HomeMy WebLinkAboutCC AG PKT 2013-02-11 #F SE
AGENDA STAFF REPORT
DATE: February 11, 2013
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Sean P. Crumby P.E., Assistant City Manager/Public Works
SUBJECT: PIER BOAT LANDING AGREEMENT
SUMMARY OF REQUEST:
That the City Council adopt Resolution No. 6352 approving an agreement with
OXY USA, Inc. for Boat Launching Services from the Seal Beach Municipal Pier.
BACKGROUND AND ANALYSIS:
The City of Seal Beach operates a Municipal Pier. From the boat launch on the
pier, the City currently allows DCOR to launch boats that deliver employees to
the oil platforms. OXY USA, Inc. has approached the City and requested a
similar agreement be executed for launching boats on the Municipal Pier.
Boat launching services are contracted out by DCOR to a vendor (So. Cal. Ship
Services). OXY USA, Inc. desires to utilize the same vendor for these services.
The City has had a positive relationship with So. Cal. Ship Services, and their
fleet has been updated to meet current Air Quality Management District (AQMD)
standards.
This agreement will allow OXY USA, Inc. to launch boats from the Seal Beach
Municipal Pier during daytime hours between 6:00 a.m. and 8:00 p.m.
Occasionally, OXY USA, Inc. will need to land a boat between 8:00 p.m. and
12:00 a.m. (midnight). On those occasions landing may be done, if approved by
the City Engineer. No landings will occur between the hours of 12:00 a.m.
(midnight) and 6:00 a.m. The contractor understands that they must meet the
City's noise ordinance of the Municipal Code (7.15.015) that limits exterior noise
to 50 decibels (dba) between the hours of 10:00 p.m. and 7:00 a.m. The
agreement also authorizes use of 10 parking spaces within the Eighth Street and
Tenth Street beach parking lots.
Agenda Item F
ENVIRONMENTAL IMPACT:
This agreement does not have an impact within the California Environmental
Quality Act (CEQA). The vendor is required to obtain and keep current all
applicable environmental permits.
LEGAL ANALYSIS:
The City Attorney has reviewed and approved as to form.
FINANCIAL IMPACT:
This agreement will generate $8,500 in funding per month in addition to the
current contract. Those funds will go into the City's General Fund and be
accounted for in future budgets.
RECOMMENDATION:
It is recommended that the City Council adopt Resolution No. 6352 approving an
agreement with OXY USA, Inc. for Boat Launching Services from the Seal Beach
Municipal Pier,
SUBMITTED BY: NOTED AND APPROVED:
Sean P. Crumby, P.E. r
R. Ingram, ity nager
Assistant City Manager/ blic Works
Attachments:
A. Resolution No. 6352
B. Agreement- Pier and Parking License Agreement
Page 2
RESOLUTION NUMBER
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
APPROVING A PROFESSIONAL SERVICES AGREEMENT
WITH OXYUSA, INC.FOR PIER BOAT LAUNCHING SERVICES
THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE:
Section 1. The City Council hereby approves a Professional Service
Agreement between the City of Seal Beach and [)XYUGA. Inc. for
Boat Launching Services.
Section 2. The City Council hereby authorizes the City Manager to execute
the Agreement.
PASSED. APPROVED and ADOPTED by the Seal Beach City Council at
regular meeting held on the 1 1th day of February ,2013 by the following vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
Mayor
ATTEST:
City Clerk
STATE OFCALIFORNIA )
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
|. Linda Oovine, City Clerk of the City ofSeal Beach, do hereby certify that the
foregoing naoo|uhun is the original copy of Resolution Number 83t2on file
in the offioeof the City Clerk, passed, approved, and adopted by the Seal Beach
City Council mtm regular meeting held on the_11lh_-dmyof_Fetruarv.2O13.
City Clerk
PIER AND PARKING LICENSE AGREEMENT
between
SEA1 $
ca a
U�TY,
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
OXY USA Inc.
