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HomeMy WebLinkAboutResolution - 2019-R0285 - Wholesale Water Sales Contract With Texas Department Of Criminal Justice - 08/27/2019 Resolution No. 2019-RO285 Item No. 6.9 August 27, 2019 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, an Interlocal Wholesale Water Sales Contract No. 14877 to permit the sale of wholesale water outside its municipal boundaries to federal, state or local governments pursuant to appropriate intergovernmental contracts, by and between the City of Lubbock and the Texas Department of Criminal Justice, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on the 27th day of-- August , 2019. DANIEL M. POPE, MAYOR ATTEST: ebe t Garza, City Secretar APPROVED AS TO CONTENT: /l Aubrey A. S , P.E., Dire¢ror of Water Utilities APPROVED AS TO FORM: Amy Si eputy City At me RES.Contract Water Salesj'x Dept Criminal Justice 2019 696-FD-20-24-U075 Resolution No. 2019-RO285 INTERLOCAL WHOLESALE WATER SALES CONTRACT STATE OF TEXAS § COUNTY OF LUBBOCK This Contract is made by and between the CITY OF LUBBOCK a home rule municipal corporation located in Lubbock County, acting by and through its Mayor as authorized by specific action of this Council; and the TEXAS DEPARTMENT OF CRIMINAL JUSTICE, an agency of the State of Texas (herein called "Consumer/User"). WITNESSETH WHEREAS, the Consumer/User is an agency of the State of Texas operating a correctional facility located at 8602 Peach Avenue, Lubbock, Texas outside of the jurisdiction of the City of Lubbock, commonly called the Montford Unit; WHEREAS, Section 22.03.091 of the Code of Ordinances of the City of Lubbock permits the sale of wholesale water outside its municipal boundaries to federal,state or local govermnents pursuant to appropriate intergovernmental contracts; WHEREAS, the City of Lubbock is amenable to providing said wholesale, subject to the conditions precedent and upon the terms and conditions of this Contract, to Consumer/User and WHEREAS, the Government Code authorizes certain intergovernmental cooperation contracts; WHEREAS, the City of Lubbock is responsible for protecting its drinking water supply from contamination or pollution which could result from improper construction or water usage on the Consumer/User's side of the meter. NOW THEREFORE, for and in consideration of the mutual agreements, covenants, obligations,and benefits herein expressed,the City of Lubbock and Consumer/User contract and agree as follows: ARTICLE I PROVISIONS OF WATER 1.1 TERMS, PROVISIONS AND CONSIDERATIONS The City of Lubbock agrees to sell and convey wholesale water to the Consumer/User, outside the City of Lubbock, subject to the conditions precedent and under and pursuant to the terms, provisions and conditions of this Contract. Page 1 of 13 696-FD-20-24-0075 1.2 DEFINITIONS The following shall be the definitions of the terms used within this agreement: Wholesale- The term "wholesale" shall have that meaning as used in Article 22.03 of the City of Lubbock Code of Ordinances. CONSUMER-The term "Consumer/User" shall mean the Texas Department of Criminal Justice. Point of Delivery- The term "Point of Delivery" shall be that specified area as described in Exhibit "A", which is attached hereto and incorporated as if fully set forth herein. ARTICLE II CONDITIONS OF SALE OF WHOLESALE WATER 2.1 QUALITY AND TREATMENT The City of Lubbock shall supply potable water of similar quality that the City of Lubbock distributes to the residents of Lubbock, Texas treated by disinfectants and such other treatment as may in the future be directed by appropriate regulatory agencies and meeting the applicable primary drinking water standards of the Texas Commission on Environmental Quality (TCEQ) and other local, State and Federal governmental agencies at the Point of Delivery,as hereinafter defined,during the term of this Contract. THE CITY OF LUBBOCK MAKES NO REPRESENTATIONS OR WARRANTIES,EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION, AS TO THE DESCRIPTION, VALUE, QUALITY, PHYSICAL CONDITION, MERCHANTABILITY, OR FITNESS FOR PURPOSE OF THE WATER SUBJECT TO THIS CONTRACT EXCEPT AS EXPRESSLY SET FORTH ABOVE. 