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HomeMy WebLinkAboutR-2005-175 Jeff Ellis Agreement RESOLUTION NO. 2005-175 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE AN AQUATIC FACILITIES MANAGEMENT AGREEMENT WITH JEFF ELLIS & ASSOCIATES, INC. DB/A JEFF ELLIS AQUATIC MANAGEMENT,A TEXAS CORPORATION AUTHORIZED TO DO BUSINESS IN FLORIDA FOR THE PROVISION OF LIFEGUARD, OPERATION AND MAINTENANCE SERVICES FOR THE C.W.THOMAS PARK POOL AND THE P.J. MELI AQUATIC COMPLEX; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the proper City officials are authorized to execute an aquatic facilities management agreement with Jeff Ellis & Associates, Inc., d/b/a Jeff Ellis Aquatic Management, a Texas corporation authorized to do business in Florida for the provision of lifeguard, operation and maintenance services for the C.W. Thomas Park Pool and the P.J. Meli Aquatic Complex. Section 2. That the City Manager and City Attorney are authorized to make minor • revisions to such Agreement as are deemed necessary and proper and in the best interest of the City. Section 3. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 4. That this Resolution shall be in force and take effect immediately upon passage and adoption. PASSED AND ADOPTED on November 8, 2005. ANNE CASTRO MAYOR-COMMISSIONER ATTEST: ROLL CALL: �Q COMMISSIONER ANTON -YES u. ! COMMISSIONER BERTINO -NO LOUISE STILSON COMMISSIONER MCELYEA - YES CITY CLERK VICE-MAYOR FLURY - YES MAYOR CASTRO - YES • • APPROVED AS TO ORM AND CORRECTNESS BY: THOMAS J. A S CITY ATT RNE V' 2 RESOLUTION#2005-175 E I JEFfE�IIS AUUAiIE MANASEMEN1 Jeff Ellis & Associates, Inc. Corporate Headquarters ^or � .7 8 'sT•� t s�`7 A. 11,08ennw)ss Pa (407� 65 �.7f'� Coe rations and RiskManagement '-)co' orida:3476? E`-rtit: elainecCa)iellis.com i S P R 0 FEE S S X AL AQUATIC F A CIE LXT MANAGEMENT VIC AGREEMENT Prepared exclusively for City of Dania Beach Dania Beach, Florida October 18"', 2005 I PROFESSIONAL AQUATIC FACILITY MANAGEMENT SERVICE AGREEMENT THIS IS A PROFESSIONAL AQUATIC FACILITY MANAGEMENT SERVICE AGREEMENT (the "Agreement"), made on November 8, 2005, between Jeff Ellis & Associates, Inc., d/b/a Jeff Ellis Aquatic Management ("JEM"), a Texas corporation authorized to do business in Florida and the City of Dania Beach, a Florida municipal corporation ("City"). WHEREAS, JEM is engaged in the profession of managing and maintaining recreational aquatic facilities through its international aquatic safety, operations and risk management divisions by training and licensing its lifeguard employees (through its National Pool and Waterpark Lifeguard Training Program) to effectively supervise and maintain public aquatic facilities to the highest industry standards; and WHEREAS, the City is desirous of engaging JEM to provide lifeguard services and to manage, operate and maintain its premises located at C.W. Thomas Pool, 800 NW 2nd Street, Dania Beach, Florida 33004 and P.J. Meli Aquatic Complex, 2901 SW 52 • Street, Dania Beach, Florida 33004 and JEM is desirous of being so retained pursuant to the terms and conditions set forth in this Agreement; NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows: 1. The City engages JEM to act for it in accordance with this Agreement, and JEM accepts such engagement and agrees to provide the services set forth in it. 2. JEM will provide management, lifeguard supervision and pool maintenance services at C.W. Thomas Pool, 800 NW 2nd Street, Dania Beach, Florida 33004 and P.J. Meli Aquatic Complex, 2901 SW 52 Street, Dania Beach, Florida 33004 (the "facilities") as indicated below: 2.1 JEM will provide a minimum of three lifeguard employees and a facility manager (all JEM employees will be licensed by the National Pool and Waterpark Lifeguard Training ProgramTM) during regular operating hours as described in section 2.3 of this Agreement at each facility. JEM will maintain lifeguard staffing levels to meet its "10/20 Second Protection Rule" at all times each facility is open for use and may add staffing at its sole discretion as warranted by conditions without additional cost to the City. JEM defines swimmer protection as "the reasonable supervision and protection afforded to swimmers in all aquatic facilities" located on the premises of an aquatic facility including recreational pools, lap pools, diving wells, therapy pools, lazy rivers, • children's pools, waterslides and other aquatic attractions. 2.2 JEM will consistently maintain the City's aquatic facilities to rneet the standards set forth in the Florida Administrative Chapter 64E-9— Florida Swimming Pool and Bathing Code. JEM represents to City that its lifeguard and management employees exceed lifeguard certification standards set forth by the Florida Department of Public Health. 2.3 JEM will operate the facilities as set forth in the operating schedule described in "Exhibit A" of this Agreement, attached and incorporated by this reference. The schedule for the second and third years will be mutually developed by the parties at least thirty (30) days before each such year begins. 2.4 JEM will provide all aquatic safety rescue equipment necessary to provide , quality care for swimmers who patronize the facilities including, but not limited to, for each facility, four (4) rescue tubes, three (3) lifeguard stands, spinal extrication board with head/neck stabilizing supports, supplemental oxygen, Automatic External Defibrillator (AED), seal-easy face masks, Bag Valve Masks (BVM's for adult/child/infant), first aid kit, one ring buoy/rope, one shepherd's hook, six fanny packs, surgical gloves and one V-vacuum suction device. 