301 E. Ocean Boulevard, Suite 300
Long Beach, CA 90802
This Pier and Parking License Agreement ("the Agreement") is made as of the 28th day of
January, 2013 (the "Effective Date"), by and between Oxy USA Inc. ("Company"), a Delaware
Corporation, and the City of Seal Beach ("City"), a California charter city, (collectively, "the
Parties").
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RECITALS
A. City is the owner of the Seal Beach Fishing Pier (the "Pier"), subject to the terms
of a Tidelands Lease ("the Tidelands Lease"), dated June 22, 1967, recorded August 17, 1967 at
Book 8345, Page 376, of Official Records of Orange County, California, and a Lease and
Operating Agreement (the "Operating Agreement"), dated December 12, 1983, recorded
February 14, 1984,as Document No. 84-063426 of said Official Records,
B. The parties desire to enter into this Agreement granting to Company landing
rights on the Pier and vehicle parking privileges in the adjacent City parking facilities on the
terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein contained, City
and Company hereby agree as follows:
Section 1. Definitions.
1.1 General Descriptions. As used in this Agreement, the following words
and phrases shall have the following meanings:
(a) "Authorized Representative" means any officer, agent, employee,
or independent contractor retained or employed by either Party, acting within authority given by
that Party.
Section 2. Rights Granted.
2.1 Use of Landing Platforms. Company and its Authorized Representatives
are hereby granted a non-exclusive license for the term of this Agreement to use the boat landing
located on the Pier for the purpose of docking boats including, without limitation, embarking and
disembarking Authorized Representatives of Company and loading and unloading supplies and
small items of equipment each day between the hours of 6:00am and 8:00pm. Periodic
loading/unloading will be limited to no more than 3 times during a 7 day week if approved by the
City, between the hours of 8pm and 12:00am. Loading/unloading at the Pier between the hours
of 12:00am and 5:59am will be for emergency response needs only".(ie; Emergencies such as
injuries, illnesses). All operations shall comply with all applicable provisions of Chapter 7.15,
"Noise," of the City of Seal Beach Municipal Code.
2.2 Parking Licenses. Company and its Authorized Representatives are
hereby granted a non-exclusive license for the term of this Agreement to use 10 undesignated
parking spaces in City's parking facility at the base of the Pier. City shall have the right to
control parking by Company's Authorized Representatives by any reasonable means, and
Company shall cause its Authorized Representatives to comply with the procedures and
regulations established by City from time to time to control such parking. If Company desires to
use more than 10 parking spaces at any one time, and additional spaces are available, Company
and its Authorized Representatives may use additional spaces on the same terms and conditions
(including without limitation payment of the same fees) that such spaces are made available to
the general public.
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Section 3. Term. The term of this Agreement shall commencing as of the Effective
Date and continuing for five(5)years,unless sooner terminated as hereinafter provided.
Section 4. Party Representatives.
4.1 The City Manager is the City's representative for purposes of this
Agreement.
4.2 Tony DeVito is Company's primary representative for purposes of this
Agreement.
Section 5. Fees and Charges.
5.1 Monthly Fee, Company shall pay to City as the monthly fee ("Monthly
Fee") for the rights granted under this Agreement, without deduction, setoff, prior notice, or
demand, the sum of$8500.00 per month, subject to adjustment as provided in Section 5.2. The
Monthly Fee shall be paid in advance on the first day of each month, commencing on the date
the term commences and continuing during the term. All Monthly Fees shall be paid to City at
the address to which notices to City are given.
5.2 Annual Adiustment to Monthly Fee. The Monthly Fee described in
Section 5.1 shall be adjusted on August I of each year of this Agreement("Adjustment Date") as
follows:
(a) The base for computing the adjustment on each Adjustment Date is
the Consumer Price Index for All Urban Consumers for the Los Angeles-Anaheim-Riverside
Metropolitan Area published by the United States Department of Labor, Bureau of Labor
Statistics ("Index") that is published for the fifteenth month preceding that Adjustment Date
("Extension Index"). If the Index published for the third month preceding that Adjustment Date
("Extension Index") is less than or equal to the beginning Index, the Monthly Fee shall not be
adjusted and shall continue at the rate in effect immediately prior to that Adjustment Date. If the
Extension Index is more than the Beginning Index, the Monthly Fee shall be adjusted to an
amount determined by multiplying the Monthly Fee in effect immediately prior to that
Adjustment Date by a fraction, the numerator of which is the Extension Index and the
denominator of which is the Beginning Index.
