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Ordinance No. 7,725960613 -11 ORDINANCE NO. 7725 ® AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A SERVICE AGREEMENT WITH DAVENPORT MAMMOET HEAVY TRANSPORT, INC., FOR THE TRANSPORT OF HEAVY MATERIALS THROUGH BAYTOWN; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager and City Clerk of the City of Baytown to execute and attest to a Service Agreement with Davenport Mammoet Heavy Transport, Inc., for the transport of heavy materials through Baytown. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 13th day of June, 1996. _ /,� r `!f PETE C. ALFARO, Mayor ATTEST: Y � L EILEEN P. HALL, City Clerk ACIO RAMIREZ, SR. ty Attorney c:lcouncillmeetingslj uncldavenpor.13 is SERVICE AGREEMENT BETWEEN THE CITY OF BAYTOWN, TEXAS AND DAVENPORT MAMMOET HEAVY TRANSPORT, INC. STATE OF TEXAS § COUNTY OF HARRIS § This Service Agreement, hereinafter known as "Agreement," is made and entered into this day of J9 , by and between the City of Baytown, a municipal corporation located in Harris and Chambers Counties, Texas, hereinafter known as the "City," and Davenport Mammoet Heavy Transport, Inc., hereinafter known as the "Company." I. DEFINITIONS As used in this Agreement, the following words and phrases are defined to mean: City: means and refers to the City of Baytown, Texas, and all attendant boards, agencies, commissions and related bodies, along with their respective officers, agents and employees. City Manager: means the City Manager of the City of Baytown or his designated representative. Company: means Davenport Mammoet Heavy Transport, Inc., its volunteers, officers, directors, agents, and assigns. Representative of the Company: means Donald L. Davenport, or his designated representative. Equipment: means the machinery used to transport the materials. Materials: means Drum XZD08, Drum XZD05, Drum XZ.D06, C/2 Splitter XMT04, Deethanizer XMT03, Demethanizer XMT01, Suction Drum XVD02, and Scrubber XKT01, and all contents, if any, therein. Such materials are further described in Exhibit `B," which is incorporated herein by this reference for all intents and purposes. EXHIBIT A Transport Route: means that route which commences at the Exxon Docks and proceeds over those public rights -of -way depicted in Exhibit "A," which exhibit is incorporated herein by this reference for all intents and purposes. Police and Traffic means the services of security and traffic officers deemed necessary by the Services: Chief of Police of the City in his sole discretion to ensure the safe transport of materials as well as the safety of vehicular and pedestrian traffic. The Chief of Police has the authority to employ additional officers to increase the level of service at any time he considers the same necessary. Chief of Police: means the Chief of Police of the City or his designated representative. Officer: means a certified peace officer employed by the City of Baytown in such capacity. Fire and Rescue means the health and safety services of fire and rescue personnel deemed Safety Services: necessary by the Fire Chief in his sole discretion to ensure the safe transport of materials. These services will entail fire, rescue, routine first aid and other medical services normally provided by the fire and rescue personnel of the City. The Fire Chief has the authority to employ additional personnel to increase the level of service at any time he considers the same necessary. Fire Chief. means the Chief of the Fire Department of the City of Baytown or his designated representative. Fire and Rescue Personnel: means certified members of the Baytown Fire and Rescue Services. II. TRANSPORT REQUIREMENTS Equipmen : The Company shall use the equipment which is depicted in Exhibit "B" or equipment of a comparable or higher quality for the performance of its activities, events, and obligations under this contract. The Company warrants that all such equipment listed in the application is adequate for its designated use and shall be used in conformity with such use. Additionally, the Company shall maintain or have immediate access to adequate backup equipment in order to sustain continuous operations in the event of equipment failure. The use of insufficient and/or inadequate machinery or equipment or the use of machinery or equipment in derogation of its intended use as determined by the City Manager shall be deemed a breach of this Agreement. Personnel: The Company hereby warrants to the City that the Company has employed well - trained individuals to perform the transport of materials under this contract and that throughout all transports, as further described hereinbelow, the Company will provide the necessary supervision 2 • of all such personnel, work crews, volunteers, officers, directors, agents, and assigns at all times. The Company must have a designated person along the transport route at all times, who has the authority to respond and act on behalf of the Company. The Representative of the Company shall provide written documentation to the Chief of Police of whom such designee is, where he or she will be located, and how he or she may be contacted. Notwithstanding the above, at all times during any transport, the Representative of the Company shall be immediately available at the transport route. If the City, for any reason is unable to contact the Company's designee or the Representative of the Company, the