocal Agreement with Tarrant County regarding plat approval, jurisdiction in the city's extraterritorial jurisdiction. K. Review and consider action to authorize budget amendments for fiscal year 2009- 2010. L. Discussion on process for locating the 9 -1 -1 Memorial Tribute. M, Review and consider action to create Kennedale Branding Task Force consistent with work of Imagine Kennedale 2015 Strategic Plan. XII. EXECUTIVE SESSION A. The City Council will meet in closed session pursuant to Section 551.071 of the Texas Government Code for consultation with the City Attorney pertaining to any matter in which the duty of the City Attorney under the Texas Disciplinary Rules of Professional Conduct may conflict with the Open Meetings Act, including discussion on any item posted on the agenda. B. The City Council will meet in closed session pursuant to Section 551.072 of the Texas Government Code to deliberate the purchase, exchange, lease, or value of real property for the following: 1. TownCenter Development 2. Sublett Road re- alignment properties " C. The City Council will meet in closed session pursuant to Section 551.074 of the Texas Government Code to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee. City Manager D. The City Council will meet in closed session pursuant to Section 551.087 of the Texas Government Code to deliberate the offer of a financial or other incentive to a business prospect with which the city is conducting economic development negotiations. XIII. RECONVENE INTO OPEN SESSION, AND TAKE ACTION NECESSARY PURSUANT TO EXECUTIVE SESSION, IF NEEDED. A. Consider approval of resolution authorizing legal counsel to proceed with condemnation of property located in the J. M. Lilly Survey, Abstract 980, Tract 4A01 for widening of Sublett Road, B. Consider approval of resolution authorizing legal counsel to proceed with condemnation of properties located in the J. M. Lilly Survey, Abstract 985, Tracts 1 A01, 1 A01 A 1, 1 A02, 1 A2A, I A2B, and 1 A02C for widening of Sublett Road. C, Consider approval of resolution authorizing legal counsel to proceed with condemnation of property located in Turner Acres Addition, Block 1, Lot I for widening of Sublett Road. Page 3 of 4 D. Consider approval of resolution authorizing legal counsel to proceed with condemnation of property located in the John Watson Addition, Block 1, Lot IA for widening of Sublett Road. E. Consider approval of resolution authorizing legal counsel to proceed with condemnation of properties located in the J. M. Estess Home Tracts Addition, Lots 1 C 1, 3A, 3B, 4R, 6B, 7, 8A2, 8A3, 1 1 B, 11 C I for widening of Sublett Road. F. Consider approval of resolution authorizing legal counsel to proceed with condemnation of properties located in the Glenn Oaks Addition, Block 1, Lot 1, and Block 3, Lots 1 and 2 for widening of Sublett Road. G. Consider approval of resolution authorizing legal counsel to proceed with condemnation of properties located in the W.E. Halton Survey, Abstract 1791, Tracts 1 AO 1, 1 C, and 1 CO l for widening of Sublett Road. H. Consider approval of resolution authorizing legal counsel to proceed with condemnation of properties owned by HM Real Estate Management, LTD., being approximately fifty -eight acres of land located west of the 3800 block of New Hope Road and Bruce Johnson, Trustee, being approximately seventeen acres of land located east of the 300 block of Jonah Road for a water line easement acquisition. XIV. ADJOURNMENT In compliance with the Americans with Disabilities Act, the City of Kennedale will provide for reasonable accommodations for persons attending City Council meetings. This building is wheelchair accessible, and parking spaces for disabled citizens are available. Requests for sign interpreter services must be made forty -eight (48) hours prior to the meetings. Please contact Kathy Turner, City Secretary, at 817.295.2104 or (TDD) 1.800.735.2989 CERTIFICATION I certify that a copy of the January 14, 2010, agenda was posted on the City Hall bulletin board next to the main entrance of the City Hall building, 405 Municipal Drive, of the City of Kennedale, Texas, in a place convenient and readily accessible to the general public at all times and said Agenda was posted on the following date and time: Monday, January 1 I, 2010 by 5:00 p.m., and remained so posted continuously for at least 72 hours preceding the schedule time of said meeting, in accordance with Chapter 551 of the Texas Government Code. Kathy Turner City Secretary, TRMC /CMC 1 certify that the attached notice and agenda of items to be considered by the City Council was removed by me from the City Hall bulletin board on the day of 2010. Title: K athy Turner, City Secreta _TRM /C Page 4 of 4 Staff Report To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: III A -B Subject: Work Session Originated by: Kathy Turner, City Secretary Summary: Work Session a. Discussion on planning regulations in the ETJ; and b. Discuss form -based zoning with the Planning & Zoning Commission; and ;�. c. Discuss and review any item on the agenda, if needed. Recommendation: Disposition by Council: Staff Report To the Honorable Mayor and City Council Date: January 8, 2010 Agenda Item No: VIII. Subject: Visitor /Citizens Forum Originated by: Kathy Turner, City Secretary Summary: At this time, any person with business before the Council not scheduled on the agenda may speak to the Council. No formal action can be taken on these items at this meeting. Recommendation: Disposition by Council: Staff Report To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: IX.. Subject: Reports /Announcements Originated by: Kathy Turner, City Secretary Summary: Reports /Announcements In addition to any specific matters listed below, the city council may receive a report about items of community interest, including but not limited to recognition of individual officials, citizens or departments, information regarding holiday schedules, upcoming or attended events, etc. A. Mayor B. City Council C. City Manager 1. Award Medal of Valor to Forest Hill Fire Department Recommendation: Disposition by Council: Em Staff Report To the Honorable Mayor and City Council Date: January 8, 2010 Agenda Item No: Subject: Consent Agenda Originated by: Kathy Turner, City Secretary Summary: The following items have been placed under Consent Agenda. These items are considered to be routine and self - explanatory by the Council and will be enacted with one motion. There will be no separate discussion of these items unless a Councilmember requests that an item be removed from the Consent Agenda and be considered, in sequence, as a routine agenda item. Recommendation: Staff recommends approval. Disposition by Council: Staff Repot To the Honorable Mayor and City Council Date: January 4, 2010 Agenda Item No: X -A. Subject: Approval of regular meeting minutes dated Decemeber 10, 2009. Originated by: Kathy Turner, City Secretary Summary: Meeting minutes dated December 10, 2009 are attached for your review and consideration. Recommendation: RECOMMEND APPROVAL Disposition by Council: 3455 MIN U S K E I UNCIL REGULA E �vIBER 10, 2009 405 MUNICIPA K k A MUNICIPAL BLDG. I. CALL TO ORDER Mayor Lankhorst called the work session to order at 5:35 p.m. II. ROLL CALL City Secretary, Kathy Turner called roll with the following person's present /absent: Council present: Bryan Lankhorst Mayor John Clark Mayor Pro -Tem, Place l David Green Councilmember, Place 2 Brian Johnson Councilmember, Place 3 Kelly Turner Councilmember, Place 4 Jerry Miller Councilmember, Place 5 Staff present: Bob Hart City Manager Wayne K. Olson Legal Counsel Cindy Henry Asst. to City Manager /HR Director Kathy Turner City Secretary Sakura Dedrick Director of Finance Amy Owens Utility Billing Administrator Jennifer Bozorgnia Court Administrator Rachel Roberts Planner Tommy Williams Chief of Police Larry Hoover Street Supervisor III. WORK SESSION A. Discuss Stormwater Utility System. Diane Palmer with Palmer Price, Inc., provided a second PowerPoint presentation regarding Stormwater Utility Implementation within the City of Kennedale. Mrs. Palmer explained what a stormwater utility fee is, stormwater utility authorization, and the advantages of having a stormwater utility fee, as well as the benefits that could arise from such a fee. Also, she addressed impervious areas, the fee calculation, capital improvement projects and time schedule, and bond funding alternatives. Next, exemptions were discussed along with community notification and what city council actions were needed to implement such fee. B. Discuss and review any item on the agenda, if needed. There being no other discussion, Mayor Lankhorst adjourned the work session at 6:35 p.m. 3456 IV. REGULAR SESSION Mayor Lankhorst called regular session at order at 7:10 p.m., and introduced Mayor for the Day winner, Nadia Patel. V. INVOCATION Senior Pastor, Scott Oldenburgh with Fellowship of the Metroplex provided the Invocation. VI. US PLEDGE OF ALLEGIANCE Mayor of the Day, Nadia Patel led the US Pledge of Allegiance. VII. TEXAS PLEDGE OF ALLEGIANCE "Honor the Texas Flag; I Pledge Allegiance to Thee, Texas, One State under God; One and Indivisible." Mayor of the Day, Nadia Patel led the US Pledge of Allegiance. VIII. PRESENTATION James F. Delaney Elementary Choir performed a variety of Christmas music under the Direction of Lisa Griffin. IX. VISITOR/CITIZENS FORUM Chairman, Walter R. Colemen with The United States Fallen Heroes Foundation presented a Certificate of Appreciation to Mayor, Bryan Lankhorst for his support, and to acknowledge him along with city staff for honoring the sacrifices of all the brave Military Personnel who have given their lives in the The Gulf War, Operation Iraqi Freedom, and Operation Enduring Freedom. X. REPORTS /ANNOUNCEMENTS A. Mayor 1. Introduce Mayor for the Day Winner Mayor Lankhorst introduced Mayor for the Day Winner, Nadeya Patel at the start of regular session. Mayor Lankhorst indicated that Ms. Patel was the highest bidder for the item at the annual KHS Chili Auction Supper, which helps raise money for scholarships for graduating seniors. Mayor Lankhorst indicated that Ms. Patel would assist as Mayor and would be announcing agenda items. B. City Council Councilmember Johnson thanked Perry Hoover for serving as MC of the Annual Christmas Tree Lighting ceremony, and acknowledged that it was great to see city employee, Glenn Greenwood back at work. 3457 C. City Manager Presentation of Certificate of Achievement for Excellence in Financial' Reporting to Sakura Moten- Dedrick, Director of Finance. Bob Hart, City Manager announced that Director of Finance, Sakura Moten- Dedrick had received the Certificate of Achievement for Excellence in Financial Reporting; however the plaque was in transient and would be presented at a later date. Mr. Hart also indicated that the City of Kennedale had received Port Authority from New York and would receive a 9 -1 -1 Memorial to be placed within the city. XI. CONSENT AGENDA A. Approval of regular meeting minutes dated November 5, 2009. B. Approval of Quarterly Investment Report. C. Approval of Resolution No. 301, declaring certain property surplus and /or salvage and authorizing the sale of said property. D. Approval to purchase two vehicles through Parker County Cooperative Purchasing Program. E. Approval to authorize City Manager to sign Interlocal Agreement with Tarrant County for Bowman Springs Road. F. Approval to authorize City Manager to sign Interlocal Agreement with Tarrant County to construct parking lot at Sonora Park. Councilmember Johnson moved to approve consent agenda items XI -A through XI -F as listed on the agenda, second by Councilmember Turner. Motion carried unanimously (5 -0). XII. REGULAR ITEMS G. Receive report from UTA Capstone Project concerning Performance Measures for selected City Departments. Bob Hart, City Manager advised students were working through the fall semester and finalizing report to go before their Professor for clearance, and would return in January 2010 to present a report before Council. H. Review and consider action to authorize staff to proceed with publication of public hearing notice and required ordinance for Stormwater Utility System. Mayor Pro -Tem Clark moved to authorize staff to proceed with publication of public hearing notice and required ordinance for Stormwater Utility System for the February 11, 2010 Council meeting at a rate of $4.00 with an anticipated $0.50 cent increase per year over the next 10 years. Councilmember Green seconded the motion, and motion carried unanimously (5 -0). 3458 I. Public Hearing, Review and Consider action to approve Case #PZ 09 -24, re -plat of approximately 6.163 acres from Block 1, Lots 6A, 6A1, 6A2, 6AIA, 7A, and 7A2, Oliver Acres Subdivision to Block 1, Lot 7R1, Oliver Acres Subdivision, as requested by Sharon Crouch. The physical address is 1121 Swiney Hiett Road, Kennedale, TX. 1. Staff Presentation of Case Rachel Roberts, Planner addressed Case #PZ 09 -24 request for a re -plat by Sharon Crouch. Ms. Roberts indicated that the applicant was replatting six lots into one with the intention of demolishing an existing structure to build a new home. Roberts advised that the replat did not conflict with the goals of the Comprehensive Land Use Plan, the Future Land Use Plan, or the Thoroughfare Plan, as well as other applicable ordinances. Roberts said the Planning and Zoning Commission recommends approval of the re -plat contingent upon applicant noting on the plat drawing which buildings are to be removed and which are yet to be built, and adding side and rear setback lines. 2. Applicant Presentation of Case — Applicant was not present. 3. Public Hearing Mayor Lankhorst opened the public hearing for comments at 7:57 p.m. With no persons present registered to speak, Mayor Lankhorst closed the public hearing at 7:58 p.m. 4. Staff Response and Summary of Case — No response and /or summary. 5. Applicant Response — No response. 6. Action on Case #PZ 09 -24 Councilmember Johnson moved to approve Case #PZ 09 -24, re -plat of Lot 7R1, Block 1, Oliver Acres contingent upon applicant noting on the plat drawing which buildings are to be removed and which are yet to be built, and adding side and rear setback lines. Councilmember Miller seconded the motion and all members present voting in favor. Motion carried (5 -0). Public Hearing, Review and Consider action to approve Case #PZ 09 -25, final plat and re -plat of approximately 6.186 acres from Tracts 13, 13A7, 13 A08, 13C, 13D, David Strickland Survey, Abstract 1376, and Block 1, Lot 24A and Block 2, Lot 1 B, Swiney Estates to Block A Lots 1, 2, & 3, George Case Addition, as requested by Kimley -Horn & Associates on behalf of Chesapeake Land Development Company, L.L.C. The physical address is 400 Bolen Road and an un- addressed portion of Bolen Road. 1. Staff presentation of Case Rachel Roberts addressed Case #PZ 09 -25, re -plat and final plat requested by Kimley -Horn & Associates. Roberts indicated that the property consisted of 3459 a variety of zoning districts, however the applicant was not requesting a zone change at present. She said the current zoning would remain until the owner wished to develop the property, at which time a re- zoning would be required. Also, Roberts indicated that existing structures were on the site and noted on the plat drawing, as well. She implied that existing structures under current property boundaries would continue as non- confonning structures, and that where property boundaries are proposed to change, structures would comply with setback regulations. Next, Roberts advised that the replat did not conflict with the goals of the Comprehensive Land Use Plan, the Future Land Use Plan, or the Thoroughfare Plan, as well as other applicable ordinances. In closing, Roberts indicated that the Planning and Zoning Commission recommend approval contingent upon owner information noted on plat drawing for Lot 13A6 be corrected to reflect a change in ownership, which ensures that the plat conforms to city requirements. 2. Applicant Presentation of Case Dave Cash, representative with Chesapeake indicated that he agrees with staff recommendation and requested approval. 3. Public Hearing Mayor Lankhorst opened the public hearing at 8:04 p.m., and closed the public hearing at 8:05 p.m. with no speakers registered. 4. Staff Response and Summary of Case — No response /and or summary. 5. Applicant Response Mr. Cash indicated that at present there were no plans for the property, but would eventually subdivide and sale. 6. Action on Case #PZ 09 -25 Councilmember Turner moved to approve Case #PZ 09 -25, contingent upon owner information noted on plat drawing for Lot 13A6 be corrected to reflect a change in ownership. Councilmember Johnson seconded the motion with all members voting in favor. Motion carried (5 -0). K. Public Hearing, Review and Consider action to approve Ordinance No. 444, Case #PZ 09 -26, re- zoning request of approximately 1. 13 acres consisting of Tract 4A01, Abstract 980, and Tract 1A01, Abstract 985, J.M. Lilly Survey located at 900 W. Kennedale Sublett Road, Kennedale, TX from "AG" Agriculture to "C -1" Restricted Commercial, as requested by Larry Walther. 1. Staff Presentation of Case Rachel Roberts, Planner addressed Case 909 -26, re- zoning request by Larry Walther to "C -1" Restricted Commercial. Ms. Roberts indicated that the re- zoning request appears to conflict with the city's Comprehensive Land Use 3460 Plan through the Future Land Use Plan, as the plan calls for low density residential. Roberts indicated that staff believes the general welfare of the property would not be enhanced by rezoning to commercial use designation, nor does staff believe that the property is unusable for the purposes allowed under existing zoning regulations. And, the requested zoning is in conflict with the Future Land Use Plan component of the Comprehensive Land Use Plan. Next, Roberts reported that the Planning and Zoning Commission voted unanimously to recommend denial without prejudice of the rezoning request. 2. Applicant Presentation of Case — No presentation by applicant. 3. Public Hearing Mayor Lankhorst opened the public hearing at 8:10 p.m. for public comments. With no comments, Mayor Lankhorst closed the public hearing at 8:11 p.m. 4. Staff Response and Summary of Case — No response /and or summary. 5. Applicant Response — No response. 6. Action on Ordinance No. 444 Councilmember Johnson moved to deny Ordinance No. 444, Case #09 -26 re- zoning request by Larry Walther, second by Councilmember Miller. Motion carried unanimously (5 -0). L. Public Hearing, Review and Consider Action on Case #PZ 09 -27, re -plat request of approximately 1.763 acres from Block 1, Lot 21, Murray Hill Estates to Block 1, Lots 21R and 21R1, Murray Hill Estates, as requested by Stephanie Ahrens. The physical address is 1228 Kennedale Sublett Road, Kennedale, TX. Staff Presentation of Case Rachel Roberts addressed Case #PZ 09 -27, re -plat request by Stephanie Ahrens. Roberts indicated that the property owners were subdividing the property into two lots, which meets the requirements for a replat, except for the front setback requirement, which is 40 feet. Roberts said the proposed lots have a 30 -foot setback, which was originally required, when the subdivision was platted and most of the existing lots do have a 30 -foot setback. Also, Roberts said that the replat does not conflict with the goals of the Comprehensive Land Use Plan, the Future Land Use Plan, or the Thoroughfare Plan; nor does the replat conflict with other applicable ordinances. In addition, the Planning and Zoning Commission reviewed the replat and voted unanimously to recommend approval of the replat with the following conditions: 3461 1. Applicant shall amend title of plat drawing to include the preparation date, to conform with standards set forth in the city code; and 2. Applicant shall amend the plat drawing to include all exiting structures and note which structures are permanent structures, as this will allow staff to verify that no structure encroach on the setback lines; and 3. The Commission granted a variance to allow a 30' foot setback originally required, rather than requiring the 40' setback now required; and 4. Applicant removes the mutual use and fence easement from the replat. 2. Applicant Presentation of Case — No presentation by applicant. Public Hearing Mayor Lankhorst opened the public hearing at 8:19 p.m. for public comments. With no comments, Mayor Lankhorst closed the public hearing at 8:20 p.m. 4. Staff Response and Summary of Case — No response /and or summary. Applicant Response — No applicant response. Action on Case #PZ 09 -27 Councilmember Turner moved to approve Case #PZ 09 -27 contingent upon the following conditions being met: 1. Applicant shall amend title of plat drawing to include the preparation date, to conform with standards set forth in the city code; and 2. Applicant shall amend the plat drawing to include all existing structures and note which structures are permanent structures, as this will allow staff to verify that no structure encroach on the setback lines; and 3. Grant a variance to allow a 30' foot setback originally required, rather than requiring the 40' setback now required; and 4. Applicant removes the mutual use and fence easement from the replat. Councilmember Miller seconded motion. Motion carried unanimously (5 -0). M. Review and consider approval to authorize City Manager to sign Interlocal Agreement with NCTCOG for Watershed Study. Councilmember Johnson moved to authorize the City Manager to sign Interlocal Agreement with NCTCOG for Watershed Study in the amount of $50.000.00, second by Councilmember Miller. Motion carried unanimously (5 -0). N. Review and consider action to approve Resolution No. 302, authorizing Issuance of Certificate of Obligations for the development of Kennedale TownCenter. Mayor Pro -Tern Clark moved to approve Resolution No. 302, authorizing Issuance of Certificate of Obligations for the development of Kennedale TownCenter not to exceed $2 Million Dollars, second by Councilmember Miller. Motion carried unanimously (5 -0). O. Review and consider action to authorize lease of Lot 8, Kennedale Retail Center from the Economic Development Corporation. 3462 Mayor Pro -Tem Clark moved to authorize the lease of Lot 8, Block A, Kennedale Retail Center to the City for a term of 50 -years for $1.00 annually, second by ,. Councilmember Green. Motion carried unanimously (5 -0). P. Review and consider action to approve amendment to KEDC 2009 -2010 Fiscal Year Budget. Councilmember Johnson moved to amend KEDC 2009 -2010 fiscal year budget to allow for re- payment of debt service from sales tax receipts to fund the Certificate of Obligations for the development of the TownCenter. Motion seconded by Councilmember Turner. Motion carried unanimously (5 -0). Q. Review and consider action to appoint members to the Municipal Management District Board. Councilmember Miller moved to appoint Mayor, Bryan Lankhorst and KEDC Vice President, Donnie Graham to the Municipal Management District with each to serve a two -year term beginning January 1, 2010. Motion seconded by Councilmember Johnson, and motion carried unanimously (5 -0). R. Review and consider action to authorize City Manager to sign an agreement with Russ Reid for federal lobbying. Mayor Pro -Tem Clark moved to authorize the City Manager to sign an agreement with Russ Reid for federal lobbying at a contract amount of Five - Thousand Dollars ($5,000.00) per month to assist with acquiring funding for future capital projects, second by Councilmember Johnson. Motion carried unanimously (5 -0) There being no further discussion, Mayor Lankhorst entered into executive session at 9:05 p.m. XIII. EXECUTIVE SESSION A. The City Council will meet in closed session pursuant to Section 551.071 of the Texas Government Code for consultation with the City Attorney pertaining to any matter in which the duty of the City Attorney under the Texas Disciplinary Rules of Professional Conduct may conflict with the Open Meetings Act, including discussion on any item posted on the agenda. B. The City Council will meet in closed session pursuant to Section 551.072 of the Texas Government Code to deliberate the purchase, exchange, lease, or value of real property for the following: 1. TownCenter Development 2. Bowman Springs Road re- alignment properties 3. Sublett Road re- alignment properties 4. Acquisition of easements for 16" water -line extension 5. Acquisition of properties in Oak Crest C. The City Council will meet in closed session pursuant to Section 551.074 of the Texas Government Code to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee. Magistrates 3463 D. The City Council will meet in closed session pursuant to Section 551.087 of the Texas Government Code to deliberate the offer of a financial or other incentive to a business prospect with which the city is conducting economic development negotiations. XIV. RECONVENE INTO OPEN SESSION, AND TAKE ACTION NECESSARY PURSUANT TO EXECUTIVE SESSION, IF NEEDED. Mayor Lankhorst reconvened into open session at 9:55 p.m. A. Consider approval of resolution authorizing legal counsel to proceed with condemnation of Lot 1, Block 1, Kim Addition for water line easement. Mayor Pro -Tem Clark moved to authorize legal counsel to proceed with condemnation of Lot 1, Block 1, Kim Addition for water line easement, second by Councilmember Turner. Motion carried unanimously (5 -0). B. Consider approval of resolution authorizing legal counsel to proceed with condemnation of properties located in the E.C. Cannon Survey, Abstract 378, Tracts 1 H & 1 HO for water line easement. Mayor Pro -Tem Clark moved to authorize legal counsel to proceed with condemnation of properties located in the E.C. Cannon Survey, Abstract 378, Tracts IH & 1H01 for water line easement, second by Councilmember Johnson. Motion carried unanimously (5 -0). C. Consider approval of resolution authorizing legal counsel to file lawsuit seeking the authorization to appraise properties owned by HM Real Estate Management, LTD., being approximately fifty -eight acres of land located west of the 3800 block of New Hope Road and Bruce Johnson, Trustee, being approximately seventeen acres of land located east of the 300 block of Jonah Road for a water line easement acquisition. Mayor Pro -Tem Clark moved to approve resolution authorizing legal counsel to file lawsuit - authorizing appraisal of Lots 6B3 and 7B, Raceway Estates for water line easement acquisition. Councilmember Miller seconded the motion. Mayor Pro -Tem Clark moved to amend his motion to include properties owned by HM Real Estate Management, LTD., being approximately fifty -eight acres of land located west of the 3800 block of New Hope Road and Bruce Johnson, Trustee, being approximately seventeen acres of land located east of the 300 block of Jonah Road for water line easement acquisition. Amended motion seconded by Councilmember Miller. Motion with amendment carried unanimously (5 -0). D. Consider approval of resolution authorizing legal counsel to proceed with condemnation of Lot 1, Block 1, Middleton Estates for widening of Sublett Road. Mayor Pro -Tem Clark moved to authorize legal counsel to proceed with condemnation of Lot 1, Block 1, Middleton Estates for widening of Sublett Road, second by Councilmember Miller. Motion carried unanimously (5 -0). E. Consider approval of resolution authorizing legal counsel to proceed with condemnation of Lots 25 & 26, Block 3, Briarwood Addition for widening of Bowman Springs Road. 3464 Mayor Pro -Tem Clark moved to approve resolution authorizing legal counsel to proceed with condemnation of Lots 25 & 26, Block 3, Briarwood Addition for widening of Bowman Springs Road, second by Councilmember Johnson. Motion carried unanimously (5 -0). F. Consider action to remove magistrates. Mayor Pro-Tern Clark moved to remove Magistrates Bill Atchley, Jennifer Demar, and Gregory Hudson. Motion seconded by Councilmember Green with all members present voting in favor. Motion carried unanimously (5 -0). XV. ADJOURNMENT There being no further discussion, Mayor Lankhorst asked for a motion to adjourn. Councilmember Johnson so moved, and Councilmember Turner seconded the motion with all members present voting in favor. Meeting adjourned at 10:00 p.m. APPROVED: Mayor, Bryan Lankhorst ATTEST: Kathy Turner, City Secretary Staff Report To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: X -B Subject: Approval to award bid to Jackson Construction Ltd., for Tarrant County Street Reconstruction — Bowman Springs Road Project. Originated by: Kathy Turner, City Secretary Summary: Bids were received for the re- alignment of Bowman Springs Road on December 15, 2009. Jackson Construction Ltd., was the low bidder of the ten bids received. Teague Nall and Perkins reviewed the bids, qualifications, and references, and are recommending that the project be awarded to Jackson Construction Ltd. A copy of all bids, as well as Jackson's references and qualifications are included in this packet for your review. Recommended Motion: Staff recommends approval contingent upon procurement of insurance and bonds by Jackson Construction. Disposition by Council: N�x TEAGUE NALL AND PERKINS Civil Engineering Surveying Landscape Architecture Planning December 28, 2009 City of Kennedale Bob Hart— City Manager 405 Municipal Drive Kennedale, TX 76060 Re: Recommendation of Award forthe Bowman Springs Road Project Mr. Hart, Bids for the Tarrant County Bond Street Reconstruction for Bowman Springs Road were received on December 15, 2009. Jackson Construction Ltd. was the low of ten bidders with a bid of $2,548,158.00 and 365 calendar days to complete the project. Our opinion of probable cost for the project was $3,433,649. A copy of the bid tabulation is attached for your review. After reviewing the low bid and associated qualifications and references, we are recommending that the project be awarded to Jackson Construction Ltd. A copy of Jackson's references and qualifications is included with this letter. The award should be contingent on procurement of insurance and bonds by Jackson Construction. Please call if you have any questions or need additional information. Sincerely, TEAGUE NALL AND PERKINS, INC. 1 (Sol Stigall, P Enclosures mrm Ln 0 0 0 Ln O O O O o O O O O O 0 0 O 0 O O O O O O 0 O 0 O 0 O O 0 0 m O O O LD W m M O co 0 0 0 0 0 0 Cl 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 00 CD CO O O O I` L- LO O r J L I- O O O O CO M CN O CO I'- W 0 M N N 0 0 0 0 r- O O m N O 0 M O O Ln O M N O o n 0 M O LO N U r g N 00 Ln N Ln M Ln g N O 0 'IT (D (D M 0 r- M N N M M 00 0 N CO Ln O N LO O N C) •7 N 1l- Cl V: CT r "I r M N (fl Cl O N LQ CD Ln O q V (fl C` M CT Ln Ln Ln O r OR V O) q In O N P ~ Co Cl) O r 69 r M CT Co a) CO M V q M O M ti M (D M T (D C- (D r r- q vi N d ' N Ln Lf) 00 U O N LO N ffl E9 Co. Efl E9 EH e9 Cl) 6q E9 09 E9 E9 CA 69 69 69 q E9 V) 69 E9 U) Cf) 69 EA 64 LO F- E9 Ef3 E9 E!) 