2.2 QUANTITY The City of Lubbock shall supply and deliver a total maximum amount of 79.8 million gallons of water during any three hundred sixty-five(365)day period of time beginning October 1 of each year, based upon the historical usage of the Consumer/User to the Consumer/User's point of delivery as shown in Exhibit"A." The peak maximum usage during any 24 hour period of time shall be 525,000 gallons. In the event Consumer/User shall use more than the allotted maximum amount of water in the above-described (365) day given period as set forth above, Consumer/User shall pay an amount equal to two(2x)times the water rate set forth in Paragraph 3.3 for that amount of water that exceeds the allotted maximum quantity. Based on these calculations,the City of Lubbock shall supply a set quantity to the Consumer/User at the Point of Delivery as shown in Exhibit A. All water quantities delivered shall be measured at the Point of Delivery. All water quantities delivered shall be measured by the metering device at the Point of Delivery at the sole cost of Consumer/User. The meter shall be located in an area reasonably Page 2 of 13 696-FD-20-24-0075 accessible by the City of Lubbock at all times. If the metering device is to include remote monitoring equipment, the Consumer/User shall bear the sole cost of this additional equipment. Installation of this metering device shall be the responsibility of the City of Lubbock with all cost and expense of such installation reimbursed by the Consumer/User. Such metering device may include and manage: (1) control the rate of flow; (2) measure the instantaneous flow of gallons per day; (3)measure peak hourly flow during the day of maximum now in gallons per day; (4) measure the cumulative volume of water taken; and (5) control changes in the rate of flow. At the City of Lubbock's discretion, the metering device may be remotely monitored and documented as to usage of Consumer/User. Deliveries shall be contingent upon facilities necessary or convenient for the City of Lubbock to deliver water to Consumer/User from the City of Lubbock's existing water conveyance system to the Point of Delivery. The City of Lubbock shall give at least 48 hour notice of the possibility of a planned curtailment of or intent to curtail delivery of water or reducing the rate of flow to Consumer/User prior to curtailing the delivery or reducing the rate of flow. Such notice shall be in person to the unit warden or designee, by telephone to the unit warden or designee, or by email to the unit warden or designee. The City of Lubbock shall not be responsible for notice of any unplanned curtailments due to power outages, line breaks,force majeure, or other unforeseen events. 2.3 POINT OF DELIVERY AND TITLE Water provided to Consumer/User shall be delivered to the point of delivery described in Exhibit A. Title to water passing through the Point of Delivery shall pass to the Consumer/User, for all purposes, at the outlet side of the meter. Consumer/User shall be responsible for the water, for all purposes and intents, from and after title passage to Consumer/User. The Consumer/User hereby agrees, to the fullest extent permitted by law, to indemnify, save and hold the City of Lubbock harmless from any and all claims, demands, losses, and causes of action, which may be asserted by anyone related to the transportation and delivery of said water while title remains with Consumer/User. CONSUMER/USER SHALL AGREE,TO THE FULLEST EXTENT PERMITTED BY LAW,TO INDEMNIFY, SAVE, AND IIOLD TIIE CITY OF LUBBOCK HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, LOSSES, AND CAUSES OF ACTION, WHICH MAY BE ASSERTED BY ANYONE RELATED TO THE TRANSPORTATION AND DELIVERY OF SAID WATER WHILE TITLE REMAINS IN THE CONSUMER/USER. 2.4 METERING EQUIPMENT The City of Lubbock shall provide the maintenance of the necessary Point of Delivery metering device for properly measuring the quantity of water delivered to Consumer/User. Calibration of such metering equipment shall be done on a reasonable time schedule, but not less frequently than once every twelve (12) months, or more frequently than once every three (3) months. A meter registering not more than three percent(3%)accuracy above or below the test result shall be deemed to be accurate or non-material. Page 3 of 13 696-FD-20-2=1-U075 The previous readings of any meter disclosed by test to be inaccurate beyond the acceptable range of plus or minus three percent (3%) shall be corrected in accordance with the percentage of inaccuracy found by such tests for a period extending back one-half (1/2) of the time elapsed since the last calibration date but, in no event, further back than a period of six (6) months. If the meter is out of service or out of repair so that the amount of water delivered cannot be ascertained or computed from the reading thereof, the water delivered during the period such meter is out of service or out of repair shall be estimated upon the basis of the best available data and information. The metering equipment register shall be read by the City of Lubbock at least once a month. All metering equipment, valves, and other appurtenances associated with the metering installation shall be and remain the property of the City of Lubbock. 