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HomeMy WebLinkAbout20191321.tiffBOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST RE: BOCC Agenda Item - Approve Road Maintenance Agreement for: Public Service Company of Colorado — 1 MUSR 18-80-439 DEPARTMENT: Public Works DATE: March 15, 2019 PERSON REQUESTING: Tisa Juanicorena Brief description of the issue: The Department of Public Works received a request from the applicant, Public Service Company of Colorado, requesting that the Board of County Commissioners consider approving the Road Maintenance Agreement for the pipeline (1 MUSR 18-80-439). No collateral is required with this agreement. Weld County Public Works, Planning Services and the County Attorney's Office have reviewed the above -mentioned signed original document and observed the following: • All Public Works related items, of the "Road Maintenance Agreement According To Policy", are found to be acceptable. • This Agreement complies with the terms of the First Minor Amendment to Use by Special Review Permit Resolution (USR-439), as signed by the Director of Planning Services. What options exist for the Board? 1. Have this BOCC Hearing item be placed on the next available agenda as part of the Consent Agenda. 2. Have this BOCC Hearing item be placed on the next available agenda as part of the Regular Agenda. Recommendation: Option 1. The Departments of Public Works, Planning Services and the County Attorney's Office are recommending approval of the Improvements & Road Maintenance Agreement According To Policy Regarding Collateral For Improvements for I MUSR 18-80-439, and that this item be placed on the next regularly scheduled BOCC Hearing, as part of the Consent Agenda. Sean P. Conway Mike Freeman, Pro -Tern Scott K. James Barbara Kirkmeyer, Chair Steve Moreno Approve Recommendation Schedule as Regular BOCC Hearing Item Other/Comments: cc. MIT (TT 1EP\,PL( CA/1019. tllcUtc► 6Ou)) 4_il_ 2019-1321 ROAD MAINTENANCE AGREEMENT ACCORDING TO REQUIREMENTS DURING THE CONSTRUCTION PERIOD Public Service Company of Colorado — 1MUSR18-80-439 THIS ROAD USE AGREEMENT ("Agreement") is made this 3 day o 'V�'� , 2019, by and between Public Service Company of Colorado, a Colorado corporation, 1800 Larim • ' Street, Suite 400, Denver, CO 80202, a corporation organized under the laws of the State of Colorado, hereinafter referred to as "Company," authorized to do business in the State of Colorado, and the County of Weld, a body corporate and politic of the State of Colorado, by and through its Board of County Commissioners, whose address is 1150 "O" Street, Greeley, Colorado 80631 hereinafter referred to as "County." WITNESSETH: WHEREAS, Company is the holder of an Easement encumbering the following described property in the County of Weld, Colorado: THE SOUTH 'A; THE SOUTHWEST %4 OF THE NORTHWEST 'A; THE SOUTH 'A OF THE SOUTHEAST '/4 OF THE NORTHWEST '/4; THE SOUTH 'A OF THE SOUTHWEST %4 OF THE NORTHEAST '/; AND THE SOUTH 'A OF THE SOUTHEAST '/4 OF THE NORTHEAST '/4;AND THE NORTH 'A OF THE SOUTHEAST '/4 OF THE NORTHEAST '/, EXCEPT THE WEST 100 FEET; ALL IN SECTION 36, TOWNSHIP 3 NORTH, RANGE 64 WEST OF THE 6TH P.M., WELD COUNTY, COLORADO hereinafter referred to as "the Property," and WHEREAS, Company has received Board of County Commissioner approval of 1MUSR18-80-439, WHEREAS, the Company will generate additional vehicles and heavy traffic directly associated with the initial construction of the facility pursuant to 1MUSR18-80-439 ("Project"); and WHEREAS, the County, and Company are desirous of agreeing to terms involving regulation of haul routes, traffic control, and road wear arising from such additional constructiontraffic. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants contained herein, the parties hereto promise, covenant and agree as follows: and Part I: SITE SPECIFIC PROVISIONS A. Reserved B. Haul/Travel Routes: The Company shall be financially responsible for its Proportionate Share of the associated costs for maintaining and/or repairing damage to designated Haul Routes (as defined below) resulting from Company's initial construction of the Project. 1.0 Haul Routes. The following roads are designated as "Haul Routes" for the Project: Xcel Energy - 1MUSR18-80-439 - RMCA Page 1 of 8 Zo/ 9 -/9a-/ US. 122283865.03 1) East and West along CR 18; North and South along CR 59. 