2.5 JEM will provide City with two (2) unannounced/independent aquatic safety operational audits per facility and report findings of the audits to City's representative within twenty-four (24) hours of completion. The audit report will include unedited video and a written evaluation for City's review. 2.6 JEM will provide City with daily on-site maintenance visits for the purpose of maintaining the aquatic facilities to industry standards that meet or exceed state of Florida requirements.and the requirements published by the National Recreation and Parks Association's (NRPA) aquatic facilitator operator's manual. JEM will perform specific maintenance tasks as set forth in "Exhibit A" of this Agreement. 3. JEM will offer optional swimming lessons and other aquatic programs to eligible participants who attend the facilities on an "as needed" basis. JEM will offer classes in accordance with teaching ratios and instructional and curriculum requirements published by Jeff Ellis Swimming®. All instructors assigned to teach instructional programs will be trained and licensed by Jeff Ellis Swimming®. JEM agrees to publish aquatic program information and make same available to swimmers who patronize the facilities. The fee compensation for all aquatic programs will be an 80/20 split. JEM will receive eighty percent (80%) and the City will receive twenty percent (20%). JEM will conduct all registrations but the fees will be paid to City by the patrons and JEM will provide City an invoice seeking payment of its share of the revenue. All fees for enrollment and participation in optional aquatic programs shall be paid directly to the City at the rates set forth in "Exhibit C" of this Agreement, a copy of which is attached and incorporated by this reference. 4. The City will receive one hundred percent (100%) of the daily swimming entrance fee and all revenue associated with pool passes ("splash cards"). 5. JEM will make available the following optional pool service on an "as needed" basis: 5.1 Private Swimming Pool Parties ("parties") - JEM will supervise and adequately staff all parties to maintain swimmer safety upon the approval and written request of the City. The individual or group hosting the party will pay the City any and all expenses for conducting the party. The City agrees to submit written requests for conducting pool parties to JEM seven (7) days prior to the desired event date. 5.2 Private Pool Premises Rentals (other purposes) — JEM will supervise and adequately staff all pool rentals to maintain safety and protection of the City's property at the aquatic facilities upon the approval and written request of the City. The individual or group hosting the pool premises rental will pay the City any and all expenses for conducting the rental as set forth in "Exhibit B" of this Agreement. The City agrees to submit written requests for conducting pool premises rentals to JEM at least seven (7) days prior to the desired event date. 6. Insurance. 6.1 JEM shall procure and maintain for the duration of and in full compliance with the Agreement insurance against claims for loss of life, injuries to persons and damage to property which may arise from its performance under this Agreement in connection with the delivery and supply of the tools, equipment and materials identified in the Agreement, and in its performance of each and all of its duties relating directly or indirectly to its services to be performed, with the City as an additional named insured, including the City's agents, representatives, officers, officials, employees and volunteers. The cost of such insurance shall be borne by JEM. • 6.2 Minimum Scope of Insurance to be provided: (a) Commercial General Liability, including: Premises and Operations. Products and Completed Operations Coverage. Blanket Contractual Liability Coverage. Independent Contractors. Broad Form Property Damage. Personal Injury Liability. Fire Legal Liability Coverage. Incidental Medical Malpractice Coverage. (b) Automobile Liability Insurance, including: Owned Automobiles Non-owned Automobiles Hired Automobiles (c) Workers' Compensation Insurance (d) Employer's Liability Insurance 6.3 Minimum Limits of Insurance a Commercial General Liability: $2,000,000.00 per occurrence, $2,000,000.00 annual aggregate for death, bodily injury, personal injury and property damage. (b) Automobile Liability: $1,000,000.00 per occurrence, $1,000,000.00 annual aggregate for death, bodily injury and property damage arising from the operations of all owned automobiles, non-owned automobiles and hired automobiles. (c) Workers' Compensation: Workers' Compensation insurance; statutory limits, part A and $1,000,000.00 Part B Employer's Liability coverage. (d) Employer's Liability: $100,000.00 limit per occurrence; $500,000.00 annual aggregate for disease; and $100,000.00 limit for disease of an individual • employee. 