2.5 BILLING PROCEDURE The Consumer/User shall pay for services received pursuant to this Contract based upon the invoice submitted by the City of Lubbock each month. Each invoice shall state the Contract Number. It is recommended that the City of Lubbock receive payments via electronic funds transfer (EFT), also known as direct deposit. If the City of Lubbock elects to be set up for direct deposit payment, the vendor direct deposit authorization form for setting up direct deposit may be obtained from the Contract Administrator referenced in Section 5.9. City of Lubbock shall submit a completed authorization form to the following address: Texas Department of Criminal Justice Accounting and Business Services Attn: Belinda Walker PO Box 4018 Huntsville,TX 77342-4018 The City of Lubbock shall issue a bill to the Consumer/User participating accounts itemized to show gallons of water delivered to Consumer/User through the meter at the Point of Delivery during the preceding month. Properly completed invoices shall be mailed to the following address: Texas Department of Criminal Justice Utilities and Energy Department P.O. Box 4012 Huntsville,Texas 77342-4012 Payment for the services rendered under this contract and any remedies for nonpayment shall be governed by Chapter 2251 of the Texas Government Code. Page 4 of'13 696-FD-20-24-U075 2.6 AREA OF SERVICE Use of water purchased under this Contract shall be solely used at the facilities associated with the Montford Unit at 8602 Peach Avenue. No other customer, geographic area or premises, of any kind or nature, shall be served by Consumer/User, directly or indirectly, with water purchased hereunder. 2.7 TERM OF CONTRACT The term of this Contract shall be a period of five years(5) commencing on September 1,2019 and ending August 31, 2024. In the event of continued and mutual interest of the terms or similar terms of this agreement, a new contract shall be negotiated,developed, approved and executed for the period after August 31, 2024. However, in the event that a new contract is not or cannot be agreed upon, there shall be no fiirther discharge or responsibilities of the City of Lubbock and Consumer/User. ARTICLE III CONDITIONS OF RECEIVING SERVICE 3.1 CONSUMER/USER'S FACILITIES The Consumer/User agrees and understands that it will install and maintain,at its sole expense, all facilities necessary for receiving, operating and distributing water into its water system from and after the Point of Delivery and that the City of Lubbock shall be under no obligation whatsoever to bear any of said expenses aforementioned. The Consumer/User shall not alter, modify, or change the meter facilities under any circumstances. 3.2 RESTRICTIONS The following practices are prohibited by State regulations(30 TAC 290 Subchapter D: Rules and Regulations for Public Water Systems, 290.47(b), A p p e n d i x B, Sample Service Agreement: A No direct connection between the public drinking water supply and a potential source of contamination is permitted. Potential sources of contamination shall be isolated from the public water system by an air-gap or an appropriate backflow prevention device. B. No cross-connection between the public drinking water supply and a private water system is permitted. These potential threats to the public drinking water supply shall be eliminated at the service connection by the installation of an air-gap or a reduced pressure-zone backflow prevention device. 0 C. No connection which allows water to be returned to the public drinking water supply 1 is permitted. D. No pipe or pipe fitting which contains more than 8.0% lead may be used for the Page 5 of 13 696-FD-20-24-U07-5 installation or repair of plumbing at any connection which provides water for human use. E. No solder or flux which contains more than 0.2 percent lead can be used for the installation or repair of plumbing at any connection which provides water for human use. 3.3 RATES AND PAYMENT The Consumer/User shall pay to the City of Lubbock, in a timely manner as provided in this Contract. The base monthly rate for the meter installed at the Point of Delivery shall be equal to the rate established by the City Council of the City of Lubbock for meter of equal size as set forth in Section 22.03.084 of Code of Ordinances of the City of Lubbock, as may be amended from time to time. The volume rate charged for water provided shall be equal to the rate established by the City Council of the City of Lubbock charged to Wholesale customers as set forth in Section 22.03.091 of the Code