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LC) LLJ O W W Z Q m Q Cn U) N ' C C C O `p `� m (' Z Q W Q Q m O �O 0 0 ( n O LL LL - O c (� O� Co J w w o Q_ Q) O 4) 4) N C C '� C_0 (n Fc a�U LL > >,� o Z d' Nm Q 0 W Q Y W U O oinr.4 N , U U U U (D 3 c U` U` = C J N z ~ aE E �Q U m0 ° UUU w f w zoo D j m W F- (D o m U 0 x ns (a U U Cn (n (n LL CL F- Q O O Q 0 F- a 2 N N ' m m� C .0 = N N N N N !n C ~ �a -a N L) d U W O Z Z N - (a m N (a (a N Q, O O N N C N U Q F U W m in W0 6000d0co00 (co nF F O W O O O O O O O O M L2 (D r N 'cY I� N Q2 O N Vm W O a Q *a�H�6A CONSTRUCTION LTD- 5112 SUN VALLEY DRIVE FORT WORTH, TX 76119 TEL 817 -572 -3303 FAX. 817- 478 -0443 December 21, 2009 Sol Stigall, P.E. Teague Nall & Perkins, Inc. 1 100 Macon Street Fort Worth, Texas 76102 Re: Bowman Springs Road Kennedale, Texas Mr. Stigall: Please see the attached qualification forms required for the above referenced project. Jackson Construction, Ltd. will be completing approximately sixty -five percent of the work with our own forces which presently numbers 135. The major subcontractor for this project will be Coppell Bridge whose information is attached. Should you require further information, please feel free to contact me. Sincerely, I � * Lisa Raulston Office Manager AN -A CONSTRUCTION LTD. 51 1 Z SUN VALLEY DRIVE FORT WORTH, TX 76119 TEL: 817 -572 -3303 FAX. 817- 478 -0443 December 17, 2009 Mr. Sol Stigall, P.E., CFM Teague Nall & Perkins, Inc. 1 100 Macon Street Fort Worth, Texas 76102 Re: Qualifications for Bowman Springs Road Dear Mr. Stigall: For almost three decades, Jackson Construction, Ltd. has operated as a full - service contractor and a trusted resource to numerous municipalities, commercial and private developers, and to the Texas Department of Transportation for the installation of underground utilities, concrete structures and concrete paving. Jackson Construction, Ltd. was founded in 1979 by Larry Jackson and then joined by his son, Troy Jackson, in 1986. The company began as an underground utility contractor and progressed to dirt work and slip form concrete paving in 1990. In order to stay ahead in the marketplace, Jackson Construction operates its own concrete plant, providing a continuous flow of concrete on paving projects. Jackson's Craftsmanship can be seen all across North Texas at such sites as The Ballpark in Arlington, Texas Motor Speedway and Cowboys Stadium. Jackson Construction is committed to provide a safe work environment and enforces a detailed safety program to which all must adhere. With this program, the company's safety record continues to far excel industry averages. Our company has never defaulted on a bid and never failed to complete any work awarded. Sincerely, Steve Haberstroh Operations Manager 14", Credit Information for Jackson Construction, Ltd. Name: Jackson Construction, Ltd. Address: 5112 Sun Valley Dr. Fort Worth, Texas 76119 Office: 817- 572 -3303 Fax: 817- 478 -0443 Bank: Trinity Bank 3500 W. Vickery Fort Worth, Texas 76107 817 - 763 -9966 Bank Officer: Jeff Harp Officers: Larry H. Jackson, President of ICI Partners, Inc., General Partner Troy L. Jackson, Vice - President of JCI Partners, Inc., General Partner References: 110. Texas Water Products, Inc. P. O. Box 8543 Fort Worth, Texas 76124 817.457.9988 p 817.654.2007 f Reynolds Asphalt P. O. Box 370 Euless, Texas 76039 817.267.3131 p 817.267.1878 f Southern Star Concrete P. O. Box 961094 File 99039 Fort Worth, Texas 76161 -1094 972.621.0999 p 972.621.3353 f Equal Opportunity of Jackson Construction, Ltd. It is the operating policy of this company to afford all persons equal employment opportunity without regard to their race, color, religion, national origin, disability, age and sex. The following is our company policy: "All applicants and employees will be treated equally without regard to their race, color, religion, national origin, disability, age or sex. Such action shall include: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training and on- the -job training." We also encourage the use of available training programs and will be happy to advise upon what programs are available, the entrance requirements for each, as well as assisting in applying for or entering such programs. Any supervisor will be happy to have you contact him. All present employees are requested to encourage any individual, regardless of race, color, religion, national origin, disability, age or sex to make application for employment with this company or to apply for training under available programs. Any complaint of alleged discrimination by this company, its supervisors or employees, or any person or organization acting on behalf of the company should be reported immediately by contacting the company's EEO Officer, Troy L. Jackson. The company's time -line for completion of an investigation is 60 days from the date the complaint is received. The complaint may also be filed with the Equal Employment Opportunity Commission (EEOC 1- 800 - 669 -4000) or the Texas Commission on Human Rights (TCHR 1- 512 -437- 3450). The company, EEOC and TCHR assure that the complaint shall be protected from any form of retaliatory action. Troy L. Jackson 5112 Sun Valley Drive Fort Worth, Texas 76119 817 - 572 -3303 Name Current Position Steve Haberstroh Operations Manager Curtis Hindman General Superintendent Juan Gonzales Concrete Superintendent Phillip Pfeffer Project Superintendent Jimmy Humphrey Project Superintendent Years of Experience 28 28 31 31 W Magnitude and Type of Work Private, Municipal, State Heavy Construction Private, Municipal, State Heavy Construction Private, Municipal, State Heavy Construction Private, Municipal, State Heavy Construction Private, Municipal, State Heavy Construction What Capacity Foreman, Surveyor General Superintendent Estimator Construction Manager Foreman Excavation Superintendent General Superintendent Concrete Foreman Concrete Superintendent Concrete Foreman Concrete Superintendent Project Manager Project Manager Pipe Foreman Curtis Hindman 4651 Diamond Cr. Midlothian, TX 76065 972.775.4633 4 " O , Experience Excavation Superintendent 1998 to Present Jackson Construction, Ltd., Fort Worth, Texas • Directly oversee Excavation and Stabilization crews • Schedule and order materials for all jobs • Coordinate all sub - contractors schedule for project completion Excavation Superintendent 1991 to 1998 Brown & Root, Inc., Houston, Texas • Directly oversee Excavation and Stabilization crews • Scheduled and ordered all materials for jobs • Coordinate all sub - contractors schedule for project completion Owner /Operator 1987 to 1991 Hindman Excavation, Midlothian, Texas • Directly oversee Excavation and Stabilization crews • Scheduled and ordered all materials for jobs • Coordinate all sub - contractors schedule for project completion References References are available on request. Phillip Pfeffer 3812 Mulberry Lane Bedford, Texas 76021 817.283.3719 Experience Project Manager 2002 to Present Jackson Construction, Ltd., Fort Worth, Texas • Scheduling of all phases of work on Project • Coordination of all aspects of Project • Directly oversees entire construction of Project Project Manager 1980 to 2000 Brown & Root, Houston, Texas • Scheduling of all phases of work on Project • Coordination of all aspects of Project • Directly oversees entire construction of Project Project References TxDOT U.S. 287 Wichita Co. $13 Million 05/2002 to 10/2003 for Jackson ■ Excavation Construction . Milling ■ Asphalt Paving ■ Concrete Paving ■ Pavement Markings TxDOT U.S. 175 Henderson Co. $15 Million 02/2005 to 06/2008 • Excavation • Milling • Storm Drain • Structures • Asphalt Paving • Concrete Paving • Pavement Markings • Landscaping Stadium Drive — City of Arlington $6 Million 07/2008 to 02/2009 Project under Budget and Completed 6 Months Early • Excavation • Milling • Storm Drain • Structures • Asphalt Paving • Concrete Paving • Pavement Markings • Landscaping • Traffic Signals • Ilumination • Sprinkler Systems References References are available on request. Jimmy Humphrey 310 Kathy Lane Granbury, Texas 76049 817.279.8336 Experience Pipe Superintendent 2004 to Present Jackson Construction, Ltd., Fort Worth, Texas • Directly oversee Pipe crews • Schedule and order materials for all jobs • Coordinate all sub - contractors schedule for project completion Pipe Superintendent 2002 to 2004 Wright Construction Co., Grapevine, Texas • Directly oversee Pipe crews • Scheduled and ordered all materials for jobs • Coordinate all sub - contractors schedule for project completion Pipe Superintendent 1999 to 2002 S. J. Lewis, LLP, Mansfield, Texas • Directly oversee Pipe crews • Scheduled and ordered all materials forjobs • Coordinate all sub - contractors schedule for project completion References References are available on request. JACKSON CONSTRUCTION, LTD. AND CONTROLLED ENTITY CONSOLIDATED BALANCE SHEET DECEMBER 31, 2008 ASSETS CURRENT ASSETS Cash and cash equivalents $ 2,187,400 Marketable securities 746 Receivables Trade, Note 2 5,624,741 Retainage, Note 2 1,029,319 Related parties, Note 8 778,587 Other 10,167 Prepaid expenses 128,553 Costs and estimated earnings in excess of billings on uncompleted contracts, Note 3 872 Total current assets _ MACHINERY AND EQUIPMENT, Note 1 Autos and trucks 2,048,700 Machinery and equipment 12,352,405 Office furniture 174,749 14,575,854 Less accumulated depreciation (7,231,877) $ 10,631,660 7,343,977 OTHER ASSETS Receivables from shareholders of TLJ Enterprises, Inc., Note 8 43.000 $ 18,018,637 See accompanying notes and independent auditors' report. 14"10 LIABILITIES AND OWNERS' EQUITY CURRENT LIABILITIES Accounts payable, Note 2 Trade $ 3,849,102 Retainage 390,053 Accrued liabilities, Note 4 172,182 Billings in excess of costs and estimated earnings on uncompleted contracts, Note 3 1,502,790 Notes payable - current portion, Note 5 1,312,785 Total current liabilities $ 7,226,912 LONG -TERM LIABILITIES Notes payable - net of current portion, Note 5 4,175,859 Deferred income taxes, Note 1 1,656 4,177,515 OWNERS' EQUI T'Y Controlling interests Partners' capital 4,270,693 Variable interest entity Non - controlling interests 2,343,517 6,614,210 $ 18,018,637 See accompanying notes and independent auditors' report. JACKSON CONSTRUCTION, LTD. AND CONTROLLED ENTITY CONSOLIDATED INCOME STATEMENT FOR THE YEAR ENDED DECEMBER 31, 2008 CONSTRUCTION INCOME CONSTRUCTION COSTS GROSS PROFIT OPERATING EXPENSES OPERATING INCOME OTHER INCOME AND (EXPENSES) Interest income Gain on sale of fixed assets lfN+' Interest expense NET INCOME Net income attributable to - Controlling interests Non - controlling interests $ 38,709,162 35,133,864 3,575,298 1,633,803 1,941,495 14,741 120,820 (153,970) (18,409) $ 1,923,086 $ 781,704 1,141,382 d 1 n)o no< See accompanying notes and independent auditors' report. JACKSON CONSTRUCTION, LTD. AND CONTROLLED ENTITY CONSOLIDATED STATEMENT OF OWNERS' EQUITY FOR THE YEAR ENDED DECEMBER 31, 2008 Controlling Interests (Partners' Capital) Balance - January 1, 2008 $ 3,633,989 Distributions to partners (145,000) Net income 781,704 Balance - December 31, 2008 $ 4,270,693 Non - Controlling Interests 1,202,135 Total 4,836,124 (145,000) 1,923,086 6,614,210 1,141,382 $ 2,343,517 $ Im See accompanying notes and independent auditors' report. JACKSON CONSTRUCTION, LTD. AND CONTROLLED ENTITY CONSOLIDATED STATEMENT OF CASH FLOWS FOR THE YEAR ENDED DECEMBER 31, 2008 CASH FLOWS FROM OPERATING ACTIVITIES Net income $ 1,923,086 Adjustments to reconcile net income to net cash provided by operating activities Depreciation 1,262,196 Gain on sale of assets (120,820) (Increase) decrease in: Accounts receivable (4,971,714) Costs in excess of billings 359,687 Prepaid expenses (7,865) Increase (decrease) in: Accounts payable 1,777,267 Accrued expenses (82,719) Billings in excess of costs 1,194,490 Net cash provided by operating activities 1,333,608 CASH FLOWS FROM INVESTING ACTIVITIES Purchases of machinery and equipment (139,774) Collections on related party loans (684,414) Proceeds from sale of fixed assets 182,390 Net cash used for investing activities (641,798) CASH FLOWS FROM FINANCING ACTIVITIES Distributions to partners (145,000) Principal paydowns on long -term debt (1,561,843) Line of credit change 750,000 Net cash used for financing activities (956,843) NET DECREASE IN CASH AND CASH EQUIVALENTS (265,033) CASH AND CASH EQUIVALENTS AT - BEGINNING OF YEAR 2,452,433 END OF YEAR $ 2,187,400 See accompanying notes and independent auditors' report. Projects in Progress PBG Turnpike Section XXX Water, Sanitary Sewer and Storm Drain Owner: NTTA General: Zachry Constr. Corp Sam White 214.876.8641 $14,525,568.00 Estimated Completion: 08/10 MIGG Phase 1 & 2 Water, Sanitary Sewer, Storm Drain and Paving Owner: City of Burleson Engineer: City of Burleson Lance Barton, PE 817.426.9621 Estimated Completion: 04/10 Mayfield Road Water, Drainage and Paving Owner: City of Grand Prairie Engineer: City of Grand Prairie George Fanous 972.237.8141 $11,077,941.20 Estimated Completion: 01 /10 Bella Flora Ph. II Water, Sanitary Sewer, Storm Drain and Paving Owner: Westmont Development Peter Paulson 817.822.0766 Engineer: Welch Engineering $1,697,064.00 Estimated Completion: 02/10 08/09 Neighborhood Street Rebuilds Water, Sanitary Sewer, Storm Drain and Paving Owner: City of Burleson Engineer: City of Burleson Lance Barton, PE 817.426.9621 Estimated Completion: 05/10 Stoneridge Park Sanitary Sewer and Paving Owner: City of Arlington Steve Cook 817.459.6564 Engineer: Teague Nall & Perkins $3,775,000.00 Estimated Completion: 1 1 /09 Completed Projects Aledo High School Bailey -Ranch Road Water, Sanitary Sewer, Storm Drain and Paving Owner: Aledo ISD Engineer: Huckabee 817.377.2969 $1,872,480.00 Completion Date: 09/01 Matlock Road Ph. II Water, Storm Drainage and Paving Owner: City of Mansfield Engineer: City of Mansfield Raymond Coffman 817.276.4238 $2,962,355.00 Completion Date: 05/07 Aquatic Center Site Water, Sanitary Sewer, Storm Drain and Paving Owner: City of Mansfield Engineer: City of Mansfield James Fish 817.804.5794 $1,418,000.00 Completion Date: 06/08 Granbury Rd. -Tarrant County Water, Sanitary Sewer, Storm Drain and Paving Owner & Engineer: TxDOT Alburt Durant 817.370.6803 $5,469,592.00 Completion Date: 05/04 Westworth Park Water, Sewer, Storm Drain & Paving Owner: Westworth Redevelopment Authority Engineer: Baird Hampton & Brown Glen Hahn 817.335.4500 $2,330,667.82 Completion Date: 06/03 U.S. Hwy. 287 Bypass /Access Water, Sanitary Sewer, Storm Drain and Paving Owner: City of Midlothian Mike Adams 469.853.4988 Engineer: Schrickel & Rollins $3,719,258,.50 Completion Date: 08/06 Rufe Snow Dr. - Tarrant County Water, Sanitary Sewer, Storm Drain and Paving Owner & Engineer: TxDOT Ralph Brown 817.399.4304 $2,627,110.00 Completion Date: 09/06 Elk Ridge Estates Water, Sanitary Sewer, Storm Drain and Paving Engineer: Childress & Assoc. Owner: Elk Ridge, L.P. Brett Foreman 817.477.0616 $1,379,860.0 Completion Date: 06 /06 F.M. 1718 Johnson County Marine Creek Ranch Storm Drain & Paving Water, Sanitary Sewer, Storm Owner: TxDOT Drain and Paving Engineer: TxDOT Owner: Lake Hollow Corp. Ronald Robinson 817.645.2191 Randal Johnson 817.560 -.717 $6,162,522.50 $4,342,716.44 Completion Date: 08/07 Completion Date: 04/08 U. S. 175 Henderson County North Tarrant Parkway Water, Sanitary Sewer, Storm Water, Sanitary Sewer, Storm Drain and Paving Drain & Paving Owner & Engineer: TxDOT Owner: Legacy Capital Co. Vernon Webb 903.675.4196 Engineer: Halff & Associates $13,444,130.49 $3,146,960.65 Completion Date: 08/08 Completion Date: 08/08 Stadium Drive Jupiter Road Water, Sanitary Sewer, Storm Water, Sanitary Sewer, Storm Drain and Paving Drain and Paving Owner: City of Arlington Owner: TxDOT Engineer: City of Arlington Engineer: TxDOT Dallas Co. Steve Cook 817.459.6564 Enrique Guillen 214.320.4400 $6,137,658.60 $2,139,553.80 Completion Date: 02/09 Completion Date: 01/09 Great Southwest Parkway IH -35W Water, Sanitary Sewer, Storm Storm Drainage and Paving Drain and Paving Owner: TxDOT Owner: Strobel Construction Engineer: TxDO Belinda Strobel 308.548.2264 Ralph Brown 817.399.4304 $1,657,611.00 $2,611,971.00 Completion Date: 01/09 Completion Date: 08/06 Sublett Road U. S. 287 Wichita County Water, Sanitary Sewer, Storm Paving Improvements Drain & Paving Owner & Engineer: TxDOT Owner & Engineer: City of Arlington Allan Moore Mindy Carmichael 817.459.6552 940.552.9393 $6,414,549.93 $13,014,456.24 Completion Date: 12/02 Completion Date: 07/03 Martin Branch Water, Sanitary Sewer, Storm Drain and Paving Owner: James Wood & CL Gage 940.627.2177 Engineer: Hamilton Duffy $1,759,094.95 Completion Date: 03/09 Garey U.S. 175 Paving Paving and Structures Owner: TxDOT General Contractor: Garey Construction Richard Cone 512.837.5916 $2,527,241.00 Completion Date: 06/09 Sara Jane Parkway 30" Water Line at Great Southwest Parkway Owner: City of Grand Prairie Engineer: City of Grand Prairie George Fanous 972.237.8141 $1,034,549.00 Completion Date: 05/09 Martin Branch Water, Sanitary Sewer, Storm Drain and Paving Owner: James Wood 940.627.2177 Engineer: Hamilton Duffy $1,759,094.95 Completion Date: 04/09 Developer and Municipal References Lake Hollow Corporation P. O. Box 121697 Fort Worth, Texas 76121 817.560.1717 Randal Johnson City of Saginaw 205 Brenda Lane Saginaw, Texas 76179 817.230.0500 Mark White City of Arlington P. O. Box 231 Arlington, Texas 76004 817 - 459 -6550 Steve Cook City of Mansfield 1200 E. Broad Street Mansfield, Texas 76063 817.276.4238 Raymond Coffman City of Burleson 141 West Renfro Burleson, Texas 76028 817- 295 -1113 Mandy Clark or Lance Barton City of Grand Prairie 206 W. Church Street Grand Prairie, Texas 75053 972.237.8525 George Fanous MMO Jackson Construction, Ltd. SAFETY POLICY It is the policy of this company to provide a Healthy and Safe place of employment for all employees; to abide by all employees; to abide by all regulations as they pertain to our "Industry" which are set forth in Federal, State and Local Standards; and Good practice as dictated by locations and circumstances. Employees are expected to do their part - to work safely, wear required safety equipment, observe all posted safety rules and regulations, and keep their work place neat and clean. Listed and Required Responsibilities A. Management Will 1. Provide means to accomplish policy as stated above. 2. Enforce this policy and discharge any employee willfully disregarding it. 3. Require all subcontractors to abide by this policy. 4. Encourage all other prime contractors to abide by this policy and document any violations for future reference. 5. Conduct safety inspections and file reports. 6. Investigate or cause to have investigated any and all accidents and file full reports on each. 7. Establish procedure for treatment of injuries. 8. Establish and provide safety training for personnel. B. Job Superintendent will: 1. Be completely responsible for on site safety. 2. Make available all necessary personal protective equipment, job safety materials and first aid equipment. 3. Instruct the foreman that safe practices are to be followed and safe conditions maintained throughout the job. 4. Inform the foreman that they are not to require or permit their men to take chances, but rather that they instruct the men in proper and safe procedures. 5. Instruct foreman individually regarding their safety responsibilities. 6. Require all subcontractors and encourage other prime contractors to adhere to all Safety Regulations. 7. Review all accidents with foreman; file full reports, and see that corrective action is taken immediately. 8. Have available copies of applicable Federal and State Regulations. 9. Appoint a competent safety man with authority to police the job. 10. Be familiar with the laws pertaining to safety and their basic requirements. C. Job Foreman Will: 1. See that the entire safety program is carried out at the work level. 2. See that the men commit no unsafe practices. 3. Make sure that no unsafe conditions exist in their work area. 4. Make sure that necessary protective equipment is on hand and used. 5. Instruct all men in safe procedures and job safety requirements - to follow up and insist on compliance. 6. Discuss safety in personal contracts with men on every operation. 7. See that all injuries are cared for properly and reported promptly. 8. Investigate all accidents; file complete reports; and correct the causes immediately. 9. Be familiar with the laws pertaining to Safety and their basic requirements. D. All Workmen Will: 1. Work according to good safety practices as posted, instructed and discussed. 2. Refrain from any unsafe act that might endanger himself or his fellow workmen. 3. Use all safety devices provided for his protection. 4. Report any unsafe situation or act to his supervisor or Safety Director immediately. 5. Assume his share of responsibility for thoughtless or deliberate acts that cause injury to himself or his fellow workmen. 6. Be a safe workman off the job as well as on. _.;t,,, Coppell Construction Co., Inc. P.O. Box 620 Saint Jo, Texas 76265 Jackson Construction, LTD. Fort Worth, Texas 76119 Attn: Troy Jackson Re: Pojo (199 - Holbrook) Troy, As your bridge subcontractor on the above - mentioned project we are writing this letter to conform to the engineers request for our qualifications and experience. Coppell Construction Co., Inc. has been in business for 38 years. We specialize in bridge construction. The majority of our work is TxDot projects. We work all over the states of Texas and Oklahoma. Through the years we have built numerous city, county and private structures. Currently we are working on TxDot projects in Amarillo, Lubbock, Decatur Hereford and Gainesville. We are also completing a structure for the City of Weatherford. We operate seven complete structure crews. We own all of the equipment necessary to build our work. We have bridged the majority of the rivers in the state of Texas as well as the majority of the interstate highways in Texas. The following is a list of references for our firm: John Cordary, P.E. (Parker County Area Engineer) 682.229.2800 Bill Nelson, P.E. (Wise County Area Engineer) 940.626.3400 Joe Chappell, P.E. (Amarillo Area Engineer) 806.655.4401 Stan Reed, P.E. (Structural Engineer, Reedcon) 972.596.2852 If we can provide any further information please let us know. We look forward to working with your firm on this project. Thanks, Dwayne Weger President Coppell Construction Co., Inc. „; To whom it may concern, Coppell Construction Co., Inc. is a family owned and managed Construction Company specializing in heavy civil construction. We were founded in 1973 in Coppell, Texas. Today our office is in Saint Jo, Texas. At this time we work all over the state of Texas, Oklahoma and Arkansas. Our primary focus is bridge construction and the majority of our projects are built for TxDot. To date we have bridged most major highways and rivers in the state of Texas. However through the years we have worked on many municipal, private and commercial projects. We have a reputation in our industry for our quality of workmanship and speed of construction as well as for providing a safe work environment. We are fully bonded and insured and all of our project management personnel have at least 30 plus years individually in our type of work. The following is a small listing of some of the projects that we have completed: 1- Frankford Road Interchange, TxDot Project consisted of building interchange bridges at IH 35e and Frankford Road in Carrollton, Texas 2- La Vallita Channel Improvements, Cousins Property Project consisted of MSE walls, canals, bridges and weir construction built at the intersection of Royal Lane and Riverside Drive in Irving, Texas. 3- Johnson Creek Weir structure, Texas Rangers Baseball Project consisted of building a massive weir structure in order to make a lake beside the Ballpark in Arlington, Texas. 4- US 175 Bridges, TxDot Project consisted of constructing four bridges on US 175 at the Trinity River in Kaufman County, Texas. 5- SH 79 Bridge replacement, TxDot Project consisted of replacing two bridges on SH 79 over the Brazos River in Young County, Texas. 6- Gaylord Texan, Centex Corporation Project consisted of retaining wall construction around the perimeter of the Gaylord Texan Hotel in Grapevine, Texas. 7- IH 35E Bridge and road reconstruction, TxDot Project consisted of bridges, retaining walls and paving on IH 35E at US 377 in Denton, Texas. Thank you, Dwayne L. Weger President Coppell Construction Co., Inc. Staff Report To the Honorable Mayor and City Council Date: January 7, 2009 Agenda Item No.: X -C. Subject: Approval to award bid for Sonora Park Spray Park and Playground Equipment. Originated by: James E. Cowey Summary: On December 15 2009 Texas Parks & Wildlife gave us "notice to proceed with construction" for Sonora Park. Due to the lead -time on the Spray ground and parks equipment, the City requested bid proposals from companies, which provide Buyboard pricing and specialize in spray grounds and park equipment The bid submittals and budget numbers follow: Spray ground Equipment, Construction, and Installation: Budget estimate - $180,000.00 Gametime — $179,367.65 Kraftsman - $167,207.75 Playground Equipment, Engineered Wood Fiber, Construction, and Installation Budget estimate - $70,000.00 Gametime — $57,562.65 Kraftsman - $81,200.00 Park benches. Picnic tables. Trash Receptacles. Grill. and Dual Water Fountain Budget estimate - * There was no specific budget item for these. It was included as a component in other items such as Pavilion, renovate Picnic Stations, Trail benches Gametime — $27,005.91 Kraftsman - $ Horseshoe Pit & Washer Pit Budget estimate - $3,000.00 Gametime — $2980.00 Kraftsman - $ -0- Page 1 of 2 Please note the budget estimates reflected above included utilities, demo, site prep, etc of which some will be done by City staff and some by other contractors for which the differences in bid and budget estimates will be used. Staff is recommending awarding the bid to Kraftsman for the Sprayground to Kraftsman. We are recommending all of the other items be awarded to Gametime. Kraftsman comes highly recommended for Spraygrounds and has numerous references including other Cities. Gametime did the playground, and tables and benches, for Rodgers Farm Park and Town Center and did us an excellent job. " Page 2 of 2 Staff Report To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: X -D Subject: Approval to authorize City Manager to execute Union Pacific Railroad Company Agreement for relocation and construction of Bowman Springs Road At -Grade Public Road Crossing. Originated by: Bob Hart, City Manager Summary: The extension of Bowman Springs Road and connection to Dick Price Road will necessitate a new railroad crossing. The Union Pacific Railroad requires the execution of an agreement in order to obtain the crossing. Following completion of this project, the current crossing at Dick Price Road will be closed. Recommended Motion: Staff recommends authorizing the City Manager to execute the agreement with Union Pacific Railroad. Disposition by Council: 6000 WESTERN PLACE, SUITE 200 Taylor Olson Adkins Sralla Elam TELEPHONE: (817) 332 -2580 I -30 AT BRYANT -IRVIN ROAD L.L.P. TOLL FREE: (800) 318 -3400 FORT Worm, TEXAS 76107 -4654 FACSIMILE: (817) 332 -4740 EMAIL: TOASE @TOASE.COM Attorneys Counselors WE.BSITE: WWW.TOASE.COM WAYNE K. OLSON EXT. 210 wolson(o�toase.com January 5, 2010 VIA EMAIL AND REGULAR MAIL Bob Hart City of Kennedale 405 Municipal Drive Kennedale, Texas 76060 RE: New Public Highway At -Grade Crossing Agreement — Bowman Springs Road Dear Bob: We have reviewed the proposed agreement between Union Pacific Railroad Company and the City of Kennedale which allows the City to relocate the existing Dick Price Road railroad crossing to the new Bowman Springs Road railroad crossing . The agreement'being a standard agreement from the railroad company, it is assumed that it is pretty much a `take it or leave it type agreement. Nonetheless, I wanted to give you some comments about the substance of the agreement. Under this agreement, the City agrees to pay Union Pacific Railroad ( "Union Pacific ") $15,400 to enter into the agreement. In addition, the City agrees to reimburse Union Pacific one hundred percent (100 %) of the actual costs of the project. As of now, the estimated actual cost is $177,968.00. This estimate consists of: (1) the track and surface material estimate, $53,121.00; (2) the signal material estimate, $116,847.00; and (3) the Railroad Flagging Estimate, $8,000.00. The track and surface material estimate is good for a period of six months, effective on September 16, 2009 and expiring on March 17, 2010. The signal material estimate is also good for a period of six months effective on September 21, 2009 and expiring on March 22, 2010. The agreement provides that Union Pacific may choose to recalculate and update the estimate if the City does not commence construction on the portion of the road improvement project located on Union Pacific's property prior to the estimate's expiration date. In the event this occurs, there is no provision for the City to terminate the agreement should costs exceed budgeted amounts. To begin the relocation and construction of the Bowman Springs Road at -grade public road crossing, the following actions must occur: (1) Union Pacific must provide the City with written approval of the detailed plans and specifications for the relocation and construction project; (2) each of the City's contractors must execute a Contractor's Right of Entry Agreement and provide Union Pacific with the insurance policies and certificates as required by the agreement; and (3) the City's contractors must provide Union Pacific with ten - working day advanced notice. In the event that the City does not commence construction of the railroad crossing within 12 months, the railroad may terminate the agreement. W: \Kennedale \LETTERS \Hart.wko- 005.wpd January 5, 2010 Page 2 Finally, there is a provision in the agreement that obligates the City to reimburse the railroad for all future maintenance of the automatic grade- crossing protection. If you have any questions regarding this matter, please let me know. Very truly yours, Wayne K. Olson W KO /ke cc: Lisa Mares Taylor, Olson, Adkins, Sralla & Elam, L.L.P. W:\ Kennedale \LETTERS\Hart.wko- 005.wpd UPRR Folder No.: 2584 -01 NEW PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT BETWEEN ,. , mm City Original BUILDING AMERICA UPRR Folder No.: 2584 -01 UPRR Audit No.: NEW PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT Bowman Springs Road — DOT No.: 765 -244X UPRR Mile Post 4293 — Midlothian Subdivision Kennedale, Tarrant County, Texas THIS AGREEMENT ( "Agreement ") is made and entered into as of the day of 200__ ( "Effective Date "), by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, to be addressed at the Real Estate Department, 1400 Douglas Street, Mail Stop 1690, Omaha, Nebraska 68179 ( "Railroad ") and CITY OF KENNEDALE, a municipal corporation or political subdivision of the State of Texas to be addressed at 401 Municipal Drive, Kennedale, TX 76060 ( "City "). RECITALS: The City presently occupies the Railroad's right of way with the existing Dick Price Road at- grade public road crossing, DOT No. 765 -244X, at Railroad's Mile Post 42.94 on the Railroad's Midlothian Subdivision in Kennedale, Tarrant County, Texas (the "Existing Crossing"). The City now desires to undertake as its project (the "Project ") the relocation and construction of the new Bowman Springs Road at -grade public road crossing as shown on the Railroad Location Print marked Exhibit A and as specified of the Detailed Print marked Exhibit A- 1, with each e7Chibit 10 1118 attaC11W 1 11C1CUy 1C1CLO a11d I11adC d pall 11ClCOf lle portion of 1110 roadway located within the Crossing Area is the "Roadway ". The road crossing, as relocated and constructed is hereinafter the "Roadway" and the portion of the Railroad's property where the Roadway crosses the Railroad's property is the "Crossing Area." Under this Agreement, the Railroad will be granting rights to the City to facilitate the relocation and construction of the Roadway. Upon completion of the relocation and construction of the Roadway, the Existing Crossing will be removed. The Railroad and the City are entering into this Agreement to cover the above. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: Section 1. EXHIBIT B The General Terms and Conditions marked Exhibit B, are attached hereto and hereby made a part hereof. Public Road At -Grade Crossing Agreement Articles of Agreement November 25, 2009 Form Approved, AVP -law - 05/01/2003 Page 1 of 6 BUILDING AMERICA #� Section 2. RAILROAD GRANTS RIGHT For and in consideration of FIFTEEN THOUSAND FOUR HUNDREDDOLLARS ($15,400.00) to be paid by the City to the Railroad upon the execution and delivery of this Agreement and in further consideration of the City's agreement to perform and comply with the terms of this Agreement, the Railroad hereby grants to the City the right to construct, maintain and repair the Roadway over and across the Crossing Area. Section 3. DEFINITION OF CONTRACTOR For purposes of this Agreement the term "Contractor" shall mean the contractor or contractors hired by the City to perform any Project work on any portion of the Railroad's property and shall also include the Contractor's subcontractors and the Contractor's and subcontractor's respective employees, officers and agents, and others acting under its or their authority. Section 4. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT - INSURANCE A. Prior to Contractor performing any work within the Crossing Area and any subsequent maintenance and repair work, the City shall require the Contractor to: • execute the Railroad's then current Contractor's Right of Entry Agreement • obtain the then current insurance required in the Contractor's Right of Entry Agreement; and • provide such insurance policies, certificates, binders and /or endorsements to the Railroad. B. The Railroad's current Contractor's Right of Entry Agreement is marked Exhibit D, attached hereto and hereby made a part hereof. The City conf rns that it will inform its Contractor that it is required to execute such form of agreement and obtain the required insurance before commencing any work on any Railroad property. Under no circumstances will the Contractor be allowed on the Railroad's property without last executing the Railroad's Contractor Right of Entry Agreement and obtaining the insurance set forth therein and also providing to the Railroad the insurance policies, binders, certificates and /or endorsements described therein. C. All insurance correspondence, binders, policies, certificates and /or endorsements shall be sent to: Senior Manager - Contracts Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, Mail Stop 1690 Omaha, NE 68179 -1690 UPRR Folder Alo. 2584 -01 D. If the City's own employees will be performing any of the Project work, the City may self - insure all or a portion of the insurance coverage subject to the Railroad's prior review and approval. Public Road At -Grade Crossin_ Aereement Articles of Agreement November 25, 2009 Form Approved, AVP -LaNv — 05/01/2008 Page 2 of 6 BUILDING AMERICA Section 5. FEDERAL AID POLICY GUIDE If the City will be receiving any federal funding for the Project, the current rules, regulations and provisions of the Federal Aid Policy Guide as contained in 23 CFR 140, Subpart I and 23 CFR 646, Subparts A and B are incorporated into this Agreement by reference. Section 6. NO PROJECT EXPENSES TO BE BORNE BY RAILROAD The City agrees that no Project costs and expenses are to be borne by the Railroad. In addition, the Railroad is not required to contribute any funding for the Project. Section 7. WORK TO BE PERFORMED BY RAILROAD; BILLING SENT TO CITY; CITY'S PAYMENT OF BILLS A. The work to be performed by the Railroad, at the City's sole cost and expense, is described in the Railroad's Material and Force Account Estimate(s): Railroad's Track & Surface Material Estimate dated September 16, 2009, in the amount of $53,121.00, marked Exhibit C, Railroad's Signal Material Estimate dated September 21, 2009, in the amount of $116,847.00, marked Exhibit C -1, and Railroad's Flagging Estimate dated October 1, 2009, in the amount of $8,000.00, marked Exhibit C -2, each attached hereto and hereby made a part hereof (collectively the "Estimate "). As set forth in the Estimate, the Railroad's combined estimated cost for the Railroad's work associated with the Project is ($177,968.00). B. The Railroad, if it so elects, may recalculate and update the Estimate submitted to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within six (6) months from the date of the Estimate. C. The City agrees to reimburse the Railroad for one hundred percent (100 %) of all actual costs incurred by the Railroad in connection with the Project including, but not limited to, actual costs of preliminary engineering review, construction inspection, procurement of materials, equipment rental, manpower and deliveries to the job site and all of the Railroad's normal and customary additives (which shall include direct and indirect overhead costs) associated therewith. Section 8. PLANS A. The City, at its expense, shall prepare, or cause to be prepared by others, the detailed plans and specifications for the Project and the Structure and submit such plans and specifications to the Railroad's Assistant Vice President Engineering- Design, or his authorized representative, for prior review and approval. The plans and specifications shall include all Roadway layout specifications, cross sections and elevations, associated drainage, and other appurtenances. B. The final one hundred percent (100 %) completed plans that are approved in writing by the Railroad's Assistant Vice President Engineering - Design, or his authorized representative, are hereinafter referred to as the "Plans ". The Plans are hereby made a part of this Agreement by Public Road At -Grade Crossing Agreement Articles of Agreement November 25, 2009 Form Approved, AVP -Law — 0 5101/2008 Page 3 of 6 BUILDING AMERICA° reference. C. No changes in the Plans shall be made unless the Railroad has consented to such changes in writing. D. The Railroad's review and approval of the Plans will in no way relieve the City or the Contractor from their responsibilities, obligations and/or liabilities under this Agreement, and will be given with the understanding that the Railroad makes no representations or warranty as to the validity, accuracy, legal compliance or completeness of the Plans and that any reliance by the City or Contractor on the Plans is at the risk of the City and Contractor. Section 9. NON- RAILROAD IMPROVEMENTS A. Submittal of plans and specifications for protecting, encasing, reinforcing, relocation, replacing, removing and abandoning in place all non - railroad owned facilities (the "Non Railroad Facilities ") affected by the Project including, without limitation, utilities, fiber optics, pipelines, wielines, communication lines and fences is required under Section S. The Non Railroad Facilities plans and specifications shall comply with Railroad's standard specifications and requirements, including, without limitation, American Railway Engineering and Maintenance -of -Way Association ( "AREMA ") standards and guidelines. Railroad has no obligation to supply additional land for any Non Railroad Facilities and does not waive its right to assert preemption defenses, challenge the right -to -take, or pursue compensation in any condemnation action, regardless if the submitted Non Railroad Facilities plans and specifications comply with Railroad's standard specifications and requirements. Railroad has no obligation to permit any Non Railroad Facilities to be abandoned in place or relocated on Railroad's property. B. Upon Railroad's approval of submitted Non Railroad Facilities plans and specifications, Railroad will attempt to incorporate them into new agreements or supplements of existing agreements with Non Railroad Facilities owners or operators. Railroad may use its standard terms and conditions, including, without limitation, its standard license fee and administrative charges when requiring supplements or new agreements for Non Railroad Facilities. Non Railroad Facilities work shall not commence before a supplement or new agreement has been fully executed by Railroad and the Non Railroad Facilities owner or operator, or before Railroad and City mutually agree in writing to (1) deem the approved Non Railroad Facilities plans and specifications to be Plans pursuant to Section 813, (ii) deem the Non Railroad Facilities part of the Structure, and (iii) supplement this Agreement with terms and conditions covering the Non Railroad Facilities. Section 10. EFFECTIVE DATE; TERM; TERMINATION A. This Agreement is effective as of the Effective Date first herein written and shall continue in full force and effect for as long as the Roadway remains on the Railroad's property. B. The Railroad, if it so elects, may terminate this Agreement effective upon delivery of written notice to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within twelve (12) months from the Effective Date. C. If the Agreement is terminated as provided above, or for any other reason, the City shall pay Public Road At -Grade Crossing Agreement Articles of Agreement November 25, 2009 Form Approved, AVP -Law — 05/0 1 2008 Page 4 of 6 "'0" BUILDING AMERICA° to the Railroad all actual costs incurred by the Railroad in connection with the Project up to the date of tennination, including, without limitation, all actual costs incurred by the Railroad in connection with reviewing any preliminary or final Project Plans. Section 11. CONDITIONS TO BE MET BEFORE CITY CAN COMMENCE WORK Neither the City nor the Contractor may commence any work within the Crossing Area or on any other Railroad property until: (1) The Railroad and City have executed this Agreement. (ii) The Railroad has provided to the City the Railroad's written approval of the Plans. (iii) Each Contractor has executed Railroad's Contractor's Right of Entry Agreement and has obtained and /or provided to the Railroad the insurance policies, certificates, binders, and /or endorsements required under the Contractor's Right of Entry Agreement. (iv) Each Contractor has given the advance notice(s) required under the Contractor's Right of Entry Agreement to the Railroad Representative named in the Contactor's Right of Entry Agreement. Section 12. FUTURE PROJECTS Future projects involving substantial maintenance, repair, reconstruction, renewal and /or demolition of the Structure shall not commence until Railroad and City agree on the plans for such future projects, cost allocations, right of entry terns and conditions and temporary construction rights, terms and conditions. Section 13. ASSIGNMENT; SUCCESSORS AND ASSIGNS A. City shall not assign this Agreement without the prior written consent of Railroad. n_t• i c t_ w t___ -� t_].. ' a „1..,.11 +,. +I--. 1.,�. «,.1't P r5. Ju ject to nle plovislolls Ol Paragiapll h itVV VG, t111a rgrGCc �un1 iitiire w tiro vuatii vi and be binding upon the successors and assigns of Railroad and City. Section 14. TERMINATION OF ORIGINAL AGREEMENT Upon the completion of the Roadway, the Original Agreement covering the Existing Crossing, if any, shall terminate and the terms and conditions of this Agreement shall govern the use, maintenance and repair of the Roadway. Section 15. SIGNAL MAINTENANCE The City agrees to reimburse the Railroad the cost of future maintenance of the automatic grade- crossing protection within thirty (30) days of the City's receipt of billing. Public Road At -Grade Crossing Agreement Articles of Agreement November 25, 2009 Fonn Approved, AW -Law - 05/01/2009 Page 5 of 6 BUILDING AMERICA IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID 994- 6001323) By_ WITNESS: JAMES P. GADE Director Contracts CITY OF KENNEDALE Title (Seal) Pursuant to Resolution /Order No. dated: _ 200 hereto attached. Public Road At -Grade Crossing Agreement Articles of Agreement November 25, 2009 Form Approved; AVP -Law - 05'01/2005 Pate 6 of 6 al"m N� N - i RAILROAD LOCATION PRINT w—W—E. OF A NEW AT —GRADE PUBLIC ROAD CROSSING CONSTRUCTION PROJECT s _ s DORSEY ST 2`RUCEWOOD LN a DORSEY ST �3 �287PB ALANDALE DR d p O RIDGETREE LN DR s c SHADY HILL Eq p LEONARD ST MOUNT VERNON CT m O MATTHEWS CT �' y am`" z C z g. SE LOOP 820 ' �� Q��. SARATOGALN LINK 5T C GUNSTON LN m c z ° z c z GLENN Cr - a v¢ p n g o _ a m V m F p v z A w O 0 4 O o G z z Bowman Springs Road - DOT Vending z ° COLONIAL Cf RR MP 42.93 - Midlothian Subdivision o N ~ New At-Grade Public Road Crossing °� UR DR Construction Project W oP t7 A' o T Lti ° �. FREEMAN Midlothian Subdivision F w E M15TLETOE DR J p o z n Z EEO DR p ij D p rr m SHADY OAKS DR ra p Do R l7 ou D Q v z f. w s ° r X HARRISON ST S' f n Dick Price Road • DOT 9765 -244X g RR MP 42.94 - Midlothian Subdivision o Kennedal8 zK 6rerald HiYS KENNEDALE SUBLETT RD m+ rn W!emorLalPatk _.. , o Existing At -Grade Public Road Crossing $y z Z ;. ., ,,, F To Be Closed ✓L Removed W z O A Z � _ a m z z m O PINE MEADOW DR !F! o a. a !y9 p p r ELERMAN KENNEDALE RD ?Q' aX K�.. 287P8 5'L JONAH RD ;..A, _ h Data use nbied to license. 0 1000 7➢00 0 2007 DeLorme. Street Ate USA& 2008. MN S E) Data Zoom 13,10) w"belorme corn (4 RAILROAD WORK TO BE PERFORMED: EXHIBIT "A" 1. Install 48 -feet of concrete road crossing panels; Install 40 cross UNION PACIFIC RAILROAD COMPANY ties; Install 1 carload of ballast; and other track & surface materials. MID1,011IIAN SUBDIVISION 2. Relocate automatic flashing light signals & gates; and other MILE POST 42.93 signal facilities. GPS: N 32° 39.0778', W 97° 14.0342' KENNEDALE, TARRANT CO., TX. 3. Engineering Review & Flagging. Railroad Location Print of a new at -grade public road crossing construction Project witll the CITY OF KENNEDALE. Folder No. 2584 -01 Date: November 25, 2009 WARNING IN ALL OCCASIONS, U P COMMUNICATIONS DEPARTMENT NIIIST IIE CONTACTED IN ADVANCI--. Or ANY WORK TO DGLERMINE EXISTENCE AND LOCAI ION OP FIBER OPTIC CABLE PHONE: 14800) 336 -9193 ME Exhibit A Railroad Location Print 111 ,, 11 a. N INS HUM SPRINGS - �qo All, It 0 9 . t gp C D OI, cm YµH Public Road At -Grade Crossing Agreement ExB Standard Form Approved, AVP -Law — 05/01/2008 EXHIBIT B TO NEW PUBLIC HIGHWAY AT GRADE CROSSING AGREEMENT GENERAL TERMS AND CO BUILDING a SECTION 1. CONDITIONS AND COVENANTS A. The Railroad makes no covenant or warranty of title for quiet possession or against encumbrances. The City shall not use or permit use of the Crossing Area for any purposes other than those described in this Agreement. Without limiting the foregoing, the City shall not use or permit use of the Crossing Area for railroad purposes, or for gas, oil or gasoline pipe lines. Any lines constructed on the Railroad's property by or under authority of the City for the purpose of conveying electric power or communications incidental to the City's use of the property for highway purposes shall be constructed in accordance with specifications and requirements of the Railroad, and in such manner as not adversely to affect communication or signal lines of the Railroad or its licensees now or hereafter located upon said property. No nonparty shall be admitted by the City to use or occupy any part of the Railroad's property without the Railroad's written consent. Nothing herein shall obligate the Railroad to give such consent. B. The Railroad reserves the right to cross the Crossing Area with such railroad tracks as may be required for its convenience or purposes. In the event the Railroad shall place additional tracks upon the Crossing Area, the City shall, at its sole cost and expense, modify the Roadway to conform with all tracks within the Crossing Area. C. The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or unrecorded, and also to any renewals thereof. The City shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the Railroad's property, unless the City at its own expense settles with and obtains releases from such nonparties. D. The Railroad reserves the right to use and to grant to others the right to use the Crossing Area for any purpose not inconsistent with the right hereby granted, including, but not by way of limitation, the right to construct, reconstruct, maintain, operate, repair, alter, renew and replace tracks, facilities and appurtenances on the property; and the right to cross the Crossing Area with all kinds of equipment. E. So far as it lawfully may do so, the City will assume, bear and pay all taxes and assessments of whatsoever nature or kind 111W (whether general, local or special) levied or assessed upon or against the Crossing Area, excepting taxes levied upon and against the property as a component part of the Railroad's operating property. F. If any property or rights other than the right hereby granted are necessary for the construction, maintenance and use of the Roadway and its appurtenances, or for the performance of any work in connection with the Project, the City will acquire all such other property and rights at its own expense and without expense to the Railroad. SECTION 2. CONSTRUCTION OF ROADWAY A. The City, at its expense, will apply for and obtain all public authority required by law, ordinance, rule or regulation for the Project, and will furnish the Railroad upon request with satisfactory evidence that such authority has been obtained. B. Except as may be otherwise specifically provided herein, the City, at its expense, will furnish all necessary labor, material and equipment, and shall construct and complete the Roadway and all appurtenances thereof. The appurtenances shall include, without limitation, all necessary and proper highway warning devices (except those installed by the Railroad within its right of way) and all necessary drainage facilities, guard rails or barriers, and right of way fences between the Roadway and the railroad tracks. Upon completion of the Project, the City shall remove from the Railroad's property all temporary structures and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad. C. All construction work of the City upon the Railroad's property (including, but not limited to, construction of the Roadway and all appurtenances and all related and incidental work) shall be performed and completed in a manner satisfactory to the Assistant Vice President Engineering - Design of the Railroad or his authorized representative and in compliance with the Plans, and other guidelines furnished by the Railroad. D. All construction work of the City shall be performed diligently and completed within a reasonable time. No part of the Project shall be suspended, discontinued or unduly delayed without the Railroad's written consent, and subject to such reasonable conditions as the Railroad may specify. It is understood that the Railroad's tracks at and in the vicinity of the work will be in constant or frequent use during progress of the work and that movement or stoppage of trains, engines or cars may cause delays in the work of the City. The City hereby assumes the risk of any such delays and agrees that no claims for damages on account of any delay shall be made against the Railroad by the City and /or the Contractor. SECTION 3. INJURY AND DAMAGE TO PROPERTY If the City, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the City is responsible under the provisions of this Agreement, shall injure, damage or destroy any property of the Railroad or Public Road At -Grade Crossing Agreement ExB Page 1 of 4 Exhibit B Standard Form Apprcved, AVP -Law— 05/01/2008 General Terms and Conditions Public Road At -Grade Crossing Agreement ExB Standard Form Approved, AVP -Law - 05/0112008 BUILDING AMERICA of any other person lawfully occupying or using the property of the Railroad, such property shall be replaced or repaired by the City at the City's own expense, or by the Railroad at the expense of the City, and to the satisfaction of the Railroad's Assistant Vice President Engineering- Design. SECTION 4. RAILROAD MAY USE CONTRACTORS TO PERFORM WORK The Railroad may contract for the performance of any of its work by other than the Railroad forces. The Railroad shall notify the City of the contract price within ninety (90) days after it is awarded. Unless the Railroad's work is to be performed on a fixed price basis, the City shall reimburse the Railroad for the amount of the contract. SECTION 5. MAINTENANCE AND REPAIRS A. The City shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Crossing Area and Roadway, except the portions between the track tie ends, which shall be maintained by and at the expense of the Railroad. B. If, in the future, the City elects to have the surfacing material between the track tie ends, or between tracks if there is more than one railroad track across the Crossing Area, replaced with paving or some surfacing material other than timer planking, the Railroad, at the City's expense, shall install such replacement surfacing, and in the future, to the extent repair or replacement of the surfacing is necessitated by repair or rehabilitation of the Railroad's tracks through the Crossing Area, the City shall bear the expense of such repairs or replacement. SECTION 6. CHANGES IN GRADE If at any time the Railroad shall elect, or be required by competent authority to, raise or lower the grade of all or any portion of the track(s) located within the Crossing Area, the City shall, at its own expense, conform the Roadway to conform with the change of grade of the trackage. SECTION 7. REARRANGEMENT OF WARNING DEVICES If the change or rearrangement of any warning device installed hereunder is necessitated for public or Railroad convenience or on account of improvements for either the Railroad, highway or both, the parties will apportion the expense incidental thereto between themselves by negotiation, agreement or by the order of a competent authority before the change or rearrangement is undertaken. SECTION 8. SAFETY MEASURES; PROTECTION OF RAILROAD COMPANY OPERATIONS It is understood and recognized that safety and continuity of the Railroad's operations and communications are of the utmost importance; and in order that the same may be adequately safeguarded, protected and assured, and in order that accidents may be prevented and avoided, it is agreed with respect to all of said work of the City that the work will be performed in a safe manner and in conformity with the following standards. A. Definitions All references in this Agreement to the City shall also include the Contractor and their respective officers, agents and employees, and others acting under its or their authority; and all references in this Agreement to work of the City shall include work both within and outside of the Railroad's property. Em B. Compliance With Laws The City shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work The City shall use only such methods as are consistent with safety, both as concerns the City, the City's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The City (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad's premises. If any failure by the City to comply with any such laws, regulations, and enactments, shall result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the City shall reimburse, and to the extent it may lawfully do so, indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attorney's fees, court costs and expenses. The City further agrees in the event of any such action, upon notice thereof being provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad. C. No Interference or Delays The City shall not do, suffer or permit anything which will or may obstruct, endanger, interfere with, hinder or delay maintenance or operation of the Railroad's tracks or facilities, or any communication or signal lines, installations or any appurtenances thereof, or the operations of others lawfully occupying or using the Railroad's property or facilities. D. Supe rvision. The City, at its own expense, shall adequately police and supervise all work to be performed by the City, and shall not inflict injury to persons or damage to property for the safety of whom or of which the Railroad may be responsible, or to property of the Railroad. The responsibility of the City for safe conduct and adequate policing and supervision of the Project shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad's representatives, or by Public Road At -Grade Crossing Agreement ExB Standard Form Approved, AVP -Law — 05/0112008 Page 2 of 4 Exhibit B General Terms and Conditions Public Road At -Grade Crossing Agreement ExB Standard Form Approved, AVP -Law - 05!01/2008 BUILDING AMERICA compliance by the City with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the City will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad's property and operations. E Suspension of Work If at any time the City's engineers or the Vice President - Engineering Services of the Railroad or their respective representatives shall be of the opinion that any work of the City is being or is about to be done or prosecuted without due regard and precaution for safety and security, the City shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. F. Removal of Debris The City shall not cause, suffer or permit material or debris to be deposited or cast upon, or to slide or fall upon any property or facilities of the Railroad; and any such material and debris shall be promptly removed from the Railroad's property by the City at the City's own expense or by the Railroad at the expense of the City. The City shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad's property during snow removal from the Crossing Area. G. Explosives The City shall not discharge any explosives on or in the vicinity of the Railroad's property without the prior consent of the Railroad's Vice President - Engineering Services, which shall not be given if, in the sole discretion of the Railroad's Vice President - Engineering Services, such discharge would be dangerous or would interfere with the Railroad's property or facilities. For the purposes hereof, the "vicinity of the Railroad's property" shall be deemed to be any place on the Railroad's property or in such close proximity to the Railroad's property that the discharge of explosives could cause injury to the Railroad's employees or other persons, or cause damage to or interference with the facilities or operations on the Railroad's property. The Railroad reserves the right to impose such conditions, restrictions or limitations on the transportation, handling, storage, security and use of explosives as the Railroad, in the Railroad's sole discretion, may deem to be necessary, desirable or appropriate. H. Excavation The City shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad. The City shall not do or cause to be done any work which will or may disturb the stability of any area or adversely affect the Railroad's tracks or facilities. The City, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation andfor trenching performed by the City in connection with construction, maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved bythe Railroad's Assistant Vice President Engineering - Design to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad's operations in the vicinity. I. Drainage The City, at the City's own expense, shall provide and maintain suitable facilities for draining the Roadway and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The City, at the City's own expense, shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, and including water from the Railroad's culvert and drainage facilities), so that said waters may not, because of any facilities or work of the City, be impeded, obstructed, diverted or caused to back up, overflow or damage the property of the Railroad or any part thereof, or property of others. The City shall not obstruct or interfere with existing ditches or drainage facilities. J. Notice Before commencing any work, the City shall provide the advance notice to the Railroad that is required under the Contractor's Right of Entry Agreement. K. Fiber Optic Cables Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. City shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1- 800 - 336 -9193 (also a 24 -hour, 7 -day number for emergency calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the City. If it is, City will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Railroad's premises. SECTION 9. INTERIM WARNING DEVICES If at anytime it is determined by a competent authority, by the City, or by agreement between the parties, that new or improved train activated warning devices should be installed at the Crossing Area, the City shall install adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect the motoring public until the new or improved devices have been installed. SECTION 10. OTHER RAILROADS All protective and indemnifying provisions of this Agreement shall inure to the benefit of the Railroad and any other railroad company lawfully using the Railroad's property or facilities. SECTION 11. BOOKS AND RECORDS Public Road At -Grade Crossing Agreement ExB Page 3 of 4 Exhibit B Standard Form Approved, AW -Law — 05'01/2008 General Terms and Conditions Public Road At -Grade Crossing Agreement ExB Standard Form Approved, AVP -Law — 05/0112008 BUILDING AMERICA' The books, papers, records and accounts of Railroad, so far as they relate to the items of expense for the materials to be provided by Railroad under this Project, or are associated with the work to be performed by Railroad under this Project, shall be open to inspection and audit at Railroad's offices in Omaha, Nebraska, during normal business hours by the agents and authorized representatives of City for a period of three (3) years following the date of Railroad's last billing sent to City, SECTION 12. REMEDIES FOR BREACH OR NONUSE A. If the City shall fail, refuse or neglect to perform and abide by the terms of this Agreement, the Railroad, in addition to any other rights and remedies, may perform any work which in the judgment of the Railroad is necessary to place the Roadway and appurtenances in such condition as will not menace, endanger or interfere with the Railroad's facilities or operations or jeopardize the Railroad's employees; and the City will reimburse the Railroad for the expenses thereof. B. Nonuse by the City of the Crossing Area for public highway purposes continuing at any time for a period of eighteen (18) months shall, at the option of the Railroad, work a termination of this Agreement and of all rights of the City hereunder. C. The City will surrender peaceable possession of the Crossing Area and Roadway upon termination of this Agreement. Termination of this Agreement shall not affect any rights, obligations or liabilities of the parties, accrued or otherwise, which may have arisen prior to termination. SECTION 13. MODIFICATION - ENTIRE AGREEMENT No waiver, modification or amendment of this Agreement shall be of any force or effect unless made in writing, signed by the City and the Railroad and specifying with particularity the nature and extent of such waiver, modification or amendment. Any waiver by the Railroad of any default by the City shall not affect or impair any right arising from any subsequent default. This Agreement and Exhibits attached hereto and made a part hereof constitute the entire understanding between the City and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work or any part thereof. Public Road At -Grade Crossing Agreement ExB Page 4 of 4 Exhibit B Standard Form Approved, AVP -Law - 05/01/2008 General Terms and Conditions DATE: 2009 -09 -16 ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD THIS ESTIMATE GOOD FOR 6 MONTHS EXPIRATION DATE IS :2010 -03 -17 DESCRIPTION OF WORK: C� RECOLLECTABLE CROSSING SURFACE PROJECT. �] MIDLOTHIAN SUB / MP 42.94 / KENNEDALE, TX / DICK PRICE RD 765244X 100% RECOLLECTABLE CROSSING FROM CITY OF KENNEDALE, TX. ACTUAL COSTS. ESTIMATED USING FEDERAL ADDITIVES WITH OVERHEAD & INDIRECT CONSTRUCTION COST - 205% INSTALL NEW 136 LB 48 TRACK FEET OF CONCRETE SURFACE WITH TIES, OTM AND BALLAST REPLACING EXISTING CROSSING SURFACE. SIGNAL AS REQUIRED. PID: 65444 AWO: 01742 MP,SUBDIV: 42.94, MIDLOTHIAN SERVICE UNIT: 11 CITY: KENNEDALE STATE: TX DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL ENGINEERING WORK ENGINEERING 1009 1009 1009 TOTAL ENGINEERING 1009 1009 1009 SIGNAL WORK LABOR ADDITIVE 205% 2176 2176 2176 SALES TAX 2 2 2 SIGNAL 1061 70 1131 1131 TOTAL SIGNAL 3237 72 3309 3309 TRACK & SURFACE WORK BALAST 1.00 CL 794 721 1515 1515 ENVRIONMENTAL PERMITS 1 1 1 FOREIGN LINE FREIGHT 197 197 197 HOME LINE FREIGHT 900 900 900 LABOR ADDITIVE 205& 18981 18981 18981 MAIL STORE EXPENSE 139 139 139 OTM 618 364 982 982 RDXING 48.00 TF 3653 9851 13504 13504 SALES TAX 587. 587 587 TRK- SURF,LIN 1759 1759 1759 WELD 1198 261 1459 1459 XTIE 40.00 EA 5253 3526 8779 8779 TOTAL TRACK & SURFACE 32256 16547 48603 48803 LABOR /MATERIAL EXPENSE 36502 16619 -- - - - - -- -- - - -- -- RECOLLECTIBLE/UPRR EXPENSE 53121 0 -- - - - - -- ESTIMATED PROJECT COST 53121 EXISTING REUSEABLE MATERIAL CREDIT 0 SALVAGE NONUSEABLE MATERIAL CREDIT 0 RECOLLECTIBLE LESS CREDITS THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. Exhibit C Railroad's Track & Surface Material Estimate Lover aneei ror ine Railroad's Signal Material Estimate DATE: 2009.09 -21 ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD THIS £STI'MATE GOOD FOR 6 R'ONTHS EXPIRATION DATE IS :2010 -03 -22 DESCRIPTION OF WORK: RELOCATE AUTO:•ATIC FLASHING LIGHT CROSSING SIGNALS q �/ { \!•(l AND GATES AT KENNEDALE, TX. 80117•3AN SPRINGS ROAD N.P. 42.93 ON 14IDLOTHIAN SUB, DOT 876S244X WORK TO HE PREFORMED BY RAILROAD WITH EXPENSE AS BELOW: SIGNAL - CITY /STATE - 1001, ESTIi•IATED USING FEDERAL WITH OVERHEAD & INDIRECT 167.76 PID: 65443 AWOt 01714 FIP,SUBDIV: 42.94, MIDLOTHIAN SERVICE UNIT: 11 CITY: KE`NEDALE STATE: TX DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR ----------- - -- --•- - -- -- -- - - - --- --- --`- --- -- TOTAL �•'^ ENGINEERING WORK ENGINEERING 26GB 2668 2668 LABOR ADDITIVE 167.76' 12507 12S07 12507 SIC -1CJY XNG 4821 4821 4821 TOTAL ENGINEERING 19996 19996 19996 SIGNAL NORK BILL PREP 900 900 900 CONTRACT 561 561 561 CONTINGENCIES 1156 1156 1156 LABOR ADDITIVE 167.76% 45138 45138 45138 MATL STORE EXPENSE 3 3 3 PERSONAL EXPENSES 13500 13500 13500 ROCK /GRAVEL /FILL 300 300 300 SIGNAL 26006 5606 31612 31612 TRANS P /IB /OB /RCL47 CONTR 643 643 643 WZT CONTROL 3017 3037 3037 TOTAL SIGNAL 72044 24806 96850 96850 TRACK & SURFACE WORK ENVIROM-ENTAL PERMITING 1 1 1 TOTAL TRACK & SURFACE 1 1 1 •- - ---- -- - - - - -- LABORAIATERIAL EXPENSE 92040 24807 -- - - ---- --- - - - - -- RECOLLECTIBLE /UPRR EXPENSE 116847 0 -- - - - - -- ESTIMATED PROJECT COST 116847 THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF D!ATERIAL OR LABOR REQUIRED, UPRR 'WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. i i I I Exhibit C -1 Railroad's Signal Material Estimate Ex hibit C-1 Railroad's Signal Material Estimate ! m 2 ■fn q | � ) ° . ;/§ ` ` & m K � K § 2 2 $ �|/ ■( § d ) ƒ J | 2 2 - / ---- - - - - -- --- - - - -- § § m 7 ; K k k� \ = � § &■ *2 § /j% A ■� | §$§ 7 ? � . . ■ ; o O � 1 s Ex hibit C-1 Railroad's Signal Material Estimate IRMN ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD COMPANY FOR THE CITY OF KENNEDALE, TEXAS DESCRIPTION OF WORK: Perform flagging services for the City of Kennedale during the new construction/relocation of Dick Price /Bowman Springs Road in Kennedale, at MP 42.93 on the Midlothian Subdivision. LOCATION: FW SERVICE UNIT: 11 STATE: Texas DATE: 10/01/09 DESCRIPTION LABOR MATERIAL STATE TOTAL FLAGGING SERVICES FLAGGING (per day) $800.00 Times 10 Days $8,000.00 TOTAL PROJECT $8,000.00 $8,000.00 EXISTING REUSABLE MATERIAL- NONE SALVAGE NONUSABLE MATERIAL - NONE TOTAL ESTIMATED COST OF PROJECT LESS CREDITS $8,000.00 Exhibit C -2 Railroad's Flagging Estimate ,.��. -ii+aoN. ve�Re November 25, 2009 UPRR Folder No.: 2584 -01 To the Contractor: Before Union Pacific Railroad Company can permit you to perform work on its property for the relocation and construction of Bowman Springs Road at -grade public road crossing, it will be necessary for you to complete and execute two originals of the enclosed Contractor's Right offntryAgireement Please: 1. Fill in the complete legal name of the contractor in the space provided on Page I of the Contractor's Right of Entry Agreement. If a corporation, give the state of incorporation. If a partnership, give the names of all partners. 2. Fill in the date construction will begin and be completed in Article 5, Paragraph A. 3. Fill in the name of the contractor in the space provided in the signature block at the end of the Contractor's Right of Entry Agreement. If the contractor is a corporation, the person signing on its behalf must be an elected corporate officer. 4. Execute and return all copies of the Contractor's Right of Entry Agreement together with your Certificate of Insurance as required in Exhibit B, in the attached, self - addressed envelope. 5. Include a check made payable to the Union Pacific Railroad Company in the amount of $500.00. If you require formal billing, you may consider this letter as a formal bill. In compliance with the Tnterrial Revannp gPrx7irac' na }u pnliry rounrrling their Fnrm 1 OQQ T rertify that 94 (0()1373 is the Railroad Company's correct Federal Taxpayer Identification Number and that Union Pacific Railroad Company is doing business as a corporation. Under Exhibit B of the enclosed Contractor's Right of Entry Agreement, you are required to procure Railroad Protective Liability Insurance (RPLI) for the duration of this project. As a service to you, Union Pacific is making this coverage available to you. If you decide that acquiringthis coverage from the Railroad is of benefit to you, please contact Mr. Mike McGrade of Marsh USA @ 800 - 729 -7001, e -mail: ►vil liam.i.smrth@niarsh. cony This agreement will not be accepted by the Railroad Company until you have returned all of the following to the undersigned at Union Pacific Railroad Company: Executed, unaltered duplicate original counterparts of the Contractor's Right of Entry Agreement; Your check in the amount of $500.00 to pay the required balance due of the required Contractor's Right of Entry fee. (The Folder Number and the name "Paul G. Farrell" should be written on the check to insure proper credit). If you require formal billing, you may consider this letter as a formal bill; Real Estate Department UNION PACIFIC RAILROAD COMPANY 1400 Douglas Street. MS 1690 Omaha, Nebraska 68179 -1690 fax: 402.501.0340 viaai �e�Rr 3. Copies of all of your up -to -date General Liability, Auto Liability & Workman's Compensation Insurance Certificates (yours and all contractors ), naming Union Pacific Railroad Company as additional insured; 4. Copy of your up -to -date Railroad Protective Liability Insurance Certificate (yours and all contractors ), naming Union Pacific Railroad Company as additional insured. RETURN ALL OF THESE REQUIRED ITEMS TOGETHER IN ONE ENVELOPE. DO NOT MAIL ANY ITEM SEPARATELY. If you have any questions concerning this agreement, please contact me as noted below. Have a safe day! Paul G. Farrell Senior Manager Contracts Phone: (402) 544 -8620 e -mail: p @rrell @up.coin Real Estate Department UNION PACIFIC RAILROAD COMPANY 1400 Douglas Street, MS 1690 Omaha, Nebraska 68179 -1690 fax: 402.501.0340 Contractor's ROE (Generic) 08 -15 -07 Form Approved - AVP Law UPRR Audit No.: BUILDING AMERICA° UPRR Folder No.: 2584 -01 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT THIS AGREEMENT is made and entered into as of the day of , 200_, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ( "Railroad "); and a (State of Corporation) RECITALS: (NAME OF CONTRACTOR) corporation ( "Contractor "). Contractor has been hired by the City of Kennedale ("City ") to perform work relating to the relocation and construction of Bowman Springs Road at -grade public road crossing (the "work "), with all or a portion of such work to be performed on property of Railroad in the vicinity of the Railroad's Mile Post 42.93 on the Railroad's Midlothian Subdivision in Kennedale, Tarrant County, Texas, as such location is in the general location shown on the Railroad Location Print marked Exhibit A, and as specified on the Detailed Print marked Exhibit A -1, each attached hereto and hereby made a part hereof, which work is the subject of a contract dated between the Railroad and the City. (Date of Contract) The Railroad is willinp- to permit the Contractor to perform the work described above at the location described above subject to the terms and conditions contained in this Agreement AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between Railroad and Contractor, as follows: ARTICLE l - DEFINITION OF CONTRACTOR For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing the work described in the Recitals above. The right herein granted to Contractor is limited to those Contractor's ROE (Generic) 08 -15 -07 Page 1 of 4 November 25, 2009 Form Approved - AVP Law Contractor's ROE (Generic) 08 -15 -07 Form Approved - AVP Law SUILOING AMERICA' `� portions of Railroad's property specifically described herein, or as designated by the Railroad Representative named in Article 4. ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS B, C & D The General Terms and Conditions contained in Exhibit B, the Contractor's Insurance Requirements in Exhibit C and the Minimum Safety Requirements in Exhibit D, each attached hereto, are hereby made a part of this Agreement. ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTORI_ R AILROAD REPRESENTATIVE A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative "): Ramus Davis Union Pacific Railroad Company Manager Track Maintenance 8510 South Central Expressway Dallas, TX 85421 Phone: 214- 372 -7401 Cell: 214 -402 -6235 Harvey (Gene) Lantrip Manager Signal Maintenance Union Pacific Railroad Company 1400 North Dallas Street Ennis, TV 75119 phone: 402 -501 -4371 fax: 402 -501 -2446 cell: 214 -316 -7836 C. Contractor, at its own expense, shall adequately police and supervise all work to be perforted by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit B. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's work shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the work, or by Railroad's collaboration in performance of any work, or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recommendations made by Railroad Representative. ARTICLE 5 - TERM; TERMINATION A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until , unless sooner tenminated as herein provided, or (Expiration Date) at such time as Contractor has completed its work on Railroad's property, whichever is earlier. Contractor agrees to notify the Railroad Representative in ATiting when it has completed its work on Railroad's property. B. This Agreement may be terminated by either party on ten (10) days written notice to the other party. Contractor's ROE (Generic) 08 -15 -07 Page 2 of 4 November 25, 2009 Form Approved - AVP Law Contractor's ROE (Generic) 08 -15 -07 Form Approved - AVP Law ARTICLE 6 - CERTIFICATE OF INSURANCE BUILDING AMERICA A. Before commencing any work, Contractor will provide Railroad with the (i) insurance binders, policies, certificates and endorsements set forth in Exhibit C of this Agreement, and (ii) the insurance endorsements obtained by each subcontractor as required under Section 12 of Exhibit B of this Agreement. B. All insurance correspondence, binders, policies, certificates and endorsements shall be sent to: Union Pacific Railroad Company Real Estate Department 1400 Douglas S17-eet, MS 1690 Omaha, NE 68179 -1690 UPRR Folder No.: 2584 -01 ARTICLE 7 - DISMISSAL OF CONTRACTOR'S EMPLOYEE At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. ARTICLE 8 - ADMINISTRATIVE FEE Upon the execution and delivery of this Agreement, Contractor shall pay to Railroad FIVE HUNDRED DOLLARS ($500.00) as reimbursement for clerical, administrative and handling expenses in connection with the processing of this Agreement. ARTICLE 9 - CROSSINGS. Nn ad d itinnal NTeh;eiilar,-rnBcingc (inOlwdino fi mmnnra �i limil rnad8) `nr McApvt"an rOSS:17gS ^`.'er Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. ARTICLE 10 - EXPLOSIVES Explosives or other highly flammable substances shall not be stored on Railroad's property without the prior written approval of Railroad. Contractor's ROE (Generic) 08 -15 -07 Page 3 of 4 November 25, 2009 Form Approved - AVP Law Contractor's ROE (Generic) 08 -15 -07 Form Approved - AVP Law BUILDING AMERICA° IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID 994- 6001323) By: PAUL G. FARRELL Senior Manager Contracts (Name of Contractor) IC Title: cm Contractor's ROE (Generic) 08 -15 -07 Form Approved - AVP Law Page 4 of 4 November 25, 2009 . lye. lak AS CT i m LA RAILROAD LOCATION PRINT ACCOMPANYING A CONTRACTOR'S RIGHT OF ENTRY AGREEMENT i, 2 87PO -7 MOUNT VERNON 1.z < A } LINK SARATOGA'LN 57 C (A V GLE k 1 r V ZO --- ---- Q �:" Bowman Springs Road - DOT #Pending 0 R p CO�919AI_i r Bowman a4 RR MP 42.93 - Midlothian Subdivision : ri New At-Grade Public Road Crossing C. u ct Construction Project rHUR OR O P Midlothian Subdivisi on 7" j p -i�--SHADY OAKS DR 3, 1 7,! E FR ' 1� 'f- i� HARRISON ST Dick Price Road - DOT #T 65-244X ElRIS k RR MP 4224 - Midlothian Subdivision of -K6nnedale -;k j Nimerardial Pe KENNEDAL'E SUBLETT RD , , ;�."\ ew Existing At-Grade Public Road Crossing To Be Closed 8 Removed _ y c J �!; i Y f2_87_P_Q F Ka JONAH _ RD tt Dais me ui*d to keme. =a ® 2W7 DeLwne. Sired Alias U&AOD 20M, 0 Iwo =a www4tior".com M (9 L) Data Zoom 1 30 RAILROAD WORK TO BE PERFORMED: EXHIBIT "A" 1. Install 48-feet of concrete road crossing panels-, Install 40 cross UNION PACIFIC RAILROAD COMPANY ties; Instal] I carload of ballast; and other track & surface materials. MIDLOTHIAN SUBDIVISION 2. Relocate automatic flashing light signals & gates; and other MILE POST 42.93 signal facilities. GPS: N 32' 39.0778', W 97' 14.0342' 3. Engineering Review & Flagging. KENNEDALE, TARRANT CO., TX. To accompany Contractor's Right of Entry Agreement with (A'ame of Contractor) for a new at-grade public road crossing construction project. Folder No. 2584-01 Date: November 25, 2009 WARNING IN ALL OCCASIONS, U P COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EMS FENCE AND LOCATION OF FIBER OPTIC CABLE PHONE: 1 -(800) 336-9193 Exhibit A Railroad Location Print 04 ma MI f 4 i> /0 a 1 f, . &OWUAV. SAkNGi A4 011 ,Z fA; lzvr�. P� . I SOL p ba `e 0 0 v DOI, J , Cl Q OP � 3 Contractor's ROE (Generic) - ExB Form Approved - AVP Law 07 -09 -07 EXHIBIT B BUILDING AMERICA' TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT GENERAL TERMS AND CONDITIONS Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING. A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty -five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty -five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty -five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such ten (10) -day notice, the Railroad Representative will determine and inform Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal, state or local governmental entity have agreed that Railroad is to bill such expenses to the federal, state or local governmental entity. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractor's receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight -hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one -half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one -half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling ' of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges. C. Reimbursement to Railroad will be required covering the full eight -hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work, even though Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional ten (10) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or otherwirelines, pipelines and otherfacilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others,,, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery Contractor's ROE (Generic) - ExB Page 1 of 3 Exhibit B Form Approved - AVP Law 07 -09 -07 General Terms & Conditions ; Contractor's ROE (Generic) - ExB Form Approved - AVP Law 07 -09 -07 BUILDING AMERICA ?a and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. Section 4. LIENS Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense. Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS A. Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1- 800 - 336 -9193 (also a 24 -hour, 7 -day numberfor emergency calls) to determine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable_ Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of Contractor, its agents and /or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and /or its contractor, agents and /or employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property_ Section 6. PERMITS -COMPLIANCE WITH LAWS In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit C, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit C to each of its employees before they enter the job site. B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on thejob site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan "). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. Contractor's ROE (Generic) - ExB Form Approved - AVP Law 07 -09 -07 Page 2 of 3 Exhibit B General Terms & Conditions Contractor's ROE (Generic) - ExB Form Approved - AVP Law 07 -09 -07 Section 8. INDEMNITY BUILDING AMERICA' ?V A. To the extent not prohibited by applicable statute, Contractor shall indemnify, defend and hold harmless Railroad, its affiliates, and its and their officers, agents and employees ( "Indemnified Parties ") from and against any and all loss, damage, injury, liability, claim, demand, cost or expense (including, without limitation, attorney's, consultant's and expert's fees, and court costs), fine or penalty (collectively, "loss ") incurred by any person (including, without limitation, any indemnified party, contractor, or any employee of contractor or of any indemnified party) arising out of or in any manner connected with (i) any work performed by Contractor, or (ii) any act or omission of Contractor, its officers, agents or employees, or (iii) any breach of this Agreement by Contractor. B. The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving rise to the loss, and shall apply regardless of any negligence or strict liability of any indemnified party, except where the loss is caused by the sole active negligence of an indemnified party as established by the final judgment of a court of competent jurisdiction. The sole active negligence of any indemnified party shall not bar the recovery of any other indemnified party. C. Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought by Contractor's own employees. Contractor waives any immunity it may have under worker's compensation or industrial insurance acts to indemnify Railroad under this Section 8. Contractor acknowledges that this waiver was mutually negotiated by the parties hereto. D. No court or jury findings in any employee's suit pursuant to any worker's compensation act or the federal employers' liability act against a party to this Agreement may be relied upon or used by Contractor in any attempt to assert liability against Railroad. E. The provisions of this Section 8 shall survive the completion of any work performed by Contractor or the termination or expiration of this Agreement. In no event shall this Section 8 or any other provision of this Agreement be deemed to limit any liability Contractor may have to any indemnified party by statute or under common law. Section 9. RESTORATION OF PROPERTY In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. Section 10. WAIVER OF DEFAULT Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default. Section 11. MODIFICATION -ENTIRE AGREEMENT No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors. Before Contractor commences any work, the Contractor shall, except to the extent prohibited by law; (1) require each of its subcontractors to include the Contractor as "Additional Insured" in the subcontractor's Commercial General Liability policy and Business Automobile policies with respect to all liabilities arising out of the subcontractor's performance of work on behalf of the Contractor by endorsing these policies with ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage; (2) require each of its subcontractors to endorse their Commercial General Liability Policy with "Contractual Liability Railroads" ISO Form CG 24 17 10 01 (or a substitute form providing equivalent coverage) for the job site; and (3) require each of its subcontractors to endorse their Business Automobile Policy with "Coverage For Certain Operations In Connection With Railroads" ISO Form CA 20 70 10 01 (or a substitute form providing equivalent coverage) for the job site. Contractor's ROE (Generic) - ExB Page 3 of 3 Exhibit B Form Approved - AVP Law 07 -09 -07 General Terms & Conditions Contractor's ROE (Generic) - ExC Form Approved - AVP Law 08 -15 -07 BUILDING AMERICA° EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT CONTRACTOR'S INSURANCE REQUIREMENTS EMM Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Projectwork on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance Commercial general liability (CGL) with a limit of not less than $5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, which must be stated on the certificate of insurance: • Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site, and • Designated Construction Project(s) General Aggregate Limit ISO Form CG 25 03 03 97 (or a substitute form providing equivalent coverage) showing the project on the form schedule. B. Business Automobile Coverage Insurance Business auto coverage written on ISO form CA 00 01 10 01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $5,000,000 for each accident and coverage must include liability arising out of any auto (including owned, hired and non -owned autos). The policy must contain the following endorsements, which must be stated on the certificate of insurance: • Coverage For Certain Operations In Connection With Railroads ISO form CA 20 7010 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site. • Motor Carrier Act Endorsement - Hazardous materials clean up (MCS -90) if required by law. C. Workers' Compensation and Employers' Liability Insurance Coverage must include but not be limited to: • Contractor's statutory liability under the workers' compensation laws of the state where the work is being performed. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee. If Contractor is self - insured, evidence of state approval and excess workers compensation coverage must be provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy must contain the following endorsement, which must be stated on the certificate of insurance: • Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liability Insurance Contractor must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to Railroad before the work may be commenced and until the original policy is forwarded to Railroad. E. Umbrella or Excess Insurance If Contractor utilizes umbrella or excess policies, these policies must "follow form" and afford no less coverage than the primary policy. F. Pollution Liability Insurance Pollution liability coverage must be written on ISO form Pollution Liability Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability coverage), with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non - hazardous materials from the job site, Contractor must furnish to Railroad evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising from the insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and an annual aggregate of $2,000,000. Contractor's ROE (Generic) - ExC Form Approved - AVP Law 08 -15 -07 Page 1 of 2 Exhibit C Contractor's Insurance Requirements Contractor's ROE (Generic) - ExC Form Approved - AVP Law 08 -15 -07 Other Requirements BUILDING AMERICA G. All policy(ies) required above (except worker's compensation and employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad's negligence whether sole or partial, active or passive, and shall not be limited by Contractor's liability under the indemnity provisions of this Agreement. H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless the law governing this Agreement prohibits all punitive damages that might arise under this Agreement. I. Contractor waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Railroad and its agents, officers, directors and employees. This waiver must be stated on the certificate of insurance. J. Prior to commencing the work, Contractor shall furnish Railroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. K. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state where the work is being performed. L. The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release or diminish the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage. Contractor's ROE (Generic) - ExC Page 2 of 2 Exhibit C Form Approved - AVP Law 08 -15 -07 Contractor's Insurance Requirements Contractor's ROE (Generic) - ExD Form Approved - AVP Law 07 -09 -07 BUILDING AMERICA° EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. 1. Clothinq A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Contractor's employees must wear: (i) Waist - length shirts with sleeves. (ii) Trousers that cover the entire leg. If flare - legged trousers are worn, the trouser bottoms must be tied to prevent catching. (iii) Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety -toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements. B. Employees shall not wear boots (other than work boots), sandals, canvas -type shoes, or other shoes that have thin soles or heels that are higher than normal. C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery. II. Personal Protective Equipment Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. (i) Hard hat that meets the American National Standard (ANSI) Z89.1 — latest revision. Hard hats should be affixed with Contractor's company logo or name. (ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z87.1 — latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, etc. (iii) Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within: ■ 100 feet of a locomotive or roadway /work equipment ■ 15 feet of power operated tools ■ 150 feet of jet blowers or pile drivers ■ 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection — plugs and muffs) (iv) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. On Track Safety Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: (i) Maintain a distance of twenty -five (25) feet to any track unless the Railroad Representative is present to authorize movements. (ii) Wear an orange, reflectorized workwear approved by the Railroad Representative. (iii) Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's Contractor's ROE (Generic) - ExD Form Approved - AVP Law 07 -09 -07 Page 1 of 2 Exhibit D Minimum Safety Requirements Contractors ROE (Generic) - ExD Form Approved - AVP Law 07 -09 -07 BUILDING AMERICA a property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment In addition, operators must be: • Familiar and comply with Railroad's rules on lockout/tagout of equipment. • Trained in and comply with the applicable operating rules if operating any by -rail equipment on- track. • Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment. B. All self - propelled equipment must be equipped with a first -aid kit, fire extinguisher, and audible back -up warning device, C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty -five (25) feet from any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment against movement. D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Requirements A Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including On- Track Safety) and the potential hazards of the job. If any employee has any questions or concerns about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work procedures, or personnel change. C All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213. D. All employees comply with the following safety procedures when working around any railroad track: (i) Always be on the alert for moving equipment. Employees must always expect movement on any track, at any time, in either direction. (ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. (iii) In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less than one car length (50 feet). (iv) Avoid walking or standing on a track unless so authorized by the employee in charge. (v) Before stepping over or crossing tracks, look in both directions first. (vi) Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. Contractor's ROE (Generic) - ExD Page 2 of 2 Exhibit D Form Approved - AVP Law 07 -09 -07 Minimum Safety Requirements Staff Repot To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: X -E Subject: Approval of Resolution No. 309, dedicating 4.152 acres of parkland as open space for perpetuity as required by the Texas Parks and Wildlife Department. Originated by: Bob Hart, City Manager Summary: The Texas Parks and Wildlife Department has approved our park construction plans and issued approval to proceed. The city has acquired the three tracts of land on the south side of the park. Because the land was purchased with state /federal funds, the city is required to dedicate the land as open space. The attached resolution is a template provided by the state to accomplish this requirement. Recommended Motion Staff recommends approval of Resolution No. 309. Disposition by Council: RESOLUTION NO. 309 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS, DEDICATING 4.152 ACRES OF PARKLAND ALONG THE CREEK/DRAINAGE WAY IN THE KENNEDALE SONORA PARK AS DESCRIBED IN EXHIBIT (A) ATTACHED AS OPEN SPACE FOR PERPETUITY, AS REQUIRED BY THE TEXAS PARKS AND WILDLIFE DEPARTMENT; APPROVING THE TERMS AND CONDITIONS OF THE AGREEMENT; AUTHORIZING ITS EXECUTION BY THE CITY MANAGER AND MAYOR; REPEALING ALL RESOLUTIONS IN CONFLICT; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Kennedale City Council desires to provide quality park facilities for the residents of Kennedale; and WHEREAS, the City of Kennedale has obtained a grant from the Texas Parks and Wildlife department for the development of Sonora Park and desires to comply with all of the requirements set forth in the grant. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS THAT; SECTION 1. In order to fulfill the requirements of the Texas Parks and Wildlife department's grant to the City of Kennedale, the City Council of Kennedale, Texas hereby designates five acres of parkland in the Kennedale Sonora Park for open space. SECTION 2. The Mayor of the City of Kennedale, along with the City Manager, are hereby authorized to execute the appropriate documents approving the terms and conditions of the agreement with the Texas Parks and Wildlife Department. SECTION 3. Any prior Resolution of the City Council in conflict with the provisions contained in this Resolution are hereby repealed and revoked. SECTION 4. Should any part of this resolution be held to be invalid for any reason, the remainder shall not be affected thereby, and such remaining portions are hereby declared to be severable. SECTION 5. This Resolution shall take effect immediately from and after passage and it is so duly resolved. Page 1 of 2 DULY PASSED AND ADOPTED by the City Council of the City of Kennedale, "Texas, on this the 14 day of January, 2010. Mayor, Bryan Lankhorst ATTEST: Kathy Turner, City Secretary APPROVED AS TO FORM AND LEGALITY: Wayne Olson, City Attorney ,.,,.. Irm Page 2 of 2 Staff Report To the Honorable Mayor and City Council Date: December 23, 2009 Agenda Item No: X -F Subject: 35 Year Community Development Block Grant Project Originated by: Larry Ledbetter, Public Works Director Summary: The City has an annual Public Works project that is funded by the Community Development Block Grant Program (CDBG) administered by Tarrant County. As part of the process, the County requires that the City authorize the project and pledge any funds that the City may use in participation of the project. This year's recommended project is the sanitary sewer rehabilitation for Spiller Street. This project involves construction of approximately 840 LF of pipe bursting enlargement and open -cut replacement of existing sanitary sewer pipe and manhole replacement. Hall - Albert Construction Company submitted the low bid for the project in the amount of $79,924.00. The low bidder is an established local Contractor and performed the 33rd Year CDBG project. The 35 year CDBG construction funds amount to $79,886'00. The difference between the CDBG funding and the bid amount will require the city to pledge additional funds. Recommendation: Staff recommends awarding the bid to Hall -Albert Construction Company in the amount of $79,924.00 and approval of $15,000.00 in additional City funds to cover minor field changes that routinely occur during construction. Disposition by Council: RESOLUTION NO. 310 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS AUTHORIZING AWARD OF LOW BID, CONTRACT, AND FUNDING PARTICIPATION WITH TARRANT COUNTY COMMUNITY DEVELOPMENT AND HOUSING FOR THE 35 YEAR COMMUNITY DEVELOPMENT BLOCK GRANT PROJECT FOR SANITARY SEWER LINES TO INCLUDE BUILDING APPROXIMATELY 840 LF OF PIPE BURSTING ENLARGEMENT AND OPEN - CUT REPLACEMENT OF EXISTING SANITARY SEWER PIPE AND MANHOLE REPLACEMENT TO SERVE SPILLER STREET WITHIN THE CITY OF KENNEDALE, TEXAS AND PROVIDING AN EFFECTIVE DATE. WHEREAS, in the City Council meeting of February 12, 2009, the City Council of the City of Kennedale approved the 35 "' Year Community Development Block Grant Project (CDBG) for Sewer Improvements; and WHEREAS, the budget for the project approved on September 10, 2009 reflected proposed CDBG Construction Funds in an amount of $97,515.00 and City of Kennedale Funds in an amount of $15,000.00; and WHEREAS, the construction estimate for this project totals $112,515.00; and WHEREAS, the City funds approved in the budget will be utilized for project costs in excess of the CDBG funds available for the project. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS: Section 1. That all matters stated in the preamble of this resolution are true and correct and are incorporated herein as if copies in their entirety. Section 2. That the City Council of the City of Kennedale accepts the low bid of HALL - ALBERT CONSTRUCTION COMPANY, in the amount if $79,924.00 with a 60 calendar day construction timeline and request that Tarrant County award the Contract to HALL - ALBERT CONSTRUCTION COMPANY, for building approximately 840 LF of pipe bursting enlargement and open -cut replacement of existing sanitary sewer pipe and manhole replacement for the CDBG construction project. Section 3. That Tarrant County approves funding in the amount of $79,866.00.00, the City Council of the City of Kennedale approves funding in the amount of $15,000.00, consistent with the project budget approved in the fiscal year budget on September 10, 2009 in the Water & Sewer Fund to complete the total construction project of $94,924.00 for the sanitary sewer line along Spiller Street, consisting of approximately 840 LF of pipe bursting enlargement and open -cut replacement of existing sanitary sewer pipe and manhole replacement for the CDBG construction project. Section 4. That this resolution shall be effective upon its passage. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS on this 14` day of January, 2010. Mayor, Bryan Lankhorst ATTEST: Kathy Turner, City Secretary Civil Engineering Surveying Landscape Architecture Planning Mr. Larry Ledbetter City of Kennedale 405 Municipal Drive Kennedale, TX 76060 December 16, 2009 Re: 35th Year CDBG Project — Kennedale SS Rehabilitation for Spiller St. Recommendation for Award Dear Larry, The bid opening for the `Sanitary Sewer Rehabilitation for Spiller Street. was held at the offices of Tarrant County Community Development on, Wednesday, December 16, 2009. The subject project involves construction of approximately 840 LF of pipe bursting enlargement and open -cut replacement of existing sanitary sewer pipe on Spiller Street. Two formal bids were received at the 10:00 AM bid opening and they appear on the attached bid tabulation. We have reviewed the bids for accuracy and omissions and they appear to be in order. The low bid was submitted by Hall- Albert Construction Co. in the amount of $79,924.00. The low bidder is an established local Contractor in trenchless rehabilitation and performed the 32" and 33rd Years' CDBG projects to the satisfaction of the City. The 35th Year CDBG construction funds amount to $79,886. The difference between the available CDBG monies and the bid price will require supplemental City funding if the project is to be awarded. We suggest the City recommend to Tarrant County the award of the Base Bid to Hall -Albert Construction Co. In addition, the City of Kennedale should agree to participate in the cost of the construction in the amount of $2,000 to account for minor field changes. We appreciate your consideration of this recommendation and thank you for the opportunity to, again, be of service to the City of Kennedale. Sincerely yours, TEAGUE NALL A D os h O. Patterso , Jr Project Manager Attachment xc: Larry Hoover, City of Kennedale Brad Hearne, Tarrant County Mike Plunk, Hall -Albert PERKINS 1100 Macon Street Fort Worth Texas 76102 817.336.5773 phone 817.336.2813 fax www. tnp- orihne.com F- J U F- U U W ~ OO 00 O Q U ~ I U) J fl� ::D Co Z 0 CD 0 0 CD 0 0 0 CD 0 CD CD 0 0 0 0 O O O O O O O O O O O O O Cl O o� CD m S W W a _O �""' U J O o 0 0 0 to 0 0 0 0 0 0 0 0 0 0 0 ti 0 0 0 0 0 t0 CO O O t0 Lo LO J Q„ O Q F O O O O OLfi 0 C 0 I� C 0 (f") LO_ M N CO 0 0 LO N O M M m N (+') V co L r I- U) (n F- E EA DD N En EA Efl Ef3 09 Efl EA 69 Ef3 Ef3 A U CO W 7j W W Z LU OU �y LL Z U) O O O O O O O O O O O O O O Cl Cl O O O O o o O o o O O o o O O o O W ~ Y- } cn m O LL. 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C Z o N N ° -r- °n0 ° ° U n L LU N (Y Q z m w m N (a N U C Y - -6 !Q N a 0] O 2 0)- p N> (n n @ C O 3 J Of Q W Q W o ~ O C - u) (0 O) C C O D o .N c n .� m (D .v n Z U w o O w = n cr U 3� .X o o � o m o a m W M C I U W 1= = j m0 < cl� 0 0 N O v� p _ a CK � U> w U L d c m p @_ D O M O c Q W O Z o o o x 2 n d. q u o c o F- U m m n U V° W v m m v v cD S (l U F LU O . N co V t0 (D f c2 r N <� 7 L2 (D I- Z N � � \ ± � \ � \ . � 0 -3 LLJ � @ Q) ro Q) ? © -0 _ .QL '(D 0 = j COQ) ro C v e> � � Staff Report To the Honorable Mayor and City Council Date: January 8, 2010 Agenda Item No: XI Subject: Regular Items Originated by: Kathy Turner, City Secretary Summary: The following items have been placed under Regular Items. These items are not considered to be routine, and will require separate discussion, in sequence, as a routine agenda item. Recommendation: Staff recommends approval. Disposition by Council: Staff Report To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: XI -G Subject: Review and consider action to approve Resolution No. 311, of the City of Kennedale, Texas approving a Project Agreement with the Kennedale Economic Development Corporation with respect to the Issuance of the City's Combination Tax and Revenue Certificates of Obligation, Series 2010. Originated by: Kathy Turner, City Secretary Summary: The attached resolution and project agreement will finalize action needed to issue combination tax and revenue certificates of obligation for the financing, construction, acquisition, and payment of the current improvements to the Kennedale TownCenter. The EDC will consider action during their January 12 meeting. By both parties approving such documents, this will allow the City Council to sell the Certificates of Obligations on January 14 with an expected delivery date on February 10, 2010. Also, Mark McLiney with Southwest Securities will be present to answer any questions that may arise. Recommendation: Move to approve Resolution No. 311, of the City of Kennedale, Texas approving a Project Agreement with the Kennedale Economic Development Corporation with respect to the Issuance of the City's Combination Tax and Revenue Certificates of Obligation, Series 2010. RESOLUTION NO. RESOLUTION OF THE CITY OF KENNEDALE, TEXAS APPROVING A PROJECT AGREEMENT WITH THE KENNEDALE ECONOMIC DEVELOPMENT CORPORATION WITH RESPECT TO THE ISSUANCE OF THE CITY'S COMBINATION TAX AND REVENUE CERTIFICATES OF OBLIGATION, SERIES 2010 STATE OF TEXAS § COUNTY OF TARRANT § CITY OF KENNEDALE § WHEREAS, at an election held on August 10, 1996, a majority of the citizens of the CITY OF KENNEDALE, TEXAS (the "City ") voting at said election authorized the City to levy a sales and use tax on the receipts at retail of taxable items within the City at a rate of one -half of one percent (the "Economic Development Sales Tax") to be used exclusively for the purposes set forth in the Development Corporation Act of 1979, Article 5190.6, V.A.T.C.S., as amended (effective as of April 1, 2009, the Development Corporation Act of 1979 was amended and codified as Texas Local Government Code, Title 12, Subtitle Cl, Chapters 501 through 507) (the "Act "); and WHEREAS, pursuant to the provisions of the Act, the City created the KENNEDALE ECONOMIC DEVELOPMENT CORPORATION (the "Corporation ") as a nonstock, nonprofit industrial development corporation to act on behalf of the City to satisfy the public purposes set forth in Section 4B of the Act; and WHEREAS, the City has designated an area of the City for development as a new downtown area to provide public gathering space and to spur new economic development, all with access to municipal buildings and services (the "Town Center District Project "); and WHEREAS, pursuant to Section 271.049, Texas Local Government Code, the City Council of the City, on December 10, 2009, deemed it advisable to give notice of intention to issue certificates of obligation (the "Certificates of Obligation ") for the purpose of paying, in whole or in part, contractual obligations incurred to make public infrastructure improvements to the Town Center District Project, to wit: (])construct improvements and extensions to the City's waterworks, sewer and storm sewer systems; (2) construct, improve and repair City streets, parking lots and sidewalks, together with drainage improvements, utility line construction, relocation and replacement, utilities improvements, traffic and street signalization, landscaping and lighting improvements; (3) relocate and restore historic section house; (4) provide local match for federal grant to make street, sidewalk, landscaping, intersection, and lighting improvements; and (5) pay all or a portion of the City's contractual obligations for professional services rendered by engineers, attorneys, and financial advisors in connection with the above projects; and WHEREAS, at a meeting on January 12, 2010, the Board of Directors of the Corporation deemed it advisable and approved that the principal and interest on the Certificates of Obligation be paid from the Economic Development Sales Tax and approved the Project Agreement between the City and the Corporation, as attached hereto as Exhibit A (the "Project Agreement "); and WHEREAS, the City finds it necessary and advisable to enter into the Project Agreement to evidence the duties and responsibilities of the respective parties with respect to the financing, construction, acquisition and payment of the current improvements to the Town Center District Project; THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS THAT: SECTION 1. Approval of Project Agreement The Project Agreement attached hereto as Exhibit A is hereby approved, and the Mayor and City Secretary of the City are authorized to approve any changes and execute the Project Agreement on behalf of the City. SECTION 2. Incorporation of Recitals The findings and preambles set forth in this Resolution are hereby incorporated into this Resolution and made a part hereof for all purposes. SECTION 3. Effective Date This Resolution shall become effective immediately upon its passage and approval. [The remainder of this page intentionally left blank.] 