6.4 Deductibles and Self-Insured Retentions: Deductibles/Self-Insurance Retentions Defined: All deductibles and self-insured retentions must be shown clearly on the Certificates of Insurance and approved by the City. City reserves the right to disapprove any or all of them but shall not unreasonably do so. 6.5 All insurance policies shall contain the following provisions: (a) Additional Insured and Certificate Holder clause: All insurances shall include as Additional Named Insured and Certificate Holder the City of Dania Beach. There are not to be any special limitations on the protection being provided to the City, its officials, officers, employees or volunteers. • (b) JEMS's Insurance is Primary: JEM' es s insurance coverages shall be rim g primary insurance with respect to the City's, its officials', employees', and volunteers' insurances. Any insurance and self-insurance maintained by the City, its officials, officers, employees, or volunteers shall be in excess of JEM's insurances and shall not contribute with it. (c) Coverage Guaranteed: Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. (d) Occurrence Basis: JEM's insurances shall be on an occurrence basis as opposed to a claims-made basis. (e) 30 Days' Notice: The following clause shall be included in all policies: • This policy shall not be suspended, voided, or cancelled by JEM and no reduction or revision in coverage or limits of coverage shall be made except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given and approved in writing by to the City. (f) Separation of Insured: The definition of insured shall read as follows: The insurance afforded applies separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the company's liability. The company, in this context, is JEM's insurance company. If no such definition of the insured is quoted in the insurance, JEM must provide "Cross Liability Clause" or "Severability of Interests Clause" endorsements for all liability insurances. 6.6 Acceptability of Insurance Company (a) Best Rating: Insurance coverage must be with a company with a Best rating A.VII or better. (b) Florida State Licensed: All insurance policies and bonds required of JEM shall be written by a company authorized and licensed to do insurance business in the state of Florida and be executed by agents licensed as agents by the state of Florida. 6.7 Verification of Coverage (a) Certificates and Endorsements Provided: JEM shall furnish the City with a Certificate of Insurance with original endorsements affecting coverage. The certificates and endorsements must be received and approved by City in writing before any services can commence. (b) Authorized Signatures: The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf (c) Coverage Continuation: Insurance coverage required in these specifications shall be in force throughout the term of the Agreement. Should JEM fail to provide acceptable evidence of current insurance within seven (7) days of receipt of written notice at any time during the term of the Agreement, the City shall have the right to consider the Agreement breached which breach shall justify City's termination of it. If coverage on the Certificates of Insurance is shown to expire prior to the end of the Agreement, JEM shall furnish Certificates of Insurance evidencing renewal of such coverage to the City. 6.8 Hold Harmless Agreement JEM shall take note of the indemnity contained in this Agreement and will obtain and maintain contractual liability insurance in adequate limits for the sole purpose of protecting the City under the indemnity. Further, JEM will notify its insurance agent without delay of the existence of the indemnity contained within this Agreement, and furnish a copy of the Hold Harmless Agreement to its insurers. 7. JEM is solely responsible for establishing and enforcing all pool safety rules and regulations as set forth in its National Pool and Waterpark Lifeguard Training Manual. JEM represents to City that the pool safety rules and regulations published by Jeff Ellis & Associates, Inc. are regarded as the industry standard, that they meet or exceed the requirements of the state of Florida and serve as the model for most state regulatory agencies. S. For the safety of swimmers patronizing City's facilities, JEM is solely responsible for supervision and rule enforcement at the City's facilities. JEM employees shall be empowered to immediately remove anyone who fails to comply with rule enforcement requests. Violators who fail to comply with a lifeguard's, reasonable directive may be charged with criminal trespass if they fail to leave the City's premises upon being duly notified by any JEM employee. No JEM employee shall remove or attempt to remove a person from the premises, but shall summon police assistance if such removal is deemed necessary by the employee. The City remains solely responsible for decisions to readmit anyone temporarily banned from the facility. Decisions to temporarily ban or readmit violators shall be immediately conveyed in writing between the parties to this Agreement. 9. The City remains solely responsible for all labor and parts to repair its pumps, filters, chemical injection systems, diving board, lifeguard stands and other physical items not specifically mentioned. JEM agrees to exercise reasonable and prudent care to operate and maintain all aforementioned equipment. JEM agrees to provide logistical support to make sure that the repairs are made by City in a timely manner upon receiving written authorization from the City. 10. JEM agrees to designate a representative to attend staff monthly meetings • of City to report on swimming pool operations and maintenance. JEM will provide a written report to the pool representative appointed by the City's designated representative on a monthly basis. The report will include pool attendance, program attendance, water quality logs, accident reports, complaints, guest surveys, discipline reports, lifeguard evaluations and applicable auditing reports. 