2.0 Haul trucks shall enter and exit the site at the approved access on CR 59, as depicted on Exhibit A, attached hereto and incorporated by this reference and travel north -south to Highway 76 for further dispersal. Any County roads used by heavy load vehicle traffic associated with construction of the Project may become part of the established Haul Routes. 3.0 Weight Limits. No travel vehicles may exceed CDOT required specifications for pounds -per -axle and axle configurations unless overweight permits have been applied for and granted. 4.0 Temporary Deviations. In unusual or rare occasions, if projects mandate deviation from the above -mentioned haul/travel route for a limited period (six months or less), Weld County Public Works may authorize, in writing, the deviation. In that circumstance, haul/travel vehicles will utilize paved county roads whenever possible. A deviation from the established haul/travel route lasting more than six (6) months or requests for one (1) or more deviations within a 12 -month period shall authorize the County to change the haul/travel routes designated herein, and provide written notice to the Company. 5.0 Haul Route Signage. Company shall install travel route signs, if applicable, as per Manual of Uniform Traffic Control Devices standards, at all exit points of the Property which can be clearly seen by drivers leaving the facility and which clearly depict County approved travel routes. 6.0 No Deviation from Permitted Haul Routes. Except as authorized by the Board pursuant to this Agreement, no use of any roads other than those specifically authorized for use in this Agreement is permitted without the prior written amendment of this Agreement. C. Maintenance Requirements: 1.0 Obligation to Maintain Current and Future Haul Routes: Company will be financially responsible for the excavation, repair, and patching of any damage on current or future haul route roads, which as reasonably demonstrated by the County has been created by Company's construction vehicle traffic to and from the Property directly associated with the Project. Should Company's site construction activities or vehicle circulation patterns change in the future so that County approves an alternate Haul Route, and all or a significant portion of Company's sourced traffic no longer utilizes the above -described Haul Route and instead utilizes other portions of County roads, Company shall cooperate with County in maintenance of said roads which are included within the new haul route. The type and method of repair will be determined by the County Engineer or his representative in consultation with the Company. Any repairs undertaken shall restore the road surface to substantially the same condition it was in immediately prior to the use of the Haul Route. Repairs shall commence within 48 -hours of notification by the County for any roadway damage that exposes the driving public to adverse or unsafe driving conditions. All other repairs shall commence within thirty (30) days of receipt of Weld County's written notice, unless the County's notice advises that a non - urgent repair can be completed after the completion of construction. 1.1 Need for Immediate Repairs: In the event of damage to an Approved Haul Route caused by Project traffic that causes an immediate threat to public health and safety or renders the road impassible ("Significant Damage"), County shall, after inspection, notify Company of such Significant Damage. Company shall identify the repair required and shall consult with County on the extent, type, timing, materials and quality of repair (i.e. temporary versus permanent) within twenty-four (24) hours after receipt of such notice and shall commence such repair within forty-eight (48) hours after receipt of such notice provided that the weather and weather -related conditions permit. If Company identifies Significant Damage prior to receiving notice thereof Xcel Energy - 1MUSR18-80-439 - RMCA Page 2 of 8 US. 122283865.03 from County, Company may commence repair of such Significant Damage and shall concurrently notify County of the extent, type, timing, materials and quality of repair (i.e. temporary versus permanent). 1.2 In County's sole discretion, but only if the Company has not timely commenced repairs of the Significant Damage as set forth above, County may undertake the repairs. Company's payment for its Proportionate Share of the road repairs will be calculated as described in this Agreement. 