2 PASSEDANDAPPROVED BYTHE CITYCOUNCIL OF THE CITYOFKENNEDALE, TEXAS ON THE 14"' DAY OF JANUARY, 2010. Mayor ATTEST: City Secretary [CITY SEAL] [SIGNATURE PAGE TO CITY'S RESOLUTION] EXHIBIT A PROJECT AGREEMENT Draft dated January 6, 2010 PROJECT AGREEMENT THIS AGREEMENT (the "ProjectAgreement "), dated as of January 14, 2009, is executed by and among the CITY OF KENNEDALE, TEXAS (the "City ") and the KENNEDALE ECONOMIC DEVELOPMENT CORPORATION (the "Corporation "). WI TNESSETH. WHEREAS, at an election held on August 10, 1996, a majority of the citizens of the City voting at said election authorized the City to levy a sales and use tax on the receipts at retail of taxable items within the City at a rate of one -half of one percent (the "Economic Development Sales Tax ") to be used exclusively for the purposes set forth in the Development Corporation Act of 1979, Article 5190.6, V.A.T.C.S., as amended (effective as of April 1, 2009, the Development Corporation Act of 1979 was amended and codified as Texas Local Government Code, Title 12, Subtitle C1, Chapters 501 through 507) (the "Act "); and WHEREAS, pursuant to the provisions of the Act, the City created the Corporation as a nonstock, nonprofit industrial development corporation to act on behalf of the City to satisfy the public purposes set forth in Section 4B of the Act; and WHEREAS, the City has designated an area of the City for development as a new downtown area to provide public gathering space and to spur new economic development, all with access to municipal buildings and services (the "Town Center District Project "); and WHEREAS, the Board of Directors of the Corporation, in connection with the issuance of the Corporation's Sales Tax Revenue Bonds, Taxable Series 2007, and as the Board of Directors of a corporation created by an eligible city with a population of 20,000 or less, has previously found the Town Center District Project to promote new or expanded business development; and WHEREAS, pursuant to the requirement set forth in Section 505.158(b) of the Act, the City Council, as the governing body of the City and in connection with the issuance of the Corporation's Sales Tax Revenue Bonds, Taxable Series 2007, duly approved a resolution authorizing the Town Center District Project after giving the resolution two separate readings; and WHEREAS, a notice describing the Town Center District Project was published in the South Tarrant Star on August 3, 2006, which notice satisfies the requirement set forth in Section 505.160 of the Act; and WHEREAS, in satisfaction of the requirements set forth in Section 505.159 of the Act, the Corporation has held at least one public hearing on the Town Center District Project, including specifically a public hearing held on August 15, 2006; and WHEREAS, pursuant to Section 271.049, Texas Local Government Code, the City Council of the City, on December 10, 2009, deemed it advisable to give notice of intention to issue certificates of obligation (the "Certificates of Obligation ") for the purpose of paying, in whole or in part, contractual obligations incurred to make public infrastructure improvements to the Town Center District Project, to wit (1) construct improvements and extensions to the City's waterworks, sewer and storm sewer systems; (2) construct, improve and repair City streets, parking lots and sidewalks, together with drainage improvements, utility line construction, relocation and replacement, utilities improvements, traffic and street signalization, landscaping and lighting improvements; (3) relocate and restore historic section house; (4) provide local match for federal grant to make street, sidewalk, landscaping, intersection, and lighting improvements; and (5) pay all or a portion of the City's contractual obligations for professional services rendered by engineers, attorneys, and financial advisors in connection with the above projects; and WHEREAS, at a meeting on January 12, 2010, the Board of Directors of the Corporation deemed it advisable and approved that the principal and interest on the Certificates of Obligation, or any refunding bonds later issued to refinance the Certificates of Obligation, be paid from the Economic Development Sales Tax; and WHEREAS, it is expected that the Certificates of Obligation shall be sold by the City on January 14, 2010 and are expected to delivered on February 10, 2010; and WHEREAS, the parties hereto find it necessary and advisable to enter into this Project Agreement to evidence the duties and responsibilities of the respective parties with respect to the financing, construction, acquisition and payment of the current improvements to the Town Center District Project; NOW THEREFORE, in consideration of the covenants and agreements herein made, and subject to the conditions herein set forth, the City and the Corporation contract and agree as follows: SECTION 1. DEFINITIONS AND INCORPORATION OF PREAMBLES. The terms and expressions used in this Project Agreement, unless the context shows clearly otherwise, shall have the meanings set forth herein, including terms defined in the Preambles hereto, which preambles are incorporated in and made a part hereof for all purposes. SECTION 2. OBLIGATION OF THE CORPORATION TO PAY FOR THE TOWN CENTER DISTRICT PROJECT. The Corporation agrees to pay, and will pay, the debt service of the Certificates of Obligation, or any refunding bonds later issued to refinance the Certificates of Obligation, by transferring an amount of Economic Development Sales Tax on a timely annual basis with regard to principal (i.e., on or before April 15 of each year beginning in 2011) and on a timely semi - annual basis with regard to interest (on or before April 15 and October 15 of each year beginning 2010) to the City for further payment of the Certificates of Obligation until the end of the term of this Project Agreement as specified below in Section 8. SECTION 3. OBLIGATION OF THE CITY TO PROVIDE NOTICE OF AMOUNT OF ECONOMIC DEVELOPMENT SALES TAX DUE. The City agrees to certify and provide to the Corporation on a timely annual basis the total debt service requirements for the Certificates of Obligations for the upcoming fiscal year. Such certification shal I include specifically the amounts due by the Corporation on or before April 15 of the upcoming fiscal year (with respect to principal and interest) and on or before October 15 of the upcoming fiscal year (with respect to interest) to the City for the payment of principal and interest of the Certificates of Obligations. SECTION 4. ACQUISITION AND CONSTRUCTION CONTRACTS AND USE OF TRANSFERRED ECONOMIC DEVELOPMENT SALES TAX SOLELY FOR PAYMENT OF PROJECT FINANCING COSTS. The City, and if necessary, the Corporation, will enter into such contracts as are necessary to provide for acquiring and constructing the Town Center District Project. The City agrees that any Economic Development Sales Tax transferred to it pursuant to this Project Agreement shall only be used for the payment of the Certificates of Obligations. SECTION 5. AGREEMENT TO PROCEED PROMPTLY. The City and the Corporation agree to proceed promptly with the construction of the Town Center District Project. The City and Corporation hereby covenant that they will make a diligent effort to complete such acquisition and construction as soon as practicable. The City and the Corporation do not anticipate any delays in completing the construction of the Town Center District Project, but the City and the Corporation shall not be liable to each other for any damages caused by any delays in completion of the Town Center District Project. SECTION 6. FORCE MAJEURE. If, by reason of Force Majeure, any party hereto shall be rendered unable wholly or in part to carry out its obligations under this Project Agreement, then such party shall give notice and full particulars of such Force Majeure in writing to the other party within a reasonable time after occurrence of the event or cause relied upon, and the obligation of the party giving such notice, so far as it is affected by such Force Majeure, shall be suspended during the continuance of the inability then claimed, except as hereinafter provided, but for no longer period, and any such party shall endeavor to remove or overcome such inability with all reasonable dispatch. The term "Force Majeure" as employed herein, shall mean acts of God, strikes, lockouts, or other industrial disturbances, acts of public enemy, orders of any kind of the Government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquake, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil disturbances, explosions, breakage or accidents to machinery, pipelines, or canals, or other causes not reasonably within the control of the party claiming such inability. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulty, and that the above requirement that any Force Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the opposing party or parties when such settlement is unfavorable to it in the judgment of the party having the difficulty. It is specif- ically excepted and provided, however, that in no event shall any Force Majeure relieve the Corporation of its obligation to transfer Economic Development Sales Tax revenues to the City, as described above, for the payment of the Certificates of Obligation. 3 SECTION 7. REGULATORY BODIES. This Project Agreement and the Town Center District Project shall be subject to all valid rules, regulations, and laws applicable thereto passed or promulgated by the United States of America, the State of Texas, or any governmental body or agency having lawful jurisdiction or any authorized representative or agency of any of them. SECTION 8. TERM OF PROJECT AGREEMENT. The term of this Project Agreement shall be for the period during which the Certificates of Obligation, or any refunding bonds later issued to refinance the Certificates of Obligation, or any interest thereon are outstanding and unpaid. All obligations set forth herein for the Corporation to pay debt service on the Certificates of Obligation shall also be deemed to include the payment of debt service on any such refunding bonds issued to refinance the Certificates of Obligation. [The remainder of this page intentionally left blank.] IN WITNESS WHEREOF, the Corporation and the City, acting under authority of their respective governing bodies, have caused this Project Agreement to be duly executed in several counterparts, each of which shall constitute an original, all as of the date first written above, which is the date of this Project Agreement. CITY OF KENNEDALE, TEXAS Mayor ATTEST: City Secretary (SEAL) KENNEDALE ECONOMIC DEVELOPMENT CORPORATION President, Board of Directors ATTEST: Secretary, Board of Directors (SEAL) [SIGNATURE PAGE, TO PROJECT AGREEMENT] Staff Report To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: XI -H Subject: Review and consider action to approve Ordinance No. 449, authorizing the Issuance, Sale and Delivery of "City of Kennedale, Texas Combination Tax and Revenue Certificates of Obligation, Series 2010 ", securing the payment thereof by authorizing the levy of an annual Ad Valorem tax and a pledge of surplus revenues of the City's Waterworks and Sanitary Sewer System; approving and authorizing the execution of all instruments and procedures related thereto including a Purchase Contract, an Official Statement, and a Paying Agent/Registrar Agreement, and providing for an immediate effective date Originated by: Kathy Turner, City Secretary Summary: The attached ordinance will authorize the sale of Certificate or Obligations for the development of the Kennedale TownCenter. Mark McLiney with Southwest Securities will be present to address the ordinance and answer any questions that may arise. Recommendation: Move to approve Ordinance No. 449, authorizing the Issuance, Sale and Delivery of "City of Kennedale, Texas Combination Tax and Revenue Certificates of Obligation, Series 2010. Draft dated January 7, 2010 ORDINANCE NO. ORDINANCE AUTHORIZING THE ISSUANCE, SALE AND DELIVERY OF "CITY OF KENNEDALE, TEXAS COMBINATION TAX AND REVENUE CERTIFICATES OF OBLIGATION, SERIES 2010 "; SECURING THE PAYMENT THEREOF BY AUTHORIZING THE LEVY OF AN ANNUAL AD VALOREM TAX AND A PLEDGE OF SURPLUS REVENUES OF THE CITY'S WATERWORKS AND SANITARY SEWER SYSTEM; APPROVING AND AUTHORIZING THE EXECUTION OF ALL INSTRUMENTS AND PROCEDURES RELATED THERETO INCLUDING A PURCHASE CONTRACT, AN OFFICIAL STATEMENT, AND A PAYING AGENT/REGISTRAR AGREEMENT; AND PROVIDING FOR AN IMMEDIATE EFFECTIVE DATE SALE DATE: JANUARY 14, 2010 TABLE OF CONTENTS RECITALS.............................. ............................... l Section 1. AMOUNT AND PURPOSE OF THE CERTIFICATES ................ 1 Section 2. DESIGNATION, DATE, DENOMINATIONS, NUMBERS, AND MATURITIES OF THE CERTIFICATES ........................... 2 Section 3. INTEREST ..................... ............................... 3 Section 4. CHARACTERISTICS OF THE CERTIFICATES ..................... 3 (a) Registration, Transfer, and Exchange; Authentication ............... 3 (b) Payment of Certificates of Obligation and Interest .................. 4 (c) In General .................. ............................... 4 (d) Substitute Paying Agent /Registrar .............................. 5 (e) Book -Entry Only System for Certificates of Obligation ............. 5 (f) Successor Securities Depository; Transfers Outside Book -Entry Only Systems ..... ............................... 5 (g) Payments to Cede & Co ....... ............................... 6 (h) DTC Letter of Representation ... ............................... 6 (i) Delivery of Initial Certificate of Obligation ....................... 7 Section 5. FORM OF CERTIFICATE OF OBLIGATION ....................... 7 Section 6. INTEREST AND SINKING FUND; TAX LEVY ..................... 15 Section 7. SURPLUS REVENUES .......... ............................... 15 Section 8. CONSTRUCTION FUND ......... ............................... 16 Section 9. INVESTMENTS ................ ............................... 16 Section 10. DEFEASANCE OF CERTIFICATES ............................... 16 (a) Defeased Certificates of Obligation .............................. 16 (b) Defeasance Securities .......... ............................... 17 (c) Investment in Defeasance Securities ............................. 17 (d) Paying Agent /Registrar Services . ............................... 18 (e) Selection of Certificates of Obligation for Defeasance ............... 18 Section 1 I . DAMAGED, MUTILATED, LOST, STOLEN, OR DESTROYED CERTIFICATES .... ............................... 18 (a) Replacement Certificates of Obligation .......................... 18 (b) Application for Replacement Certificates of Obligation ............. 18 (c) No Default Occurred .......... ............................... 18 (d) Charge for Issuing Replacement Certificates of Obligation ........... 19 (e) Authority for Issuing Replacement Certificates of Obligation ......... 19 H Section 12. CUSTODY, APPROVAL, AND REGISTRATION OF CERTIFICATES; BOND COUNSEL'S OPINION; CUSIP NUMBERS; AND OTHER MATTERS .............. ............................... 19 Section 13. COVENANTS REGARDING TAX EXEMPTION OF INTEREST ON THE CERTIFICATES ........ ............................... 19 (a) Covenants ................... ............................... 19 (b) Rebate Fund ................. ............................... 21 (c) Proceeds .................... ............................... 21 (d) Allocation Of, and Limitation On, Expenditures for the Project ........ 21 (e) Disposition of Project .......... ............................... 22 (f) Qualified Tax - Exempt Obligations ............................... 22 Section 14. SALE AND DELIVERY OF CERTIFICATES ....................... 22 Section 15. APPROVAL OF OFFICIAL STATEMENT .......................... 23 Section 16. AUTHORITY FOR OFFICERS TO EXECUTE DOCUMENTS ......... 23 Section 17. ORDINANCE A CONTRACT; AMENDMENTS ..................... 23 Section 18. REMEDIES IN EVENT OF DEFAULT ............................. 24 Section 19. SECURITY INTEREST .......... ............................... 24 Section 20. INTERESTED PARTIES ......... ............................... 25 Section 21. CONTINUING DISCLOSURE UNDERTAKING ..................... 25 Section 22. INSURANCE ................... ............................... 28 Section 23. INCORPORATION OF RECITALS . ............................... 28 Section 24. SEVERABILITY ................ ............................... 28 Section 25. CHOICE OF LAW .............. ............................... 28 Section 26. EFFECTIVE DATE .............. ............................... 28 SIGNATURES PAYING AGENT /REGISTRAR AGREEMENT ................. . ............ Exhibit A FORM OF PURCHASE CONTRACT ............... ........................Exhibit B DESCRIPTION OF ANNUAL FINANCIAL INFORMATION .................. Exhibit C INSURANCE COMMITMENT ............ ............................... Exhibit D it ORDINANCE AUTHORIZING THE ISSUANCE, SALE AND DELIVERY OF "CITY OF KENNEDALE, TEXAS COMBINATION TAX AND REVENUE CERTIFICATES OF OBLIGATION, SERIES 2010"; SECURING THE PAYMENT THEREOF BY AUTHORIZING THE LEVY OF AN ANNUAL AD VALOREM TAX AND A PLEDGE OF SURPLUS REVENUES OF THE CITY'S WATERWORKS AND SANITARY SEWER SYSTEM; APPROVING AND AUTHORIZING THE EXECUTION OF ALL INSTRUMENTS AND PROCEDURES RELATED THERETO INCLUDING A PURCHASE CONTRACT, AN OFFICIAL STATEMENT, AND A PAYING AGENT/REGISTRAR AGREEMENT; AND PROVIDING FOR AN IMMEDIATE EFFECTIVE DATE STATE OF TEXAS § COUNTY OF TARRANT § CITY OF KENNEDALE § WHEREAS, the City Council of CITY OF KENNEDALE, TEXAS (the "City ") hereby determines that it is necessary and desirable to (1) construct improvements and extensions to the City's waterworks, sewer and storm sewer systems; (2) construct, improve and repair City streets, parking lots and sidewalks, together with drainage improvements, utility line construction, relocation and replacement, utilities improvements, traffic and street signalization, landscaping and lighting improvements; (3) relocate and restore historic section house; (4) provide local match for federal grant to make street, sidewalk, landscaping, intersection, and lighting improvements; and (5) pay all or a portion of the City's contractual obligations for professional services rendered by engineers, attorneys, and financial advisors in connection with the above projects; and WHEREAS, on December 10, 2009, the City Council adopted a resolution authorizing and directing the City Secretary to give notice of intention to issue certificates of obligation pursuant to the provisions of Subchapter C of Chapter 271, Texas Local Government Code, as amended, to finance the Project (the "Notice "); and WHEREAS, the Notice stated that the City Council proposed to authorize the issuance of the certificates of obligation at a regular meeting on Thursday, January 14, 2010; and WHEREAS, the Notice was duly published in the Star Telegram, which is a newspaper of general circulation in the City, in its issues of December 12, 2009 and December 23, 2009; and WHEREAS, the City received no petition signed by at least five percent of the qualified electors of the City protesting the issuance of such certificates of obligation; and WHEREAS, it is considered to be in the best interest of the City that said interest bearing certificates of obligation be issued; and WHEREAS, it is hereby officially found and determined that the meeting at which this Ordinance was passed was open to the public, and public notice of the time, place, and purpose of said meeting was given, all as required by Chapter 551, Texas Government Code. THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF CITY OF KENNEDALE, TEXAS: SECTION 1. AMOUNT AND PURPOSE OF THE CERTIFICATES. The certificate or certificates of the City further described in Section 2 of this Ordinance and referred to herein as the "Certificates of Obligation" are hereby authorized to be issued and delivered in the aggregate princi- pal amount of $ FOR PAYING, IN WHOLE OR IN PART, THE CITY'S CONTRACTUAL OBLIGATIONSINCURRED TO(]) CONSTRUCTIMPROVEMENTSAND EXTENSIONS TO THE CITY'S WATERWORKS, SEWER AND STORMSEWER SYSTEMS; (2) CONSTRUCT, IMPROVE AND REPAIR CITY STREETS, PARKING LOTS AND SIDEWALKS, TOGETHER WITH DRAINAGE IMPROVEMENTS, UTILITY LINE CONSTRUCTION, RELOCATIONAND REPLACEMENT, UTILITIES IMPROVEMENTS, TRAFFIC AND STREET SIGNALIZATION, LANDSCAPING AND LIGHTING IMPROVEMENTS; (3) RELOCATE AND RESTORE HISTORIC SECTION HOUSE; (4) PROVIDE LOCAL MATCH FOR FEDERAL GRANT TO MAKE STREET, SIDEWALK, LANDSCAPING, INTERSECTION, AND LIGHTING IMPROVEMENTS; AND (5) PAYALL OR A PORTION OF THE CITY'S CONTRACTUAL OBLIGATIONS FOR PROFESSIONAL SERVICES RENDERED BYENGINEERS, ATTORNEYS, AND FINANCIAL ADVISORS IN CONNECTION WITH THE ABOVE PROJECTS. SECTION 2. DESIGNATION, DATE, DENOMINATIONS, NUMBERS AND MATURITIES OF CERTIFICATES. Each certificate issued pursuant to and for the purpose described in Section l of this Ordinance shall be designated: "CITYOFKENNEDALE, TEXAS COMBINATION TAX AND REVENUE CERTIFICATE OF OBLIGATION, SERIES 2010 ", and initially there shall be issued, sold and delivered hereunder one frilly registered certificate, without interest coupons, dated January 1, 2010, in the aggregate principal amount of $ , numbered T -1 (the "Initial Certificate of Obligation "), with Certificates of Obligation issued in replacement thereof being in the denomination of $5,000 or any integral multiple thereof and numbered consecutively from R -1 upward, all payable to the initial registered owner thereof (with the Initial Certificate of Obligation being payable to the initial purchaser designated in Section 14 hereof), or to the registered assignee or assignees of said certificates or any portion or portions thereof (in each case, the "Registered Owner "), and the Certificates ofObligation shall mature and be payable serially on May l in each of the years and in the principal amounts, respectively, as set forth in the following schedule: [The remainder of this page intentionally left blank.] 2 YEAR OF MATURITY PRINCIPAL AMOUNT YEAR OF MATURITY PRINCIPAL AMOUNT 2011 2021 2012 2022 2013 2023 2014 2024 2015 2025 2016 2026 2017 2027 2018 2028 2019 2029 2020 2030 The term "Certificates of Obligation" as used in this Ordinance shall mean and include the Certificates of Obligation initially issued and delivered pursuant to this Ordinance and all substitute certificates of obligation exchanged therefor, as well as all other substitute certificates of obligation and replacement certificates of obligation issued pursuant hereto, and the term "Certificate of Obligation" shall mean any of the Certificates of Obligation. [The remainder of this page intentionally left blank.] SECTION 3. INTEREST. The Certificates of Obligation shall bear interest calculated on the basis of a 360 -day year composed of twelve 30 -day months from the dates specified in the FORM OF CERTIFICATE OF OBLIGATION set forth in this Ordinance to their respective dates of maturity or prior redemption at the following rates per annum: Said interest shall be payable in the manner provided and on the dates stated in the FORM OF CERTIFICATE OF OBLIGATION set forth in this Ordinance. SECTION 4. CHARACTERISTICS OF THE CERTIFICATES. (a) Registration. Transfer. and Exchange; Authentication The City shall keep or cause to be kept at the designated corporate trust office of Wells Fargo Bank, N.A., Austin, Texas (the "Paying Agent/Registrar ") books or records for the registration of the transfer and exchange of the Certificates of Obligation (the "Registration Books "), and the City hereby appoints the Paying Agent /Registrar as its registrar and transfer agent to keep such books or records and make such registrations of transfers and exchanges under such reasonable regulations as the City and Paying Agent /Registrar may prescribe; and the Paying Agent /Registrar shall make such registrations, transfers and exchanges as herein provided. Attached hereto as Exhibit A is a copy of the Paying Agent /Registrar Agreement between the City and the Paying Agent /Registrar which is hereby approved in substantially final form, and the Mayor and City Secretary of the City are hereby authorized to execute the Paying Agent /Registrar Agreement and approve any changes in the final form thereof. The Paying Agent /Registrar shall obtain and record in the Registration Books the address of the registered owner of each Certificate of Obligation to which payments with respect to the Certificates of Obligation shall be mailed, as herein provided; but it shall be the duty of each 11 INTEREST RATE ( %) YEAR OF MATURITY INTEREST RATE ( %) 2011 2021 2012 2022 2013 2023 2014 2024 2015 2025 2016 2026 2017 2027 2018 2028 2019 2029 2020 2030 Said interest shall be payable in the manner provided and on the dates stated in the FORM OF CERTIFICATE OF OBLIGATION set forth in this Ordinance. SECTION 4. CHARACTERISTICS OF THE CERTIFICATES. (a) Registration. Transfer. and Exchange; Authentication The City shall keep or cause to be kept at the designated corporate trust office of Wells Fargo Bank, N.A., Austin, Texas (the "Paying Agent/Registrar ") books or records for the registration of the transfer and exchange of the Certificates of Obligation (the "Registration Books "), and the City hereby appoints the Paying Agent /Registrar as its registrar and transfer agent to keep such books or records and make such registrations of transfers and exchanges under such reasonable regulations as the City and Paying Agent /Registrar may prescribe; and the Paying Agent /Registrar shall make such registrations, transfers and exchanges as herein provided. Attached hereto as Exhibit A is a copy of the Paying Agent /Registrar Agreement between the City and the Paying Agent /Registrar which is hereby approved in substantially final form, and the Mayor and City Secretary of the City are hereby authorized to execute the Paying Agent /Registrar Agreement and approve any changes in the final form thereof. The Paying Agent /Registrar shall obtain and record in the Registration Books the address of the registered owner of each Certificate of Obligation to which payments with respect to the Certificates of Obligation shall be mailed, as herein provided; but it shall be the duty of each 11 registered owner to notify the Paying Agent /Registrar in writing of the address to which payments shall be mailed, and such interest payments shall not be mailed unless such notice has been given. To the extent possible and under reasonable circumstances, all transfers of Certificates of Obligation shall be made within three business days after request and presentation thereof. The City shall have the right to inspect the Registration Books during regular business hours of the Paying Agent/Regis- trar, but otherwise the Paying Agent/Registrar shall keep the Registration Books confidential and, unless otherwise required by law, shall not permit their inspection by any other entity. The Paying Agent/Registrar's standard or customary fees and charges for making such registration, transfer, exchange and delivery of a substitute Certificate of Obligation or Certificates of Obligation shall be paid as provided in the FORM OF CERTIFICATE OF OBLIGATION set forth in this Ordinance. Registration of assignments, transfers and exchanges of Certificates of Obligation shall be made in the manner provided and with the effect stated in the FORM OF CERTIFICATE OF OBLIGATION set forth in this Ordinance. Each substitute Certificate of Obligation shall bear a letter and /or number to distinguish it from each other Certificate of Obligation. Except as provided in (c) below, an authorized representative of the Paying Agent /Registrar shall, before the delivery of any such Certificate of Obligation, date and manually sign the Paying Agent /Registrar's Authentication Certificate, and no such Certificate of Obligation shall be deemed to be issued or outstanding unless such Certificate is so executed. The Paying Agent /Registrar promptly shall cancel all paid Certificates of Obligation and Certificates of Obligation surrendered for transfer and exchange. No additional ordinances, orders, or resolutions need be passed or adopted by the governing body of the City or any other body or person so as to accomplish the foregoing transfer and exchange of any Certificate of Obligation or portion thereof, and the Paying Agent /Registrar shall provide for the printing, execution, and delivery of the substitute Certificates of Obligation in the manner prescribed herein, and said Certificates of Obligation shall be of type composition printed on paper with lithographed or steel engraved borders of customary weight and strength. Pursuant to Subchapter D of Chapter 1201, Texas Government Code, the duty of transfer and exchange of Certificates of Obligation as aforesaid is hereby imposed upon the Paying Agent /Registrar, and, upon the execution of said Certificate, the transferred and exchanged Certificate of Obligation shall be valid, incontestable, and enforceable in the same manner and with the same effect as the Certificates of Obligation which initially were issued and delivered pursuant to this Ordinance, approved by the Attorney General, and registered by the Comptroller of Public Accounts. (b) Payment o Certificates ofObligation and Interest The City hereby further appoints the Paying Agent /Registrar to act as the paying agent for paying the principal of and interest on the Certificates of Obligation, all as provided in this Ordinance. The Paying Agent /Registrar shall keep proper records of all payments made by the City and the Paying Agent /Registrar with respect to the Certificates of Obligation. (c) In General The Certificates of Obligation (i) shall be issued in fully registered form, without interest coupons, with the principal of and interest on such Certificates of Obligation to be payable only to the registered owners thereof, (ii) may be redeemed prior to their scheduled maturities (notice of which shall be given to the Paying Agent /Registrar by the City at least 50 days prior to any such redemption date), (iii) may be transferred and assigned, (iv) may be exchanged for other Certificates of Obligation, (v) shall have the characteristics, (vi) shall be signed, sealed, executed and authenticated, (vii) the principal of and interest on the Certificates of Obligation shall be payable, and (viii) shall be administered and the Paying Agent/Registrar and the City shall have certain duties and responsibilities with respect to the Certificates of Obligation, all as provided, and in the manner and to the effect as required or indicated, in the FORM OF CERTIFICATE OF OBLIGATION set forth in this Ordinance. The Initial Certificate of Obligation is not required to be, and shall not be, authenticated by the Paying Agent/ Registrar, but on each substitute Certificate of Obligation issued in exchange for the Initial Certificate of Obligation issued under this Ordinance the Paying Agent /Registrar shall execute the PAYING AGENT /REGISTRAR'S AUTHENTICATION CERTIFICATE, in the form set forth in the FORM OF CERTIFICATE OF OBLIGATION. In lieu of the executed Paying Agent/Registrar's Authentication Certificate described above, the Initial Certificate of Obligation delivered on the closing date (as further described in subparagraph (i) below) shall have attached thereto the Comptroller's Registration Certificate substantially in the form set forth in the FORM OF CERTIFICATE OF OBLIGATION below, manually executed by the Comptroller of Public Accounts of the State of Texas or by his duly authorized agent, which certificate shall be evidence that the Initial Certificate of Obligation has been duly approved by the Attorney General of the State of Texas and that it is a valid and binding obligation of the City, and has been registered by the Comptroller. (d) Substitute Paving A eg nt /Re ig stray The City covenants with the registered owners of the Certificates of Obligation that at all times while the Certificates of Obligation are outstanding the City will provide a competent and legally qualified bank, trust company, financial institution, or other entity to act as and perform the services of Paying Agent /Registrar for the Certificates of Obligation under this Ordinance, and that the Paying Agent /Registrar will be one entity and shall be an entity registered with the Securities and Exchange Commission. The City reserves the right to, and may, at its option, change the Paying Agent/Registrar upon not less than 120 days written notice to the Paying Agent /Registrar, to be effective not later than 60 days prior to the next principal or interest payment date after such notice. In the event that the entity at any time acting as Paying