11. JEM shall'develop and publish an Emergency Action Plan to maintain overall safety for the City's facilities, which must be approved in writing by City. Copies of the Emergency Action Plan will be made available to the City's designated representative prior to the opening of the facilities. 12. JEM employees will temporarily close the facilities whenever threatening weather approaches for the overall safety of swimmers and patrons. The weather related closing policy shall follow the established guidelines set forth in the "Make It Work" operations manual to be provided to City. Closing procedures shall be approved by City in writing and a copy of the proposed closing protocols shall be provided to the City's designated representative prior to November 15, 2005. 13. JEM employees will temporarily close a facility whenever swimmer safety may be compromised. Reasons for closing the swimming pool include water sanitation issues, water quality issues, power outages or other safety or security related issues. 14. The City will provide local telephone service at each facility. 15. The City will provide and maintain as necessary all locks used to secure pool gates, locker rooms, office, filter room and storage rooms. The City will provide keys to JEM accordingly. The City will maintain all fences and gates and make necessary repairs as needed to secure the facilities. i i 16. The City will provide electricity, water and sanitation services for each facility. 17. JEM will charge the City for optional labor beyond the scope of services described in this Agreement at an hourly rate of Twenty-Five ($25.00) Dollars upon receipt of a work order supplied by the City. 18. The City agrees to hold JEM harmless for damage to City property resulting from vandalism, as long as JEM is not negligent in its management duties or in securing City facilities as required by this Agreement. JEM agrees to provide clean- up and repair for damage due to vandalism. All optional labor and repair expenses remain the responsibility of the City. 19. JEM agrees to indemnify and hold harmless the City, its officers, employees, officials and volunteers (and at the City's discretion, JEM will provide a defense or pay for legal counsel selected by the City to represent the City and its officers, employees and officials) for, from and against all claims, actions, or causes of actions, losses, damages, liabilities, costs and expenses, including costs, attorneys' and paralegals' fees, and fees of experts, claimed against, imposed on or incurred by the City in connection with any and all loss of life, bodily injury and damage to property which arises, relates, or pertains to, directly or indirectly, JEM's acts or omissions (including any negligent acts or omissions) pertaining to JEM's performance of the services as identified in this Agreement, and related to the use of the tools, equipment and materials identified in this Agreement. Nothing in this Agreement is intended to serve as a waiver of sovereign immunity, or of any other immunity, defense, or privilege enjoyed by the City or any of its officers, employees, officials and volunteers. Nothing in this Agreement shall be construed to inure to the benefit of any third party . or as consent by the City to be sued by third parties in any matter arising out of this Agreement or any other contract. 20. JEM makes no representations or warranty with respect to the chemicals, including, without limitation, their suitability for the City's facilities or freedom from defects. 21. The term for this Agreement shall commence on November 15, 2005 and shall continue through the expiration date of November 15, 2008. 22. This Agreement may be terminated by either party, with or without cause, upon ninety (90) days' written notice to the other party. The City acknowledges that for the purposes of removing its own equipment and property, JEM may enter onto the premises free from interference from the City. 23. To assure the City that services will be rendered, JEM states that its responsibilities as to its employees are to: (a) Employ and pay sufficient staff in order to provide the services to the reasonable satisfaction of the City. (b) Ensure that all persons employed by JEM in connection with the provisions of the services shall be efficient, not under the influence of alcohol or drugs, and honest and shall be suitably qualified to provide the services, including, but not limited to, qualified in the administration of first aid, including cardio pulmonary resuscitation. (c) Ensure that JEM's employees undergo such training as may be necessary to enable them to carry out their respective duties in accordance with this Agreement and to provide safe, pleasant, courteous and conscientious service to the patrons, residents of and visitors to the City. (d) Provide adequate supervision and coordination of JEM's employees and ensure that the employees shall abide by the rules, regulations and guidelines set from time to time by the City and JEM will replace, not employ or shall cease to employ any person to whose employment reasonable objection is taken by City. (e) Ensure that JEM's employees on duty are dressed in proper uniform and carry City-issued identification badges. The uniforms shall be supplied by JEM. The badge shall be worn at all times and identify the employee by his or her first name. (f) Ensure the no duties, obligations or services are delegated or subcontracted without the advance written approval of the City. 24. JEM shall not delegate, assign or transfer any duties or obligations arising under this Agreement, without the prior written approval of the other, otherwise than as may expressly be permitted by the terms of this Agreement. 