Company hereby agrees that any person employed by the Company shall have the authority to respond and act on behalf of the Company. Furthermore, the Company shall appoint a transport safety officer, who shall be responsible for ensuring the public's health, safety, and welfare in relation to and throughout the activities of the Company, its agents, and its subcontractors. Inspection: The Company acknowledges its responsibility for inspecting of the property of the City prior to signing this Agreement and to inform itself regarding local conditions. After the execution of this contract, the Representative of the Company in the presence of the City Manager must make an additional inspection of the transport route. The purpose of such additional inspection shall be to provide the Company an opportunity to inspect and document any damage to any right-of- way, improvement, tree, etc., which was present prior to the transport. The documentation of any right -of -way, improvement, tree or facility damage must be submitted to the City Manager prior to each transport. The failure to so submit a written list of damages observed by the Company shall result in the presumption that no damages were found. The Company understands and agrees that the City Manager shall inspect the transport route and any other area used by the Company during the transport of materials after the completion of each transport and that the Company shall be solely liable for any and all damages which were not documented and submitted as required by this paragraph. Such damages shall be computed as described in article X. Route: The transport route as defined herein may not be changed or otherwise altered without the prior express written approval of the City Manager. Transport Times: The materials herein are to be transported with the.equipment during the following times periods: TE :.... ;.' TIME '::'EQUIPMENT.:: December 8, 1996 (Sunday) 6:00 a.m. -- 11:00 a.m. Drum XZD08 December 15, 1996 (Sunday) 6:00 a.m. -- 11:00 a.m. Drum XZD05 Drum XZD06 November 12, 1996 2:00 a.m. -- 7:00 a.m. C/2 Splitter XMT04 November 19, 1996 2:00 a.m. -- 7:00 a.m. Deethanizer XMT03 • 3 • Such dates and times may not be changed without the express written approval of the City Manager. Police and Traffic Services: The safety of the public and convenience of traffic shall be regarded as prime importance throughout the transport of materials and during all events connected thereto. The Company hereby agrees that it shall not hinder or inconvenience travel on streets or intersecting alleys which are not located on the transport route. In order to accomplish these purposes, the Company hereby authorizes the Chief of Police to employee such force of men as is necessary to control the pedestrian and/or vehicle traffic and to ensure the safety of the transport. The Chief of Police at his sole discretion shall determine what level of service is needed and shall have the authority to obtain the adequate number of officers in order to accomplish these purposes. Neither the City nor any Officer guarantees a safe, secure transport or a transport without incident. As such, the Company agrees to and shall assume all liability with respect to the security of persons and property at all times, including, but not limited to, during the staging, operation and completion of the transport, and releases and fully discharges the City from any and all actions, causes of action, claims, demands, costs, controversies, damages, and all other liability whatsoever for any and all personal injuries, deaths or property damages arising out of or in connection with the operation, control, and security of the transport. Street Closures, All street closures and barricades permits proposed by the Company and contemplated by this Agreement must be secured through the appropriate permitting procedures established by the Department of Planning and Community Development. Nothing herein shall be construed as authorizing the exclusive use of any public property, not specifically reserved in this Agreement. Notice: The Company hereby agrees to provide owners of property located adjacent to a right -of -way which will be traversed by the equipment and/or materials notice of the transport and of any foreseeable loss of utilities. Such notice shall include the dates and times of the transport as indicated hereinabove. However, should such dates and times be changed for any reason after notice has been given, the Company shall again give notice of the revised dates and times. t' 't' • The Company shall contact all utility companies whose facilities may be affected by the transport and shall make arrangements with each such company to temporarily move its facilities with minimal interruption of service to the citizens of Baytown. The Company warrants and guarantees that it has obtained all the necessary consent of the utility companies as well as other 4 persons and entities potentially affected by the transport. All transport activities shall be subject to the operational approval and supervision of the Fire Chief. Safety: For the consideration expressed herein, the Fire Chief shall have such authority as is necessary in order to ensure a safe transport. The Fire Chief at his sole discretion shall determine the number of fire and rescue personnel necessary to perform the services herein required by this Agreement and shall have the authority