Agent/Registrar (or its successor by merger, acquisition, or other method) should resign or otherwise cease to act as such, the City covenants that promptly it will appoint a competent and legally qualified bank, trust company, financial institution, or other agency to act as Paying Agent/Registrar under this Ordinance. Upon any change in the Paying Agent /Registrar, the previous Paying Agent/Registrar promptly shall transfer and deliver the Registration Books (or a copy thereof), along with all other pertinent books and records relating to the Certificates of Obligation, to the new Paying Agent /Registrar designated and appointed by the City. Upon any change in the Paying Agent /Registrar, the City promptly will cause a written notice thereof to be sent by the new Paying Agent /Registrar to each registered owner of the Certificates of Obligation, by United States mail, first -class postage prepaid, which notice also shall give the address of the new Paying Agent /Registrar. By accepting the position and performing as such, each Paying Agent /Registrar shall be deemed to have agreed to the provisions of this Ordinance, and a certified copy of this Ordinance shall be delivered to each Paying Agent /Registrar. (e) Book-Entry Only System for Certificates ofObligation The Certificates of Obligation issued in exchange for the Certificates of Obligation initially issued to the purchaser specified in Section 14 herein shall be initially issued in the form of a separate single fully registered Certificate of Obligation for each of the maturities thereof. Upon initial issuance, the ownership of each such Certificate of Obligation shall be registered in the name of Cede & Co., as nominee of The Z Depository Trust Company of New York ( "DTC "), and except as provided in subsection (i) hereof, all of the outstanding Certificates of Obligation shall be registered in the name of Cede & Co., as nominee of DTC. With respect to Certificates of Obligation registered in the name of Cede & Co., as nominee of DTC, the City and the Paying Agent/Registrar shall have no responsibility or obligation to any securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations on whose behalf DTC was created ( "DTC Participant ") to hold securities to facilitate the clearance and settlement of securities transaction among DTC Participants or to any person on behalf of whom such a DTC Participant holds an interest in the Certificates of Obligation. Without limiting the immediately preceding sentence, the City and the Paying Agent /Registrar shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC Participant with respect to any ownership interest in the Certificates of Obligation, (ii) the delivery to any DTC Participant or any other person, other than a registered owner of the Certificates of Obligation, as shown on the Registration Books, of any notice with respect to the Certificates of Obligation, or (iii) the payment to any DTC Participant or any other person, other than a registered owner of Certificates of Obligation, as shown in the Registration Books of any amount with respect to principal of or interest on the Certificates of Obligation. Notwithstanding any other provision of this Ordinance to the contrary, the City and the Paying Agent /Registrar shall be entitled to treat and consider the person in whose name each Certificate of Obligation is registered in the Registration Books as the absolute owner of such Certificate of Obligation for the purpose of payment of principal and interest with respect to such Certificate of Obligation, for the purpose of registering transfers with respect to such Certificate of Obligation, and for all other purposes whatsoever. The Paying Agent/Registrar shall pay all principal of and interest on the Certificates of Obligation only to or upon the Ordinance of the registered owners, as shown in the Registration Books as provided in this Ordinance, or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the City's obligations with respect to payment of principal of and interest on the Certificates of Obligation to the extent of the sum or sums so paid. No person other than a registered owner, as shown in the Registration Books, shall receive a Certificate of Obligation certificate evidencing the obligation ofthe City to make payments of principal and interest pursuant to this Ordinance. Upon delivery by DTC to the Paying Agent /Registrar of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., and subject to the provisions in this Ordinance with respect to interest checks being mailed to the registered owner at the close of business on the Record Date, the words "Cede & Co." in this Ordinance shall refer to such new nominee of DTC. ()9 Successor Securities Depository; Transfers Outside Book -Entry Only Systems In the event that the City determines that DTC is incapable of discharging its responsibilities described herein and in the representation letter of the City to DTC or that it is in the best interest of the beneficial owners of the Certificates of Obligation that they be able to obtain certificated Certificates of Obligation, the City shall (i) appoint a successor securities depository, qualified to act as such under Section 17(a) of the Securities and Exchange Act of 1934, as amended, notify DTC and DTC Participants of the appointment of such successor securities depository and transfer one or more separate Certificates of Obligation to such successor securities depository or (ii) notify DTC and DTC Participants of the availability through DTC of Certificates of Obligation and transfer one or more separate Certificates of Obligation to DTC Participants having Certificates of Obligation 7 credited to their DTC accounts. In such event, the Certificates of Obligation shall no longer be restricted to being registered in the Registration Books in the name of Cede & Co., as nominee of DTC, but may be registered in the name of the successor securities depository, or its nominee, or in whatever name or names registered owners transferring or exchanging Certificates of Obligation shall designate, in accordance with the provisions of this Ordinance. (g) Payments to Cede & Co . Notwithstanding any other provision of this Ordinance to the contrary, so long as any Certificate of Obligation is registered in the name of Cede & Co., as nominee for DTC, all payments with respect to principal of and interest on such Certificate of Obligation and all notices with respect to such Certificate of Obligation shall be made and given, respectively, in the manner provided in the representation letter of the City to DTC. (h) DTC Letter ofRepresentation The officers of the City are herein authorized for and on behalf of the City and as officers of the City to enter into one or more Letters of Representation with DTC establishing the book -entry only system with respect to the Certificates of Obligation. (i) Delivery oflnitial Certificate of Obligation On the closing date, one Initial Certificate of Obligation representing the entire principal amount of the respective series of Certificates of Obligation, payable in stated installments to the initial registered owner named in Section 14 of this Ordinance or its designee, executed by manual or facsimile signature of the Mayor or Mayor Pro- Tern and City Secretary of the City, approved by the Attorney General of Texas, and registered and manually signed by the Comptroller of Public Accounts of the State of Texas, will be delivered to the initial purchaser or its designee. Upon payment for the Initial Certificate of Obligation, the Paying Agent/Registrar shall cancel the Initial Certificate of Obligation and deliver to the initial registered owner or its designee one registered definitive Certificate of Obligation for each year of maturity of the Certificates of Obligation, in the aggregate principal amount of all of the Certificates of Obligation for such maturity. SECTION S. FORM OF CERTIFICATE OF OBLIGATION. The form of the Certificates of Obligation, including the form of Paying Agent /Registrar's Authentication Certificate, the form of Assignment and the form of Registration Certificate of the Comptroller of Public Accounts of the State of Texas (to be attached only to the Certificates of Obligation initially issued and delivered pursuant to this Ordinance), shall be, respectively, substantially as follows, with such appropriate variations, omissions, or insertions as are permitted or required by this Ordinance: [The remainder of this page intentionally left blank] FORM OF CERTIFICATE OF OBLIGATION ILo UNITED STATES OF AMERICA STATE OF TEXAS CITY OF KENNEDALE, TEXAS COMBINATION TAX AND REVENUE CERTIFICATE OF OBLIGATION, SERIES 2010 DATE OF PRINCIPAL AMOUNT E INTEREST RATE MATURITY DATE SERIES CUSIP NO. January 1, 2010 REGISTERED OWNER: PRINCIPAL AMOUNT: DOLLARS ON THE MATURITY DATE specified above, CITY OF KENNEDALE, TEXAS (the "City "), being a political subdivision of the State of Texas, hereby promises to pay to the Registered Owner set forth above, or registered assigns (hereinafter called the "Registered Owner ") the Principal Amount set forth above, and to pay interest thereon from January 1, 2010, at the Interest Rate per annum specified above, on May 1, 2010, and semiannually on each November 1 and May I thereafter to the Maturity Date specified above or date of redemption prior to maturity; except that if this Certificate of Obligation is required to be authenticated and the date of its authentication is later than the first Record Date (hereinafter defined), such Principal Amount shall bear interest from the interest payment date next preceding the date of authentication, unless such date of authentica- tion is after any Record Date but on or before the next following interest payment date, in which case such Principal Amount shall bear interest from such next following interest payment date; pro- vided, however, that if on the date of authentication hereof the interest on the Certificate of Obligation or Certificates of Obligation, if any, for which this Certificate of Obligation is being exchanged or converted from is due but has not been paid, then this Certificate of Obligation shall bear interest from the date to which such interest has been paid in full. THEPRINCIPAL OFAND INTEREST ON THIS CERTIFICATE are payable in lawful money of the United States of America, without exchange or collection charges. The principal of this Certificate of Obligation shall be paid to the Registered Owner hereof upon presentation and surrender of this Certificate of Obligation at maturity or redemption prior to maturity, at the designated corporate trust office of Wells Fargo Bank, N.A., Austin, Texas which is the "Paying Agent /Registrar" for this Certificate of Obligation. The payment of interest on this Certificate of Obligation shall be made by the Paying Agent /Registrar to the Registered Owner hereof on each interest payment date by check or draft, dated as of such interest payment date, drawn by the Paying Agent /Registrar on, and payable solely from, funds of the City required by the order authorizing the N issuance of the Certificates of Obligation (the "Certificate of Obligation Ordinance ") to be on deposit with the Paying Agent/Registrar for such purpose as hereinafter provided; and such check or draft shall be sent by the Paying Agent/Registrar by United States mail, first -class postage pre- paid, on each such interest payment date, to the Registered Owner hereof, at its address as it appeared on the fifteenth business day of the month next preceding each such date (the "Record Date ") on the Registration Books kept by the Paying Agent/Registrar, as hereinafter described. In addition, interest may be paid by such other method, acceptable to the Paying Agent /Registrar, requested by, and at the risk and expense of, the Registered Owner. In the event of a non- payment of interest on a scheduled payment date, and for 30 days thereafter, a new record date for such interest payment (a "Special Record Date ") will be established by the Paying Agent /Registrar, if and when funds for the payment of such interest have been received from the City. Notice of the Special Record Date and of the scheduled payment date of the past due interest (which shall be 15 days after the Special Record Date) shall be sent at least five business days prior to the Special Record Date by United States mail, first -class postage prepaid, to the address of each owner of a Certificate of Obligation appearing on the Registration Books at the close of business on the last business day next preceding the date of mailing of such notice. Any accrued interest due upon the redemption of this Certificate of Obligation prior to maturity as provided herein shall be paid to the Registered Owner upon presentation and surrender of this Certificate of Obligation for redemption and payment to the Paying Agent /Registrar at the Designated Trust Office (unless the redemption date is a regularly scheduled interest payment date, in which case accrued interest on such redeemed Certificates of Obligation shall be payable in the regular manner described above). The City covenants with the Registered Owner of this Certificate of Obligation that on or before each principal payment date and interest payment date for this Certificate of Obligation it will make available to the Paying Agent /Registrar, from the "Interest and Sinking Fund" created by the Certificate of Obligation Ordinance, the amounts required to provide for the payment, in immediately available funds, of all principal of and interest on the Certificates of Obligation, when due. IF THE DATE FOR ANY PAYMENT DUE on this Certificate of Obligation shall be a Saturday, Sunday, a legal holiday, or a day on which banking institutions in the city where the Designated Trust Office of the Paying Agent /Registrar is located are authorized by law or executive order to close, then the date for such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal holiday, or day on which banking institutions are authorized to close, and payment on such date shall have the same force and effect as if made on the original date payment was due. THIS CERTIFICATE OF OBLIGATIONIS ONE OF SERIES OF CERTIFICATES OF OBLIGA TION, dated as of January 1, 2010, authorized in accordance with the Constitution and laws of the State of Texas in the principal amount of $ FOR PAYING, IN WHOLE OR IN PART, THE CITY'S CONTRACTUAL OBLIGATIONS INCURRED TO (1) CONSTRUCT IMPROVEMENTS AND EXTENSIONS TO THE CITY'S WATER WORKS, SEWERAND STORM SEWER SYSTEMS; (2) CONSTRUCT, IMPRO VEAND REPAIR CITY STREETS, PARKING LOTS AND SIDEWALKS, TOGETHER WITH DRAINAGE IMPROVEMENTS, UTILITYLINE CONSTRUCTION, RELOCA TIONANDREPLACEMENT, UTILITIESIMPROVEMENTS, TRAFFICAND STREETSIGNALIZATION , LANDSCAPING AND LIGHTINGIMPROVEMENTS, ( 3) RELOCATEANDRESTOREHISTORICSECTION HOUSE, (4) PROVIDE LOCAL MATCH FOR FEDERAL GRANT TO MAKE STREET, H SIDEWALK, LANDSCAPING, INTERSECTION, AND LIGHTING IMPROVEMENTS; AND (S) PAY ALL OR A PORTION OF THE CITY'S CONTRACTUAL OBLIGATIONS FOR PROFESSIONAL SERVICES RENDERED BY ENGINEERS, ATTORNEYS, AND FINANCIAL ADVISORS IN CONNECTION WITH THE ABOVE PROJECTS. ON MAY], 2020, or on any date thereafter, the Certificates of Obligation of this Series maturing on and after May 1, 2021, may be redeemed prior to their scheduled maturities, at the option of the City, with funds derived from any available and lawful source, as a whole, or in part (provided that a portion of a Certificate of Obligation may be redeemed only in an integral multiple of $5,000), at the redemption price of the principal amount of Certificates of Obligation called for redemption, plus accrued interest thereon to the date fixed for redemption. The City shall determine the maturity or maturities, and the principal amount of Certificates of Obligation within each maturity, to be redeemed. If less than all Certificates of Obligation of a maturity are to be redeemed, the particular Certificates of Obligation to be redeemed shall be selected by the Paying Agent/Registrar at random and by lot. ADDITIONALLY, THE CER TIFICA TES MA TURING on May I in the years , and (the "Term Certificates ") are subject to mandatory redemption prior to maturity in part by lot, at a price equal to the principal amount thereof plus accrued interest to the date of redemption, on the dates and in the respective principal amounts shown below: TERM CERTIFICATES MATURING MAY 1, MANDATORY REDEMPTION REDEMPTION DATE AMOUNT TERM CERTIFICATES MATURING MAY 1, MANDATORY REDEMPTION TERM CERTIFICATES MATURING MAY 1, MANDATORY REDEMPTION REDEMPTION DATE AMOUNT TERM CERTIFICATES MATURING MAY 1, MANDATORY REDEMPTION REDEMPTION DATE AMOUNT REDEMPTION DATE AMOUNT The principal amount of the Term Certificates required to be redeemed pursuant to the operation of such mandatory redemption requirements may be reduced, at the option of the City, by the principal amount of any such Term Certificates which, prior to the date of the mailing of notice of such mandatory redemption, (i) shall have been acquired by the City and delivered to the Paying Agent/Registrar for cancellation, (ii) shall have been purchased and canceled by the Paying Agent /Registrar at the request of the City, or (iii) shall have been redeemed pursuant to the optional redemption provisions described in the preceding paragraph and not theretofore credited against a mandatory redemption requirement. AT LEAST 30 days prior to the date fixed for any optional redemption of the Certificate of Obligation or portions thereof prior to maturity a written notice of such redemption shall be sent by the City by United States mail, first -class postage prepaid, to the registered owner at its address as it appeared on the Registration Books on the day such notice of redemption is mailed; provided, however, that the failure of the registered owner to receive such notice, or any defect therein or in the sending or mailing thereof, shall not affect the validity or effectiveness of the proceedings for the redemption of this Certificate of Obligation. By the date fixed for any such redemption, due provision shall be made for the payment of the required redemption price for the Certificate of Obligation or portions thereof which are to be so redeemed. If such written notice of redemption is sent and if due provision for such payment is made, all as provided above, the Certificate of Obligation or portions thereof which are to be so redeemed thereby automatically shall be treated as redeemed prior to its scheduled maturity, and shall not bear interest after the date fixed for redemption, and shall not be regarded as being outstanding except for the right of the registered owner to receive the redemption price from the City out of the funds provided for such payment. ALL CERTIFICATES OFTHISSERIESare issuable solely as fully registered Certificates of Obligation, without interest coupons, in the denomination of any integral multiple of $5,000. As provided in the Certificate of Obligation Ordinance, this Certificate of Obligation may, at the request of the Registered Owner or the assignee or assignees hereof, be assigned, transferred, converted into and exchanged for a like aggregate amount of fully registered Certificates of Obligation, without interest coupons, payable to the appropriate Registered Owner, assignee or assignees, as the case may be, having any authorized denomination or denominations as requested in writing by the appro- priate Registered Owner, assignee or assignees, as the case may be, upon surrender of this Certificate of Obligation to the Paying Agent/Registrar for cancellation, all in accordance with the form and procedures set forth in the Certificate of Obligation Ordinance. Among other requirements for such assignment and transfer, this Certificate of Obligation must be presented and surrendered to the Paying Agent /Registrar, together with proper instruments of assignment, in form and with guarantee of signatures satisfactory to the Paying Agent /Registrar, evidencing assignment of this Certificate of Obligation or any portion or portions hereof in any authorized denomination to the assignee or assignees in whose name or names this Certificate of Obligation or any such portion or portions hereof is or are to be registered. The form of Assignment printed or endorsed on this Certificate of Obligation may be executed by the Registered Owner to evidence the assignment hereof, but such method is not exclusive, and other instruments of assignment satisfactory to the Paying Agent /Registrar may be used to evidence the assignment of this Certificate of Obligation or any portion or portions hereof from time to time by the Registered Owner. The Paying Agent /Regis- trar's reasonable standard or customary fees and charges for assigning, transferring, converting and exchanging any Certificate of Obligation or portion thereof will be paid by the City. In any cir- cumstance, any taxes or governmental charges required to be paid with respect thereto shall be paid by the one requesting such assignment, transfer, conversion or exchange, as a condition precedent to the exercise of such privilege. The Paying Agent /Registrar shall not be required to make any such transfer or exchange of a Certificate of Obligation (i) during the period commencing with the close of business on any Record Date immediately preceding a principal or interest payment date for such Certificate of Obligation and ending with the opening of business on the next following principal or interest payment date, or (ii) with respect to any Certificate of Obligation or any portion thereof called for redemption prior to maturity, within 45 days prior to its redemption date; provided, 12 however, such limitation of transfer shall not be applicable to an exchange by the Registered Owner of an unredeemed balance of a Certificate of Obligation called for redemption in part. IN THE E VENT ANY PAYINGAGENT /REGISTRAR for the Certificates of Obligation is changed by the City, resigns, or otherwise ceases to act as such, the City has covenanted in the Certificate of Obligation Ordinance that it promptly will appoint a competent and legally qualified substitute therefor, and cause written notice thereof to be mailed to the registered owners of the Certificates of Obligation. IT IS HEREBY CERTIFIED, RECITED, AND COVENANTED that this Certificate of Obligation has been duly and validly authorized, issued, and delivered; that all acts, conditions, and things required or proper to be performed, exist, and be done precedent to or in the authorization, issuance and delivery of this Certificate of Obligation have been performed, existed, and been done in accordance with law; that this Certificate of Obligation is a general obligation of the City, issued on the full faith and credit thereof; and that ad valorem taxes sufficient to provide for the payment of the interest on and principal of this Certificate of Obligation, as such interest comes due, and as such principal matures, have been levied and ordered to be levied against all taxable property in the City, and have been pledged for such payment, within the limits provided by law, and that this Certificate of Obligation is additionally secured by a lien on and pledge of Surplus Revenues received by the City from the ownership and operation of the City's waterworks and sanitary sewer system. THE CITY HAS RESERVED THE RIGHT TO AMEND the Certificate of Obligation Ordinance as provided therein, and under some (but not all) circumstances amendments thereto must be approved by the registered owners of a majority in aggregate principal amount of the outstanding Certificates of Obligation. BYBECOMING THEREGISTERED OWNER of this Certificate of Obligation, the Regis- tered Owner thereby acknowledges all of the terms and provisions of the Certificate of Obligation Ordinance, agrees to be bound by such terms and provisions, acknowledges that the Certificate of Obligation Ordinance is duly recorded and available for inspection in the official minutes and records of the governing body of the City, and agrees thatthe terms and provisions of this Certificate of Obligation and the Certificate of Obligation Ordinance constitute a contract between each Registered Owner hereof and the City. [The remainder of this page intentionally left blank] 13 IN WITNESS WHEREOF, the City has caused this Certificate of Obligation to be signed with the manual or facsimile signature of the Mayor of the City, countersigned with the manual or facsimile signature of the City Secretary of the City, and has caused the official seal of the City to be duly impressed, or placed in facsimile, on this Certificate of Obligation. Countersigned: (facsimile si nature) (facsimile signature) City Secretary Mayor City of Kennedale, Texas City of Kennedale, Texas (SEAL) FORM OF REGISTRATION CERTIFICATE OF THE COMPTROLLER OF PUBLIC ACCOUNTS COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO. I hereby certify that this Certificate of Obligation has been examined, certified as to validity, and approved by the Attorney General of the State of Texas, and that this Certificate of Obligation has been registered by the Comptroller of Public Accounts of the State of Texas. Witness my signature and seal this (COMPTROLLER'S SEAL) Comptroller of Public Accounts of the State of Texas FORM OF PAYING AGENT /REGISTRAR'S AUTHENTICATION CERTIFICATE PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE (To be executed if this Certificate of Obligation is not accompanied by an executed Registration Certificate of the Comptroller of Public Accounts of the State of Texas) It is hereby certified that this Certificate of Obligation has been issued under the provisions of the Certificate of Obligation Ordinance described in the text of this Certificate of Obligation; and that this Certificate of Obligation has been issued in conversion or replacement of, or in exchange for, a certificate, certificates, or a portion of a certificate or certificates of a Series which originally was approved by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts of the State of Texas. Dated Wells Fargo Bank, N.A. Austin, Texas Paying Agent /Registrar C Authorized Representative FORM OF ASSIGNMENT ASSIGNMENT FOR VALUE RECEIVED, the undersigned Registered Owner of this Certificate of Obligation, or duly authorized representative or attorney thereof, hereby assigns this Certificate of Obligation to (Assignee's Social Security or (Print or typewrite Assignee's name and address, Taxpayer Identification) including zip code) and hereby irrevocably constitutes and appoints attorney to register the transfer of the Certificate of Obligation on the books kept for registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: NOTICE: Signature(s) must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. 15 NOTICE: The signature above must correspond with the name of the Registered Owner as it appears upon the front of this Certificate of Obligation in every particular, without alteration or enlargement or any change whatsoever. INITIAL CERTIFICATE OF OBLIGATION INSERTIONS The Initial Certificate of Obligation shall be in the respective form set forth above except that: (A) Immediately under the name of the Certificate of Obligation, the headings "INTEREST RATE" and "MATURITY DATE" shall be completed with the words "As shown below ", and the heading "CUSIP NO." should be deleted. (B) The first paragraph shall be deleted and the following shall be inserted: "ONTHERESPECTIVEMA TURITYDA TES specified below, CITYOFKENNEDALE, TEXAS (the "City "), being a political subdivision of the State of Texas, hereby promises to pay to the Registered Owner specified above, or registered assigns (hereinafter called the "Registered Owner "), the respective Principal Installments specified below, and to pay interest thereon (calculated on the basis of a 360 -day year composed of twelve 30 -day months) from January 1, 2010, at the Interest Rate per annum specified above, payable on May 1, 2010, and semiannually on each November I and May I thereafter to the respective Maturity Dates specified below, or the date of redemption prior to maturity. The respective Maturity Dates and Principal Installments for this Certificate of Obligation are set forth in the following schedule: MATURITY DATE I PRINCIPAL INSTALLMENT (MAY 1) [Insert information from Sections 2 and 3 above] (C) The Initial Certificate of Obligation shall be numbered "T -1." SECTION 6. INTEREST AND SINKING FUND; TAX LEVY. A special "Interest and Sinking Fund" is hereby created and shall be established and maintained by the City at an official depository bank of the City. Said Interest and Sinking Fund shall be kept separate and apart from all other funds and accounts of the City, and shall be used only for paying the interest on and the principal of said Certificates of Obligation. All ad valorem taxes levied and collected for and on account of said Certificates of Obligation shall be deposited, as collected, to the credit of said Interest and Sinking Fund. For each fiscal year while any of the Certificates of Obligation or interest thereon are outstanding and unpaid, the governing body of the City shall compute and ascertain a rate and amount of ad valorem tax which will be sufficient to raise and produce the money required to pay the interest on the Certificates of Obligation as such interest comes due, and to provide and maintain a sinking fund adequate to pay the principal of the Certificates of Obligation as such principal matures (but never less than 2% of the original principal amount of each series of the ffel Certificates of Obligation as a sinking fund each year); and said tax shall be based on the latest approved tax rolls of the City, with full allowance being made for tax delinquencies and the cost of tax collection. Said rate and amount of ad valorem tax is hereby levied, and is hereby ordered to be levied, against all taxable property in the City for each year while any of the Certificates of Obligation or interest thereon are outstanding and unpaid; and said tax shall be assessed and collected each such year and deposited to the credit of the Interest and Sinking Fund created by this Ordinance. Said ad valorem taxes sufficient to provide for the payment of the interest on and principal of the Certificates of Obligation, as such interest comes due and such principal matures, are hereby pledged for such payment, within the limit prescribed by law. SECTION 7. SURPLUS REVENUES. Pursuant to Section 271.052, Texas Local Government Code, as amended, and Section 1502.052, Texas Government Code, as amended, the Certificates of Obligation additionally shall be payable from and secured by surplus revenues derived by the City from the ownership and operation of the City's waterworks and sanitary sewer system (the "Utilities System ") remaining after (a) payment of all amounts constituting operation and maintenance expenses of said Utilities System, and (b) payment of all debt service, reserve, and other requirements and amounts required to be paid under all ordinances heretofore or hereafter authorizing (i) all bonds and (ii) all other obligations not on a parity with the Certificates of Obligation, which are payable from and secured by any Utilities System revenues, and (c) payment of all amounts payable from any Utilities System revenues pursuant to contracts heretofore or hereafter entered into by the City in accordance with law (the "Surplus Revenues "). If for any reason the City fails to deposit ad valorem taxes levied pursuant to Section 6 hereof to the credit of the Interest and Sinking Fund relating to the Certificates of Obligation in an amount sufficient to pay, when due, the principal of and interest on the Certificates of Obligations, then Surplus Revenues may be deposited to the credit of such Interest and Sinking Fund and used to pay such principal and /or interest. The City reserves, and shall have, the right to issue bonds and other obligations not on a parity with the Certificates of Obligation, and to enter into contracts, in accordance with applicable laws, to be payable from and secured by any Utilities System revenues. SECTION 8. CONSTRUCTION FUND. There is hereby created and established on the financial records of the City or in the depository of the City, a fund to be called the "City of Kennedale, Texas Certificates of Obligation (Series 2010) Construction Fund" (herein called the "Construction Fund "). All proceeds from the sale and delivery of the Certificates of Obligation (other than accrued interest and any premium on the Certificates of Obligation, if any, that is not used by the City to pay costs of issuance in accordance with the provisions of Section 1201.042(d), Texas Government Code, as amended, which amounts shall be deposited into the Interest and Sinking Fund) shall be deposited into the Construction Fund. Money in the Construction Fund shal l be subject to disbursements by the City for payment of costs of issuance and all costs incurred in carrying out the purpose for which the Certificates of Obligation are issued, including, but not limited to, costs for construction, engineering, architecture, financing, financial consultants and legal services related to the project being financed with proceeds of the Certificates of Obligation and the issuance of the Certificates of Obligation. All funds remaining on deposit in the Construction Fund upon completion of construction of the project being financed with the proceeds from the Certificates of Obligation, if any, shall be transferred to the Interest and Sinking Fund. 17 SECTION 9. INVESTMENTS. Funds on deposit in the Interest and Sinking Fund and the Construction Fund shall be secured by the depository bank of the City in the manner and to the extent required by law to secure other public funds of the City and may be invested from time to time in any investment authorized by applicable law, including but not limited to the Public Funds Investment Act (Chapter 2256, Texas Government Code), and the City's investment policy adopted in accordance with the provisions of the Public Funds Investment Act; provided, however, that investments purchased for and held in each Interest and Sinking Fund shall have a final maturity no later than the next principal or interest payment date on which such funds will be needed, and investments purchased for and held in the Construction Fund shall have a final maturity of not later than the