(b) If the Index is changed so that the base year differs from that used
for the Beginning Index, the Index shall be converted in accordance with the conversion factor
published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is
discontinued or revised during the term, such other government index or computation with which
it is replaced shall be used in order to obtain substantially the same result as would be obtained if
the Index had not been discontinued or revised.
5.3 Taxes and Assessments. Company shall pay or cause to be paid, before
delinquency, any and all taxes and assessments levied and assessed against its interest under this
Agreement. Company recognizes and understands that this Agreement may create a possessory
interest subject to taxes levied upon such interest.
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5.4 Interest on Unpaid Amounts. Any amounts not paid when due shall bear
interest at the rate of 12%per annum, from the date due until paid.
Section 6. Limitations on Use. Notwithstanding anything in this Agreement to the
contrary, Company shall comply with all of the following in the exercise of the rights granted
under this Agreement:
6.1 Company shall not dock boats that exceed one hundred and five (105) feet
in length, measured from bow to stem at the water line.
6.2 Company shall not operate any vehicle on the Pier unless Company has
obtained from the City a pier pass permitting that vehicle on the Pier.
6.3 Company shall not bring onto the Pier any vehicle or equipment, unless
Company has the specific prior written consent of the City Engineer, which consent may be
withheld or denied in the sole and absolute discretion of the City Engineer.
6.4 Company shall not use Boat Landing for the purpose of operating sports
fishing boats or barges or for any commercial purposes other than in connection with Company's
oil and gas business.
6.5 Company and its Authorized Representatives shall strictly comply with all
rules, regulations, and instructions of City and its Authorized Representatives regarding the safe
and orderly use of the Pier, the landing facilities and the parking facilities.
Section 7. Maintenance.
7.1 Company at its sole cost and expense shall make repairs to Boat Landing
for damage arising from or in connection with the use thereof by Company and its Authorized
Representatives. Company shall give City Engineer as much prior notice as possible before
commencing any repair work, but in no event less than 48 hours' notice without City's consent
to shorter notice in the specific case. Repairs shall be completed promptly and to the satisfaction
of the City Engineer. Company shall document all repair activities to Boat Landing, and shall
submit copies of all documentation to City upon demand, and, in the absence of a demand, not
less frequently than annually.
7.2 If Company fails to perform any necessary maintenance within 10 days
after demand by City (or, in an emergency, such shorter period as may be determined by City
Engineer), City may (but is not required to) perform such maintenance at Company's expense.
Company shall reimburse City for its costs incurred within 10 days after presentation of an
invoice.
Section 8. No Warranly by City. City makes absolutely no warranty as to the fitness of
the Pier for the purposes intended by Company or for any purpose whatsoever.
Section 9. Exculpation of City. City shall not be liable to Company for any damage to
Company or Company's property from any cause other than the gross negligence or intentionally
wrongful acts of City or its Authorized Representatives. Company waives all claims against City
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for damage to Person or property arising for any reason other than the gross negligence or
intentionally wrongful acts of City or its Authorized Representatives.
Section 10. Indemnification, Hold Harmless, and Duty to Defend. Company shall
defend, indemnify, and hold City, its officials, officers, employees, volunteers and agents serving
as independent contractors in the role of city officials (collectively "Indemnities") free and
harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss,
damage or injury, in law or equity, to property or persons, including wrongful death, in any
manner arising out of or incident to any acts or omissions of Company, its employees, or its
agents in connection with the performance of this Agreement or exercise of the rights granted
pursuant this Agreement, including without limitation the payment of attorneys' fees and other
related costs and expenses, except for such loss or damage arising from the sole negligence or
willful misconduct of City. With respect to any and all such aforesaid suits, actions, or other
legal proceedings of every kind that may be brought or instituted against Indemnitees, Company
shall defend Indemnitees, at Company's own cost, expense, and risk, and shall pay and satisfy
any judgment, award, or decree that may be rendered against Indemnitees. Company shall
reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any
and all legal expenses and costs incurred by each of them in connection therewith or in enforcing
the indemnity herein provided. Company's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by Company, City, its directors, officials, officers,
employees, agents or volunteers. All duties of Company under this Section shall survive
termination of this Agreement.