to obtain the additional fire and rescue personnel at any time during this Agreement in order to accomplish these purposes. Neither the City nor the fire and rescue personnel guarantee a safe transport or a transport without incident. As such, the Company agrees to and shall assume all liability with respect to the safety of persons and property at all times, including, but not limited to, during staging, operation and completion of the transport, and releases and fully discharges the City from any and all actions, causes of action, claims, demands, costs, controversies, damages and all other liability whatsoever for any and all personal injuries, deaths or property damages arising out of or in connection with the operation, control, and security of the transport. Matting: The Company shall place mats, which are designed to distribute the weight of the equipment and materials so as not to cause damage to any street or other facility lying underneath the same, as specified in Exhibit "C," which is attached hereto and incorporated herein for all intents and purposes. Furthermore, at any time, the Fire Chief may require additional matting if he in his sole discretion deems the same necessary in order to protect the underlying road or other facilities. i na e: The Company shall provide and place portable signs along the route which signs shall indicate that the road/areas designated in Exhibit "A" are closed. Such signs shall be in both English and Spanish. The Company, at least ten (10) days prior to any transport, shall submit the Chief of Police with the location and content of the signs to be used along the route for his review and approval. The Chief of Police shall have the authority to require additional signs or to demand the verbiage of the same be changed. No transport shall proceed until the Company has obtained the written approval of the Chief of Police. Permits: The Company shall provide to the City all state permits for each of the proposed transports. Daman The Company agrees to compensate all owners of property along the route and other persons whose property, either real or personal, is damaged, whether caused in whole or in part by the transport. Cancellation and Rescheduling of the Transport of Materials: The City reserves the right at all times and in its sole discretion to cancel the transportation of materials if the public health, safety, and welfare commands such result. If the transportation of materials is canceled by the City, the Company hereby relieves the City from all liability which may result from such cancellation. 0 5 9 • III. COMPENSATION FOR SERVICES The force of men deemed necessary for police and traffic services shall include at a minimum of two motorcycle officers, who must be commissioned peace officers of the City of Baytown. The Company shall be responsible to contract with such individuals to provide this service. If additional services are required by the Chief of Police, the Company shall pay the actual cost of such services, which will be based upon the officers' overtime rate of pay plus benefits. Additionally, the force of men deemed necessary for the fire and rescue safety services shall include at a minimum four (4) fire and rescue personnel at a cost of their respective overtime rates of pay plus benefits. The payment shall be calculated commencing at the scheduled transport time indicated hereinabove for the applicable date and ending when either the equipment is off of all public rights-of-ways and will not be entering back onto the same or any safety problem caused in whole or in part from the equipment and materials no longer exists as determined by the Fire Chief. If additional services are required by the Fire Chief, the Company shall pay the actual cost of such services, which will be based upon the fire and rescue personnel's overtime rate of pay plus benefits. All payments to the City of Baytown shall be calculated commencing thirty (30) minutes prior to the scheduled transport time indicated hereinabove for the applicable date and ending thirty (30) minutes after either the equipment is off of all public rights -of -ways and will not be entering back onto the same or any traffic problem caused in whole or in part from the equipment and materials no longer exists as determined by the Chief of Police, whichever is later. The following is an estimate of the costs of the services to be performed by the City: :DESCRIPTION OF- SERVICE ESTIMATED. COST OE: SERVICE Police and Traffic Fire and Rescue Safety Services $30 per person per hour $100 per hour However, Company understands and agrees that it shall be responsible for the actual costs associated with the provision of security and safety services by the City and the above - referenced figures are estimates and are provided to the Company by the City for planning purposes only. Such amounts shal l be due within fifteen (15) days after Company receives an invoice for the services rendered. IV. INDEPENDENT CONTRACTOR It is mutually understood and agreed that nothing in this Agreement is intended or shall be construed as in any way creating or establishing the relationship of partners or co- partners between the parties hereto, or as constituting the Company as an agent or representative of the City for any 6 purposes or in any manner whatsoever. The relationship of the Company to the City shall be that of an independent