date the City reasonably expects the funds from such investments will be required to pay costs of the projects for which the Certificates of Obligation were issued.. Income and profits from such investments shall be deposited in the respective Fund which holds such investments; however, any such income and profits from investments in the Construction Fund may be withdrawn by the City and deposited in the Interest and Sinking Fund to pay all or a portion of the interest next coming due on the Certificates of Obligation. It is further provided, however, that any interest earnings on certificate proceeds which are required to be rebated to the United States of America pursuant to Section 13 hereof in order to prevent the Certificates of Obligation from being arbitrage certificates shall be so rebated and not considered as interest earnings for the purposes of this Section. Section 10. DEFEASANCE OF CERTIFICATES. (a) Defeased Certi acates o� Obli ag tion Any Certificate of Obligation and the interest thereon shall be deemed to be paid, retired and no longer Outstanding (a 'Defeased Certificate of Obligation "), except to the extent provided in subsection (d) of this Section, when payment of the principal of such Certificate of Obligation, plus interest thereon to the due date (whether such due date be by reason of maturity or otherwise) either (i) shall have been made or caused to be made in accordance with the terms thereof, or (ii) shall have been provided for on or before such due date by irrevocably depositing with or making available to the Paying Agent/Registrar (or another entity permitted by Section 1207.061, Texas Government Code, as amended, or other applicable law, which entity, together with the Paying Agent /Registrar, are referred to collectively in this Section as the "Defeasance Agent "), in accordance with the requirements of Chapter 1207, Texas Government Code, as amended, or other applicable law (which may include the use of an escrow agreement or other similar instrument - the "Future Escrow Agreement "): (1) lawful money of the United States of America sufficient to make such payment or (2) "Defeasance Securities" (as defined below) that mature as to principal and interest in such amounts and at such times as will insure the availability, without reinvestment, of sufficient money to provide for such payment, and when proper arrangements have been made by the City with the Defeasance Agent for the payment of its services until all Defeased Certificates of Obligation shall have become due and payable. At such time as a Certificate of Obligation shall be deemed to be a Defeased Certificate of Obligation hereunder, as aforesaid, such Certificate of Obligation and the interest thereon shall no longer be secured by, payable from, or entitled to the benefits of, the ad valorem taxes or revenues herein levied and pledged as provided in this Ordinance, and such principal and interest shall be payable solely from such money or Defeasance Securities. Notwithstanding any other provision of this Ordinance to the contrary, it is hereby provided that any determination not to redeem Defeased Certificates of Obligation that is made in conjunction with the payment arrangements specified in subsection (a)(i) or (ii) of this Section shall not be irrevocable, provided that: (1) in the proceedings providing for such payment arrangements, the City expressly reserves the right to call the Defeased Certificates of Obligation for redemption; (2) gives notice of the reservation of that right to the owners of the Defeased Certificates of Obligation immediately following the making of the payment arrangements; and (3) directs that notice of the reservation be included in any redemption notices that it authorizes. (b) Defeasance Securities The term "Defeasance Securities" means (i) direct, noncallable obligations of the United States of America, including obligations that are unconditionally guaranteed by the United States of America., (ii) noncallable obligations of an agency or instrumentality of the United States of America, including obligations that are unconditionally guaranteed or insured by the agency or instrumentality and that, on the date of the purchase thereof are rated as to investment quality by a nationally recognized investment rating firm not less than AAA or its equivalent, and (iii) noncallable obligations of a state or an agency or a county, municipality, or other political subdivision of a state that have been refunded and that, on the date on the date the governing body of the City adopts or approves the proceedings authorizing the financial arrangements are rated as to investment quality by a nationally recognized investment rating firm not less than AAA or its equivalent. (c) Investment in Defeasance Securities Any moneys so deposited with the Defeasance Agent may at the written direction of the City be invested in Defeasance Securities, maturing in the amounts and times as hereinbefore set forth, and all income from such Defeasance Securities received by the Defeasance Agent that is not required for the payment of the Certificates of Obligation and interest thereon, with respect to which such money has been so deposited, shall be turned over to the City, or deposited as directed in writing by the City. Any account or Future Escrow Agreement pursuant to which the money and /or Defeasance Securities are held for the payment of Defeased Certificates of Obligation may contain provisions permitting the investment or reinvestment of such moneys in Defeasance Securities or the substitution of other Defeasance Securities upon the satisfaction of the requirements specified in subsections (a)(i) or (ii) of this Section. All income from such Defeasance Securities received by the Defeasance Agent which is not required for the payment of the Defeased Certificates of Obligation, with respect to which such money has been so deposited, shall be remitted to the City or deposited as directed in writing by the City. (d) Payi, n,gAgent/Registrar Services Until all Defeased Certificates of Obligation shall have become due and payable, the Paying Agent/Registrar shall perform the services of Paying Agent /Registrar for such Defeased Certificates of Obligation the same as if they had not been defeased, and the City shall make proper arrangements to provide and pay for such services as required by this Ordinance. (e) Selection o�f'Certificates of Obligation for Defeasance In the event that the City elects to defease less than all of the principal amount of Certificates of Obligation of a maturity, the Paying Agent /Registrar shall select, or cause to be selected, such amount of Certificates of Obligation by such random method as it deems fair and appropriate. SECTION 11. DAMAGED, MUTILATED, LOST, STOLEN, OR DESTROYED CERTIFICATES. (a) Replacement Certificates of Obligation In the event any outstanding Certificate of Obligation is damaged, mutilated, lost, stolen, or destroyed, the Paying Agent/Regis- [IWO trar shall cause to be printed, executed, and delivered, a new certificate of the same principal amount, maturity, and interest rate, as the damaged, mutilated, lost, stolen, or destroyed Certificate ..., of Obligation, in replacement for such Certificate of Obligation in the manner hereinafter provided. (b) Application for Replacement Certificates of Obligation Application for replacement of damaged, mutilated, lost, stolen, or destroyed Certificates of Obligation shall be made by the registered owner thereof to the Paying Agent /Registrar. In every case of loss, theft, or destruction of a Certificate of Obligation, the registered owner applying for a replacement certificate shall furnish to the City and to the Paying Agent /Registrar such security or indemnity as may be required by them to save each of them harmless from any loss or damage with respect thereto. Also, in every case of loss, theft, or destruction of a Certificate of Obligation, the registered owner shall furnish to the City and to the Paying Agent /Registrar evidence to their satisfaction of the loss, theft, or destruction of such Certificate of Obligation. In every case of damage or mutilation of a Certificate of Obligation, the registered owner shall surrender to the Paying Agent/Registrar for cancellation the Certificate of Obligation so damaged or mutilated. (c) No Default Occurred Notwithstanding the foregoing provisions of this Section, in the event any such Certificate of Obligation shall have matured, and no default has occurred which is then continuing in the payment of the principal of or interest on the Certificate of Obligation, the City may authorize the payment of the same (without surrender thereof except in the case of a damaged or mutilated Certificate of Obligation) instead of issuing a replacement Certificate of Obligation, provided security or indemnity is furnished as above provided in this Section. (d) Charge for Issuing Replacement Certificates of Obli ag tion Prior to the issuance of any replacement certificate, the Paying Agent/Registrar shall charge the registered owner of such Certificate of Obligation with all legal, printing, and other expenses in connection therewith. Every replacement certificate issued pursuant to the provisions of this Section by virtue of the fact that any Certificate of Obligation is lost, stolen, or destroyed shall constitute a contractual obligation of the City whether or not the lost, stolen, or destroyed Certificate of Obligation shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Ordinance equally and proportionately with any and all other Certificates of Obligation duly issued under this Ordinance. (e) Authority for Issuing Replacement Certificates of Obligation In accordance with Chapter 1201, Texas Government Code, as amended, this Section of this Ordinance shall constitute authority for the issuance of any such replacement certificate without necessity of further action by the governing body of the City or any other body or person, and the duty of the replacement of such certificates is hereby authorized and imposed upon the Paying Agent /Registrar, and the Paying Agent /Registrar shall authenticate and deliver such Certificates of Obligation in the form and manner and with the effect, as provided in Section 4(a) of this Ordinance for Certificates of Obligation issued in conversion and exchange for other Certificates of Obligation. SECTION 12. CUSTODY, APPROVAL, AND REGISTRATION OF CERTIFICATES; BOND COUNSEL'S OPINION; CUSIP NUMBERS; AND OTHER MATTERS. The Mayor of the City is hereby authorized to have control of the Certificates of Obligation initially issued and delivered hereunder and all necessary records and proceedings pertaining to the Certificates of Obligation pending their delivery and their investigation, examination, and approval by the Attorney 20 General of the State of Texas, and their registration by the Comptroller of Public Accounts of the State of Texas. Upon registration of the Certificates of Obligation said Comptroller of Public Accounts (or a deputy designated in writing to act for said Comptroller) shall manually sign the Comptroller's Registration Certificate attached to such Certificates of Obligation, and the seal of said Comptroller shall be impressed, or placed in facsimile, on such Certificate. The approving legal opinion of the City's Bond Counsel (with an appropriate certificate pertaining thereto executed by facsimile signature of the City Secretary of the City) and the assigned CUSIP numbers (if obtained) may, at the option of the City, be printed on the Certificates of Obligation issued and delivered under this Ordinance, but neither shall have any legal effect, and shall be solely for the convenience and information of the registered owners of the Certificates of Obligation. SECTION 13. COVENANTS REGARDING TAX EXEMPTION OF INTEREST ON THE CERTIFICATES. (a) Covenants The City covenants to take any action necessary to assure, or refrain from any action which would adversely affect, the treatment of the Certificates of Obligation as obligations described in section 103 of the Internal Revenue Code of 1986, as amended (the "Code "), the interest on which is not includable in the "gross income" of the holder for purposes of federal income taxation. In furtherance thereof, the City covenants as follows: (1) to take any action to assure that no more than 10 percent of the proceeds of the Certificates of Obligation or the projects financed or refinanced therewith (less amounts deposited to a reserve fund, if any) are used for any "private business use," as defined in section 141(b)(6) of the Code or, if more than 10 percent of the proceeds or the projects financed or refinanced therewith are so used, such amounts, whether or not received by the City, with respect to such private business use, do not, under the terms of this Ordinance or any underlying arrangement, directly or indirectly, secure or provide for the payment of more than 10 percent of the debt service on the Certificates of Obligation, in contravention of section 141(b)(2) of the Code; (2) to take any action to assure that in the event that the "private business use" described in subsection (1) hereof exceeds 5 percent of the proceeds of the Certificates of Obligation or the projects financed or refinanced therewith (less amounts deposited into a reserve fund, if any) then the amount in excess of 5 percent is used for a "private business use" which is "related" and not "disproportionate," within the meaning of section 141(b)(3) of the Code, to the governmental use; (3) to take any action to assure that no amount which is greater than the lesser of $5,000,000, or 5 percent of the proceeds of the Certificates of Obligation (less amounts deposited into a reserve fund, if any) is directly or indirectly used to finance loans to persons, other than state or local governmental units, in contravention of section 141(c) of the Code; (4) to refrain from taking any action which would otherwise result in the Certificates of Obligation being treated as "private activity bonds" within the meaning of section 141(b) of the Code; (5) to refrain from taking any action that would result in the Certificates of Obligation being "federally guaranteed" within the meaning of section 149(b) of the Code; 21 (6) to refrain from using any portion of the proceeds of the Certificates of Obligation, directly or indirectly, to acquire or to replace funds which were used, directly or indirectly, to acquire investment property (as defined in section 148(b)(2) of the Code) which produces a materially higher yield over the term of the Certificates of Obligation, other than investment property acquired with -- (A) proceeds of the Certificates of Obligation invested for a reasonable temporary period of 3 years or less or, in the case of a refunding certificate, for a period of 30 days or less until such proceeds are needed for the purpose for which the certificates are issued, (B) amounts invested in a bona fide debt service fund, within the meaning of section 1.148 -1(b) of the Treasury Regulations, and (C) amounts deposited in any reasonably required reserve or replacement fund to the extent such amounts do not exceed 10 percent of the proceeds of the Certificates of Obligation; (7) to otherwise restrict the use of the proceeds of the Certificates of Obligation or amounts treated as proceeds of the Certificates of Obligation, as may be necessary, so that the Certificates of Obligation do not otherwise contravene the requirements of section 148 of the Code (relating to arbitrage) and, to the extent applicable, section 149(d) of the Code (relating to advance refundings); (8) to pay to the United States of America at least once during each five -year period (beginning on the date of delivery of the Certificates of Obligation) an amount that is at least equal to 90 percent of the "Excess Earnings," within the meaning of section 148(f) of the Code and to pay to the United States of America, not later than 60 days after the Certificates of Obligation have been paid in full, 100 percent of the amount then required to be paid as a result of Excess Earnings under section 148(f) of the Code; and (9) to assure that the proceeds of the Certificates of Obligation will be used solely for new money projects or to refund Refunded Bonds that were issued after December 31, 2003 and prior to January 1, 2009. (b) Rebate Fund In order to facilitate compliance with the above covenant (8), a "Rebate Fund" is hereby established by the City for the sole benefit of the United States of America, and such fund shall not be subject to the claim of any other person, including without limitation the certificateholders. The Rebate Fund is established for the additional purpose of compliance with section 148 of the Code. (c) Proceeds The City understands that the term "proceeds" includes "disposition proceeds" as defined in the Treasury Regulations and, in the case of refunding certificates, transferred proceeds (if any) and proceeds of the refunded certificates expended prior to the date of issuance of the Certificates of Obligation. It is the understanding of the City that the covenants contained herein are intended to assure compliance with the Code and any regulations or rulings promulgated by the 22 U.S. Department of the Treasury pursuant thereto. In the event that regulations or rulings are hereafter promulgated which modify or expand provisions of the Code, as applicable to the Certificates of Obligation, the City will not be required to comply with any covenant contained herein to the extent that such failure to comply, in the opinion of nationally recognized bond counsel, will not adversely affect the exemption from federal income taxation of interest on the Certificates of Obligation under section 103 of the Code. In the event that regulations or rulings are hereafter promulgated which impose additional requirements which are applicable to the Certificates of Obligation, the City agrees to comply with the additional requirements to the extent necessary, in the opinion of nationally recognized bond counsel, to preserve the exemption from federal income taxation of interest on the Certificates of Obligation under section 103 of the Code. In furtherance of such intention, the City hereby authorizes and directs the Finance Director to execute any documents, certificates or reports required by the Code and to make such elections, on behalf of the City, which may be permitted by the Code as are consistent with the purpose for the issuance of the Certificates of Obligation. (d) Allocation Of and Limitation On, Expenditures for the Project The City covenants to account for the expenditure of sale proceeds and investment earnings to be used for the purposes described in Section l of this Ordinance (the "Project ") on its books and records in accordance with the requirements of the Internal Revenue Code. The City recognizes that in order for the proceeds to be considered used for the reimbursement of costs, the proceeds must be allocated to expenditures within 18 months of the later of the date that (1) the expenditure is made, or (2) the Project is completed; but in no event later than three years after the date on which the original expenditure is paid. The foregoing notwithstanding, the City recognizes that in order for proceeds to be expended under the Internal Revenue Code, the sale proceeds or investment earnings must be expended no more than 60 days after the earlier of (1) the fifth anniversary of the delivery of the Certificates of Obligation, or (2) the date the Certificates of Obligation are retired. The City agrees to obtain the advice of nationally- recognized bond counsel if such expenditure fails to comply with the foregoing to assure that such expenditure will not adversely affect the tax- exempt status of the Certificates of Obligation. For purposes hereof, the City shall not be obligated to comply with this covenant if it obtains an opinion that such failure to comply will not adversely affect the excludability for federal income tax purposes from gross income of the interest. (e) Disposition ofProiect The City covenants that the property constituting the Project will not be sold or otherwise disposed in a transaction resulting in the receipt by the City of cash or other compensation, unless the City obtains an opinion of nationally- recognized bond counsel that such sale or other disposition will not adversely affect the tax- exempt status of the Certificates of Obligation. For purposes of the foregoing, the portion of the property comprising personal property and disposed in the ordinary course shall not be treated as a transaction resulting in the receipt of cash or other compensation. For purposes hereof, the City shall not be obligated to comply with this covenant if it obtains an opinion that such failure to comply will not adversely affect the excludability for federal income tax purposes from gross income of the interest. (f) Qualified Tax - Exempt Obligations The City hereby designates the Certificates of Obligation as "qualified tax - exempt bonds" as defined in section 265(b)(3) of the Code. In furtherance of such designation, the City represents, covenants and warrants the following: (a) that during the calendar year in which the Certificates of Obligation are issued, the City (including any 23 subordinate entities) has not designated nor will designate bonds, which when aggregated with the Certificates of Obligation, will result in more than $10,000,000 ($30,000,000 for taxable years beginning after December 31, 2008 and ending prior to January 1, 2011) of "qualified tax - exempt bonds" being issued; (b) that the City reasonably anticipates that the amount of tax- exempt obligations issued, during the calendar year in which the Certificates of Obligation are issued, by the City (or any subordinate entities) will not exceed $10,000,000 ($30,000,000 for taxable years beginning after December 31, 2008 and ending prior to January 1, 2011); and, (c) that the City will take such action or refrain from such action as necessary, and as more particularly set forth in this Section, in order that the Certificates of Obligation will not be considered "private activity bonds" within the meaning of section 141 of the Code. Section 14. SALE AND DELIVERY OF THE CERTIFICATES OF OBLIGATION. The Certificates of Obligation are hereby initially sold and shall be delivered to SAMCO CAPITAL MARKETS, INC. (the "Underwriter "), at a price of $ (which amount is equal to par, [plus] [less] a net original issue [premium] [discount] of $ , and less Underwriters' discount of $ ), plus accrued interest on the Certificates of Obligation from January 1, 2010, to the date of initial delivery thereof, all pursuant to the terms and provisions of a Purchase Contract in substantially the form attached hereto as Exhibit B which the Mayor or Mayor Pro -Tem of the City is hereby authorized to execute and deliver, and which the City Secretary is hereby authorized to attest. The City will deliver to the Underwriter an Initial Certificate of Obligation in the aggregate principal amount of $ payable in principal installments on the dates and in the principal amounts shown in Section 2 hereof, and bearing interest at the rates for each respective maturity as shown in Section 3 hereof. The Initial Certificate of Obligation shall be registered in the name of SAMCO CAPITAL MARKETS, INC. SECTION 15. APPROVAL OF OFFICIAL STATEMENT. The City hereby approves the form and content of the Official Statement relating to the Certificates of Obligation and any addenda, supplement, or amendment thereto, and approves the distribution of the Official Statement in the reoffering of the Certificates of Obligation by the Underwriters in final form, with such changes therein or additions thereto as the officer executing the same may deem advisable, such determination to be conclusively evidenced by his execution thereof. The distribution and use of the Preliminary Official Statement for the Certificates of Obligation, dated January _, 2010, prior to the date hereof is hereby ratified and confirmed. The City Council finds and determines that the Preliminary Official Statement and the Official Statement were and are "deemed final" as of each of their respective dates within the meaning, and for the purpose, of Rule 15c2 -12 promulgated under authority granted by the Federal Securities and Exchange Act of 1934. Section 16. AUTHORITY FOR OFFICERS TO EXECUTE DOCUMENTS. The Mayor, City Manager, City Secretary, and all other officers of the City, and each of them, shall be and they are hereby expressly authorized, empowered, and directed from time to time and at any time to do and perform all such acts and things and to execute, acknowledge, and deliver in the name and under the corporate seal and on behalf of the City all such instruments, whether or not herein mentioned, as may be necessary or desirable in order to carry out the terms and provisions of this Ordinance, the Certificates of Obligation, the sale of the Certificates of Obligation, and the Paying Agent /Registrar Agreement. In case any officer whose signature shall appear on any Certificate of Obligation shall cease to be such officer before the delivery of such Certificate of Obligation, such 24 signature shall nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery. SECTION 17. ORDINANCE A CONTRACT; AMENDMENTS. This Ordinance shall constitute a contract with the Registered Owners of the Certificates of Obligation, binding on the City and its successors and assigns, and shall not be amended or repealed by the City as long as any Certificate of Obligation remains outstanding except as permitted in this Section. The City may, without the consent of or notice to any Registered Owners, amend, change, or modify this Ordinance as may be required (i) by the provisions hereof, (ii) for the purpose of curing any ambiguity, inconsistency, or formal defect or omission herein, or (iii) in connection with any other change which is not to the prejudice of the Registered Owners. The City may, with the written consent of the Registered Owners of a majority in aggregate principal amount of the Certificates of Obligation then outstanding affected thereby, amend, change, modify, or rescind any other provisions of this Ordinance; provided that without the consent of all of the Registered Owners affected, no such amendment, change, modification, or rescission shall (i) extend the time or times of payment of the principal of and interest on the Certificates of Obligation, or reduce the principal amount thereof or the rate of interest thereon, (ii) give any preference to any Certificate of Obligation over any other Certificate of Obligation, (iii) extend any waiver of default to subsequent defaults, or (iv) reduce the aggregate principal amount of Certificates of Obligation required for consent to any such amendment, change, modification, or rescission. Whenever the City shall desire to make any amendment or addition to or rescission of this Ordinance requiring consent of the Registered Owners, the City shall cause notice of the amendment, addition, or rescission to be sent by first class mail, postage prepaid, to the Registered Owners at the respective addresses shown on the Registration Books. Whenever at any time within one year after the date of the giving of such notice, the City shall receive an instrument or instruments in writing executed by the Registered Owners of a majority in aggregate principal amount of the Certificates of Obligation then outstanding affected by any such amendment, addition, or rescission requiring the consent of the Registered Owners, which instrument or instruments shall refer to the proposed amendment, addition, or rescission described in such notice and shall specifically consent to and approve the adoption thereof in substantially the form of the copy thereof referred to in such notice, thereupon, but not otherwise, the City may adopt such amendment, addition, or rescission in substantially such form, except as herein provided. No Registered Owner may thereafter object to the adoption of such amendment, addition, or rescission, or to any of the provisions thereof, and such amendment, addition, or rescission shall be fully effective for all purposes. SECTION 18. REMEDIES IN EVENT OF DEFAULT. In addition to all the rights and remedies provided by the laws of the State of Texas, it is specifically covenanted and agreed particularly that in the event the City (i) defaults in the payment of the principal, premium, if any, or interest on the Certificates of Obligation, (ii) defaults in the deposits and credits required to be made to the Interest and Sinking Fund, or (iii) defaults in the observance or performance of any other of the covenants, conditions or obligations set forth in this Ordinance, the failure to perform which materially, adversely affects the rights of the Holders of the Certificates of Obligation, including but not limited to their prospect or ability to be repaid in accordance with this Ordinance and the continuation thereof for a period of 60 days after notice of such default is given by any Holder to the City, the Holders of any of the Certificates of Obligation shall be entitled to seek a writ of mandamus issued by a court of proper jurisdiction compelling and requiring the governing body 25 of the City and other officers of the City to observe and perform any covenant, condition or obligation prescribed in this Ordinance. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein, and every such right and power may be exercised from time to time and as often as may be deemed expedient. The specific remedy herein provided shall be cumulative of all other existing remedies, and the specification of such remedy shall not be deemed to be exclusive. SECTION 19. SECURITY INTEREST. Chapter 1208, Texas Government Code, applies to the issuance of the Certificates of Obligation and the pledge of the ad valorem taxes granted by the City under Section 6 and 7 of this Ordinance, and is therefore valid, effective, and perfected. If Texas law is amended at any time while the Certificates of Obligation are outstanding and unpaid such that the pledge of the ad valorem taxes granted by the City under Section 6 of this Ordinance is to be subject to the filing requirements of Chapter 9, Texas Business & Commerce Code, then in order to preserve to the registered owners of the Certificates of Obligation the perfection of the security interest in said pledge, the City agrees to take such measures as it determines are reasonable and necessary under Texas law to comply with the applicable provisions of Chapter 9, Texas Business & Commerce Code, and enable a filing to perfect the security interest in said pledge to occur. SECTION 20. INTERESTED PARTIES. Nothing in this Ordinance expressed or implied is intended or shall be construed to confer upon, or to give to, any person or entity, other than the City and the registered owners of the Certificates of Obligation, any right, remedy or claim under or by reason of this Ordinance or any covenant, condition or stipulation hereof, and all covenants, stipulations, promises and agreements in this Ordinance contained by and on behalf of the City shall be for the sole and exclusive benefit of the City and the registered owners of the Certificates of Obligation. Section 21. CONTINUING DISCLOSURE UNDERTAKING. (a) Definitions. As used in this Section, the following terms have the meanings ascribed to such terms below: MSRB. "EMMA" means the Electronic Municipal Market Access system being established by the "MSRB" means the Municipal Securities Rulemaking Board. "Rule" means SEC Rule 15c2 -12, as amended from time to time. "SEC" means the United States Securities and Exchange Commission. (b) Annual Reports. The City shall provide annually to the MSRB through EMMA within six months after the end of each fiscal year ending in or after 2010, financial information and operating data with respect to the City of the general type included in the final Official Statement 26 authorized by this Ordinance being the information described in Exhibit C hereto. Any financial statements so to be provided shall be (1) prepared in accordance with the accounting principles described in Exhibit C hereto, or such other accounting principles as the City may be required to employ from time to time pursuant to state law or regulation, and (2) audited, if the City commissions an audit of such statements and the audit is completed within the period during which they must be provided. If the audit of such financial statements is not complete within such period, then the City shall provide (1) unaudited financial statements for such fiscal year within such six month period, and (2) audited financial statements for the applicable fiscal year to the MSRB through EMMA when and if the audit report on such statements become available. If the City changes its fiscal year, it will notify the MSRB through EMMA of the date of the new fiscal year end prior to the next date by which the City otherwise would be required to provide financial information and operating data pursuant to this paragraph (b). The financial information and operating data to be provided pursuant to this paragraph (b) may be set forth in full in one or more documents or may be included by specific reference to any document (including an official statement or other offering document, if it is available from the MSRB) that theretofore has been provided to the MSRB through EMMA or filed with the SEC. (c) Material Event Notices The City shall notify the MSRB through EMMA in a timely manner, of any of the following events with respect to the Certificates of Obligation, if such event is material within the meaning of the federal securities laws: A. Principal and interest payment delinquencies; B. Non - payment related defaults; C. Unscheduled draws on debt service reserves reflecting financial difficulties; D. Unscheduled draws on credit enhancements reflecting financial difficulties; E. Substitution of credit or liquidity providers, or their failure to perform; F. Adverse tax opinions or events affecting the tax - exempt status of the Certificates of Obligation; G. Modifications to rights of holders of the Certificates of Obligation; H. Redemption calls; 1. Defeasances; Release, substitution, or sale of property securing repayment of the Certificates of Obligation; and K. Rating changes. 