Section 11. Insurance Requirements.
11.1 Types of Required Coverages. As a condition precedent to the
effectiveness of this Agreement, Company shall, without limiting the indemnity provisions of
this Agreement, procure and maintain in full force and effect during the term of this Agreement,
the following policies of insurance:
(a) Commercial General Liability. Commercial General Liability
Insurance with minimum limits or $1,000,000 per occurrence, and if written with an annual
aggregate, an aggregate limit of not less than $2,000,000. Such insurance shall include coverage
for Contractual Liability as well as sudden and accidental pollution, both onshore and offshore.
(b) Excess Liability. Excess Liability Insurance with a minimum limit
of$3,000,000 per occurrence, over and above the primary limits indicated in (a) above. Such
insurance shall provide for Contractual Liability and pollution liability for both onshore and
offshore occurrences.
(c) Automobile Liability Insurance. Automobile Liability Insurance
covering"Any Auto"(Symbol 1)with limits of$2,000,000 each accident.
(d) Ocean Marine Liability. Ocean Marine Liability, including
Protection and Indemnity and Pollution Liability with minimum limits of $3,000,000 per
occurrence; provided, however, that if Company does not own or operate vessels that use the
landing rights granted under this Agreement, and all of Company's Subcontractors who own or
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operate such vessels do maintain such coverage (including without limitation the endorsements
required by Section 11.2(a)), Company shall be excused from its obligations under this
paragraph (d) upon providing proof of the Subcontractors' insurance.
(e) Workers' Compensation. Workers' Compensation Insurance, as
required by the State of California and Employer's Liability Insurance with a limit of not less
than $1,000,000 per accident for bodily injury and disease, and any required coverage under the
U.S. Longshoremen's and Harbor Workers' Act (U.S.L&H), and/or Jones Act for employees
performing services covered by said Act(s).
11.2 Endorsements.
(a) The policies of insurance required by subsections 11.1(a), (b), (c)
and(d) shall be endorsed as follows:
(1) Additional Insured. City and its officers, agents and
employees shall be additional insured's with regard to liability and defense of suits or claims
arising out of the performance of the Agreement.
(2) Primary Insurance. This insurance shall be primary and
any other insurance, deductible, self-insurance or self-insured retention maintained by City shall
not contribute with this primary insurance.
(3) Severability. In the event of one insured, whether named or
additional, incurs liability to any other of the insureds, whether named or additional, the policy
shall cover the insured against whom claim is or may be made in the same manner as if separate
policies had been issued to each insured, except that the limits of insurance shall not be increased
thereby.
(4) Cancellation. The policy shall not be canceled or the
coverage reduced until a 30 day written notice of cancellation has been served upon City (except
that the thirty day period may be reduced to ten days for nonpayment of premium.)
(5) Duties. Any failure by the named insured to comply with
reporting provisions of the policy or breaches or violations of warranties shall affect coverage
provided by City.
(b) The policy of insurance required by subjection 11.1(e) shall be
endorsed as follows:
(1) Waiver of Subrogation. A waiver of subrogation will state
that the insurer waives all rights of subrogation against City.
(2) Cancellation. The policy or policies shall not be canceled
or the overage reduced until a 30-day written notice of cancellation has been served upon City
(except that the thirty day period may be reduced to ten days for nonpayment of premium.)
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I 1.3 Evidence of Insurance. Company shall deliver either certified copies of
the required policies or Certificates of Insurance, as approved by City, evidencing the required
coverage and endorsements. At least 15 days prior to the expiration of any such policy, evidence
of insurance showing that such insurance coverage has been renewed or extended shall be filed
with City. If such coverage is cancelled or reduced, Company shall, within 10 days after receipt
of written notice of such cancellation or reduction of coverage, file with City evidence of
insurance showing that the required insurance has been reinstated or has been provided through
another insurance company or companies.