of Ordinances of the City of Lubbock,as may be amended from time to time. All expenses on Consumer/User's side of the Point of Delivery shall be the sole expense of Consumer/User. The setting of water rates is a legislative function of the City of Lubbock. To the extent the Consumer/User has any protest to the rates charged pursuant to this Contract, The Consumer/User understands and agrees that it has the right to ask to address the City Council of the City of Lubbock as to said rates,but that the City Council of the City of Lubbock ultimately has the legislative authority to determine such rates. In the event any user fee is imposed on the delivery, taking, sale, use, or consumption of the water received by Consumer/User from the City of Lubbock, the amount of the user fee allocable to Consumer/User shall be borne by Consumer/User. When and if the City of Lubbock shall be required to pay,collect or remit any user fee on water received by Consumer/User, then the user fee that is not included in the rates under this Contract will be added to the charges otherwise payable to the City of Lubbock and shall be the responsibility of Consumer/User. 3.4 SANITARY CONTROL A Reduced Pressure Zone (RPZ) prevention device or air gap shall be maintained at all times by the Consumer/User at the Point of Delivery (i.e., between the two (2) systems). Where applicable, all costs associated with the installation and maintenance of this backflow prevention device shall be the sole responsibility of the Consumer/User. The plans for the installation of such RPZ prevention device or air gap shall be approved in writing by the City of Lubbock and any and all regulatory agencies with appropriate jurisdiction, including the TCEQ. At no time shall a by-pass be installed on or around the backflow prevention device. Paae 6 of 13 696-FD-20-24-U075 Consumer/User may allow service by direct pressure, if available, from the PROVIDER'S City of Lubbock's line to the Point of Delivery. However, the City of Lubbock is under no obligation to provide water at any pressure above and over pressures necessary to deliver the quantities of water described in Section 2.2, above. Consumer/User shall permit personnel of the City of Lubbock to enter upon the property of Consumer/User for the purpose of inspecting any and all facilities of Consumer/User regarding necessary sanitary controls. Should the City of Lubbock have reasonable grounds to believe that any condition exists which might result in contamination of the City of Lubbock's water supply or jeopardize the City of Lubbock's certification with the Texas Commission on Environmental Quality (TCEQ)and/or other federal,state or local regulatory authorities,then the City of Lubbock shall notify Consumer/User. The Consumer/User shall immediately correct such condition. In the event Consumer/User fails to correct such condition then the City of Lubbock may, at its sole discretion, either correct the condition at Consumer/User's expense and include the cost of materials and labor in subsequent billing statements from the City of Lubbock to Consumer/User or cease delivering water under this Contract until such condition is corrected to the satisfaction of the City of Lubbock. In the event the City of Lubbock determines that contamination of City of Lubbock's water supply actually exists, the City of Lubbock shall have the absolute right to discontinue service to Consumer/User until such time as said contamination has been eliminated by Consumer/User. Nothing herein shall be construed to impose upon the City of Lubbock the duty and obligation to make any inspection or to regulate the quality of water beyond the Point of Delivery to Consumer/User and Consumer/User shall be solely responsible for the operation,maintenance,regulation and employment of all facilities beyond the Point of Delivery, and the regulation of the use of all water received by it at the Point of Delivery. The Consumer/User water system operators should be aware that any water received from the City of Lubbock will contain chloramines disinfectant. As such, the Consumer/User should adjust their disinfection system operations and monitoring for chloramines accordingly. Since 1983, the City of Lubbock has utilized chloramines as its water system disinfectant. This practice is common for larger cities in Texas and the United States.The use of chlorines reduces the levels of disinfection byproducts (DBPs) in the system, while providing protection from waterborne disease. If these chloramines are passed on to the water customers of the Consumer/User, the Consumer/User is solely responsible for providing the following notice: Chloramines can cause problems to persons dependent on dialysis machines. A condition known as hemolytic anemia can occur if the disinfectant is not completely removed from the mater that is used.for the dialysate. Consequently, the pretreatment scheme used* dialysis units must include some means, such as a charcoal.ilter,for removing the chloramines. Medical facilities should also determine if additional precautions are required for other medical equipment. Pare 7 of 13 696-FD-20-24-U075 Chloraminated water may be toxic to fish. Fish tank owners, must make sure that the chemicals or filters used are designed.for use in water that has been treated with chloramines. The type offilter used for.fish tanks may also need to be changed 3.5 WATER CONSERVATION The Consumer/User shall abide by the City of Lubbock's Water Use Management Plan detailed in the Chapter 22.08 of the City's Code of Ordinances. In the event the City of Lubbock is required to implement its Drought Contingency Plan for its system then the Consumer/User shall receive the same water allotment under such plan as any other customers of similar size and water needs served by the City of Lubbock. 3.6 INSPECTION AND AUDIT Complete records and accounts are to be maintained by each party heretofore a period required by law or five (5) years, whichever is greater. Each party shall at all times, upon notice, have the right at reasonable times to examine and inspect said records and accounts during normal business hours. Further, if required by law, rule or regulation, make said records and accounts available to federal and/or state auditors. ARTICLE IV DEFAULTS AND REMEDIES 4.1 NOTICE OF DEFAULT In the event that either the City of Lubbock or Consumer/User should breach, fail to comply with or violate any term or provision of this Contract (a"Default")the other party shall promptly notify, with specificity as to the alleged Default, the other respective party of the Default. Except as otherwise provided by this Contract, upon receiving such notice the defaulting party shall have thirty (30) days to cure the Default. Unless this Contract provides otherwise, in the event said Default is not cured within the time period described above, with respect to Consumer/User as the defaulting party, then the City of Lubbock may pursue any and all remedies provided by law, equity, contract or otherwise, including without limitation, declaring this Contract terminated and null and void. Unless this Contract provides otherwise, in the event said Default is not cured within the time period described above, with respect to the City of Lubbock as the defaulting party, then Consumer/User may, as its sole and exclusive remedy, either seek specific performance of the terms of this Contract or declare this Contract terminated and null and void. Pace 8 of 13 696-FD-20-24-U075 ARTICLE V MUTUAL CONDITIONS 5.1 FAILURE TO DELIVER The City of Lubbock does not warrant that the services and deliveries provided for in this Contract will be free from, and the City of Lubbock is excused from performing hereunder in the event and for the period of, an interruption or stoppage caused by maintenance, repair, substitution, renewal, replacement or improvement of any of the equipment involved in the furnishing of any such services or deliveries of water or caused by floods, drought, alterations, strikes, lockouts, shortages of equipment or material, labor controversies, accidents,or acts of God,the elements, or any other event of force majeure or cause beyond the reasonable control of the City of Lubbock. In the event of a shortage of water, or if distribution of water by the City of Lubbock to Consumer/User is deemed inappropriate by any regulatory agency or law, the supply of water to Consumer/User under this Contract shall be reduced or ceased as deemed necessary by the City of Lubbock to protect the interests of its citizens and/or to comply with all rules and regulations of any regulatory agency having jurisdiction over the operation of the City of Lubbock's facilities. 5.2 NO ASSIGNMENT All the promises, undertakings, agreements, covenants and contracts herein contained by or on behalf of either the City of Lubbock or Consumer/User shall bind the successors and permitted assigns of either party, whether so expressed or not; but neither the City of Lubbock nor Consumer/User shall have the right to assign this Contract, without the written consent of the other party. 