27 The City shall notify the MSRB through EMMA, in a timely manner, of any failure by the City to provide financial information or operating data in accordance with paragraph (b) of this Section by the time required by such paragraph. (d) Limitations, Disclaimers, andAmendments The City shall be obligated to observe and perform the covenants specified in this Section for so long as, but only for so long as, the City remains an "obligated person" with respect to the Certificates of Obligation within the meaning of the Rule, except that the City in any event will give notice of any deposit made in accordance with Section 1 l of this Ordinance that causes Certificates of Obligation no longer to be outstanding. The provisions of this Section are for the sole benefit of the holders and beneficial owners of the Certificates of Obligation, and nothing in this Section, express or implied, shall give any benefit or any legal or equitable right, remedy, or claim hereunder to any other person. The City undertakes to provide only the financial information, operating data, financial statements, and notices which it has expressly agreed to provide pursuant to this Section and does not hereby undertake to provide any other information that may be relevant or material to a complete presentation of the City's financial results, condition, or prospects or hereby undertake to update any information provided in accordance with this Section or otherwise, except as expressly provided herein. The City does not make any representation or warranty concerning such information or its usefulness to a decision to invest in or sell Certificates of Obligation at any future date. UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR BENEFICIAL OWNER OF ANY CERTIFICATE OF OBLIGATION OR ANY OTHER PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE. No default by the City in observing or performing its obligations under this Section shall comprise a breach of or default under this Ordinance for purposes of any other provision of this Ordinance. Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the duties of the City under federal and state securities laws. The provisions of this Section may be amended by the City from time to time to adapt to changed circumstances that arise from a change in legal requirements, a change in law, or a change in the identity, nature, status, or type of operations of the City, but only if (l) the provisions of this Section, as so amended, would have permitted an underwriter to purchase or sell Certificates of Obligation in the primary offering of the Certificates of Obligation in compliance with the Rule, taking into account any amendments or interpretations of the Rule since such offering as well as such changed circumstances and (2) either (a) the holders of a majority in aggregate principal amount (or any greater amount required by any other provision of this Ordinance that authorizes such an amendment) of the Outstanding Certificates of Obligation consent to such amendment or 28 (b) a person that is unaffiliated with the City (such as nationally recognized bond counsel) determined that such amendment will not materially impair the interest of the holders and beneficial owners of the Certificates of Obligation. The City may also amend or repeal the provisions of this continuing disclosure agreement if the SEC amends or repeals the applicable provision of the Rule or a court of final jurisdiction enters judgment that such provisions of the Rule are invalid, but only if and to the extent that the provisions of this sentence would not prevent an underwriter from lawfully purchasing or selling Certificates of Obligation in the primary offering of the Certificates of Obligation. If the City so amends the provisions of this Section, it shall include with any amended financial information or operating data next provided in accordance with paragraph (b) of this Section an explanation, in narrative form, of the reason for the amendment and of the impact of any change in the type of financial information or operating data so provided. SECTION 22. INSURANCE. The City approves the insurance of the Certificates of Obligation by _ and the payment of such premium and covenants to comply with all terms of the insurance commitment attached hereto as Exhibit D, which terms are hereby adopted. Section 23. INCORPORATION OF RECITALS. The City hereby finds that the statements set forth in the recitals of this Ordinance are true and correct, and the City hereby incorporates such recitals as a part of this Ordinance. SECTION 24. SEVERABILITY. If any provision of this Ordinance or the application thereof to any circumstance shall be held to be invalid, the remainder of this Ordinance and the application thereof to other circumstances shall nevertheless be valid, and this governing body hereby declares that this Ordinance would have been enacted without such invalid provision. SECTION 25. CHOICE OF LAW. This Ordinance shall be governed by and construed in accordance with the laws of the State of Texas. SECTION 26. EFFECTIVE DATE. This Ordinance shall become effective immediately after its adoption. [The remainder of this page intentionally left blank.] 29 PASSEDANDAPPROVED BY THE CITYCOUNCIL OF THE CITYOFKENNEDALE, TEXAS AT A REGULAR MEETING CONVENED ON THE 14 DAY OF JANUARY, 2010, AT WHICH MEETING A QUOR UM WAS PRESENT. ATTEST: City Secretary, City of Kennedale, Texas Mayor, City of Kennedale, Texas (CITY SEAL) [EXECUTION PAGE TO THE CERTIFICATE OF OBLIGATION ORDINANCE] EXHIBIT A FORM OF PAYING AGENT/REGISTRAR AGREEMENT THE PAYING AGENT /REGISTRAR AGREEMENT IS OMITTED AT THIS POINT AS IT APPEARS IN EXECUTED FORM ELSEWHERE IN THIS TRANSCRIPT OF PROCEEDINGS. A -1 EXHIBIT B PURCHASE CONTRACT THE PURCHASE CONTRACT IS OMITTED AT THIS POINT AS 1T APPEARS IN EXECUTED FORM ELSEWHERE IN THIS TRANSCRIPT. EXHIBIT C DESCRIPTION OF ANNUAL FINANCIAL INFORMATION The following information is referred to in Section 21 of this Ordinance. Annual Financial Statements and Operating Data The financial information and operating data with respect to the City to be provided annually in accordance with such Section are as specified (and included in the Appendix or under the headings of the Official Statement referred to) below: 1. The annual audited financial statements of the City or the unaudited financial statements of the City in the event audited financial statements are not completed within six months after the end of any fiscal year. 2. All quantitative financial information and operating data with respect to the City of the general type included in the Official Statement under Table 1 and in Appendix A to the Official Statement under Tables l through 10. Accounting Principles The accounting principles referred to in such Section are the accounting principles described in the notes to the financial statements referred to in paragraph 1 above. C -1 EXHIBIT D INSURANCE COMMITMENT D -1 Staff Report To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: XI -I Subject: Review and consider action to authorize the Mayor to execute Interlocal Agreement with Tarrant County regarding plat approval jurisdiction in the city's extraterritorial jurisdiction. Originated by: Bob Hart, City Manager Summary: HB 1445 is codified as Chapter 242 of the Local Government Code. It provides four options for approval of subdivision plats and permits in the ETJ: 1) The City may be given exclusive jurisdiction over plats and development permits in the ETJ; 2) The County may be given exclusive jurisdiction over plats and development permits in the ETJ; -1, 3) The ETJ may be apportioned for jurisdiction purposes; or 4) A joint City /County office may be established to apply a hybrid set of regulations. HB 1445, which is referenced in the County's draft of this agreement, was adopted in 2001. It required the County to execute an agreement with every city in the County to regulate approval of plats in the ETJ no later than April 1, 2002. In spite of this deadline and the request of several cities in the County, the County chose not to do so. The agreement proposed by Tarrant County is under #2 above -- where the County is given exclusive jurisdiction. I don't know if this is what Kennedale wants but several of the cities that TOASE represents are objecting to this proposal and are proposing a different set of regulations where the City has exclusive jurisdiction over approving plats and the City and the County share responsibilities for issuing permits for different types of development issues, such as floodplain regulation, septic system permitting, etc. This fundamental philosophical issue needs to be resolved before approval of the agreement. Recommendation: This issue is also on the workshop and has been placed on the agenda in the event you want to proceed with an agreement. Disposition by Council: INTERLOCAL COOPERATION AGREEMENT BETWEEN THE COUNTY OF TARRANT AND THE CITY OF KENNEDALE REGARDING PLAT APPROVAL JURISDICTION IN THE CITY'S EXTRATERRITORIAL JURISDICTION This INTERLOCAL AGREEMENT ( "Agreement ") is entered into and in accordance with the provisions of the Interlocal Cooperation Act, Chapter 791, Texas Government Code, and House Bill 1445 ( "H.B. 1445 "), enacted by the Texas Legislature during its 77 Legislative Session, by and between the CITY OF KENNEDALE, TEXAS, a political subdivision of the State of Texas, located within Tarrant County, Texas (hereinafter referred to as the "City ") and TARRANT COUNTY, TEXAS, also a political subdivision of the State of Texas, (hereinafter referred to as "Tarrant County" or "County "). WHEREAS, the Interlocal Cooperation Act allows local governments to contract with one another to perform governmental functions such as platting and approval of related permits; and WHEREAS, City and County mutually desire to be subject to the provisions of the Texas Government Code, Chapter 791, the Interlocal Cooperation Act, specifically §791.011 regarding contracts to perform governmental functions and services; and WHEREAS, H.B. 1445 requires City and County to enter into a written agreement that identifies the governmental entity authorized to regulate subdivision plats and approve related permits in the extraterritorial jurisdiction ("ETJ") of City; and 4. WHEREAS, H.B. 1445 allows the City and County to agree that the Tarrant County may be granted exclusive jurisdiction to regulate subdivision plats and approve related permits in the ETJ and may regulate subdivisions as authorized under Sections 232.001- 232 -005, Subchapters B or C, Chapter 232 of the Texas Local Government Code and other statutes applicable to counties; and WHEREAS, both City and County desire that County be granted such exclusive jurisdiction to regulate subdivision plats and approve related permits in City's ETJ all of which is provided for in the Interlocal Cooperation Act and H. B. 1445. NOW, THEREFORE, for the mutual consideration stated herein, the parties agree and understand as follows: County Granted Exclztsive J.trisdiction. County shall be granted exclusive jurisdiction to regulate all subdivision Mats and approve all related permits in City's ETJ and may regulate subdivisions under Sections 232.001- 232.005, Subchapter B or C, Chapter 212 of the Texas Local Government Code and other statutes applicable to counties, and City shall no longer exercise any of these functions in City's ETJ. The County has adopted a Typical Roadway Section that will be minimum requirement for streets and drainage in the ETJ, with the following exceptions: a. County standards shall be applied to rural lots. Rural lots are defined as lots at least one acre or larger. City standards shall be applied to urban lots. Urban lots are defined as lots less than one acre in size. b. Water and sanitary sewer mains shall be designed and inspected per City standards. City shall be responsible for inspection of water and sanitary sewer infrastructure, including fire hydrants. Water and sanitary sewer mains, and infrastructure associated with fire protection, shall be designed and inspected per City standards. C. Minimum lot width shall be 100' for rural lots and 50' for urban lots. For rural lots, the minimum lot width may be reduced to 50' on a cul -de -sac lot. d. Minimum set -backs shall be 30' on city and county maintained roads, and 50' on state maintained roads. e. All right of way widths shown on the plat shall comply with the City's Master Thoroughfare Plan. 2. Issues Not Affected by H. B. 1445. H.B. 1445 does not affect on -site sewage facilities (OSSF), flood plain enforcement or road maintenance issues. a. H.B. 1445 has no impact on permits issued for on -site sewage facilities or floodplain enforcement. The County is responsible for on -site sewage facility permits and flood plain enforcement outside of the City Limits. b. H.B. 1445 has no impact on road maintenance issues. The County is responsible for road maintenance outside of the City Limits. 3. EV Expansion or Reduction. Should City expand or reduce its ETJ, City shall promptly notify County of such expansion or reduction so that this Agreement may be amended to take into account the expansion or reduction in City's ETJ. In the event that City's ETJ should expand or reduce such that the expansion or reduction of ETJ necessitates the amendment of this Agreement, both City and County agree that County shall continue to be granted exclusive jurisdiction to regulate subdivision plats and approve related permits in its ETJ until this Agreement is amended to take into account such ETJ expansion or reduction. 4. Term of Agreement. At the request of either party, this agreement may be reviewed and revised to address changed circumstances. Any revision of this agreement must be approved by the City Council for the City of Kennedale and the Commissioners Court for "Tarrant County. 5. Miscellaneous. a. This Agreement expresses the entire agreement between the parties hereto regarding the subject matter contained herein and may not be modified or amended except by written agreement duly executed by both parties. b. This Agreement has been duly and properly approved by each party's governing body and constitutes a binding obligation on each party. C. This Agreement shall be construed in accordance with the laws of the State of Texas and venue for all purposes hereunder shall be in Tarrant County, Texas. d. If any provision hereof is determined by any court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be fully severable herefrom and this Agreement shall be construed and enforced as if such invalid, illegal or unenforceable provision never comprised a part hereof, and the remaining provisions shall continue in full force and effect. e. The Agreement is not intended to extend the liability of the parties beyond that provided by law. Neither City nor County waives any immunity or defense that would otherwise be available to it against claims by third parties. f. This Agreement shall be effective immediately upon the date of adoption by the last governing body to approve and execute same. Preliminary plats of property in the City's ETJ that are submitted on or after the effective date of this Agreement will not require approval by City. This includes the final plat(s) of property represented by the aforementioned preliminary plats. If a preliminary plat has been submitted prior to the effective date of this Agreement, the City and County shall process the preliminary plat and related final plat(s) in the same manner in effect prior to this Agreement. APPROVED BY THE CITY COUNCIL FOR THE CITY OF KENNEDALE, TEXAS, in its meeting held on the day of 2010, and executed by its authorized representative. City of Kennedale, Texas Bryan Lankhorst, Mayor Attest: Approved as to form: Wayne Olson, City Attorney Kathy Turner, City Secretary APPROVED BY THE COMMISSIONERS COURT FOR TARRANT COUNTY, TEXAS, in its meeting held on the day of _ 2009, and executed by its authorized representative. Tarrant County, Texas B. Glen Whitley County Judge Approved as to form: Attest: Tarrant County Clerk Assistant District Attorney CITY OF KENNEDALE RESOLUTION NO. 90 -8 A RESOLUTION ESTABLISHING AN AGREEMENT BETWEEN THE CITIES OF KENNEDALE, ARLINGTON AND MANSFIELD RELATIVE TO DEVELOPMENT REQUESTS NEAR COMMON CITY LIMIT LINES. WHEREAS, the cities of Kennedale, Arlington and Mansfield share common city limit lines; and WHEREAS, the cities of Kennedale, Arlington and Mansfield have enjoyed a spirit of cooperation; and WHEREAS, the development review procedures and time frames for each city are different; and WHEREAS, the views and opinions of adjoining cities are essen- tial in addressing these developments; and WHEREAS, each city is desirous of establishing a procedure for the review of development near our common city limit lines; BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS: 1. The following guidelines be established between the cities of Kennedale, Arlington and Mansfield as a means of providing adequate opportunities for review of development proposals near our common boundaries. 1. Proposed development projects in proximity to city limit lines shall be reviewed by adjoining cities. 2. Delivery of subdivision plats and copies of information on zoning change requests shall be made in an expiditous manner. 3. Every effort shall be made to provide a timely response in accordance with the dates provided. 4. The Planning Department /City Administrator of each city will assume responsibility for the review of plats and zoning changes within their city and for the coordination between cities.. 5. When not in conflict with city policies, ordinances or regulations, each city will incorporate and adjoining city's comments in the development requirements. 6. Official communications shall be through the Director of Planning /Community Development /City Administrator. 7. City Staff will attend review meetings when appropriate to discuss concerns regarding potential development activity. ,AWW PRESENTED AND PASSED on this the 11th day of O.ctobe4 1.990, by a vote of 5 ayes and 0 nays at a regular meeting of the City Council of the City of Kennedale. ayor Steve Radakovich ATTEST: City Secretary APPROVED AS TO FORM: DON DRIVER City Attorney By ry �� Caty of ArlingtonTexas January 4, 1991 Mr. Ted Rowe City Administrator City of Kennedale Kennedale, Texas Dear Ted: l J c z ' � X The Arlington City Council recently adopted Resolution 90 -714 establishing guidelines for the processing of development proposals near our common city limit lines. These guidelines are very similar to those recently adopted by your city. These formalized agreements further indicate the conviction the cities of Kennedale, Arlington and Mansfield have toward a cooperative spirit between our adjoining cities. We look forward to opportunities for continued cooperation. If you have any questions regarding this matter, please call. Sincerely, o Rose Jacobson, AICP Director of Planning Enclosure 101 West Abram Street • Box 231 . Arlington, Texas 76004 -0231 • (817) 275 -3271 • (Metro 817) 265 -3311 a RESOLUTION NO. 90 -714 A RESOLUTION ESTABLISHING GUIDELINES FOR REVIEWING PROPOSED DEVELOPMENT PROJECTS COMMON TO ARLINGTON, KENNEDALE AND MANSFIELD WHEREAS, the Cities of Arlington, Kennedale and Mansfield share common city limit lines; and WHEREAS, these neighboring cities have long enjoyed a spirit of cooperation; and WHEREAS, the development review process and procedures established by Arlington, Kennedale and Mansfield differs from city to city; and WHEREAS, the views and opinions of adjoining cities is essential in addressing developments projects near common city limit lines; and WHEREAS, the Cities of Arlington, Kennedale and Mansfield seek to establish guidelines for reviewing proposed development projects near common city limit lines; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ARLINGTON, TEXAS: ' I. That Guidelines For Reviewing Proposed Development Projects Common to Arlington, Kennedale and Mansfield, relative to proposed development project requests near common city limit lines, are hereby established and approved as set out in the document attached hereto and incorporated herein. II. The Cities of Kennedale and Mansfield may from time to time recommend revisions and amendments to the Guidelines, which may be amended by resolution of the City Council. r� PRESENTED AND PASSED on this the 18th day of December 1990, by a vote of 9 ayes and o nays at a regular meeting of the City Council of the City of Arlington, Texas. RICHARD E. GREENE, Mayor ATTEST: BOBBYE RA V, City rcretary om APPROVED AS TO FORM: JAY DOEGEY, City Attorney B r- Guidelines For Reviewing Proposed Development Projects Common to Arlington, Kennedale and Mansfield, Texas The following Guidelines For Reviewing Proposed Develop- ment Projects Common to Arlington, Kennedale and Mansfield, relative to proposed development project requests near common city limit lines, are set out as follows to provide adequate opportunities for the review of development proposals near common city boundary lines: 1. Proposed development projects in proximity to city limit lines shall be reviewed by adjoining cities. 2. Delivery of subdivision plats and copies of information on zoning change requests shall be made in an expedi- tious manner. 3. Every effort shall be made to provide a timely response in accordance with the dates provided. 4. The Planning Department of each city will assume respon- sibility for the review. of plats and zoning changes within their city and for the coordination between cities. 5. 6. 7. When not in conflict with its own policies, ordinances or regulations, each city will incorporate the adjoining city's comments in the development requirements. official communications shall be through the Director of Planning /Community Development /City Administrator. City staff will attend joint development review meetings when appropriate to discuss concerns regarding potential development activity. (3) MAY -11 99 11:44 FROM: CITY OF MANSFIELD S17- 477 -1416 TO:81,' 4U,5 ofe-0 rnac.0 RESOLUTION N0. 607 A RESOLUTION ESTABLISHING AN AGREEMENT BETWEEN THE CITIES OF ARLINGTON, KENNEDALE AND MANSFIELD RELATIVE TO DEVELOPMENT REQUESTS NEAR COMMON CITY LIMIT LINES. WHEREAS, the cities of Arlington, Mansfield and Kennedale share common city limit lines and, WHEREAS, the cities of Arlington, Mansfield and Kennedale have enjoyed a spirit of cooperation; and, WHEREAS, the development review procedures and time frames for each city is different; and, WHEREAS, development proposale in one city may impact the others; and, WHEREAS, the views and opinions of adjoining cities is critical in addressing concerns and mitigating the impacts of these developments; and, WHEREAS, each city is desirous of establishing a procedure for the review of developments near our common city limit lines; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MANSFIELD, TEXAS: SECTION 1 In order to ensure adequate review of proposed developments near common boundaries, the Director of Planning and Development shall fellow the procedures listed below. 1. Development proposals within one -half of a mile of city limit lines shall be reviewed by the adjoining cities, 2. In order to provide maximum amount of time for revie-, delivery of development proposals, including subdivision plate and zoning change requests, shall be made to adjoining cities within 72 hours of the receipt of such proposals. 3. Every effort shall be made by the staff of the City of Mansfield to provide a timely response to development proposals received from adjoining cities. 4. The Planning Department will assume responsibility for the review of development and for the coordination between cities. S. The proponents of a development proposal shall be notified of the adjoining cities' comments. PASS AND APPROVED by the City Council of the City of Mansfield, Texas, on this 12th day of November, 19 APPROVED: Gary Dalton, Mayor ATTEST; Kathryn Hdward, City Secretary Staff Report To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: XW Subject: Review and consider action to authorize budget amendments for fiscal year 2009 -2010. Originated by: Kathy Turner, City Secretary Summary: The Director of Finance has been out ill and will have agenda item documents to you prior to the meeting. Staff Report To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: XI -K Subject: Discuss and establish process for placement of the 9 -11 Memorial. Originated by: Bob Hart, City Manager Summary: In 2009, the Port Authority of New York and New Jersey accepted requests from organizations that would like a piece of the World Trade Center steel that was recovered from the World Trade Center site after September 11, 2001. The steel is intended to be used in creating a memorial. The steel MUST be used in a memorial open to the general public such as in parks, fire /EMS /police stations, emergency service training grounds for uniformed personnel or places of public assembly. The steel cannot be used in personal collections, sold or used for fundraising. The city received confirmation from the Executive Director, Chris Ward, that our request for an artifact from the World Trade Center has been approved. As requests are processed, we will be contacted to provide information and verify certain facts. This exchange will help expedite selections. The original request was submitted with the idea of placing it in the TownCenter (adjacent to the Section House) or in the TownCenter Park. This item has been placed on the agenda to establish a process for determining a final location and layout. Recommendation: Direction is requested Disposition by Council: Staff Report To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: XI -L Subject: Review and consider action to create Kennedale Branding Task Force consistent with work of Imagine Kennedale 2015 Strategic Plan. Originated by: Bob Hart, City Manager Summary: During the development of the strategic plan — Imagine Kennedale: 2015, there was a discussion about establishing a branding a task force to develop a brand and image for Kennedale. As a supplement to the strategic Plan, the city engaged The School of Urban Affairs (SUPA) at the University of Texas Arlington to collect citizen input regarding strategic issues for Kennedale. SUPA designed a citizen survey that was tested for citizen interests and concerns, as well as conducted three focus groups to test community interest and support for new action initiatives. Major city milestones include: • Break ground on Town Center Spring 2010 • Secure site for 9 -11 Memorial Spring 2010 • Close sexually oriented businesses by February 2012 • Secure site for the United States Fallen Heroes Foundation Spring 2010 • Major road development — begin spring 2010, compete by winter 2013 There are a number of components to developing the right brand and communicating that brand effectively and successfully. February /March 2010 The City of Kennedale has performed comprehensive research over the past two years. This completed research should provide the necessary information to develop a strategic plan and begin developing tactical components of the plan. In addition, the city has been awarded a Capstone project where UTA will provide students to perform further canvassing of the residents. First step will be to define branding purpose and get agreement from constituents as well as city and community leaders. Page 1 of 3 Tactics: => Meet with task force designated by the City Council ■ Review City Branding components ■ Objective and milestone for targeted group ■ Establish questions for UTA canvassing ■ 3 separate meetings approximately every 3 weeks ■ Communicate to city April /May 2010 With the research information and input from city leadership, we will define the core values of Kennedale and identify where that may differ from prevailing perceptions. Then we can begin to create a new brand promise and message. Tactics: => Meet with task force, city, and business leaders to develop the branding message. ■ Logo ■ Tagline • Mission Statement June 2010 In order for the brand to begin to be established, it must become a mantra within the city. It is important to consistently communicate the brand to the city council, city management, city staff, residents, and businesses. Tactics: => Begin initial "what will be coming" PR campaign => Press releases, mailers & newsletters —> Revamp website with new logo, tagline, and content. September 2010 Begin to develop key communication vehicles Tactics: Marketing kit — brochures, folder, letterhead /envelopes, business cards, etc. White paper — Describes in detail why Kennedale is the place to move your business. Search engine marketing December 2010 The new brand of the City of Kennedale would begin to be disseminated to the citizens and businesses of Kennedale, as well as targets outside of the city. Within Kennedale you have disparate segments such as the general public and businesses, "old" Kennedale and "new" Kennedale, pro racetrack and anti racetrack, blue collar and white collar, etc. A common and consistent message will need to be communicated with these varying segments in different and unique delivery methods. We will work with city leadership to determine how to best communicate with each segment of the population. Page 2 of 3 As part of this initiative, an obvious goal would be to attract people and businesses from outside the city with the objectives of having them consider Kennedale for residence, open a business, hold an event, tourism, etc. A message would be crafted for each of those objectives and delivered in a way most effective for that particular audience. Again, we will work with city leadership to determine how to best communicate with each target group. Tactics: => Develop relationships with third party endorsers, i.e. magazines, newspaper, internet, broadcasters => Develop strategies, tactics and timing for each communication piece o Press releases o Mailers o Brochures o Billboards o Ecards => Generate community enthusiasm and support o Public events o Fund raising events 2011 and beyond It is critical to continually evaluate and measure each communication method to validate its effectiveness with the intended audience. Those that are successful will continue to be used and those that are not will be revised. Although the evaluation and measurement of success will be done on a continual basis, a formal report will be provided monthly. Special attention will be to message as milestones regarding, SOB's, roads, etc. are completed. Recommendation: Create and appoint a task force with consideration of two members from the EDC, two council members, one P &Z member and four strategic plan participants. Page 3 of 3 Staff Report To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: x11 A. -D. Subject: Executive Session Originated by: Kathy Turner, City Secretary Summary: a. The City Council will meet in closed session pursuant to Section 551.071 of the Texas Government Code for consultation with the City Attorney pertaining to any matter in which the duty of the City Attorney under the Texas Disciplinary Rules of Professional Conduct may conflict with the Open Meetings Act, including discussion on any item posted on the agenda. b. The City Council will meet in closed session pursuant to Section 551.072 of the Texas Government Code to deliberate the purchase, exchange, lease or value of real property for the following: 1. TownCenter Development 2. Sublett Road re- alignment properties C. The City Council will meet in closed session pursuant to Section 551.074 of the Texas Government Code to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee. City Manager d. The City Council will meet in closed session pursuant to Section 551.087 of the Texas Government Code to deliberate the offer of a financial or other incentive to a business prospect with which the city is conducting economic development negotiations. I . Fallen Heroes Memorial 2. Grover Corporation Recommendation: Disposition by Council: Staff Report To the Honorable Mayor and City Council Date: January 9, 2010 Agenda Item No: XIII -A -H Subject: Reconvene into open session, and take action necessary pursuant to executive session, if needed. Originated by: Kathy Turner, City Secretary Summary: City Council met in executive session pursuant to Section 551.071, Section 551.072, Section 551.074, and Section 551.087 of the Texas Local Government Code. City Council will reconvene into open session, and take action necessary pursuant to executive session, if needed. A. Consider approval of resolution authorizing legal counsel to proceed with condemnation of property located in the J. M. Lilly Survey, Abstract 980, Tract 4A01 for widening of Sublett Road. B. Consider approval of resolution authorizing legal counsel to proceed with condemnation of properties located in the J. M. Lilly Survey, Abstract 985, Tracts 1 A01, 1 A01 A 1, 1 A02, 1 A2A, 1 A2B, and 1 A02C for widening of Sublett Road. C. Consider approval of resolution authorizing legal counsel to proceed with condemnation of property located in Turner Acres Addition, Block 1, Lot 1 for widening of Sublett Road. D. Consider approval of resolution authorizing legal counsel to proceed with condemnation of property located in the John Watson Addition, Block 1, Lot 1 A for widening of Sublett Road. E. Consider approval of resolution authorizing legal counsel to proceed with condemnation of properties located in the J. M. Estess Home Tracts Addition, Lots 1C1, 3A, 3B, 4R, 6B, 7, 8A2, 8A3, I 1 B, I IC1 for widening of Sublett Road. F. Consider approval of resolution authorizing legal counsel to proceed with condemnation of properties located in the Glenn Oaks Addition, Block 1, Lot 1, and Block 3, Lots 1 and 2 for widening of Sublett Road. Page 1 of 2 G. Consider approval of resolution authorizing legal counsel to proceed with condemnation of properties located in the W.E. Halton Survey, Abstract 1791, Tracts 1 AO 1, 1 C, and 1 CO l for widening of Sublett Road. H. Consider approval of resolution authorizing legal counsel to proceed with condemnation of properties owned by HM Real Estate Management, LTD., being approximately fifty -eight acres of land located west of the 3800 block of New Hope Road and Bruce Johnson, Trustee, being approximately seventeen acres of land located east of the 300 block of Jonah Road for a water line easement acquisition. Recommendation: Disposition by Council: Page 2 of 2