11.4 Failure to Maintain Coverage. Company shall suspend and cease all
operations hereunder during any period of time as the required insurance coverage is not in effect
or evidence of insurance has not been furnished to City.
11.5 Acceptability of Insurers. Each policy required by this Agreement shall be
issued by a company or companies with a current A.M. Best's rating of no less than ANTI and
authorized to do business in the State of California, or otherwise allowed to place insurance
through surplus line brokers under applicable provisions of the California Insurance Code or any
federal law.
11.6 Insurance for Authorized Representatives. Company's Authorized
Representatives shall be included as additional insureds under Company's policies, or Company
shall be responsible for causing Subcontractors to purchase the appropriate insurance in
compliance with the terms of this Agreement.
11.7 Self Insurance. Company may elect to self insure as to either or both the
Commercial General Liability or Excess Liability insurance required in Sections 11.1(a) and (b)
respectively, in which case Company will provide City with a letter of self insurance for such
coverage of in lieu of a certificate of insurance. Upon mutual agreement between the Company
and City, Company may elect to self insure other insurance required under this Section 11.
Section 12. Damage to Pier. If the Pier, or any part thereof that Company is not
responsible for maintaining, is destroyed by fire or otherwise damaged so as to be unusable, and
the damage cannot be repaired within 60 days after the date of the casualty, this Agreement may,
at the option of either City or Company, be immediately terminated on written notice. If the Pier
is closed due to such damage or the repair of such damage, the portion of the Monthly Fee
allocable to the landing rights shall be abated for the days that the Pier is closed, and the portion
of the Monthly Fee allocable to the parking facilities shall be abated for the days that the Pier is
closed to the extent that Company does not use the parking spaces.
Section 13. Termination by City and Company. This Agreement may be terminated by
City in the event of any default by Company in the payment of compensation to City, as
specified hereunder, when such default continues for a period of 10 days after written notice
thereof, or in the event of any other default by Company in the performance of its obligations
hereunder, when such default continues for a period of 30 days after written notice thereof.
This Agreement may be terminated by Company on thilly (30) days written notice.
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Section 14. Nonassignabilily. Company may not assign this Agreement without first
obtaining the written consent of City, which consent may not be unreasonably withheld;
provided, however, that Company may assign this Agreement to any subsidiary, affiliate or party
or entity acquiring 50%or more of Company's assets within the State of California.
Section 15. Subject to Tidelands Lease and Operating Agreement. This Agreement is
subject and subordinate to the provisions of the Tidelands Lease and the Operating Agreement.
Company shall not take any action which would cause City to be in violation of any Provisions
of the Tidelands Lease or the Operating Agreement. If either the Tidelands Lease or the
Operating Agreement terminates and this Agreement terminates as a result of such termination,
the parties shall be released from all liabilities and obligations under this Agreement.
Section 16. Notices. Any notice, demand, request, consent, approval or communication
that either Party desires or is required to give to the other Party shall be in writing and shall be
deemed given as of the time of hand delivery to the addresses set forth below, or 3 days after
deposit into the United States mail, postage prepaid, by registered or certified mail, return receipt
requested. Unless notice of a different address has been given in accordance with this section, all
such notices shall be addressed as follows:
If to City, to: City of Seal Beach
211 Eighth Street
Seal Beach, California 90740
Attn: City Manager
If to Company,to: OXY USA Inc.
301 E. Ocean Boulevard, Suite 300
Long Beach, CA 90802
Attn: Mark Kapelke
Section 17. Prohibited Interests, Conflict of Interest.
17.1 Company covenants that it presently has no interest and shall not acquire
any interest, direct or indirect, which may be affected by the Services, or which would conflict in
any manner with the performance of the Services. Company further covenants that, in
performance of this Agreement, no person having any such interest shall be employed by it.