2.0 Proportionate Share of Road Maintenance Responsibilities: 2.1 Company shall pay its Proportionate Share of costs of dust controlabatement, paving, repairs, or maintenance of any particular Haul Route damaged by Company during construction of the Project. Company's Proportionate Share shall be based upon the percentage of traffic on the road that is attributable to Company's vehicles and traffic directly associated with the Project. County personnel will determine the percentage based on then current Equivalent Single Axle Load (ESAL) Counts. Company shall not be responsible for traffic that is not sourced from the Company's Project. 2.2 The County shall notify Company of County's preliminary determination and assessment of Company's Proportionate Share of costs. Prior to County's final determination and assessment, County shall provide Company with a reasonable opportunity to review, comment upon and supplement County's data, collection methodology, and determinations. The County shall review and consider Company's input prior to making a final determination and assessment. The County shall have sole responsibility for determination of Company's Proportionate Share of costs. Part II: GENERAL PROVISIONS A. General Requirements: 1.0 Permits. Company must still apply for and abide by the terms of any necessary right-of-way permits, grading permits, and building permits. No work may occur in the County's right-of-way without a County - issued right-of-way permit and access permit. 2.0 Release of Liability: Company shall indemnify and hold harmless the County from any and all liability loss and damage County may suffer as a result of all suits, actions or claims of every nature and description caused by, arising from, or on account of road damage, additional vehicles and heavy traffic directly associated with the construction of the Project, and pay any and all judgments rendered against the County on account of any such suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in defending such suit, action or claim, except to the extent the liability, loss or damage is caused by, or arises out of the negligence of the County or its officers, agents, employees. In no event shall Company have any duty to indemnify County for liability, loss, or damage arising from the intentional torts or the gross negligence of the County or its employees whether acting as an individual or within the scope of their employment. Each party's liability to the other party shall be limited to direct damages and shall exclude other liability, including, without limitation, liability for special, indirect, punitive or consequential damages in contract, tort, warranty, strict liability or otherwise. 3.0 Liability for Damage to Road. Company shall be fmancially responsible for any and all damage caused to any Weld County Road as a result of the construction of the Project, without regard to the negligence, or lack thereof, of Company or its agents. Xcel Energy - I MUSR18-80-439 - RMCA Page 3 of 8 US.122283865.03 B. Violations of Agreement and Remedies 1.0 Violation of Terms of Agreement: If in County's reasonable opinion, Company has violated any of the terms of this Agreement, County shall so notify Company and shall state with specificity the facts and circumstances which County believes constitute the violation. Company shall have thirty (30) days within which to either cure the violation, commence a cure, or otherwise demonstrate compliance. Thereafter, County may seek any remedy described in this Agreement or otherwise provided by law. 2.0 Termination of Agreement: Termination Event: This Agreement shall terminate upon the earliest of the following events: • 2.1 Cessation of all Permit Related Activities: Termination of this Agreement shall occur upon Company's complete cessation of all construction activities for construction of the Project permitted by the MUSR. A partial cessation of activities shall not constitute a Termination of this Agreement, nor shall County's issuance of a partial release constitute a Termination. Unless informed in writing by the Company of cessation of activities, and verified by the County, cessation shall be presumed if the County determines that the MUSR has been inactive for three (3) years. 