contractor. V. HEALTH, SAFETY AND WELFARE The Company expressly understands and agrees that at all times during the term of this contract, the City, at its sole discretion, may do all things necessary to ensure the health, safety and welfare of the its citizens. If it is necessary for the City to exercise this right in any manner and to any extent, including the termination or cancellation of the transport, the Company shall assume all liability with respect to the termination or cancellation and releases and fully discharges the City from any and all actions, causes of action, claims, demands, costs, controversies, damages, and all other liability whatsoever for any and all personal injuries, deaths or property damages arising out of or in connection with such termination or cancellation. VI. TIME OF THE ESSENCE Both the Company and the City acknowledge that time is of the essence in this Agreement. VII. INDEMNITY THE COMPANY AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WORK DONE BY THE COMPANY PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE COMPANY'S BUSINESS OR ACTIVITIES, OR FROM ANY ACT OR OMISSION BY THE COMPANY, ITS AGENTS, SERVANTS, EMPLOYEES, SUBCONTRACTORS, GUESTS, OR INVITEE, ON OR ABOUT THE PREMISES SUBJECT TO THIS AGREEMENT, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE SOLE OR JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE COMPANY AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE COMPANY TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF THE CITY'S OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS THE SOLE OR A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, THE COMPANY FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR 0 1 PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. • VIII. INSURANCE The Company shall at all times during this Agreement maintain in full force and effect insurance as provided herein and which meets the minimum amounts listed below. A certificate of insurance, or a copy of the insurance policies, shall be furnished to the City and shall provide that the City shall receive thirty (30) days' prior written notice before any change or cancellation of any policy. (1) Commercial general liability : This coverage must have an aggregate of $1,000,000 with a minimum of $1,000,000 per occurrence. (2) Automobile Liability: This coverage shall have combined single limits of $1,000,000, or limits of $250,000 /$500,000 /$250,000 are acceptable. All automotive coverage is to include all owned and hired autos, if applicable. (3) All policies are to be of the occurrence form. (4) . Should any insurance required by this Agreement lapse, the Company shall immediately cease all operations as of the time and date of such lapse, and shall not resume any operations until authorized in writing by the City. If the lapse period extends fifteen (15) days, this Agreement shall automatically terminate with no notice to the Company required and the Company shall be in breach of this Agreement. (5) The City of Baytown shall be named as an ADDITIONAL INSURED on said policies of insurance. The Company shall provide the City with a certificate evidencing the City of Baytown as ADDITIONAL INSURED for coverage after award of bid and prior to receiving an order for purchase of equipment, the beginning of the demonstration period for equipment, or initiation of contracted services. (6) All insurance carriers providing coverage should have an AM Best rating of A or higher and be licensed to do business in the State of Texas. (7) All certificates of insurance required herein shall be provided to the City as soon as practical and in no event later than June 15, 1996. IX. INSPECTION OF WORK AND FACILITIES At any time during the term of this Agreement, the City shall have the full right to inspect any and all facilities, areas, or equipment owned, leased or otherwise used by or in the care, custody, or control of the Company. Such inspections may be related to, but are not limited to, verification of work or conditions, safety, damages, or operational interests. • • X. LIQUIDATED DAMAGES Random checks of the transport route shall be carried out during the contract period at the option of the City to ensure faithful performance and compliance with all the terms and conditions herein. Additionally, the City Manager will perform an inspection of the transport route after each transport. At each such inspection, the transport route shall be completely restored to the same or better condition of the route immediately before the transport began. The Company and the City understand and agree that the failure to restore the property in a timely manner or any injury to a facility, any portion of the transport route or the underlying facilities will cause damage to the City and further agree that such damages cannot be accurately measured and that ascertainment of the same will be difficult. Therefore, the parties agree that for each and every calendar day the restoration or any part of the restoration of the facilities, improvements, and/or property remains uncompleted or that for each injury to any facility or improvement, the Company agrees and promises to pay as compensation for the same a minimum of $100.00. Additionally, the City may make a claim under the Company's public liability, property damage insurance policy in effect. However, the foregoing agreement as to liquidated damages constitutes