25. In case any or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. 26. Any notice required or permitted to be given by a party to this Agreement shall be mailed or delivered to the other party at the addresses specified below: To JEM: Jeff Ellis & Associates, Inc. Attention: Elaine Cinelli or Jeff Ellis 508 Goldenmoss Loop Ocoee, FL 34761 To CITY: City of Dania Beach Attention: Ivan Pato, City Manager 100 West Dania Beach Blvd. Dania Beach, FL 33004 With a copy to: City of Dania Beach Attention: Thomas J. Ansbro, City Attorney 100 West Dania Beach Blvd. Dania Beach, FL 33004 27. JEM will receive the sum of One Hundred Ninety Thousand, Eight Hundred Twenty-Two and 92/100 ($190,822.92) Dollars for the first year, Two Hundred Five Thousand, Three Hundred Sixty-Three and 20/100 ($205,363.20) Dollars for the second year and Two Hundred Twenty-Five Thousand, Two Hundred Eighty- Eight ($225,288.00) Dollars for the third year, for compensation to provide services for the City as set forth in this Agreement. JEM will submit monthly invoices to the City for the professional services rendered pursuant to the terms specifically set forth in "Exhibit C" with payment terms of net thirty (30) days. The City agrees to pay all invoices submitted by JEM pursuant to the payment terms agreed upon and set forth in "Exhibit C" of this Agreement. 28. JEM will assess late fee/finance charges of 1.8% monthly to the City on all unpaid account balances past due thirty (30) days. JEM will suspend all services pursuant to this Agreement if the City's unpaid balance exceeds sixty (60) days. Such suspension or reinstatement of services will not terminate the Agreement. 29. In the event of any litigation in relation to this Agreement the unsuccessful party, in addition to all other sums that either party may be called on to pay, shall be required to pay the successful party's attorney fees and costs. 30. This document constitutes the sole and only Agreement of the parties and correctly sets forth the rights, duties, and obligations of each to the other as of its date. Any prior agreement, promise, negotiation or representation not expressly set forth in this Agreement is of no force and effect. Each party agrees to perform any further acts and to execute and deliver any further documents, which many be reasonably necessary to carry out the provisions of this Agreement. 31. This Agreement will be governed by and construed in accordance with the laws of the state of Florida. The parties agree that any legal action or proceeding involving this Agreement shall be brought and enforced in any state or federal court in Broward County, Florida and the parties accept and submit generally and unconditionally to the jurisdiction of such courts. 32. Each person signing the Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and performance of such party's obligations have been duly authorized and are binding on such party and enforceable in accordance with its terms. 33. All rights granted to either of the parties shall be cumulative, and no exercise or failure to exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of such right or any other right granted by this Agreement or otherwise available as part of it. 34. The failure by either party to enforce, at any time or for any period, any one or more of the terms or conditions of this Agreement, shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement. 35. During the term of this Agreement JEM shall be an independent contractor and not the agent or employee of the City. In such capacity, JEM will bear exclusive responsibility for the payment of the remuneration and any insurance contributions in respect of JEM's employees. The parties are not partners or joint venturers; nor is JEM or any of JEM's employees authorized to act as the agent of the City. 36. Each of the parties shall pay its own costs and expenses incurred by it in connection with any aspects of preparation of this Agreement. IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day and year fist above written. CITY: CITY OF DANIA BEACH, a Florida Municipal Corporation ATTEST: LOUISE STILSON ANNE CASTRO CITY CLERK MAYOR /JVAN PATO / ITY MANAGER C APPROVED FOR FORM AND CORRE TNESS: TH MA O CITY ATTORNEY M i i I WITNESSES: Jeff Ellis & Associates, Inc., d/b/a Jeff Ellis Management, a Texas corporation authorized to do business in Florida Si ure . Aia J His, President Print Name Sigiature KNIM ► 1 01 ' Print Name (CORPORATE SEAL) STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me on 2005, by Jeffrey L. Ellis as President of the Jeff Ellis & Associates, Inc. d/b/a Jeff Ellis Management, a Texas corporation authorized to do business in Florida, on behalf of the corporation. 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