2.2 Revocation of MUSR: This Agreement shall terminate following County's revocation of Company's MUSR, except that the Company shall only be released from this Agreement after the successful completion of all repairs or replacements required under this Agreement. 2.3 Completion of Construction: This Agreement shall terminate following Company's completion of construction of the facilities authorized by the underlying MUSR. Company shall notify the County of completion, and the County will execute a release or termination (in recordable form) acknowledging such completion and termination of this Agreement 3.0 Revocation of MUSR: Company acknowledges that failure to comply with the material terms of this Agreement may cause the County to seek to revoke the MUSR, and County may exercise this option in its sole reasonable discretion by proceeding with revocation under the then current provisions of the Weld County Code. 4.0 Court action: Upon notice of violation and failure to cure within the time permitted by this Agreement, County may seek relief in law or equity by filing an action in the Weld District Court. C. Miscellaneous Provisions. 1.0 Definitions: 1.1 All references in this Agreement to "County Engineer" shall refer to any individual or individuals appointed by the County Engineer to act on his/her behalf. 1.2 All references to "Haul Routes" include identified travel routes for subdivisions; references to "haul vehicles" include subdivision vehicular traffic, as applicable. 1.3 All references to "Company" shall include any individual or entity, who acts on behalf of the Company regarding this Agreement. 2.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in whole or in part by Company without the express written consent of County and the written agreement of the party to Xcel Energy - 1MUSR18-80-439 - RMCA Page 4 of 8 US. 122283865.03 whom the obligations under this Agreement are assigned. Company's release of its obligations shall be accomplished by County's execution of a new Road Maintenance Agreement with the successor owner of the Project facilities. Consent to a delegation or an assignment will not be unreasonably withheld or delayed by County. County's rights and obligations under this Agreement shall automatically be delegated, transferred or assigned to any municipality which, by and through annexation proceedings, has assumed jurisdiction and maintenance responsibility over the roads affected by this Agreement. All of the terms and conditions set forth in this Agreement shall be binding upon the heirs, executors, personal representatives, successors and assigns of Company, and upon recording by the County, shall be deemed a covenant running with the land herein described. 3.0 Governmental Immunity: No term or condition of this agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended. 4.0 No Third Party Beneficiary Enforcement: It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties, and nothing contained in this Agreement shall give or allow any claim or right of action whatsoever by any other person or entity not included in this Agreement. It is the express intention of the undersigned parties that any person or entity, other than the undersigned parties, receiving services or benefits under this Agreement shall be an incidental beneficiary only. 5.0 Entire Agreement/Modifications: This Agreement including the Exhibits attached hereto and incorporated herein, contains the entire agreement between the parties with respect to the subject matter contained in this Agreement. This instrument supersedes all prior negotiations, representations, and understandings or agreements with respect to the subject matter contained in this Agreement. This Agreement may be changed or supplemented only by a written instrument signed by both parties. 6.0 Board of County Commissioners of Weld County Approval: This Agreement shall not be valid until it has been approved by the Board of County Commissioners of Weld County, Colorado or its designee. 7.0 Choice of Law/Jurisdiction: Colorado law, and rules and regulations established pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and void. In the event of a legal dispute between the parties, Company agrees that the Weld County District Court shall have exclusive jurisdiction to resolve said dispute. 8.0 Severability: If any term or condition of this Agreement shall be held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without such provision, to the extent that this Agreement is then capable of execution within the original intent of the parties. 