Furthermore, Company shall avoid the appearance of having any interest, which would conflict
in any manner with the performance of the Services. Company shall not accept any employment
or representation during the term of this Agreement which is or may likely make Company
"financially interested" (as provided in California Government Code §§1090 and 87 100) in any
decision made by City on any matter in connection with which Company has been retained.
17.2 Company fin Cher warrants and maintains that it has not employed or
retained any person or entity,other than a bona fide employee working exclusively for Company,
to solicit or obtain this Agreement. Nor has Company paid or agreed to pay any person or entity,
other than a bona fide employee working exclusively for Company, any fee, commission, gift,
percentage, or any other consideration contingent upon the execution of this Agreement. Upon
any breach or violation of this warranty, City shall have the right, at its sole and absolute
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discretion, to terminate this Agreement without further liability, or to deduct from any sums
payable to Company hereunder the full amount or value of any such fee, commission,
percentage, or gift.
17.3 Company warrants and maintains that it has no knowledge that any officer
or employee of City has any interest, whether contractual, no contractual, financial, proprietary,
or otherwise, in this transaction or in the business of Company, and that if any such interest
comes to the knowledge of Company at any time during the term of this Agreement, Company
shall immediately make a complete, written disclosure of such interest to City, even if such
interest would not be deemed a prohibited "conflict of interest" under applicable laws as
described in this subsection.
Section 18. Miscellaneous.
18.1 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
18.2 Waiver. The waiver by City or Company of any breach by the other Party
of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such
term, covenant, or condition herein contained. The subsequent acceptance of fees hereunder by
City shall not be deemed to be a waiver of any preceding breach by Company of any term,
covenant, or condition of this Agreement, other than the failure to pay the particular fees so
accepted, regardless of City's knowledge of such preceding breach at the time of acceptance of
such fees.
18.3 Time of Essence. Time is of the essence with respect to the performance
of every provision of this Agreement in which time of performance is a factor.
18.4 'Gender: Number. The neuter gender includes the feminine and masculine,
the masculine includes the feminine and neuter, and the feminine includes the neuter, and each
includes corporation, partnership, or other legal entity whenever the context so requires. The
singular number includes the plural whenever the context so requires.
18.5 Entire Agreement Modification. This Agreement contains the entire
agreement between the parties regarding the subject matter hereof. No verbal agreement or
implied covenant shall be held to vary the provisions hereof, any statements, law or custom to
the contrary notwithstanding. No promise, representation, warranty, or covenant not included in
this Agreement has been or is relied on by either Party. Each Party has relied on its own
inspection of the Pier and examination of this Agreement, the counsel of its own advisors, and
the warranties, representations, and covenants in this Agreement itself. The failure or refusal of
either Party to inspect the Pier, to read this Agreement or other documents, or to obtain legal or
other advice relevant to this transaction constitutes a waiver of any objection, contention, or
claim that might have been based on such reading, inspection, or advice.
18.6 Severability. The invalidity or illegality of any provisions shall not affect
the remainder of this Agreement and all remaining provisions shall, notwithstanding any such
invalidity or illegality, continue in full force or effect.
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18.7 'Successors. Subject to the provisions of this Agreement on assignment,
each and all of the covenants and conditions of this Agreement shall be binding on and shall
inure to the benefit of the successors and assigns of the respective parties.
18.8 Attorneys' Fees. If either Party commences any legal, administrative, or
other action against the other party arising out of or in connection with this Agreement, the
prevailing party in such action shall be entitled to have and recover from the losing party all of
its attorneys' fees and other costs incurred in connection therewith.
18.9 Corporate Authority. The person executing this Agreement on behalf of
Consultant warrants that he or she is duly authorized to execute this Agreement on behalf of said
Party and that by his or her execution, the Consultant is formally bound to the provisions of this
Agreement.
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized
representatives have executed this Agreement as of the date and year first above written.
CITY OF SEAL BEACH OXY USA INC.
By:
Jill R. Ingram, City Manager By:
Attest: Name: Mark Kapelke
Its: Vice President
By:
Linda Devine, City Clerk
Approved as to Form:
By:
Quinn Barrow, City Attorney
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