5.3 ENTIRETY AND AMENDMENTS It is expressly stipulated that the City of Lubbock and it's agents have made no representations, warranties or promises with respect to the delivery of water and all other matters contained in this Contract, except as herein expressly set forth, and this Contract supersedes all prior agreements and understandings, if any,relating to the subject matter hereof. This Contract may only be amended by an instrument in writing executed by the duly authorized representative of the party against whom the amendment is sought to be enforced. 5.4 WAIVER No failure on the part of the City of Lubbock at any time to require the performance by Consumer/User of any portion of this Contract shall in any way affect the City of Lubbock's right to enforce such provision or any other provision. Nor shall any waiver by the City of Lubbock of any provision hereof be taken or held to be a waiver of any other provision hereof or any other breach hereof. No rights under this Contract may be waived except by written amendment executed and authorized by the governing bodies of the parties. No officer or agent of the City of Lubbock or the Consumer/User is authorized to waive or modify any provision of the Contract. Page 9 of 13 696-FD-20-24-U075 5.5 REGULATORY AGENCIES This Contract is subject to all applicable federal, state, and local laws and any applicable ordinances, rules, orders and regulations of any local,state,or federal governmental authority, having or asserting jurisdiction. However, nothing contained in this Contract shall be construed as a waiver by any party to the Contract of any right to question or contest any law, order, rule or regulation which may affect the terms and conditions of the Contract in any forum having jurisdiction,and the Consumer/User and the City of Lubbock each agree to make a good faith effort to support proposed laws and regulations which would be consistent with the performance of this Contract in accordance with its terms. The Consumer/User represents and warrants to the City of Lubbock that it has obtained and will maintain during the term of its wholesale water supply contract all necessary permits and consents to supply water to the Consumer/User. 5.6 HEADINGS All headings in this Contract have been inserted for convenient reference only and shall not in any manner be construed as modifying,amending,or affecting in any way the express terms and provision hereof. 5.7 LIABILITY AND HOLD HARMLESS CONSUMER/USER SHALL INDEMNIFY,TO THE FULLEST EXTENT PERMITTED BY LAW, AND HOLD HARMLESS AND RELEASE THE CITY OF LUBBOCK FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, LOSSES, DAMAGES OR LIABILITIES, OF ANY KIND OR NATURE, WHICH ARISE DIRECTLY OR INDIRECTLY, OR ARE RELATED TO, IN ANY WAY, MANNER, OR FORM, THE ACTIVITIES CONTEMPLATED HEREUNDER OR OMISSION OF SUCH ACTIVITIES, INCLUDING WITHOUT LIMITATION, SUCH LOSSES, DAMAGES, CLAIMS OR LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY, MANNER, OR FORM, THE NEGLIGENCE OR FAULT OF THE CITY OF LUBBOCK, ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, AGENTS AND/OR DESIGNEES. 5.8 RESPONSIBILITY Each party to this agreement will be responsible for its own actions in providing services under this agreement and shall not be liable for any civil liability that may arise from the furnishing of the services by the other party. 5.9 NOTICE Except for notification of the possibility of curtailment or intent to curtail or cease the delivery of water, which shall be communicated in person to the unit warden or designee, by telephone to the unit warden or designee,or by email to the unit warden or designee.All communication required or allowed by this Contract shall be in writing and be given either(i) in person or by telephonic facsimile; or(ii) by depositing the notice in the United States mail,postpaid and certified,with return receipt requested, Page 10 of B 696-FD-20-24-U075 5.19 SOVEREIGN IMMUNITY ACKNOWLEDGED AND RETAINED THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT NO PROVISION OF THIS CONTRACT IS IN ANY WAY INTENDED TO CONSTITU`1,E A WAIVER BY ANY PARTY OF ANY IMMUNITIES FROM SUIT OR LIABILITY THAT A PARTY MAY HAVE BY OPERATION OF LAW. THE PARTIES RETAIN ALL GOVERNMENTAL IMMUNITIES. Signecl this the 27ffi- cicry of August , 2019. CITY OF LUBBOCK TEXAS EPARTMENT OF CRIMINAL .JUS CE BY: BY L'N Daniel M. Pope, Aayor Jerry Mc my Chief Finn al Officer ATTEST: ATTE�/ST�Y::w, A�),- -t-& - CAS C 514�k Re ca Garza, City Secreta Gini Sweetie, Executive Assistant APP OVED AS TOC TENT: Wood Fiank ' , .E., Director f Public Works Aubrey A. S r, P.E., Dire for of Water Utilities APPROVE S TO FORM: Amy Sii •, Deputy City Attorney Pare 13 of 13 = U� •O 6Et�£INJ Bnd HOV:-Id Ond .,7,t ---------------------- `' top� wF d � a� J ' W ' Z LL O W Q tib'`' • ,r" � �� � W r- a O CL Z c� p 00 [S� o ` w ' t r � �'