9.0 Attorneys Fees/Legal Costs: In the event of a dispute between County and Company, concerning this Agreement, the parties agree that each party shall be responsible for the payment of attorney fees and/or legal costs incurred by or on its own behalf. 10.0 Binding Arbitration Prohibited: Weld County does not agree to binding arbitration by any extra- judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference shall be null and void. 11.0 Authority to Sign: Each person signing this Agreement, and associated Exhibits, represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each Xcel Energy - 1MUSR18-80-139 - RMCA Page 5 of 8 US. 122283865.03 party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. If requested by the County, Company shall provide the County with proof of Company's authority to enter into this Agreement within five (5) days of receiving such request. 12.0 Force Majeure. No party shall be deemed to be in default with respect to non-performance if due to strikes, lockouts, fire, storm, acts of God or terrorists, or any other cause (whether similar or dissimilar to those enumerated) beyond its control; but lack of finances shall in no event be deemed to be a cause beyond a party's control. [Signatures on Following Page] 4478885 Pages: 6 of 9 04/04/2019 11:25 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 11111 IrdrilkiMPii ligillY1KAA1,41111 Xcel Energy - 1MUSR18-80-439 - RMCA Page 6 of 8 US.122283865.03 COMPANY: Public Service Company of Colorado, a Colorado corporation By: e2(% ( Date: ?J1 t 3 j'2.o°t 1 Name: OW Title: Maklaiek) 51til/V) + 4478885 Pages: 7 of 9 04/04/2019 11:25 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO II Xcel Energy - 1MUSR18-80-439 - RMCA Page 7 of 8 US.I22283865.03 STATE OF COLORADO SS. City and County of Denver The foregoing instrument was acknowledged before me this 13 day of Matek 201A, by Coq Rowe e WITNE 11 .. I. , nd official seal. JEFFREY A WALKER NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20104048361 MY COMMISSION EXPIRES NOVEMBER 5, 2022 Notary P bli Pt WELD COUNTY: ATTEST: Weld C BY: Clerk to the Bo rd Deputy Cl o eBoa 4478885 Pages: 8 of 9 04/04/2019 11:25 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO Bill BOARD OF COUNTY COMMISSIONERS LD COUNTY, CO ORADO arbara Kirkmeyer Chair PR 032019 Xcel Energy - IMUSRI8-80-439 - RMCA Page 8 of 8 c20020/9-/gozi US. 122283865.03 4478885 Pages: 9 of 9 04/04/2019 11:25 AM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County. CO III NJF1k41Nh+fL*IN �IFl�!'N�Ki':It+11�VWv111III EXHIBIT A - EQUIPMENT HAUL ROUTE Walker, Jeffrey A From: Sent: To: Subject: Tisa Juanicorena <tjuanicorena@weldgov.com> Monday, March 11, 2019 12:15 PM Walker, Jeffrey A RE: Ennis - road maintenance agreement property description CAUTION EXTERNAL SENDER: Stop and consider before you click links or open attachments. Report suspicious email using the 'Report Phishing/Spam' button in Outlook. Yes, that sounds perfect! Thank you, Tisa Tisa Juanicorena Development Review Public Works 1111 H Street Greeley, CO 80634 tjuanicorena@weldqov. com tjuanicorena@co.weld. co, us tel: 970.400.3778 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. From: Walker, Jeffrey A <Jeffrey.A.Walkerl xcelenergy.com> Sent: Monday, March 11, 2019 11:21 AM To: Tisa Juanicorena <tivanicorena@weidgov.com> Subject: Ennis - road maintenance agreement property description Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Tisa, 1 Good morning. Below is the description of the parcel as typed on the deed conveying parcel to WJW from the State of Colorado. Notice the use of semi -colons in the description below. This is different from the description on the Road Maintenance Agreement and on the county's property portal. I'll edit the document you just sent to me with this description if that's okay. There are two haul routes. One is for equipment coming from various manufacturers. That haul route exits 1-76 at WCR 18 then travels to WCR 59 and north to the end of the county maintained ROW. The other haul route is for spoils. That will be entirely on private roads. I've attached both for your review and comment. I'll attach the 1-78 to WCR 59 route as the exhibit. I'll send the complete RIBA to you around 2:00. Let me know if you have any questions. Thanks, Jeff a • THE SOUTH 