only an agreement by the City and the Company as to the minimum amount of damages which the City will sustain in any event by reason of damage or injury to any facility or improvement or by reason of the failure of the Company to timely restore the transport route. Should the City suffer damages over and above the minimum amount specified, the City shall recover such additional amount. All remedies enumerated herein shall be cumulative and the City shall not be required to elect any nor deemed to have an election by proceeding to enforce any one remedy. XI. TERM The term of this Agreement shall commence upon the execution of this document by the City and shall remain in force for a period of time not to extend beyond the 31 st day of December, 1996, unless terminated sooner by the City Manager or his designee. XII. TERMINATION (1) The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement without cause upon ten (10) days' written notice from the City Manager to the Company of the City's election to do so. Furthermore, the City may immediately and without notice terminate this contract if the Company breaches this Agreement. A breach of this Agreement shall include, but not be limited to, the following: (a) failing to pay insurance premiums, liens, claims or other charges; • 9 ® (b) failing to pay any payments due the City, State or Federal Government from the Company or its principals, including, but not limited to, any taxes, fees, assessments, liens, or any payments identified in this Agreement; (c) the institution of voluntary or involuntary bankruptcy proceeding against the Company; (d) the dissolution of the Company; and /or (e) the violation of any provision of this Agreement. XIII. COMPLIANCE WITH RULES AND REGULATIONS The Company shall comply with all rules, regulations, and laws of the United States of America, the State of Texas, and all laws, regulations, and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. XIV. SALE OF INTEREST The Company may not sell or assign all or part interest in the transport of the materials to another party or parties without the express written approval of the City Manager of such sale or assignment. The City may require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of the City. XV. NOTICES All notices required to be given hereunder shall be given in writing either by telecopier, overnight, or facsimile transmission, certified or registered mail at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: Q.OMPANY Davenport Mammoet Heavy Transport, Inc. Attn: Donald L. Davenport 20525 FM 521 Rosharon, TX 77583 Fax No. (713) 369 -2099 0. 10 0 CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Fax No. 420 -6586 XVI. NON - WAIVER Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder or to exercise any right or remedy occurring as a result of any future default or failure of performance. XVII. GOVERNING LAW This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City, regardless of the place of its execution or performance. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. XVIII. SEVERABILITY All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. XIX. CONDITIONS BEYOND CONTROL Ndither the City nor the Company shall be required to perform any term, condition or covenant of this Agreement so long as performance is delayed or prevented by force majeure, which shall mean acts of God, drought, floods, material or labor restrictions by any governmental authority, and any other cause not reasonably within the control of either party in which, by the exercise of due diligence, the City or the Company is unable to prevent or overcome. 0 • XX. NO RIGHT TO ARBITRATION Notwithstanding anything to the contrary contained in this Agreement, the City and the Company hereby agree that no claim or dispute between the City and the Company arising out of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 -14), or any applicable State arbitration statute, including but not limited to the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, the Company consents to be joined in the arbitration proceeding if the Company's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. XXI. MISCELLANEOUS PROVISIONS This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the Company and the City only. This Agreement contains all the agreements of the parties relating to the subject matter hereof and is the full and final expression of the agreement between the parties. XXI. AUTHORITY The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he /she represents. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same Agreement on the Z9 day of /1 Q v , 1996, the date of execution by the City Manager of the City of Baytown. DAVENPORT MAMMOET HEAVY TRAO C. 4 (Si ature &AIIV I S / e,4 dENAo 1- f (Printed Name) • (TitIe) 12 • CITY OF BAYTOWN BOBBY ROUNTREE, City Manager ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney STATE OF TEXAS § COUNTY OF § BrgZ01"i Q Before me on this day personally appeared Dennas R. DgVenP92rt , in his capacity as Pre 5 i d e nt of Davenport Mammoet Heavy Transport, Inc., on behalf of such corporation, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me this 2g_ day of _ _M n \I , 1996. .c taA- Notary Public in and for State of Texas cAkl h 15lplanningltransport A*''' NOEL PEKAR IETER • 13 NOTARY PUBLIC State of Texas 't��T Comm. 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