1/2; THE SW 1/4 OF THE NW 114; THE S 1/2 O TAE S Ill OF THE SW 1/4 F E NE 1I4 AND THE S 1/2 1 € p rr.NIA'iHE N 1/2 hF THE SE 11� iF THE NE 1/4, EXCEL IN ECTION 3•, TOW:3HJP 3 NORTH, RAN ;F, 64 WEST C •COLORAD Jeff W lker Xcel Energy I Responsible By Nature Senior Agent, Siting and Land Rights 1800 Larimer Street, Suite 400 Denver, CO 80202 P: 303.571.7451 C: 7y21 }{0.20�, 720.260.1305 F: 303.294, 2058 E: Ieffreyr a, walker xcelener y. corn XCELENERGYICOM Please consider the environment before printing this email 2 E: jeffrey.a.walkeraxceIeneroy.com XCELENERGY.COM Please consider the environment before printing this email From: Kuosman, David [mai to:David.KuosmanOFaegreBD.com] Sent: Sunday, March 10, 2019 4:27 PM To: Stencel, Julie A; Rowe, Carly R; Walker, Jeffrey A; Brickey, Heather C Cc: DiRago, Joseph B. Subject: PSCo - Ennis Sub expansion: Revised Weld County Road Maintenance Agreement CAUTION EXTERNAL SENDER: Stop and consider before you click links or open attachments. Report suspicious email using the 'Report Phishing/Spam' button in Outlook. All Attached are clean and a cumulative redlined version of the Road Maintenance Agreement. The redlines show the cumulative edits (mine and Julie's) to the version initially delivered to Jeff by the County. The one significant item that stood out in my review is the legal description included is wrong (I've highlighted it in yellow) — even if the County intended the legal to describe the WJW property, this description needs cleaned up. With our removing WJW from this draft, I think it's appropriate if we just reference the legal description from our specific easement property (the document is still broad enough to protect the County as we are responsible for any County road we damage as a result of our construction activities — not just those within the legally described property). It's not clear from the face of the document if the County expects that this agreement will be recorded (it's in a recordable format with notary block for the Company's signature), but I think we'd prefer to keep this out of the public records. In either case, the legal description needs to be cleaned up. I think the edits are straight forward, and (even though it looks like a lot of edits) shouldn't present much trouble to the County. Many of the edits were to clean up ambiguities and language consistency issues with the initial draft. Call or email with any questions. David Kuosman Partner david.kuosman@FaegreBD.com Download vCard D: +1 303 447 7814 Faegre Baker Daniels LLP 1470 Walnut Street l Suite 300 I Boulder, CO 80302, USA 2 XCeiEner XCEL ENE "• i Y TRANSMISSIO FUNCTI CTI I A CONT CT AUTHORIZATION FORM (CD Submitted By (Name of Employee): Type of Contract/Document: Legal hntit ies: Jeff Walker Date: 3/13/2019 Road Maintenance Agreement Location: Weld County, CO (Platteville) (Legal names of parties on contract) Xcel Energy Entity(ies) Public Service Company of Colorado Weld County Counter Party Purpose of Contract/ A reem.ent Contract/ /Permit: (Provide summary of detai including jurisdiction if applicable) s Risks: Does the execution require capital expenditures? If so, are the expenditures in fae Transmission budget? What year(s)? Does the execution requite incremental non -budgeted O&M expenditures? Road Maintenance Agreement is part of Weld County's approval condition of 1MUSR- 18-80-439 for construction of Ennis Substation expansion. Execution does not require capital expenditure. The execution does not require incremental non -budgeted O&M expenditures. Routing Instructions: complete, After signing, please forward to the next person on list. When routing please return to Jeff Walker, 1800 Lorimer St., Suite 400. Contract Authorization F arm. doc 1/3/06 XcelEnergys CDAD APPROVAL ROUTING I certify that I have reviewed the attached contract/agreement/permit for completeness and accuracy and the contract is approved for execution. l Project Manager, S&LR Agent, or Permitting Analyst (approval) Jeff Walker 2. Legal. (approval) Julie Stencel 3. Supervisor or Manager (approval) Carly Rowe Signature & Date 4. Senior Manager (approval and execution) NA 5. VP (approval and execution) NA 6. President, (approval and/or execution) NA Signature & Date Signature & Date Signature & Date SEE ATTACHMENT 3/13 096 5 A-3 (249 / Signature & Date _ / / Signature & Date / / Contract Authorization Form.doc 1/3/06 Hello